I concur in the portion of the principal opinion that affirms the denial of 13 of Kevin Johnson’s post-conviction claims. I do not concur, however, in the principál opinion’s holding that Mr. Johnson failed to plead sufficient facts to require an evi-dentiary hearing on his claim that his trial counsel were ineffective for not objecting to the presence of numerous uniformed police officers in the courtroom and halls during his trial. Other jurisdictions have also held that, in fact-specific circumstances, the attendance of numerous uniformed police officers during criminal proceedings may be inherently prejudicial to the defendant. Therefore, I respectfully dissent.
The motion court must hear evidence of a post-conviction claim when: (1) the movant alleges facts, not conclusions, warranting relief; (2) “the facts alleged ... raise matters not refuted by the files and records in the case; and (3) the matters of which movant complains ... have resulted in prejudice.” Morrow v. State, 21 S.W.3d 819, 822 (Mo. banc 2000). To sufficiently allege a claim of ineffective assistance of counsel, a post-conviction movant must allege facts that would show that his counsel failed to exercise the level of skill and diligence that a reasonably competent counsel would in a similar situation and that he was prejudiced by that failure. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
*910In his Rule 29.15 motion, Mr. Johnson alleged that his trial counsel were ineffective because they failed to object to the presence of “numerous uniformed police officers” in the hallways and the courtroom during voir dire and the guilt and penalty phases of his trial. He alleges that this was “an obvious display of support for the victim in the case” and “a cry for justice for the victim and a call for harsh punishment for [Mr. Johnson].” He further alleges in his motion that he was denied his right to a fair trial and a fair and impartial jury because the presence of the uniformed officers “necessarily impacted the jury’s consideration of the case and its consideration of punishment.” He asserts that his trial counsel should have moved to exclude the uniformed police officers from observing the trial or, alternatively, from wearing their uniforms when they observed the trial.
The motion court denied Mr. Johnson an evidentiary hearing on this claim, finding that there had not been any prejudice because the jury had been sequestered and had no contact with any of the officers who attended the trial. The principal opinion agrees. In so holding, both appear to have misunderstood the nature of Mr. Johnson’s claim. As Mr. Johnson explains in his brief, he did not claim that he did not receive an impartial trial because of the possibility of contact between the jury and the attending officers. Instead, he claims that the presence of numerous uniformed officers, in an obvious show of support for their fallen comrade and his family, allowed the officers to convey the message to the jury to remember the police officer victim and to convict and harshly punish Mr. Johnson, and that this message was not subject to cross-examination.
“Due Process requires that the accused receive a trial by an impartial jury free from outside influences.” Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). When a criminal defendant has the right to a trial by jury, the Sixth and Fourteenth amendments entitle that defendant to a panel of impartial, indifferent jurors whose verdict must be based on evidence developed at the trial. Morgan v. Illinois, 504 U.S. 719, 726-27, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992); Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Furthermore, an essential component of a fair and impartial trial is a jury that proceeds under the presumption that the accused is innocent of the charges. Delo v. Lashley, 507 U.S. 272, 278, 113 S.Ct. 1222, 122 L.Ed.2d 620 (1993); Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976).
To safeguard the presumption of innocence, “courts must be alert to factors that may undermine the fairness of the fact-finding process” and “carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.” Williams, 425 U.S. at 503, 96 S.Ct. 1691. See also Estes v. Texas, 381 U.S. 532, 560, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) (Warren, C.J., concurring) (stating that one of the roles of the trial court is to guard against “the intrusion of factors into the trial process that tend to subvert” the impartiality of the proceedings). Indeed, the Supreme Court has stated that:
The actual impact of a particular practice on the judgment of jurors cannot always be fully determined. But this Court has left no doubt that the probability of deleterious effects on fundamental rights calls for close judicial scrutiny. Courts must do the best they can to evaluate the likely effects of a particular procedure, based on reason, principle, and common human experience.
*911Williams, 425 U.S. at 504, 96 S.Ct. 1691 (internal citations omitted). Because of the risk that outside factors may affect the outcome of a trial proceeding, the Supreme Court has determined that -a proceeding may be inherently prejudicial when “‘an unacceptable risk is presented of impermissible factors coming into play.’ ” Holbrook v. Flynn, 475 U.S. 560, 570, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986) (citing Estelle v. Williams, 425 U.S. 501, 505, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976)).
Although neither case found in favor of the accused, the Supreme Court’s opinions in Williams and Flynn provide the standards applicable to Mr. Johnson’s case.1 In Williams, the Supreme Court found that the Fourteenth Amendment precludes a state from forcing an accused to stand trial in identifiable jail attire because that “clothing is so likely to be a continuing influence throughout the trial that ... an unacceptable risk is presented of impermissible factors coming into play.” 425 U.S. at 505, 96 S.Ct. 1691. In Flynn, the defendant claimed he was prejudiced by the presence of four uniformed state troopers on the front row of the spectators’ section, behind the defendant. 475 U.S. at 562, 106 S.Ct. 1340. These troopers were at the hearing to provide courtroom security for the six defendants on trial while the usual security officers were unavailable. Id. at 563, 106 S.Ct. 1340. Under those circumstances, the Court found:
Whenever a courtroom arrangement is challenged as inherently prejudicial, therefore, the question must be not whether jurors actually articulated a consciousness of some prejudicial effect, but rather whether “an unacceptable risk is presented of impermissible factors coming into play.”
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We do not minimize the threat that a roomful of uniformed and armed policemen might pose to a defendant’s chance of receiving a fair trial. But we simply cannot find an unacceptable risk Of prejudice in the spectacle of four such officers quietly sitting in the first row of a courtroom’s spectator section.... Four troopers are unlikely to have been taken as a sign of anything other than a normal official concern for the safety and order of the proceedings. Indeed, any juror who for some other reason believed defendants particularly dangerous might well have wondered why there were only four armed troopers for the six defendants.
475 U.S. at 570-71,106 S.Ct. 1340 (internal citations omitted) (emphasis added).
The United States Supreme Court recently heard a case raising a similar issue of spectator interference. In Carey v. Musladin, the defendant asserted in his petition for habeas relief that he was deprived of a fair trial because several members of the victim’s family sat in the front row of the spectator’s gallery during the trial wearing buttons with a photograph of *912the victim. 549 U.S. 70, 72-73, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006). In its analysis, the Supreme Court recognized “that certain courtroom practices are so inherently prejudicial that they deprive the defendant of a fair trial.” Id. at 72, 127 S.Ct. 649. The Court distinguished Flynn and Williams, addressing state-sponsored courtroom practices, from the facts of Musladin, in which the conduct of the victim’s family was challenged by the defendant.. The Court noted that it had not yet decided a case in which spectators’ conduct was claimed to have denied a defendant the right to a fair trial. Id. at 76, 127 S.Ct. 649. Because the Supreme Court never previously had made a decision about spectator interference, it unanimously denied the defendant’s habeas petition on the narrow ground that the law was not clearly settled, as required by the Anti-terrorism and Effective Death Penalty Act of 1996, 110 Stat. 1219. Id. at 76-77, 127 S.Ct. 649.2
Despite the lack of a Supreme Court decision specifically addressing private-actor courtroom conduct, Justice Souter notes in his concurring opinion that the application of the clearly established standards of Williams and Flynn require courts to examine “whether a practice or condition presents ‘an unacceptable risk ... of impermissible factors coming into play’ in the jury’s consideration of the case.” Id. at 82, 127 S.Ct. 649 (Souter, J., concurring). Justice Souter states that he refrained from ruling against the majority only because he did not feel that the buttons, under the facts presented to the Court, rose to an “unacceptable level.” Id. at 79, 127 S.Ct. 649 (Stevens, J., concurring), 88 (Souter, J., concurring).
Mr. Johnson’s case presents an interesting hybrid of the state-sponsored courtroom practice cases and those cases making spectator-conduct claims identified in Musladin. While the State may not have directed the numerous uniformed officers to attend Mr. Johnson’s proceedings, as spectators, they nevertheless were wearing their uniforms as law enforcement officers, an unmistakable symbol of state authority. Daniels v. City of Arlington, 246 F.3d 500, 504 (5th Cir.2001); State v. Jones, 483 So.2d 433, 439 (Fla.1986); Duncan v. State, 163 Ga.App. 148, 294 S.E.2d 365, 366 (1982). Missouri courts have yet to decide such a claim. For this reason, guidance can be found in two Florida cases that addressed how a large contingent of uniformed law enforcement officer-spectators present during a criminal hearing, and not attending to fulfill some public assignment, may create such “an unacceptable risk ... of impermissible factors coming into play.” Ward v. State, 105 So.3d 3 (Fla.Dist.Ct.App.2012); Shootes v. State, 20 So.3d 434 (Fla.Dist.Ct.App.2009). In Ward, the defendant alleged, in his motion for postcon-viction relief on the basis of ineffective assistance of counsel, that “there were enough officers in the audience to make ‘the courtroom look like a policeman’s benefit.’ ” 105 So.3d at 5. The defendant pleaded that the officers’ open show of support for their fallen comrade “ ‘influenced the jury to convict [the] defendant out of fear and sympathy, rather than because the State had proven its case beyond a reasonable doubt.’ ” Id. The Florida appeals court found these claims were facially sufficient to show that the defendant’s counsel was ineffective for failing to object to the pres*913ence of the uniformed officers and ordered a remand to obtain evidence to refute those claims. Id.
In Shootes, a large number of officers, estimated between 35 and 70, attended the trial. 20 So.3d at 436. While acknowledging that the presence “of courtroom observers wearing uniforms, insignia, buttons, or other indicia of support for the accused, the prosecution, or the victim of the crime does not automatically constitute denial of the accused’s right to a fair trial,” the Florida appeals court found that “there are situations where the atmosphere in the courtroom might infringe on the defendant’s right to a fair trial.” Id. at 439. Furthermore, the court noted that, when such an issue is raised, courts must examine the issue on a case-by-case basis to consider the “totality of the circumstances.” Id. (citing Sheppard v. Maxwell, 384 U.S. 333, 352, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966)). Under the circumstances, where the officers were not present as added security or for the purpose of providing testimony3, a jury would become “susceptible to the impression that the officers are there ‘to communicate a message to the jury.’ ” Id. (citing Woods v. Dugger, 923 F.2d 1454, 1459 (11th Cir.1991)). This, along with additional outside influences in the case, “created an unacceptable risk that the jury’s determination of the credibility of witnesses and findings of fact would be tainted by impermissible factors not introduced as evidence or subject to cross-examination.”4 Id. at 440.
*914Here, Mr. Johnson’s motion alleged that there were numerous uniformed officers, in the courtroom and in the hallways during voir dire and both phases of the trial, attending the proceedings as a show of support for a fallen officer and to sway the jury to convict Mr. Johnson. As noted by Mr. Johnson, the jury’s decision to give him a death sentence, under these circumstances, was vastly different from the result of his previous trial, in which the jury allegedly hung at 10-2 in favor of a non-capital second degree murder conviction. The presence of the uniformed officers reasonably may have created an outside influence on the jury, affecting the presumption of innocence necessary for a fair trial and impacting the harshness of the sentence imposed.
Because the state does not argue that these allegations are refuted by the record, and because, if the facts as alleged are true, it appears there is a reasonable probability that the jury would have concluded the balance of aggravating and mitigating circumstances did not warrant death, Mr. Johnson should have been afforded an evi-dentiary hearing on this issue. Accordingly, without making any determination as to whether Mr. Johnson did receive a fair trial, I would find that Mr. Johnson has alleged facts, unrefuted by the record, that show he was prejudiced by his trial counsel’s failure to object to the presence of “numerous uniformed officers” during his trial. I would remand to the motion court to conduct an evidentiary hearing on the issue. As to the principal opinion’s disposition of all other claims, I concur.
. Both Williams and Flynn were cited for the Supreme Court's decision in Deck v. Missouri, 544 U.S. 622, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005), reversing this Court’s opinion in State v. Deck, 136 S.W.3d 481 (Mo. banc 2004). In Deck, the defendant was compelled to attend the sentencing phase of his trial while wearing shackles. Deck II, 544 U.S. at 625, 125 S.Ct. 2007. While the Supreme Court recognized that sentencing phase did not also require the same presumption of innocence as the guilt phase, it found that visible shackles during the penalty phase of a capital proceeding may create an impermissible influence on the sentencing jury. Id. at 632-33, 125 S.Ct. 2007. Importantly, the Supreme Court noted that certain courtroom practices are inherently prejudicial because the possible negative effects of those practices cannot be reflected in a trial transcript. Id. at 635, 125 S.Ct. 2007.
. In reaching its narrow holding, the Supreme Court recognized that "lower courts have diverged widely in their treatment of defendants’ spectator-conduct claims.” Id. at 76, 127 S.Ct. 649. While the lower courts recognize that spectator conduct may pose an unacceptable risk to the fairness of a criminal proceeding, their conclusions vary depending on the degree of the risk influence created by the circumstances of the cases. Id.
. The Florida appeals court considered additional factors — the number of spectators identifiable as law enforcement personnel, whether they were grouped together in the audience or interspersed among other attendees, and the officers’ proximity to the jury. Shootes, 20 So.3d at 439.
. These Florida courts are not the only ones to have examined interference in the form of .uniformed officers attending proceedings as spectators, either using the Williams and Flynn reasoning, or based on different reasoning.
In some of those cases, courts have found that the attendance of numerous officers during proceedings was inherently prejudicial to the defendant. See, e.g., Balfour v. State, 598 So.2d 731, 756 (Miss.1992) ("[W]e note that it capital murder cases where the victim was a member of law enforcement, the potential exists for a coercive atmosphere when uniformed law officers sit together in a group. Consequently, we discourage this practice.”); United States v. Johnson, 713 F.Supp.2d 595, 617 (E.D.La.2010) (finding that trial court erred by allowing 40 uniformed officers to attend the hearings, and that it "should have granted the defense['s] motion [by] insisting] that any appearances by law enforcement in the audience be in plain clothes”).
Other cases, while recognizing that the presence of officers may cause prejudice to a defendant, did not find prejudice where a lower court took remedial actions. See, e.g., Bell v. Com., 264 Va. 172, 563 S.E.2d 695, 713 (2002) (upholding the trial court's decision to partially deny motion to exclude officers from wearing uniforms while attending as spectators while it recognized that "if too many officers attended the trial as spectators while in uniform, it could create 'an oppressive atmosphere.’ ”); Phillips v. State, 70 P.3d 1128, 1137 (Alaska Ct.App.2003) (acknowledging that the "appearance of law enforcement officers en masse in the specfator gallery posed a threat that the jurors would feel implicit pressure to return a verdict favorable to law enforcement interests or sentiment,” and that the presiding judge did not err in refusing to grant a mistrial because he had limited the amount of officers who could be present) People v. Cummings, 4 Cal.4th 1233, 18 Cal.Rptr.2d 796, 838, 850 P.2d 1 (1993) (en banc) (recognizing the balancing right of officers to attend public proceedings, it found no abuse of discretion in the trial court’s decision to suggest that police officers attend the hearing in civilian clothes when possible and to rule that if more than two or three uniformed officers were present at the same time, the court would entertain a renewed motion to exclude them).
Still others, while not finding prejudice, specifically recognize the possibility or threat of prejudice. See, e.g., People v. Grady, 40 A.D.3d 1368, 1374, 838 N.Y.S.2d 207 (2007) (while finding that there was not a problem of *914inappropriate influence, noting that "the show of support for [another officer] by uniformed members of law enforcement, who were seated in the back two rows of the courtroom and who stood in unison when he entered the courtroom to testify, was not appropriate because such conduct may have a secondary effect of influencing the jury”).
Lastly, yet other cases ruled that their presence in their specific circumstances were not prejudicial or that sufficient facts were not alleged that would allow a finding of prejudice. See, e.g., Kearse v. State, 969 So.2d 976, 989 (Fla.2007) ("[T]he mere presence of [police] officers was insufficient to demonstrate a hostile courtroom....”); Commonwealth v. Philistin, — Pa. -, 53 A.3d 1, 32-33 (2012) (finding that failing to object to officers’ presence during guilt phase of hearing was not ineffective assistance of counsel because appellant could not demonstrate that verdict would have differed after undisputed evidence was presented, and that pleading regarding sentencing phase were inadequate); Commonwealth v. Gibson, 597 Pa. 402, 448, 951 A.2d 1110 (2008) (finding that the allegations, which did not detail the number of officers at the proceeding or allege that they caused any disruption, were insufficient to show that the defendant was prejudiced by their presence at the hearing); Brown v. State, 132 Md.App. 250, 752 A.2d 620, 629-631 (2000) ("Appellant has failed to demonstrate that the presence of an unknown number of uniformed police officers at trial created an unacceptable risk of impermissible factors coming into play and was so inherently prejudicial that appellant was denied a fair trial.”); Pratt v. State, 228 Ga.App. 567, 492 S.E.2d 310 (1997) (finding that the presence of twenty-five uniformed correctional officers after close of evidence by prior to jury instructions did not create inherent prejudice depriving defendant of a fair trial); Howard v. State, 941 S.W.2d 102, 118-19 (Tex.Crim.App.1996) (en banc) (absent a showing of overt conduct or expression, the presence of 20 uniformed peace officers among 80 spectators did not deprive defendant of a fair trial); Hansen v. State, 592 So.2d 114, 143-44 (Miss.1991) (holding that the trial court did not abuse its discretion by finding that, among the 40 spectators present, the six uniformed officers that commingled with the rest of the spectators did not prejudice the defendant and require a mistrial).