Johnson v. State

GEORGE W. DRAPER III, Judge.

Kevin Johnson (hereinafter, “Movant”) was convicted by a jury of first-degree murder, section 565.202, RSMo 2000.1 The trial court adopted the jury’s recommendation and sentenced Movant to death. This Court affirmed his conviction in State v. Johnson, 284 S.W.3d 561 (Mo. banc 2009). Movant’s motion for postconviction relief pursuant to Rule 29.15 was overruled by the motion court after an evidentiary hearing on five of the fourteen allegations of error. Movant appeals. This Court has exclusive jurisdiction over this appeal because a sentence of death was imposed. Mo. Const. art. V, sec. 10; order of June 16, 1988. The judgment denying Movant post-conviction relief is affirmed.

Factual and Procedural History

On July 5, 2005, police officers were in the Meachem Park neighborhood investigating the ownership of a vehicle, suspected to be owned by Movant, who was wanted for a probation violation. At the same time, Movant’s younger brother suffered a seizure inside his home. Movant’s family sought assistance from the police officers who were already in the neighborhood. The police officers called for an ambulance, attempted to assist inside the house, and additional police officers, including Sergeant William McEntee (hereinafter, “Sgt. McEntee”), were called to the scene. Movant’s brother was taken to the hospital, but he passed away from a preexisting heart condition.

Later that day, Movant retrieved his black, nine millimeter handgun from his vehicle. Movant told Mends he believed the police officers were so busy looking for him that they let his brother die.

*898Sgt. McEntee returned to the Meachem Park neighborhood that evening, responding to a report of fireworks in the neighborhood. As Sgt. McEntee spoke with three juveniles about the fireworks report, Movant approached his vehicle. Movant squatted down to see through the passenger window and said something to the effect of, “you killed my brother.” Movant then fired his handgun approximately five times. Sgt. McEntee was struck in the head and upper torso. One of the juveniles was struck in the leg. Movant reached inside Sgt. McEntee’s car and took his gun.

Sgt. McEntee’s car then rolled down the street, hitting a parked car and a tree. Sgt. McEntee got out of his car and fell forward onto his knees, unable to talk due to his injuries and blood in his mouth. Movant approached, told everyone who had gathered to get out of his way, and Movant shot Sgt. McEntee approximately two more times in the head. When Sgt. McEntee collapsed, Movant rifled through Sgt. McEntee’s pockets. Movant shot Sgt. McEntee a total of seven times in the head and upper torso.

Movant left Meachem Park, cursing and claiming, “that m— f— let my brother die, he needs to see what it feels like to die.” Movant spent several days at a family member’s apartment while arrangements were made for him to surrender.

Movant was tried and convicted. Mov-ant was sentenced to death. This Court affirmed the conviction and sentence on direct appeal. Johnson, 284 S.W.3d at 589.

Movant sought post-conviction relief through a Rule 29.15 motion. The motion court held an evidentiary hearing on five of his claims and entered judgment overruling Movant’s motion in its entirety. Mov-ant appeals the denial of post-conviction relief.

Standard of Review

This Court will affirm the judgment of the motion court unless its findings and conclusions are clearly erroneous. Rule 29.15(k); Johnson v. State, 333 S.W.3d 459, 463 (Mo. banc 2011). The motion court’s judgment is clearly erroneous only if this Court is left with a definite and firm impression that a mistake has been made. Forrest v. State, 290 S.W.3d 704, 708 (Mo. banc 2009) (quoting Goodwin v. State, 191 S.W.3d 20, 26 (Mo. banc 2006)). The motion court’s findings are presumed correct. McLaughlin v. State, 378 S.W.3d 328, 336-37 (Mo. banc 2012). Additionally, a movant bears the burden of proving the asserted “claims for relief by a preponderance of the evidence.” Rule 29.15(f).

Pursuant to Rule 29.15, an evi-dentiary hearing is not mandatory when the motion and record conclusively show that the movant is not entitled to relief. Lamastus v. State, 989 S.W.2d 235, 236 (Mo.App. E.D.1999). Courts “will not draw factual inferences or implications in a Rule 29.15 motion from bare conclusions or from a prayer for relief.” Morrow v. State, 21 S.W.3d 819, 822 (Mo. banc 2000). To be entitled to an evidentiary hearing, Movant’s motion must: (1) allege facts, not conclusions, warranting relief; (2) raise factual matters that are not refuted by the file and record; and (3) raise allegations that resulted in prejudice. Id.

To be entitled to post-conviction relief for ineffective assistance of counsel, a movant must show by a preponderance of the evidence that his or her trial counsel failed to meet the Strickland test in order to prove his or her claims. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a movant must demonstrate that: (1) his *899or her counsel failed to exercise the level of skill and diligence that a reasonably competent counsel would in a similar situation, and (2) he or she was prejudiced by that failure. Id. at 687, 104 S.Ct. 2052.

A movant must overcome the strong presumption that counsel’s conduct was reasonable and effective. Smith v. State, 370 S.W.3d 883, 886 (Mo. banc 2012). To overcome this presumption, a movant must identify “specific acts or omissions of counsel that, in light of all the circumstances; fell outside the wide range of professional competent assistance.” Zink v. State, 278 S.W.3d 170, 176 (Mo. banc 2009). Trial strategy decisions may be a basis for ineffective counsel only if that decision was unreasonable. Id. “[Strategic choices made after a thorough investigation of the law and the facts relevant to plausible opinions are virtually unchallengeable....” Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006).

To establish relief under Strickland, a movant must prove prejudice. Prejudice occurs when “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Deck v. State, 68 S.W.3d 418, 429 (Mo. banc 2002) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Prejudice in a death penalty case is “a reasonable probability that, but for counsel’s deficient performance, the jury would have concluded the balance of aggravating and mitigating circumstances did not warrant death.” Forrest v. State, 290 S.W.3d 704, 708 (Mo. banc 2009) (quoting State v. Kenley, 952 S.W.2d 250, 266 (Mo. banc 1997)).

1. Diminished Capacity

Movant asserts the motion court clearly erred in denying his claim that his trial counsel were ineffective for failing to investigate and present a diminished capacity defense. Movant claims counsel should have adduced testimony from two expert witnesses regarding his acute stress disorder (hereinafter, “ASD”), which would have demonstrated Movant was not capable of deliberation. Movant believes that had counsel presented this evidence to the jury, there was a reasonable probability that the jury would have imposed a life sentence.

Movant claims his trial counsel should have presented the testimony of psychologist Dr. Daniel Levin (hereinafter, “Dr. Levin”) and Dr. Donald Cross (hereinafter, “Dr. Cross”) to prove he suffered from ASD at the time of the murder. Both of Movant’s experts testified at the post-conviction hearing. Dr. Levin testified he was retained by post-conviction counsel to conduct a psychological evaluation of Movant to determine whether he suffered from a mental impairment, mental illness, or mental defect at the time of the murder that would interfere with his ability to deliberate. In addition to the documents Dr. Levin reviewed in preparation for his trial testimony, Dr. Levin reviewed additional documents from the Division of Family Services and other records to form his opinion. Dr. Levin testified at the eviden-tiary hearing that he believed Movant suffered from ASD at the time of the murder and that ASD would have impacted Mov-ant’s ability to deliberate. Dr. Levin stated he could have prepared the same evaluation prior to trial.

Dr. Cross also was retained by post-conviction counsel to conduct a psychological evaluation of Movant. Dr. Cross interviewed Movant three times, interviewed other family members, and reviewed records. Dr. Cross testified it was his opinion Movant was experiencing ASD at the time of the murder and that ASD would have impaired Movant’s ability to coolly reflect and make rational, reasonable decisions.

*900Movant’s trial counsel also testified. Counsel Karen Kraft (hereinafter, “Kraft”) testified she decided as a matter of trial strategy not to pursue a diminished capacity defense because she believed Movant’s story was compelling in relationship to the time the murder happened after his brother’s death. Kraft stated that had the defense presented a mental health expert, the State would have sought its own evaluation of Movant. Kraft testified she did not want to turn Movant’s story into one of competing mental health experts.

Counsel David Steele (hereinafter, “Steele”) testified he did not want to present evidence of all of the specific instances of abuse and neglect Movant suffered in his preschool years. Steele noted he believes a jury tends to have a certain tolerance and a certain time frame in which it is receptive to hearing evidence. Steele worried that he would lose the jury’s attention and focus if it. were to hear repetitive, cumulative evidence. Steele believed the jury could understand the emotions a person would go through after losing a brother and how those emotions would affect Movant’s ability to deliberate. Steele stated there were risks in making something too complex for the jury to follow and a risk the State’s expert would testify Mov-ant- did not suffer from a mental disease or defect. Accordingly, Steele testified there was a strategic decision made not to pursue a diminished capacity defense.

Counsel made a strategic decision as to how much evidence to present regarding Movant’s upbringing during the penalty phase. Counsel did not present expert testimony regarding Movant’s mental state, but counsel introduced testimony regarding Movant’s social history, which formed the basis for believing Movant suffered from ASD. The jury heard that, as a young child, Movant was abandoned by both of his parents, and he went without food, clothing and decent shelter due to his mother’s neglect, which stemmed from her drug addiction. Movant was sent to live in a series of homes and was abused physically by his aunt. Those experiences caused psychological scars that were reopened by the death of his brother. Counsel also elicited evidence of Movant’s mental state at the time of the shooting.

The motion court made an extensive record of the evidentiary hearing on Movant’s Rule 29.15 motion. The motion court found there was a reasonable strategic decision for not presenting a diminished capacity defense. It further found that Mov-ant was not prejudiced because his counsel presented and argued evidence demonstrating his emotional state at the time of the murder. The motion court stated that Dr. Levin’s testimony presented in the penalty phase was similar to the evidence which Movant now claims should have been presented.

“The selection of witnesses and evidence are matters of trial strategy, virtually unchallengeable in an ineffective assistance claim.” Vaca v. State, 314 S.W.3d 331, 335 (Mo. banc 2010) (quoting Anderson, 196 S.W.3d at 37). No matter how ill-fated it may appear in hindsight, a reasonable choice of trial strategy cannot serve as a basis for a claim of ineffective assistance. Id.

The record indicates trial counsel was aware of a potential diminished capacity defense. However, counsel made a deliberate choice to not pursue this strategy. Counsel was concerned that the jury would lose focus or become alienated. Counsel also knew that if they presented expert testimony regarding Movant’s diminished capacity, the State could then introduce its own experts, challenging the diagnosis of ASD. Movant’s counsel presented testimony. regarding Movant’s upbringing and the mental anguish he was feeling at the time *901of the shooting. Further, both of Movant’s trial counsel believed the State had robust evidence of deliberation.

“The question in an ineffective assistance claim is not whether counsel could have or even, perhaps, should have made a different decision, but rather whether the decision made was reasonable under all the circumstances.” Henderson v. State, 111 S.W.3d 537, 540 (Mo.App. W.D.2003). Just because a jury returns a guilty verdict does not mean that defense counsel was ineffective. Middleton v. State, 103 S.W.3d 726, 737 (Mo. banc 2003). Movant has not overcome the strong presumption that counsel rendered adequate assistance, exercising reasonable professional judgment. State v. Kinder, 942 S.W.2d 313, 335 (Mo. banc 1996). Counsel were not ineffective for failing to present the testimony of Drs. Levin and Cross.

2. Brady2 violation

Movant claims the motion court clearly erred in failing to grant him an evidentiary hearing on his assertion that the State failed to disclose that Jermaine Johnson (hereinafter, “Witness”) received a benefit in exchange for testifying against Movant. Movant asserts that, had the State disclosed its role in continuing Witness’ probation, there is a reasonable probability the jury would have looked less favorably on Witness’ testimony, and the jury would not have found Movant deliberated. Mov-ant believes there was clear error in not finding a Brady violation.

If the State suppresses evidence that is favorable to a defendant and material to either the guilt or penalty phase, due process is violated. Brady, 373 U.S. at 87, 83 S.Ct. 1194. A Brady violation contains three components: “The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). “Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Taylor v. State, 262 S.W.3d 231, 240 (Mo. banc 2008) (quoting Anderson, 196 S.W.3d at 36-37).

Witness testified for the State during the guilt phase of the trial. Witness stated he had been with Movant prior to Sgt. McEntee’s shooting. Witness then saw Movant along side of Sgt. McEntee’s vehicle. Witness stated he saw a gun in Mov-ant’s hand and saw him put the gun through the car window. When Witness heard the gunfire, he could see Sgt. McEn-tee’s head jerking. Then he saw Movant open the car door and take Sgt. McEntee’s pistol.

Further, Witness testified he only decided to speak with the police about Sgt. McEntee’s murder after he violated his probation, hoping to receive some favorable treatment. He testified that he was still on probation and that a deal with the State had not been made in exchange for his testimony. Witness testified his probation had not been revoked for the incident.

On cross-examination, Movant’s counsel inquired about the status of his probation and his interactions with Movant prior to the shooting. Witness stated he did not attend his probation hearing. Witness also testified that, in the moments before the shooting, Movant never made threatening comments or spoke about getting revenge for his brother’s death.

*902Movant believes the State violated Brady by failing to disclose information that Witness expected a benefit in exchange for his trial testimony and that Witness received a continuance of his probation violation during the pendency of Movant’s trial. The motion court found this claim was refuted by the record.

Both Movant and the State questioned Witness about his probation violation. Witness testified he had no deals with the State for favorable treatment in exchange for his testimony. Witness’ motivation for testifying was presented to the jury. The motion court noted that Witness’ probation violation had not “gone away” nor had his case been dismissed. Witness’ testimony was corroborated by three additional witnesses who all saw Movant shoot Sgt. McEntee numerous times. Further, Mov-ant’s trial counsel elicited favorable testimony from Witness regarding Movant immediately prior to the shooting.

Movant fails to demonstrate that Witness’ expectation of some unknown benefit prejudiced Movant, especially when some of the testimony elicited from Witness was favorable to Movant. Witness testified regarding his hopes the State would do something for him, but explained he did not receive a deal. This information was brought out on direct examination by the State and further explored by Movant’s counsel in cross-examination. Movant presented an affidavit by Witness at the evi-dentiary hearing which stated that Witness only expected to receive a benefit; Witness had not received an undisclosed deal with the State. The motion court did not clearly err.

3. Failure to object to video

Movant alleges the motion court clearly erred in denying his claim that his trial counsel were ineffective for failing to object to the admission of the reenactment video (hereinafter, “Exhibit 88”) without an evidentiary hearing. Movant claims that Exhibit 88 was inadmissible as improper demonstrative evidence because it was an inaccurate representation of what he said had happened. Movant asserts that Exhibit 88 was unduly prejudicial because the persons who portrayed Movant and Sgt. McEntee were of different heights.

A trial court has wide discretion in admitting evidence. State v. Freeman, 269 S.W.3d 422, 426 (Mo. banc 2008). Demonstrative evidence may be admissible as long as it is both logically and legally relevant. State v. Brown, 337 S.W.3d 12, 15 (Mo. banc 2011). “Logical relevance refers to the tendency ‘to make the existence of a material fact more or less probable.’ ” Id. (quoting State v. Anderson, 306 S.W.3d 529, 538 (Mo. banc 2010)). Legal relevance weighs the evidence’s probative value against “unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or cumulativeness.” Freeman, 269 S.W.3d at 427 (quoting State v. Anderson, 76 S.W.3d 275, 276 (Mo. banc 2002)). “Therefore, when assessing the relevance of demonstrative evidence, a court must ensure that the evidence is a fair representation of what is being demonstrated and that it is not inflammatory, deceptive or misleading.” Brown, 337 S.W.3d at 15.

Movant claims that Exhibit 88 is not accurate because it does not represent his testimony and that the officers in Exhibit 88 were not the same height as Sgt. McEntee and he. Thus, Movant asserts Exhibit 88 was not a fair representation because it was deceptive and misleading.

Movant’s argument is incorrect. The trial court did not abuse its discretion in admitting Exhibit 88 because it was a fair representation of the evidence pre*903sented by the State. The State clarified that the officers in Exhibit 88 were not the same heights as Sgt. McEntee and Mov-ant. While Exhibit 88 may not have been to Movant’s satisfaction, it is clear Exhibit 88 was supported by the evidence adduced at trial. Had Movant’s trial counsel objected, it would have been nonmeritorious. Trial counsel is not ineffective for failing to preserve a nonmeritorious argument. Baumruk v. State, 364 S.W.3d 518, 539 (Mo. banc 2012); McLaughlin, 378 S.W.3d at 357. The motion court did not clearly err.

4. Failure to object to presence of police officers

Movant alleges the motion court clearly erred in denying him an evidentia-ry hearing on his claim that his trial counsel were ineffective for failing to object to the presence of uniformed police officers in the courthouse. Movant believes the presence of the uniformed police officers in the courtroom and the hallways was designed to send a message to the jury to find Movant guilty.

The motion court found that the jury was sequestered throughout the proceedings and was not in contact with any of the spectators at any point in the trial proceedings or that any officer present caused any disturbance to the proceedings. The motion court further found Movant failed to demonstrate any prejudice. A trial court has wide discretion in determining whether to take action to avoid an environment for trial in which there is not a “sense or appearance of neutrality.” State v. Baumruk, 85 S.W.3d 644, 650 (Mo. banc 2002).

Here, Movant failed to demonstrate facts which would warrant relief. The only allegation Movant made in his post-conviction motion as to the number of police officers was that “there were a number of uniformed police officers in the hallway and in the courtroom.” There is no reason to believe the sequestered jury came into contact with any officer who may have been in the courthouse hallway. Further, Movant fails to present any fact that would support the ultimate conclusion that the presence of officers in the courthouse could have influenced the outcome of Mov-ant’s trial. Movant only sets forth mere conclusions without any factual support.3

During the course of any trial, there could be a large number of uniformed police officers in the courthouse and walking in the hallways. Police officers are frequently called to testify in trials, which requires their presence in the courthouse. The motion court did not err.

5. Failure to impeach

Movant claims the motion court clearly erred in denying his claim that his trial counsel were ineffective for failing to impeach one of the State’s witnesses with a prior inconsistent statement without an ev-identiary hearing. Movant alleges trial counsel should have established that Norman Madison’s (hereinafter, “Madison”) statements to the police and at trial were allegedly inconsistent. Movant claims this *904inconsistency went to the issue of deliberation.

Failure to impeach a witness will not warrant post-conviction relief unless the testimony offers a defense to the charged crimes. Black v. State, 151 S.W.3d 49, 55 (Mo. banc 2004); Baumruk, 364 S.W.Sd at 533. “If a prior inconsistent statement by a [S]tate’s witness does not give rise to a reasonable doubt as to Mov-ant’s guilt, such impeachment evidence is not the basis for a claim of ineffective assistance of counsel.” State v. Twenter, 818 S.W.2d 628, 640 (Mo. banc 1991).

The motion court found that Madison’s prior inconsistent statements were brought out during his testimony. Further, the motion court found Movant failed to establish he suffered prejudice.

Movant fails- to identify or allege any impeachable statement by Madison that would have offered him a viable defense. This mere allegation does not give rise to reasonable doubt of Movant’s guilt. The motion court did not clearly err.

6. Failure to object during closing argument

Movant claims the motion court clearly erred in denying him an evidentia-ry hearing on his claim that his trial counsel was ineffective for failing to object to statements made by the state during closing argument. Movant asserts his trial counsel should have objected to statements by the State, which lessened the State’s burden of proof regarding the definition of deliberation. The motion court found the proposed objections had no merit and Movant failed to demonstrate either a deficient performance or prejudice by his trial counsel.

Movant also raised this issue in his direct appeal, claiming there was plain error in the State’s closing argument. Johnson, 284 S.W.3d at 573. This Court found the State properly defined “deliberation.” Id. at 574. During the State’s argument, “in the process of arguing the deliberation element [the State] used the terms ‘deliberation,’ ‘cool reflection,’ and ‘conscious decision.’ ” Id. While the term “conscious decision” is not the language used in the instruction, this Court determined there was no plain error because the State recited the actual language of the instruction and the jury is presumed to follow the instructions of the court. Id.

However, the determination there was no plain error prejudice resulting from the State’s comments does not end the inquiry because the Strickland standard of prejudice is less rigorous than the plain error standard. Deck v. State, 381 S.W.3d 339, 358 (Mo. banc 2012). Strickland prejudice requires only that there is a reasonable probability that the result would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. The “theoretical'difference in the two standards of review will seldom cause a court to grant postconviction relief after it has denied relief on direct appeal.... ” Deck v. State, 68 S.W.3d 418, 428 (Mo. banc 2002) (citing Strickland, 466 U.S. at 697, 104 S.Ct. 2052). There are only a “small number of cases in which the application of the two tests will produce different results.” Id.

“An attorney’s failure to object during closing arguments only results in ineffective assistance of counsel if it prejudices the accused and deprives him of a fair trial.” Zink, 278 S.W.3d at 187. Even assuming, arguendo, Movant’s counsel should have objected to the State’s closing argument, Movant cannot demonstrate prejudice. The jury was instructed properly on deliberation. Johnson, 284 S.W.3d at 574. The State read the definition of deliberation in its closing argument while explaining how it believed the evi*905dence presented showed Movant knowingly caused Sgt. McEntee’s death after Mov-ant deliberated. “Any deficiencies in the [State’s] argument were corrected by the trial court’s instructions to the jury.” State v. Clemons, 946 S.W.2d 206, 230 (Mo. banc 1997). “Counsel is not ineffective for failing to make non-meritorious objections.” McLaughlin, 878 S.W.3d at 357. Given there was strong evidence presented demonstrating Movant’s guilt and the trial court’s instructions to the jury were proper, the motion court did not err.

7. Appearance before the jury in restraints

Movant claims the motion court clearly erred in denying him an evidentiary hearing on his claim that his trial counsel were ineffective for failing to object to the shackling device concealed under his clothing. Movant asserts that because he walked with a limp and made a noise when he sat, the shackling device was made “visible.” Accordingly, Movant believes he was deprived of his right to a fair trial.

Movant admits that his leg restraint was concealed under his clothing and was not visible to the jury. He infers the jury knew he was shackled because he walked with a limp and there was a noise4 when he sat. Movant argues that this was structural error in his trial, and he does not have to meet the standard for Strickland prejudice due to Deck v. Missouri, 544 U.S. 622, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005).

This Court previously has addressed this argument. Zink v. State, 278 S.W.3d at 185-86. Additionally, the United States Supreme Court in Deck addressed the situation wherein the defendant’s leg restraints were actually visible to the jury during his trial, finding a due process violation. See Deck, 544 U.S. at 633, 125 S.Ct. 2007. In comparison, the situation in Zink involved restraints that were concealed from the jury’s view. Zink, 278 S.W.3d at 186. In Zink, this Court noted that the ruling in Deck “was limited to restraints that are visible, in that it expressly noted that the trial court did not explain ‘why, if shackles were necessary, [the trial court] chose not to provide for shackles that the jury could not see-apparently the arrangement used at trial.’” Zink, 278 S.W.3d at 186 (quoting Deck, 544 U.S. at 634-35, 125 S.Ct. 2007).

Movant’s allegations are similar to those in Zink. Movant’s leg restraints were not visible, and there was no fact presented demonstrating the jury ever knew Movant was restrained. Movant does not allege prejudice; rather, Movant erroneously relies upon the belief there was structural prejudice such as in Deck. Movant has failed to meet his burden. The motion court did not clearly err.

8. Death penalty statute is unconstitutional

Movant alleges the motion court erred in denying him a hearing on his claim that Missouri’s statutory scheme for the death penalty is unconstitutional. Movant claims Missouri’s death penalty statute is unconstitutional as arbitrary and capricious in that it does not genuinely narrow the class of people eligible for the death penalty. Movant sought to introduce a law review article5 in support of his claim.

*906This exact argument has been addressed previously by this Court. McLaughlin, 378 S.W.3d at 357. “Claims challenging the constitutionality of the death penalty are for direct appeal and are not cognizable on a motion for post-conviction relief.” Id. Movant fails to identify any reason for his failure to assert the constitutionality validity of the death penalty on direct appeal. The motion court did not clearly err in its decision to deny Movant an evidentiary hearing on this claim.

9. Sleeping jurors

Movant claims the motion court erred in denying him an evidentiary hearing on his claim that counsel were ineffective for failing to seek to replace an allegedly sleeping juror. Movant claims there was at least one juror who began to sleep during defense counsel’s closing argument and that juror missed important points in his counsel’s argument. Movant avers the juror would have to be dependent on the other jurors’ opinions. Movant asserts he should have been given a hearing to determine whether Movant could demonstrate prejudice.

The motion court clearly did not err in denying Movant’s claim, finding Movant made a mere allegation and failed to demonstrate any prejudice. Movant declared at least one juror might have fallen asleep during closing argument. This is not a fact that would entitle Movant to relief; there is no evidence that one or more jurors actually fell asleep. See State v. Ferguson, 20 S.W.3d 485, 507-08 (Mo. banc 2000).

Additionally, Movant failed to demonstrate how he was prejudiced. The only statement in Movant’s motion that could be construed to be an allegation of prejudice is that he “was subjected to a verdict by a jury which had not considered all of the argument in the case.” Assuming, arguendo, a juror fell asleep during closing argument and missed a portion of counsel’s argument, Movant still would have had a jury that was attentive during the presentation of the evidence. “Closing argument by the attorneys is not evidence to be considered by the jury.” State v. Kenley, 952 S.W.2d at 270. The motion court did not clearly err.

10. Batson6 challenge

Movant claims the motion court clearly erred in denying his claim without an evi-dentiary hearing that his trial counsel were ineffective for failing to object properly to alleged Batson violations during voir dire. Movant alleges his trial counsel failed to make a complete and proper Bat-son objection to the strikes of venireper-sons John Clark and Debra Cottman, and failed to make any Batson objection to the strikes of venirepersons Cleeta Jackson and Harry Stephenson. Accordingly, Movant argues he was prejudiced because trial counsel’s performance violated his rights to a fair trial.

The use of peremptory strikes of venirepersons on the basis of race is unconstitutional. Batson, 476 U.S. at 84, 106 S.Ct. 1712. A successful Batson challenge requires compliance with the following procedure:

First, a defendant must challenge one or more specific venirepersons struck by the State and identify the cognizable racial group to which they belong. Second, the State must provide a race-neutral reason that is more than an unsubstantiated denial of discriminatory purpose. Third, the defense must show that the State’s explanation was pretex-*907tual and the true reason for the strike was racial.

State v. McFadden, 191 S.W.3d 648, 651 (Mo. banc 2006) (footnotes omitted).

To obtain an evidentiary hearing on a post-conviction motion, a movant needs to “allege facts showing that counsel’s performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney and that movant was thereby prejudiced.” Barnett v. State, 103 S.W.3d 765, 769 (Mo. banc 2003), see also Strickland, 466 U.S. at 687, 104 S.Ct. 2052. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

a.Clark

The motion court found that trial counsel made a Batson objection regarding this venireperson and the State’s reasons for the strike were race neutral as the venireperson stated he would not sign a death verdict, was not strong on the death penalty, potentially would hold the State to a higher burden, and exhibited inappropriate behavior during voir dire. Movant’s trial counsel made a Batson objection after the State used a strike on this venireper-son. The State presented its argument that, inter alia, this venireperson stated he would not sign a death verdict. Movant’s counsel had no response.

In his post-conviction motion, Movant alleges that his counsel were ineffective for failing to show the State’s strike was pre-textual or race motivated. However, Mov-ant fails to make any allegation as to what response counsel should or could have made.

b.Cottman

Movant’s trial counsel made a Batson objection after the State used a strike on this venireperson. On direct appeal, Movant’s counsel argued the State’s reason for this strike was pretextual because another member of the venirepanel was a foster parent but was not struck. This Court found the State’s reason for not striking this venireperson was not pretex-tual in that this venireperson was the only one who provided services to Annie Malone, the same organization that assisted Movant. Johnson, 284 S.W.3d at 571.

In his post-conviction motion, Movant alleges his trial counsel should have stated that the State’s reasons for striking this venireperson were pretextual because, had the State been interested in discovering if the venirepanel had been involved with agencies that assisted Movant, the State would have questioned the venirepanel in more detail. However, Movant does not attempt to demonstrate how this has prejudiced him or how the result of his trial would have been different.

c.Jackson and Stephenson

The motion court found that venireper-son Jackson stated that her son had been prosecuted by the Saint Louis County Prosecutor for murder and was acquitted after spending approximately one year in custody. The motion court found that ven-ireperson Stephenson had chaired a prison ministry at his church, which involved writing letters to prisoners. Movant’s trial counsel did not make a Batson objection after the State used a strike on Jackson and Stephenson.

The only advocacy presented to this Court regarding Jackson and Stephenson was the assertion that the motion court’s findings are clearly erroneous and this Court “must disregard the motion court’s ‘gratuitous observations’ regarding race-*908neutral reasons that the prosecutor did not even give as to jurors Jackson and Stephenson.”

It is axiomatic that the State did not present race-neutral reasons at trial because there was no Batson objection as to these venirepersons. There was no need for the State to clarify its position regarding these two venirepersons. However, the record is clear; there were race-neutral reasons regarding the reasons the State wished to strike these venirepersons. Further, the trial court specifically questioned trial counsel as to whether a Batson challenge would be made regarding venire-person Stephenson so as to prevent this issue from being raised in a post-conviction motion.

Movant failed to present any argument as to why his counsel could have been ineffective for failing to raise a Batson objection to these venirepersons. Movant also fails to present any argument as to how he was prejudiced by the alleged inaction of his trial counsel.

In this point on appeal, Movant is unable to demonstrate prejudice by making the statement that if selected for a jury, a venireperson merely on the basis of his or her race, would not vote for the death penalty. This allegation is “to engage, at best, in mere speculation and, at worst, in the stereotyping that Batson and its progeny strive to prevent.” Morrow, 21 S.W.3d at 827 (quoting State v. Loazia, 829 S.W.2d 558, 570 (Mo.App. E.D.1992)). Any allegation that Movant should be' granted an evidentiary hearing to develop his arguments also fails. “The purpose of an evidentiary hearing is to determine whether the facts alleged in the motion are accurate, not to provide [Movant] with an opportunity to produce new facts.” Morrow, 21 S.W.3d at 827. The motion court did not clearly err.

11. Failure to present mitigation evidence

Movant alleges the motion court clearly erred in denying his claim regarding the failure of his counsel to call Lavon-da Bailey (hereinafter, “Bailey”) as a witness in the penalty phase of his trial. Movant claims Bailey would have testified he was a good and loving father. Movant believes Bailey’s testimony would have countered the evidence presented that Movant assaulted his daughter’s mother, Bailey’s daughter, and that Movant then would have received a life sentence.

Regarding a claim of ineffective assistance of counsel for failing to investigate and call witnesses, Movant must plead and prove that: “(1) trial counsel knew or should have known of the existence of the witness; (2) the witness could be located through reasonable investigation; (3) the witness would testify; and (4) the witness’s testimony would have produced a viable defense.” Glass v. State, 227 S.W.3d. 463, 468 (Mo. banc 2007) (quoting Hutchison v. State, 150 S.W.3d 292, 304 (Mo. banc 2004)). A trial counsel’s decision not to call a witness to testify is presumptively a matter of trial strategy and will not support Movant’s claim of ineffective assistance of counsel unless Movant clearly establishes otherwise. Whited v. State, 196 S.W.3d 79, 82 (Mo.App. E.D.2006).

At the evidentiary hearing, Bailey testified that she was not contacted by counsel to testify at trial, but that she would have been willing and able to do so. Bailey would have testified Movant had a good relationship with his daughter, he cared for his daughter for multiple days at a time in Bailey’s home, he saw his daughter every day, and she considered him a good father. Bailey further stated that after Movant was arrested and he could no long*909er physically visit his daughter, he called his daughter every week and his daughter sometimes visited him in prison. Bailey was aware of the incident wherein Movant pleaded guilty to assaulting Bailey’s daughter, the mother of Movant’s daughter.

Movant’s counsel also testified at the evidentiary hearing. Each stated they did not contact Bailey because Movant had led them to believe they were not on good terms and Bailey’s testimony would not be helpful. Further, Movant’s counsel did present additional evidence from multiple family members and educators that Mov-ant had a loving relationship with his daughter at trial.

The motion court found that Bailey’s testimony would have been cumulative and would not have provided Movant with a viable defense. Further, the motion court determined that it was reasonable for counsel not to investigate fully calling Bailey as a witness because Movant gave them the impression that Bailey did not have a positive opinion of him and that Movant had assaulted Bailey’s daughter.

Bailey’s testimony would have been cumulative of testimony, which already had been presented. See Bucklew v. State, 38 S.W.3d 395, 398 (Mo. banc 2001) (counsel not ineffective for failing to call a witness whose testimony would be cumulative to that of other witnesses). Movant has not demonstrated that Baliey’s additional testimony would have presented him a viable defense. Glass, 227 S.W.3d at 468. The motion court’s findings were not clearly erroneous.

Conclusion

Movant failed to prove the motion court clearly erred in denying him postconviction relief. The judgment is affirmed.

RUSSELL, C.J., FISCHER, WILSON and TEITELMAN, JJ., concur. BRECKENRIDGE, J., concurs in part and dissents in part in separate opinion filed. STITH, J., concurs in opinion of BRECKENRIDGE, J.

. All further references herein are to RSMo 2000 unless otherwise indicated.

. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

. The dissent cites two cases, neither of which are Missouri cases, in which the defendants set forth compelling factual reasons wherein an evidentiary trial would be necessary to determine whether the presence of the police officers would have influenced the outcome of the trial. See Ward v. State, 105 So.3d 3, 5 (Fla.Dist.Ct.App.2012) (finding "there were enough officers in the audience to make the courtroom looked like a policeman's benefit.’ "); Shootes v. State, 20 So.3d 434 (Fla.Dist.Ct.App.2009) (estimating the number of uniformed police officers to be between thirty-five and seventy). Movant set forth no such factual allegation.

. Movant only asserts there was noise associated with his leg restraint and makes a bare allegation that someone could hear the noise when he sat.

. Katherine Barnes et al., Place Matters (Most): An Empirical Study of Prosecutorial Decision-Making in Death-Eligible Cases, 51 ARIZ. L.REV. 305 (2009).

. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986).