In the Missouri Court of Appeals
Eastern District
DIVISION TWO
DAUDA KOHLHEIM, ) No. ED102351
)
Appellant, ) Appeal from the Circuit Court
) of St. Louis County
vs. )
)
STATE OF MISSOURI, ) Honorable David Lee Vincent III
)
Respondent. ) Filed: March 8, 2016
I. INTRODUCTION
Dauda Kohlheim (“Movant”) appeals the judgment of the motion court denying his Rule
29.151 motion for post-conviction relief after an evidentiary hearing. In his three points on
appeal, Movant argues the motion court clearly erred in denying his claim that trial counsel was
ineffective by 1) failing to advise Movant he could receive a fifteen-year sentence; 2) failing to
object during the State’s closing argument; and 3) failing to object to the trial court’s sentence.
We find the motion court’s findings of fact and conclusions of law are not clearly erroneous and
affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
The State charged Movant with one count of second-degree statutory rape. Movant was
found to be a prior felony offender and also a felony persistent offender. The trial court
conducted a jury trial.
1
All rule references are to the Missouri Court Rules (2013).
1
The evidence presented at trial showed that the victim, R.M., who was then sixteen, had
planned to spend the night with a family friend, Tashia Roberts. Ms. Roberts took victim with
her to the home of Movant, Ms. Robert’s boyfriend. Victim testified she fell asleep on the
basement couch. While victim was sleeping, Movant came downstairs and had sexual
intercourse with her. Victim called her mother, who later took her to the police station and
hospital. Hospital staff administered a rape kit. Subsequent tests of victim’s vaginal swabs
indicated the presence of sperm. A forensic scientist tested the DNA contained in the sperm
sample. The State’s DNA expert testified Movant could not be excluded as a possible
contributor.
During trial, the State did not call Ms. Roberts as a witness in its case-in-chief. Movant,
however, did call Ms. Roberts. Movant also decided to testify. Movant was advised by the court
that if he chose to testify, he would be subject to cross-examination about his prior criminal
convictions. Movant indicated he understood the jury would consider his prior convictions in
determining his credibility. Movant took the stand and denied sexual relations with victim.
During cross-examination, Movant admitted his prior convictions.2
During the State’s closing argument, the prosecutor reviewed the DNA evidence with the
jury. The prosecutor stated that DNA testing was only done if the lab first found the presence of
semen. The prosecutor added that one reason the lab first confirms the presence of semen is
because the county could not afford to do DNA testing on all evidence. Movant’s trial counsel
did not object. During Movant’s closing argument, he criticized the process for testing DNA
evidence by commenting that the county could not afford to provide the accused every
2
Movant admitted he pleaded guilty in 2004 to attempted robbery in the first degree and felony
possession of a controlled substance. He also admitted a 1992 sentence for fraudulent use of a
credit device.
2
opportunity to prove their innocence. In the State’s rebuttal, the prosecutor clarified that if sperm
was not found, the county would not attempt to convict someone, but would drop the case.
During Movant’s closing argument, he addressed the State’s decision not to call Ms.
Roberts as a witness. Movant argued the State did not present her testimony because Ms.
Roberts was not willing to tell the prosecutor what she wanted to hear. In contrast, Movant
claimed the defense presented all of Ms. Robert’s testimony−not just the parts favorable to
Movant−so the jury would have all of the evidence in the interests of justice. In the State’s
rebuttal, the prosecutor responded to the Movant’s allegations regarding Ms. Roberts. The
prosecutor explained she did not put Ms. Roberts on the stand because she had a duty not to put
someone on the stand that she thought might lie.
The jury found Movant guilty of statutory rape in the second degree. The court granted
trial counsel’s request for a sentencing assessment report from the Missouri division of probation
and parole. Movant refused to cooperate in the preparation of the report and walked out of his
interview with the probation officer. Due to Movant’s lack of cooperation, the sentencing
assessment report did not contain a recommendation. Prior to sentencing, the trial court noted it
did not “look good” for Movant that he failed to cooperate. The court discussed the range of
punishment with Movant as follows:
COURT: The normal range of punishment for the charge against you, Mr.
Kohlheim, this is a Class C felony, usually would be from one day to seven years
incarceration, but I think you realized it could be enhanced up to 15 years
incarceration, because of your prior and persistent background. Do you
understand that?
MOVANT: Yes.
The court sentenced Movant to fifteen years’ imprisonment. Movant indicated to the court he
was satisfied with the assistance given and services rendered to him by his trial counsel. On
3
direct appeal, this Court affirmed the judgment. State v. Kohlheim, 401 S.W.3d 578 (Mo. App.
E.D. 2012).
Movant filed a Rule 29.15 motion for post-conviction relief, asserting three claims
relevant to this appeal. Movant argued trial counsel was ineffective for: 1) failing to advise
Movant of the risks of receiving a fifteen-year sentence; 2) failing to object to the State’s closing
argument; and, 3) failing to object to the court’s sentence.
The motion court held an evidentiary hearing. Movant’s trial counsel testified that he
“advise[d Movant] of the risks of receiving a 15-year sentence if he went to trial.” Counsel
stated that because of Movant’s prior record, they discussed sentencing enhancements in depth.
Trial counsel maintained he had never promised Movant how much time he would serve. By
telephone deposition, Movant testified he knew that as a prior and persistent felon, he could
receive a maximum of fifteen years.
Movant’s trial counsel further testified he discussed the “pitfalls” of Movant testifying at
trial with him, including that the jury would discover Movant was a convicted felon. Counsel
stated he “talked to [Movant] about his credibility” and “discussed . . . that the jury would make
[the] determination as to credibility[.]” Movant testified he knew, prior to trial, that it would
come down to his word against victim’s word. Movant acknowledged counsel talked to him
about the credibility of the victim and how that would play into the case. He then indicated he
understood the Rape Shield Act limited the types of ways counsel could challenge victim’s
credibility. Movant conceded that “it’s hard to believe a convicted felon over a teenage girl,
regardless of their background, but because [he had] a prison record, the odds were against
[him].”
4
With regard to the DNA evidence, trial counsel acknowledged the defense DNA expert
concluded Movant could not be excluded as a possible contributor to the DNA found on victim.
Counsel explained his strategy was “to attack the protocols and testing procedures” used by the
State. Counsel maintained he informed Movant of this strategy. Counsel stated he gave Movant
copies of the defense expert’s reports regarding the DNA evidence. He testified Movant was
aware of the outcome of the defense expert’s findings.
The motion court denied Movant’s Rule 29.15 motion. Movant now appeals.
III. STANDARD OF REVIEW
“In reviewing the denial of relief under Rule 29.15, this Court is limited to determining
whether the motion court's findings and conclusions are clearly erroneous.” Matthews v. State,
175 S.W.3d 110, 113 (Mo. banc 2005) (citing Smulls v. State, 71 S.W.3d 138, 147 (Mo. banc
2002)). “The motion court's disposition will only be disturbed if, after a review of the entire
record, the appellate court is left with the definite impression that a mistake has been made.” Id.
To succeed in a post-conviction claim for ineffective assistance of counsel, a movant
must demonstrate by a preponderance of the evidence that: (1) counsel failed to exercise the
customary skill and diligence of a reasonably competent attorney under similar circumstances;
and (2) counsel’s deficient performance prejudiced him. Smith v. State, 370 S.W.3d 883, 885
(Mo. banc 2012); Strickland v. Washington, 466 U.S. 668, 687 (1984).
To satisfy the first prong of the Strickland test, a movant “must overcome a strong
presumption that counsel’s conduct was reasonable and effective” by pointing to “specific acts or
omissions of counsel that, in light of all the circumstances, fell outside the wide range of
professional competent assistance.” Smith, 370 S.W.3d at 886 (quotation omitted). To satisfy
5
the prejudice prong, a movant must show that “absent the claimed errors, there is a reasonable
probability that the outcome would have been different.” Id. ‘“A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’” Middleton v. State, 103 S.W.3d
726, 733 (Mo. banc 2003) (quoting Strickland, 466 U.S. at 694). In reviewing an ineffective
assistance claim, courts are not required to consider both prongs; if a defendant fails to satisfy
one prong, the court need not consider the other. O'Neal v. State, 766 S.W.2d 91, 92 (Mo. banc
1989).
IV. DISCUSSION
A. Point I
In his first point on appeal, Movant argues the motion court clearly erred in denying his
claim that trial counsel was ineffective for failing to advise Movant he could receive a fifteen-
year sentence. Movant contends that because trial counsel did not inform him of the strength of
the State’s evidence, he rejected the State’s seven-year plea offer and went to trial. Specifically,
Movant alleges counsel did not inform him that: 1) the DNA expert for the defense found
Movant could not be excluded as a possible contributor to the DNA found on victim, and 2) the
jury would not believe him over victim because he was a convicted felon. We disagree.
First, we find Movant was fully advised he could receive a fifteen-year sentence. At the
post-conviction hearing, Movant’s trial counsel testified he had discussed the State’s seven-year
pre-trial offer with Movant and had “advise[d] him of the risks of receiving a 15-year sentence if
he went to trial.” Counsel explained that due to Movant’s prior record, they had discussed
sentencing enhancements in depth. Trial counsel stated he never made a promise to Movant
about what his actual sentence would be. Moreover, prior to sentencing and later during his
6
post-conviction deposition, Movant indicated he knew, as a prior and persistent felon, he could
receive a maximum of fifteen years.
Further, we find the record establishes Movant was adequately advised regarding the
jury’s role in determining credibility and the risks of Movant testifying. At the hearing, trial
counsel stated he discussed the “pitfalls” of Movant testifying at trial with him. He explained to
Movant that the jury would learn he was a convicted felon if he took the stand. Counsel stated
he informed Movant the jury would determine credibility. Moreover, during trial, Movant
indicated to the court that he understood if he testified, the jury would learn of his prior
convictions and be able to consider them in determining his credibility. Movant acknowledged it
would come down to his word against victim’s word. Movant testified that “it’s hard to believe a
convicted felon over a teenage girl, regardless of their background, but because [he had] a prison
record, the odds were against [him].” Movant confirmed counsel talked to him about the
credibility of the victim and how that would play into the case. He indicated he understood that
the Rape Shield Act limited counsel’s ability to make certain attacks on victim’s credibility.
In addition, we find no merit in Movant’s contention he was uninformed regarding the
defense DNA expert’s findings. Our review of the record shows trial counsel informed Movant
about the expert’s conclusions. Counsel told Movant the strategy he planned on using at trial
was “to attack the protocols and testing procedures” used by the State to test DNA. Trial counsel
stated he gave Movant copies of the defense expert’s reports regarding the DNA evidence and
Movant knew the outcome of the defense expert’s findings. Here, the motion court found trial
counsel’s testimony credible and we must defer to its determination. Krider v. State, 44 S.W.3d
850, 858 (Mo. App. W.D. 2001) (stating the motion court is free to believe or disbelieve any
7
evidence, whether contradicted or undisputed, and the appellate court must defer to the motion
court on matters of credibility).
Thus, the record refutes Movant’s contention that trial counsel failed to advise Movant he
could receive a fifteen-year sentence and did not inform Movant of the strength of the State’s
evidence. Accordingly, the motion court did not clearly err in denying Movant’s claim. Point I
is denied.
B. Point II
In his second point on appeal, Movant argues the motion court clearly erred in denying
his claim that trial counsel was ineffective for failing to object to comments made by the
prosecutor during the State’s closing argument. Specifically, Movant contends it was objectively
unreasonable for trial counsel not to object to the prosecutor’s statements that: 1) she had a duty
not to put Ms. Roberts on the stand because she thought Ms. Roberts might lie; and, 2) if sperm
had not been found, her office would have dropped the case. Movant maintains had trial counsel
properly objected, there is a reasonable probability the jury would not have convicted Movant.
We disagree.
To prevail on an ineffective assistance claim in this context, Movant must show the
failure to object was not strategic, and that the failure to object was prejudicial. State v. Clay,
975 S.W.2d 121, 135 (Mo. banc 1998). Unless Movant proves otherwise, we presume the lack
of objection was sound trial strategy. Peterson v. State, 149 S.W.3d 583, 586 (Mo. App. W.D.
2004). Furthermore, counsel will not be deemed ineffective for failing to make non-meritorious
objections to the State’s closing argument. Id.
Movant claims counsel should have objected to the following comment made by the
prosecutor regarding the State’s failure to call Ms. Roberts as a witness:
8
Ms. Roberts, no, I didn’t agree with what she was saying, and I didn’t agree with
what she was saying when we met. I have a duty not to put someone on the stand
who I think might lie. That’s why I didn’t put her on the stand.
This comment was made in the State’s rebuttal to Movant’s closing argument. Movant did not
object. At the post-conviction hearing, trial counsel did not testify his failure to object was
strategic. Nevertheless, Movant fails to establish counsel’s failure to object was ineffective and
prejudicial.
Under these circumstances, we find the prosecutor’s statements constituted proper
retaliation for comments made during Movant’s closing argument. “Generally, [a] defendant
may not provoke reply by arguing outside of the record and then assert error based on the State's
retaliation.” Id. (internal quotation omitted). “The [State] therefore has considerable leeway to
make retaliatory comments during closing argument, even if those comments otherwise would be
improper.” Id. (internal quotation omitted).
Here, the State did not call Ms. Roberts as a witness; Movant presented her testimony. In
Movant’s closing argument, he criticized the State’s failure to call Ms. Roberts as follows:
Then Tashia Roberts. Now again, you heard her testify [for the defense]. You
know, [the prosecutor] has tried, if it ain’t going to help me, then I’m going to kill
it in the story. You know, spend an hour, two hours and a half trying to get her as
a witness, you know, preparing her, and then decide, well, you may not be able to
tell me what I want to hear, so I’m going to leave you out.
Again, was Ms. Roberts brought in in the state’s case? No. But we made sure. We
wanted you to have all of the evidence before you deliberate, all of it. Not just
some of it. Not just part of it. Not just that part that benefits our case, but all of the
evidence, because that’s how justice is done.
The prosecutor’s rebuttal comments constituted retaliation for Movant’s remarks. Movant
suggests the State did not call Ms. Roberts as a witness because Ms. Roberts would not tell the
prosecutor what the prosecutor wanted to hear. Counsel then implied the State was trying to
prevent the jury from hearing all the evidence and was not acting in the interests of justice. The
9
State was entitled to respond to Movant’s allegations by explaining why the State chose not to
present Ms. Robert’s testimony. Movant cannot now assert error when his assertions provoked
the State’s reply and gave the prosecutor “leeway" to make retaliatory comments in rebuttal.
Accordingly, Movant’s trial counsel did not render deficient performance for failing to make an
objection that would have been overruled.
Movant also complains trial counsel should have objected to comments made by the
prosecutor regarding the testing of the DNA evidence. During the State’s closing argument, the
prosecutor stated:
Do you remember the phrase acid phosphatase? That’s the first test to see if it
might be semen. That’s not confirmatory. The lab shows an abundance of caution.
They don’t just say, oh, it might be semen, let’s forward it to DNA. No. Why?
Because one, the county can’t afford it. They have got to make sure there is
semen there before it gets sent to DNA.
Then Movant remarked during closing argument:
[The prosecutor] tells you about the county can’t afford it. Can’t afford what?
Can’t afford to buy an individual who was accused with every possible way of
trying to prove whether they’re guilty or innocent. When is guilt and innocent
decided by a cost?. . .
The fact is, a person sitting here, when is cost a factor in determining justice?
How much -- how much is it worth? How much is justice worth? The county
can’t afford it.
In the State’s rebuttal argument, the prosecutor responded:
I didn’t say the county can’t afford to exonerate people. Actually, what I said was
the opposite. It’s that if sperm isn’t found, the county isn’t going to go to any
extra expense of trying to convict someone on the lack of sperm. They’re going to
drop it. We’re going to drop it.
Movant did not object.
Now, Movant asserts counsel’s failure to object was ineffective assistance. However,
Movant does not explain on appeal how the State’s comments were improper. Movant makes
the conclusory claims that the prosecutor argued facts not in evidence, improperly personalized
10
her argument to the jury, degraded the defense counsel, and argued special knowledge about the
case. However, he fails to show how any of these allegations apply to the prosecutor’s specific
comments about the process for testing DNA. Under Rule 84.04, “[t]he points relied on shall
state briefly and concisely what actions or rulings of the court are sought to be reviewed and
wherein and why they are claimed to be erroneous....” Rule 84.04(d). Movant’s sub-point fails
to comply with Rule 84.04(d) as it fails to state the legal reason for the claim or explain why, in
the context of the case, the legal reason supports the claim. State v. Gaines, 316 S.W.3d 440, 447
(Mo. App. W.D. 2010). Movant’s failure to comply with the requirements of Rule 84.04 is a
sufficient basis to dismiss his appeal. Id. However, we offer our analysis ex gratia.
We find that trial counsel did not render ineffective assistance by failing to object. Any
objection raised by trial counsel would have been overruled. Movant argued that the county
could not afford to do justice and implied Movant was being prevented from establishing his
innocence. The prosecutor, therefore, was entitled to explain that cost was not preventing
Movant from being exonerated. Peterson, 149 S.W.3d at, 586. Rather, if semen was not present,
the county would not attempt to convict someone, but would drop the case, sparing the county
from the unnecessary, extra expense of DNA testing. Thus, had trial counsel objected, the
objection would have been overruled. Counsel cannot be deemed ineffective for failing to make
a non-meritorious objection. Id.
Furthermore, even if Movant had established counsel was ineffective for failing to object,
to prevail on his claim, Movant would still be required to prove trial counsel’s failures to object
were prejudicial. Under the second prong of Strickland, a movant must show that “absent the
claimed errors, there is a reasonable probability that the outcome would have been different.”
Smith, 370 S.W.3d at 886. Here, Movant does not meet his burden to show how the prosecutor’s
11
comments during closing argument had any decisive effect on the outcome. The record
establishes the evidence presented against Movant was overwhelming. The teenage victim
testified against Movant and identified him as the person who had sexual intercourse with her. In
addition, expert testimony concluded that Movant could not be excluded as a contributor to the
semen sample on swabs taken from the victim’s vagina.
Accordingly, we find Movant fails to establish trial counsel was ineffective and that he
was prejudiced as a result. The motion court did not clearly err in denying Movant’s claim.
Point II is denied.
C. Point III
In his third point on appeal, Movant contends the motion court clearly erred in denying
his claim that trial counsel was ineffective for failing to object to the sentence imposed by the
trial court. Movant asserts his sentence was excessive and the trial court improperly relied on the
fact that Movant did not show remorse and exercised his right to trial. Movant maintains that
had trial counsel objected, there is a reasonable probability Movant would have received a more
lenient sentence. We disagree.
The trial court has a duty to impose a sentence on a case-by-case basis, and to fashion the
punishment to both the crime and the criminal. State v. Collins, 290 S.W.3d 736, 746 (Mo. App.
E.D. 2009). Here, Movant contends trial counsel should have objected because his sentence was
excessive. However, we disagree as Movant’s sentence of fifteen years was within the range of
punishment for statutory rape in the second degree for a prior and persistent felony offender. See
§ 558.011.1(2) RSMo Supp. 2008; § 558.016.7(3) RSMo Supp. 2008; § 566.034.2 RSMo 2000.
‘“[W]hen punishment imposed is within the range prescribed by statute, it cannot be judged
12
excessive by the appellate court[.]”’ State v. Hooper, 842 S.W.2d 889, 890 (Mo. App. S.D.
1992) (quoting State v. Repp, 603 S.W.2d 569, 571 (Mo. banc 1980)).
Movant further claims trial counsel should have objected to his sentence because the trial
court relied on improper considerations. First, Movant alleges the court improperly imposed a
fifteen-year sentence based on Movant exercising his right to a trial. The trial court, due to its
experience and expertise, is presumed to consider appropriate sentencing factors and to disregard
improper matters. Morse v. State, 462 S.W.3d 907, 913 (Mo. App. E.D. 2015). As such, the trial
court exercises very broad discretion in its sentencing function. Id. Despite that discretion, it is
well-established that a court may not use the sentencing process to punish a defendant,
notwithstanding his guilt, for exercising his right to receive a full and fair trial. Id. A defendant
may not be subjected to more severe punishment simply because he exercised his right to stand
trial. Id. (citing Thurston v. State, 791 S.W.2d 893, 896 (Mo. App. E.D.1990)).
In order to be entitled to relief on a claim of retaliatory sentencing, a movant must show
that his exercise of his right to proceed to trial was an actual, “determinative factor” considered
by the trial court in making its sentencing decision. See Morse, 462 S.W.3d at 913. A factual
allegation must be made connecting the trial court's conduct, such as comments made by the trial
court at sentencing, to retaliation. Taylor v. State, 392 S.W.3d 477, 487 (Mo. App. W.D. 2012).
In order to satisfy the determinative factor test, “something beyond the bare possibility that
retaliation could have been a factor in sentencing must be shown.” Id.
Here, Movant alleged no facts showing that retaliation was even a factor in the court's
sentencing decision, much less a determinative factor. Movant made no allegations that the trial
court made statements referencing Movant’s decision to proceed to trial, or connecting his
exercise of that right to the sentence imposed. Instead, Movant now makes a conclusory
13
allegation of retaliation which infers retaliatory intent based on the length of the sentence
imposed by the trial court. The mere existence of a longer-than-expected sentence, without more,
does not constitute a sufficient factual basis warranting relief on a claim of retaliatory
sentencing. See Morse, 462 S.W.3d at 914.3
Secondly, Movant asserts the trial court improperly relied on the fact that Movant did not
show remorse. At the sentencing hearing, the trial court noted it would consider whether or not
there was remorse in this case; the court further concluded there was no remorse. Movant argues
the court’s consideration of his lack of remorse was improper because it was based upon
Movant’s assertion of his innocence and exercise of his right to go to trial. We find no evidence
to support this conclusion. In fact, the court made no mention of Movant’s rejection of the plea
bargain or Movant’s insistence on a jury trial. Instead, the court explained it considered
Movant’s lack of remorse in light of the overwhelming evidence of Movant’s guilt presented at
trial.
We do not find the court’s consideration of Movant’s lack of remorse improper. While it
is fundamental that a trial court cannot punish a defendant more harshly for exercising his right
to plead not guilty, a trial court may, however, take into account the character of the defendant,
including the defendant's attitude concerning the offense. State v. Collins, 290 S.W.3d 736, 746
(Mo. App. E.D. 2009). A defendant’s apparent lack of remorse and failure to take appropriate
responsibility for his actions are both appropriate considerations when considering sentencing.
Id. at 747.
3
While the sentence imposed by the trial court was significantly longer than the pre-trial plea
offer, the trial court was bound by neither in making its sentencing decision. Morse, 462 S.W.3d
at 915 n.3.
14
Moreover, based upon our review of the record, it is clear that the trial court also
evaluated other factors in determining Movant’s sentence. At the sentencing hearing, the court
stated it looked strictly at the evidence, and then described the evidence against Movant
presented at trial. The court also remarked it had agreed to consider Movant’s sentencing
assessment report. However, the court explained that the report did not contain a
recommendation because Movant walked out of his interview. The court noted Movant’s failure
to cooperate did not “look good.” As noted above, the trial court was entitled to consider
Movant’s attitude concerning the offense. Finally, we note immediately before sentencing
Movant, the trial court reminded him his sentence could be enhanced up to 15 years because of
his prior and persistent background.
Here, the trial court properly exercised its discretion in imposing Movant’s sentence and
any objection by Movant would have lacked merit and been overruled. Trial counsel cannot be
deemed ineffective for failing to make a non-meritorious objection. See Worthington v. State,
166 S.W.3d 566, 581 (Mo. banc 2005). The motion court did not clearly err in denying
Movant’s claim. Point III is denied.
V. CONCLUSION
We affirm the judgment of the trial court.
_______________________________
Angela T. Quigless, Judge
Philip M. Hess, P.J., and
Gary M. Gaertner, Jr. J., Concurs
15