Concurring in Part and Dissenting in Part.
I concur with the majority that the motion court properly denied Travis Glass guilt phase relief. I respectfully dissent, however, from the majority’s conclusion that the motion court did not err in granting Glass penalty phase relief. I would affirm the motion court’s judgment in part and reverse in part, finding that Glass is not entitled to post-conviction relief on either his conviction or sentence.
Review of the motion court’s grant or denial of post-conviction relief is limited to whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006). The motion court’s disposition is clearly erroneous only if, after a review of the entire record, the reviewing court is left with a definite and firm impression that a mistake has been made. Id.
The majority correctly outlines that Glass’s claims merited post-conviction relief if he showed that his counsel’s performance failed to conform to the degree of skill, care, and diligence of a reasonably competent attorney and that he was thereby prejudiced. State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998) (citing Strickland v. Washington, 466 U.S. 668, 687,104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Unlike the majority, I would find that the motion court clearly erred in determining that Glass met this Strickland standard for relief for his claims of ineffective assistance of counsel relating to the penalty phase of his trial.
Presentation of Mitigating Evidence
The motion court found that counsel was ineffective for failing to present certain mitigating evidence. Trial counsel called 10 witnesses to present such evidence: Glass’s mother, his two sisters, two of his aunts, his uncle, his cousin, his minister, his high school friend, and his friend’s mother that owned the bowling alley he frequented. In addition, trial counsel investigated over 20 other lay witnesses, including family members, friends, former teachers, and former employers and coworkers.
The mitigating witnesses trial counsel called painted the following picture of Glass’s life: Glass never knew his father and was essentially abandoned by his alcoholic mother. His grandparents raised him. His grandfather was an alcoholic and a strict disciplinarian. Glass had bacterial meningitis when he was 23 months old and they were told he would be lucky if he did not have brain damage because of it. He was extremely overweight throughout his life and was constantly teased at school about his size. He was a nice and friendly person that loved music and played the saxophone in the school band. He was a bit of a loner. He was an artist. He was not violent. He was religious and attend*477ed church and wanted to attend a bible college to study music after high school. When he did not get accepted into the college, he was upset and his life went downhill. He started drinking and hanging around with a different group of people. Since his arrest, his family visits him regularly in jail. His family loves him and they would continue to visit him if the jury sentenced him to life.
The motion court found that trial counsel was ineffective for not calling 26 additional witnesses:
• Dr. Barry Scherr, an emergency room doctor who treated Glass one day for bacterial meningitis;
• four teachers who could have testified Glass performed poorly in school;
• eight other teachers and school officials who could have given background information about Glass;
• two probation officers who could have testified that Glass did not have any probation violations until he murdered Stephani Wilkins;
• seven friends and acquaintances who could have given background information on Glass; and
• four expert witnesses who could have testified about Glass’s mental problems and intoxication at the time of the crime.
The choice of witnesses is ordinarily a matter of trial strategy and will not support an ineffective assistance of counsel claim. State v. Harris, 870 S.W.2d 798, 816 (Mo. banc 1994). Counsel’s strategic choices made after a thorough investigation into the relevant law and facts are “ ‘virtually unchallengeable.’ ” Id. at 816-17 (quoting Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Further, “the duty to investigate does not force defense lawyers to scour the globe on the off-chance something will turn up; reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste.” Rompilla v. Beard, 545 U.S. 374, 383, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). In order to prevail on a claim of ineffective assistance of counsel, a defendant must show 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.
Hutchison v. State, 150 S.W.3d 292, 304 (Mo. banc 2004).
Dr. Barry Scherr
First, the motion court found trial counsel ineffective for failing to call Dr. Barry Scherr as a mitigating witness. Dr. Scherr, an emergency room doctor, evaluated Glass one day in 1981 when he was 23 months old and determined he had bacterial meningitis. Dr. Scherr had no memory of Glass and had not seen or evaluated him since. He could have testified that a risk of bacterial meningitis was brain damage, but he had no knowledge of whether Glass had brain damage as a result of bacterial meningitis.
Glass’s counsel obtained Dr. Scherr’s records and tried to admit them in the penalty phase, but the prosecutor objected to them as irrelevant and immaterial, and the trial court refused to admit them. Trial counsel did not interview Dr. Scherr prior to trial.
The motion court found that it was prejudicial error not to investigate and call Dr. Scherr as a witness because he would have offered “significant mitigating evidence of impaired intellectual functioning.” The *478motion court relied on Hutchison v. State, 150 S.W.3d at 305-05. In Hutchinson, this Court found counsel ineffective in part because counsel failed to interview and present the Hutchinson’s former psychiatrist. Id. Hutchinson’s psychiatrist could have testified he diagnosed and treated Hutchinson for bipolar disorder and alcoholism when he was 16 years old. Id. In addition, Hutchinson’s psychiatrist could have testified about defendant’s troubled background and impaired intellectual ability. Id. The jury in that case also did not hear how Hutchinson was sexually abused as a child. Id.
Here, Dr. Scherr is not comparable to the psychiatrist in Hutchinson because Dr. Scherr had no memory of Glass and had no knowledge of whether Glass had any mental impairments. While counsel knew of Dr. Scherr and he would have testified, his testimony could not have offered a viable defense because he had no knowledge beyond what the jury already heard through other witnesses, i.e., that one risk of bacterial meningitis is brain damage and that Glass had bacterial meningitis when he was 23 months old. Trial counsel was not ineffective for failing to call Dr. Scherr. The motion court clearly erred.
Poor School Performance
The motion court found that trial counsel was ineffective for failing to call four of Glass’s teachers who would have testified about his “impaired intellectual functioning”:
(1) Kay Obermann, Glass’s third grade teacher, who would have testified that Glass had very poor grades and went to a special teacher for help with reading;
(2) Clarence “Butch” Fore, Glass’s sixth or seventh grade mathematics teacher, who would have testified that Glass struggled with basic mathematics skills and once, when asked why he did not do his homework, Glass tearfully told the teacher he could not divide.
(3) Martha Myers, Glass’s 10th or 11th grade mathematics teacher, who would have testified that Glass performed poorly at mathematics, that he was “slow,” and that though she was not qualified to say this, he could have had a processing deficit because he would pause after being asked a question and have to think before he responded.
(4) Maggie Queen, Glass’s 10th or 11th grade science teacher, who would have testified that Glass had a low grade in science, that he was not motivated, and that he needed extra help but there was no special education teacher available at the time to assist him.
Counsel contacted Clarence Fore before trial, but did not call him as a witness. Counsel testified through deposition for the post-conviction relief (“PCR”) hearing that he was not sure why he did not call Fore. However, counsel’s choice of witnesses is a matter of trial strategy and will not support an ineffective assistance of counsel claim. Harris, 870 S.W.2d at 816.
As to the remaining teachers, the motion court again cited Hutchison for the proposition that the failure to call these teachers was ineffective assistance of counsel. In Hutchison, trial counsel did not obtain or review readily available records, such as school and medical records, which would have documented Hutchinson’s troubled childhood, mental health problems, drug and alcohol addiction, history of sexual abuse, attention deficit hyperactivity disorder, learning disabilities, bipolar disorder, and other problems. Hutchison, 150 S.W.3d at 304-05.
Here, counsel diligently investigated Glass’s school career. Counsel reviewed Glass’s school records and tried to admit them into evidence during the penalty phase. These records would have shown *479Glass’s poor grades. However, the prosecution objected to them as irrelevant and immaterial and the trial court refused to admit them. Counsel also investigated and contacted, or attempted to contact, six to eight of Glass’s former teachers and school officials.
Counsel is not ineffective for failing to contact every teacher and school official who encountered Glass throughout his 13 years in public school. Further, they would not have offered a viable defense because none of them had any information about serious mental impairments. Their testimony merely showed that he was a poor student who needed extra help. The motion court clearly erred in finding counsel ineffective for failing to call these teachers.
Other Lay Witnesses (a) Teachers and School Officials
The motion court found trial counsel ineffective for failing to call six additional teachers and school officials:
(1) Donna Brown — Glass’s 10th grade language arts teacher,
(2) Eric Churchwell — Glass’s middle and high school industrial arts teacher,
(3) Judy Caldwell — the middle school counselor at Glass’s school,
(4) Elaine Longacre — Glass’s 8th grade health teacher,
(5) Vince Matlick — Glass’s middle school physical education teacher, and
(6) Debbie Higbee Roberts — Glass’s middle and high school music teacher.
Generally, these teachers would have testified that Glass was picked on for being overweight, that he liked music and played the saxophone, that he was not violent in their presence, that he did not have the best home life, and that he was a loner and quiet. This testimony was already presented through the 10 mitigating witnesses that trial counsel called.
Further, counsel investigated two of these teachers (Brown and Roberts) and chose as a matter of trial strategy not to call them as mitigating witnesses. Counsel testified that he did not call Brown because she knew the victim’s family and was reluctant to get involved. Counsel did not recall why he did not call Roberts. Counsel may not have called Roberts because she would have testified that he was surly and aggressive, and the jury may have given weight to those statements since Roberts was Glass’s band and choir teacher for seven years and Glass’s participation in those activities was brought up many times by the mitigating witnesses. Counsel’s strategic choice not to call these teachers after investigating them is virtually unchallengeable and should not have been second-guessed by the motion court. See Harris, 870 S.W.2d at 816-17.
In finding counsel ineffective for failing to call each of these six teachers, the motion court cited Hutchison. But, as discussed previously, Hutchison is distinguishable. Here, counsel conducted a thorough investigation into Glass’s school career, and cannot be found ineffective for failing to contact every teacher and school official that encountered Glass over his 13 years in school. Also, these witnesses would not have provided a viable defense as their testimony is merely cumulative to that presented by the 10 witnesses trial counsel called. 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). The motion court clearly erred in finding counsel ineffective for failing to call these witnesses.
(b) Probation Officers
The motion court found trial counsel ineffective for failing to call Glass’s two *480probation officers. Bruce Capp saw Glass for 10-15 minutes once a month for less than two years. Kevin Knickerbocker saw Glass for 10-15 minutes a couple of times and, then, had monthly contact with him by mail for less than a .year. They could have testified that Glass had no probation violations from late 1998 until he killed Stephani Wilkins in March of 2001.
Trial counsel investigated Bruce Capp and offered several reasons why he strategically chose not to call him: Capp’s testimony would have been that he did not notice Glass having family or substance abuse problems and that was inconsistent with their theory, counsel was busy working on the child pornography issue (infra) and did not consider Capp’s testimony important enough to further investigate, and Capp was going to be out of the country at the time of the trial. Counsel’s decision not to call Capp was virtually unchallengeable. See Harris, 870 S.W.2d at 816-17. The motion court clearly erred in second-guessing counsel’s strategy for not calling Capp.
Additionally, the probation officers’ testimony would not have produced a viable defense. The motion court found that this testimony would have shown that Glass was generally law-abiding. But it does the opposite because it calls attention to the fact that Glass was on probation for committing a crime when he murdered Stepha-ni Wilkins. Besides, this murder was a major probation violation, and the lack of preceding probation violations does little in mitigation. The motion court clearly erred in finding counsel ineffective for failing to call these probation officers.
(c) Other Friends and Acquaintances
The motion court found counsel ineffective for failing to call seven of Glass’s friends and acquaintances:
1. Lesley Lehenbauer was in high school band with Glass for one year. She only saw him in class. She could have testified that he was a talented saxophone player and he would encourage her to practice the saxophone to improve.
2. Andrew Fuqua was in high school band with Glass for one year and Glass also attended Fuqua’s church for a few months and gave Fuqua a ride to school sometimes. Fuqua could have testified that Glass was a nice guy and that he never saw Glass be aggressive.
3. Tim Fuqua was Andrew’s father and an acquaintance of Glass’s grandfather. He could have testified that he encouraged Glass to attend church and he knew Glass liked music. He saw Glass work in the garden with his grandfather. He once saw Glass belittled by his uncle.
4. Christopher Brandstatt was in the high school band with Glass. He was also on the football team with Glass and later worked with him at Wal-Mart. He could have testified that Glass loved music, and that he was an outcast in football and teased about his weight. And he could have testified that Glass went through some changes and became someone he would not consider a friend, and that Glass lost his job at Wal-Mart for stealing.
5. George Mottu was in high school band with Glass for one year. He could have testified that Glass was a good saxophone player, that he went to Glass’s house four to five times, that Glass would help others, that Glass became a Christian, that Glass was picked on and got angry but *481vented verbally, not physically. He could have testified that he had not seen Glass since the fall of 1998, but that he still considers Glass a friend.
6. Sarah Tuley Ladue went to school with Glass from kindergarten through graduation. She could have testified that he was friendly, liked to giggle, went to her church youth group, and that she never saw him be violent.
7. June Reidinger owns a bar that Glass frequented in Hannibal. She could have testified that she saw Glass come in about six times, that he came in at about 11:00 am and stayed for about an hour each time, that he would play darts, that he was quiet, and that she never saw him intoxicated.
Counsel investigated four of these witnesses. Counsel testified that he did not call Lesley Lehenbauer because she said she did not want to get involved with the trial as she did not want any negative reactions from the community to be taken out on her family. Counsel testified that he was not sure why he did not call Tim or Andrew Fuqua, but that all of their information was already presented through other witnesses. Counsel testified that he did not call June Reidinger because she knew the victim’s grandmother and because she did not see Glass intoxicated. Counsel’s decision not to call these witnesses after investigating them was a strategic choice that is virtually unchallengeable and should not have been second-guessed by the motion court. See Harris, 870 S.W.2d at 816-17.
Counsel asked Glass for names of potential witnesses and Glass did not give him George Mottu’s name. Counsel is not ineffective for failing to call a witness counsel was unaware of when counsel took reasonable steps to uncover potential witnesses.
Edwards v. State, 200 S.W.3d 500, 518 (Mo. banc 2006) (counsel not ineffective for failing to call a cousin who no one had mentioned as a possible witness). Since counsel did not know about Mottu, and Glass did not mention him when asked for names of potential witnesses, counsel cannot be found ineffective for failing to call him as a witness.
Sarah Tuley Ladue was in the Navy and stationed in Guantanamo Bay, Cuba, at the time of trial. She had not seen or spoken to Glass since high school. Glass told counsel about Ladue. But counsel’s knowledge of a witness is not the only thing a defendant must show. To prevail on a claim of ineffective assistance of counsel, a defendant must also show that the witness could be located through a reasonable investigation, the witness would be willing to testify, and that the witness’s testimony would produce a viable defense. Hutchison v. State, 150 S.W.3d 292, 304 (Mo. banc 2004). As Ladue was stationed out of the country, it is not clear that she could be located or that she would be able to testify. Further, her testimony was cumulative to that given by the 10 witnesses counsel presented. See Bucklew 38 S.W.3d at 398 (counsel not ineffective for failing to call a witness whose testimony would be cumulative to that of other witnesses). Counsel was not ineffective for failing to call Ladue.
Counsel knew of Christopher Brand-statt, but he did not contact him. There is no evidence that counsel could not locate Brandstatt. Brandstatt’s testimony could have contributed to the defense that counsel was pursuing, i.e., that Glass was a nice kid who started going downhill after high school. Counsel admitted to the trial court that he would have called Brandstatt if he had known the testimony Brandstatt could offer. But counsel did not error because Brandstatt’s testimony would be cumula*482tive to that already given by other witnesses. See id. And even if counsel did error, counsel error alone is insufficient to prevail on an ineffective assistance of counsel claim. The error must have prejudiced Glass, meaning that the error undermines the confidence in the outcome of the proceeding. Deck v. State, 68 S.W.3d 418, 426 (Mo. banc 2002). Counsel called 10 mitigating witnesses, many of whom offered testimony very similar to the testimony Brandstatt could have given. The jury rejected this testimony and found that Glass should be given the death penalty. Counsel’s failure to call Brandstatt is not enough to undermine the confidence in this outcome.
Expert Witnesses
The motion court granted Glass relief as to four separate and independent claims regarding expert witnesses. The motion court found counsel ineffective for failing to investigate or call in the penalty phase (1) Dr. Robert Smith; (2) Dr. Michael Gelbort; (3) a learning disability expert, such as Teri Burns; and (4) an expert in pharmacology-toxicology, such as Dr. Terry Martinez.
(1) Dr. Smith — Psychologist
Dr. Robert Smith, a psychologist, evaluated Glass prior to the trial at counsel’s request. Counsel did not call Dr. Smith as a witness during the penalty phase. He would have testified that Glass has several mental disorders (including fetishism) and that those disorders impacted his mental capacity at the time of the crime. Though counsel originally intended to call Dr. Smith as a witness, counsel chose not to when they learned that the State intended to introduce evidence that women’s underwear and personal identification, as well as child pornography, had been found in Glass’s home. Glass denied owning the child pornography. The trial court excluded the items as evidence because the State did not have evidence establishing that Glass had stolen the underwear and personal identification or that it was Glass’s child pornography found on the computer located in his home. But Glass admitted to Dr. Smith that he had stolen the women’s underwear and personal identification and used those items for masturbatory purposes. And Dr. Smith initially diagnosed Glass with pedophilia in his report based on the child pornography found in Glass’s home. Counsel did not want to risk calling Dr. Smith as a witness because that would open the door for the State to ask on cross-examination whether Dr. Smith was aware of the women’s underwear and personal identification and of the child pornography and whether that affected his diagnoses. Counsel felt that such cross-examination questions would have been legitimate, and even if counsel objected to them and the objection was sustained, the question itself would have conveyed information to the jury about the child pornography and other items. Any subsequent instruction to the jury to ignore any mention of child pornography or stolen women’s underwear would have been as futile as trying to unring a bell. Counsel believed that the potential damage of such cross-examination questions outweighed the potential benefit of Dr. Smith’s testimony and made a strategic decision not to call Dr. Smith as a witness.
The motion court found that counsel’s decision not to call Dr. Smith was unreasonable and ineffective assistance of counsel because the trial court had already excluded the child pornography evidence, so cross-examination questions on that topic would be improper.
As noted by the majority, Glass concedes that trial counsel provided a reasonable strategy for not calling Dr. Smith.
*483The motion court clearly erred in finding counsel ineffective for failing to call this expert.
(2) Dr. Gelbort — Neuropsychologist
Dr. Michael Gelbort, a neuropsychologist, evaluated Glass prior to trial. Dr. Gelbort could have testified that, overall, Glass has a slightly above average IQ of 104. Dr. Gelbort’s testing indicates that Glass has neuropsychological deficits that impair higher thinking functions such as abstract reasoning, problem-solving, and comprehension. Glass also exhibited learning and memory difficulties, which indicate his temporal lobe functions were mildly impaired.
Counsel did not call Dr. Gelbort as a mitigating witness because counsel did not want to open the door to cross-examination questions by the State as to whether Dr. Gelbort knew about the child pornography or women’s underwear found in Glass’s house. The motion court found that counsel’s decision not to call Dr. Gelbort was unreasonable and constituted ineffective assistance of counsel. It found that Dr. Gelbort’s testimony would not “open the door” to the admission of the evidence because the trial court had already determined it was inadmissible. But the inadmissibility of the items as evidence does not necessarily rule out the State asking Dr. Gelbort about them on cross-examination. “A substantial inquiry into the factual basis of an expert opinion is a proper object of cross-examination.... ” State v. Thompson, 985 S.W.2d 779, 787 (Mo. banc 1999). The State could have asked Dr. Gelbort whether he was aware of the items and whether that had any bearing on his diagnoses. Even if the jury were instructed that questions were not evidence, the question itself would have informed the jury about the items.
Trial counsel’s strategic choice not to call a witness after a thorough investigation is virtually unchallengeable. Bucklew v. State, 88 S.W.3d at 398 (affirming motion court’s denial of claim that trial counsel was ineffective for failing to call this same expert, Dr. Michael Gelbort, as a witness). Here, counsel made a reasonable choice not to call Dr. Gelbort. Dr. Gelbort’s testimony about Glass’s average intellect, mild impairments, and probable deficits would not have been beneficial enough to risk informing the jury about the child pornography found in Glass’s house or how Glass stole women’s underwear and personal identifications and used them for masturbatory purposes. The motion court clearly erred in finding counsel was ineffective for failing to call Dr. Gel-bort.
(S) Teri Bums — Learning Disability Expert
The motion court found trial counsel ineffective for failing to have Glass evaluated by a learning disability expert such as Teri Burns. Burns is a speech-language pathologist who conducts psycho-educational evaluations. Burns evaluated Glass at the request of Glass’s post-conviction counsel. She determined that he has learning difficulties or disabilities and that he did not receive the necessary special services to accommodate his special educational needs.
Counsel testified that he was not aware of Teri Burns prior to trial and that he has never had an expert in learning disabilities evaluate any of his clients because it was not something that occurred to him. He did have Glass evaluated by a child development expert, Dr. Wanda Draper. Counsel decided not to call Dr. Draper. That decision was not challenged in the PCR motion.
*484In a death penalty case, counsel is required to “discover all reasonably available mitigating evidence.” Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (internal citation omitted). “Counsel is not ineffective for failing to shop for an expert that would testify in a particular way.” Edwards v. State, 200 S.W.3d at 518.
In Edwards, movant argued that his trial counsel were ineffective for failing to call an expert who would have diagnosed him with Asperger’s Disorder, because this diagnosis would have been mitigating evidence. Id. at 518-19. Edward’s trial counsel had consulted with three experts and prepared an adequate social history. Id. This Court held that trial counsel were not ineffective for failing to consult additional experts. Id.
Here, counsel had Glass evaluated by three different experts, investigated over 30 lay witnesses, and reviewed medical records and school records. Counsel took the necessary steps to discover all reasonably available mitigating evidence, including any possible mental issues that could provide mitigating evidence. The trial court clearly erred in finding counsel ineffective for fading to consult with a learning disability expert.
(i) Terry Martinez — Toxicologist
The motion court found trial counsel ineffective for failing to call a toxicologist such as Dr. Terry Martinez to testify about how Glass’s intoxication on the night of the murder may have affected Glass’s ability to appreciate the criminality of his conduct. Counsel’s notes indicate that he contacted Martinez prior to trial, though he does not recall it. When asked why he contacted Martinez, counsel said he suspected that he would have asked Martinez for his opinions about Glass’s level of intoxication and how that would have affected him on the night of the crime. Counsel did not further investigate Martinez because counsel was planning to admit evidence about Glass’s alcohol consumption through Dr. Smith, who counsel decided not to call right before trial.
Martinez evaluated Glass after trial. Glass told Martinez that on the night of the murder, he consumed approximately a fifth of tequila and 16 beers. Based on Glass’s memories as to the amount he drank on the night of the murder four years earlier, as well as witness accounts of Glass drinking, Martinez could have testified that Glass would have had a blood alcohol level of approximately .30, that he would have had had a loss of inhibition, that his memory would have been impaired,1 that he would have had a diminished thinking capacity, and that he was “under the influence of extreme mental or emotional disturbance from a pharmacological or toxicological perspective.”
Here, counsel investigated and consulted an expert who could have testified about Glass’s intoxication on the night of the murder: Dr. Smith. Dr. Smith was prepared to testify that due to a combination of Glass’s mental disorders and intoxication at the time of the crime, Glass’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired, and that he acted under the influence of extreme mental or emotional disturbance. Counsel did not make the decision not to call Dr. Smith until right before trial, when the trial court unexpectedly granted counsel’s motion to exclude evidence of the child pornography and other items found in Glass’s home. As previ*485ously discussed, Glass conceded that counsel provided a reasonable trial strategy for not calling Dr. Smith. Counsel made a strategic decision to develop the evidence of intoxication through Dr. Smith instead of Dr. Martinez. Counsel is not ineffective for failing to investigate and call another expert who would have been cumulative to Dr. Smith.
Claims not addressed by the Majority
Due to the disposition of this case, the majority did not address several of Glass’s claims: (1) that appellate counsel was ineffective for not appealing the exclusion of mitigating evidence;2 (2) that trial counsel was ineffective for failing to call corrections officers as mitigating witnesses to testify about Glass’s good conduct in jail; (3) that counsel’s ineffectiveness led to the exclusion of relevant mitigating evidence; (4) that Missouri’s use of lethal injection constitutes cruel and unusual punishment; (5) that the penalty phase jury instructions are confusing; and (6) that Glass’s death sentence is disproportionate. The motion court denied relief as to each of these claims. I would affirm on these claims.
The majority also did not address the State’s claim that the motion court erred in finding trial counsel ineffective for failing to object to the aggravating circumstances jury instruction in the penalty phase. I would find the motion court clearly erred in granting Glass relief on this claim because the instruction was proper under the MAI-CR and any such objection would have been non-meritorious.
Conclusion
Under the motion court’s reasoning, in order to be effective, counsel upon remand would have to investigate and call as mitigating witnesses essentially every person who has ever encountered Glass throughout his life. This reasoning is impractical and illogical. Counsel here investigated over 30 potential lay witnesses and, from those, called 10 of them to testify. Counsel also obtained and reviewed school and medical records. Counsel had Glass evaluated by a psychologist, a neuropsychologist, and a child development expert, and also contacted a toxicologist. Counsel con*486ducted a diligent and thorough investigation and, based on that investigation, made strategic choices as to which and how many witnesses would provide the best mitigation defense. The witnesses counsel called gave the jury lengthy and detailed information about Glass’s background. The lay witnesses the motion court found trial counsel ineffective for failing to call would have been cumulative and would have added very little to this testimony. The motion court clearly erred in finding that Glass demonstrated that his counsel’s performance failed to conform to the degree of skill, care, and diligence of a reasonably competent attorney and that he was thereby prejudiced.
Because the motion court clearly erred in granting penalty phase relief, I would affirm in part and reverse in part, such that Glass is denied post-conviction relief.
. It is unclear how Glass could both accurately report the number of beers and amount of tequila he drank and have an impaired memory the night of the murder.
. The motion court’s judgment contains contradictory reasoning. Glass claimed ineffective assistance of appellate counsel for failing to raise on appeal the trial court’s exclusion of Dr. Scherr’s records and other medical records and Glass’s school records. The motion court’s judgment states:
Appellate counsel testified that she strategically decided not to raise the [trial court’s exclusion of the medical records and school records during the penalty phase] because she made a judgment call that there was not enough in the record to demonstrate what would have been helpful or mitigating in the records. This Court finds that counsel’s actions were reasonable. Moreover, Movant was not prejudiced. Movant alleges that this evidence was relevant to show that Movant had been grossly overweight, that movant had meningitis which had a risk of brain damage, and his school performance. All of this evidence was presented during the penalty phase through various witnesses. These exhibits would have been merely cumulative.
Glass appealed this decision of the motion court. The majority did not address it. I would affirm this decision of the motion court. It is noteworthy that this decision is strikingly inconsistent with the motion court’s decision with regard to the claim of ineffective assistance of counsel for failure to call Dr. Scherr and many of Glass’s teachers. The motion court found that the information contained in the school and medical records would have been merely cumulative to evidence already presented in the penalty phase through other witnesses. But the motion court also found that trial counsel was ineffective for failing to call the doctor and the teachers who helped create those records. Their testimony, however, would have been just as cumulative to that presented by the other witnesses.