1

Missouri Court of Appeals

Southern District

Division One

RAMONE J. HICKS, )

 )

Appellant, )

 )

 v. ) No. SD35911

 )

STATE OF MISSOURI, ) FILED: March 30, 2020

 )

Respondent. )

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

Honorable David C. Jones, Judge

AFFIRMED

Ramone J. Hicks (“Movant”) appeals the denial, following an evidentiary hearing, of his 

Rule 29.15 motion for post-conviction relief.1 Movant sought to vacate, set aside, or correct the 

trial court’s judgment and sentences after a jury found him guilty of charges of first-degree 

robbery, first-degree burglary, and armed criminal action. See sections 569.020, 569.160, and 

571.015.

2

 Because none of Movant’s five points relied on demonstrate any clear error by the 

motion court, we affirm.

 1 All rule references are to Missouri Court Rules (2019). 2 All statutory references are to RSMo (2000). This Court affirmed Movant’s convictions on direct appeal in State 

v. Hicks, 456 S.W.3d 426 (Mo.App. 2015). We borrow freely from the previously published factual details as stated 

within that opinion and incorporate additional facts as necessary for analysis in this appeal.
2

Factual and Procedural Background

Briefly stated and viewed in the light most favorable to the jury’s verdicts, State v. 

Wright, 247 S.W.3d 161, 163 (Mo.App.2008), the evidence adduced at Defendant’s trial 

established the following. Joseph Vazquez (“Joseph”)3 was home with his two daughters, Rose 

Vazquez (“Rose”) and Jessica Vazquez (“Jessica”), when three individuals—a Hispanic man

wielding a knife, a white woman wielding a black gun with a long barrel, and a black man (later 

identified as Movant) wielding a silver hand gun—broke into their home. The black man’s face 

was obscured by a drawn-up black hoodie and a blue bandana that covered the lower portion of

his face, but the jeans he was wearing had a distinctive marking on the back.

Joseph’s cell phone was one of the items taken by the robbers. By “pinging” that stolen 

phone shortly after the robbery occurred, police officers were able to determine that it was 

located at a Walmart store. Officers went to that location and took into custody a group of three 

people (including Movant) in the parking lot who matched the description Joseph had given of 

his assailants. A brown 1984 Chevy Caprice (the “Caprice”) parked nearby contained the 

various items that had been stolen from the Vasquez residence. Joseph later identified the 

Hispanic man and the white female as two of the persons who had invaded his home. Rose 

identified Movant as the third person involved based upon a design on the back of his pants.

Several witnesses testified at Movant’s trial, including Movant’s sister, Soraya Miranda 

Hicks (“Sister”), whom Movant called as an alibi witness. During the State’s cross-examination, 

the prosecutor asked some questions about the Caprice and mentioned, for the first time at the 

trial, a man by the name of Alvin Crawford (“Crawford”). Sister responded to this line of 

questioning by stating that Alvin Crawford was her cousin’s friend with whom her cousin had 

 3 We refer to members of the Vazquez family by their first names in order to avoid confusion. No disrespect or 

familiarity is intended.
3

had a child, that the Caprice belonged to Crawford, and that she had last seen the Caprice in her 

cousin’s driveway. Defense counsel told the jury during closing argument that the Caprice did 

not belong to Movant.

The jury ultimately found Movant guilty of first-degree robbery, first-degree burglary, 

and armed criminal action. The trial court sentenced Movant to consecutive sentences of twenty 

years for each offense. His convictions were affirmed by this court in State v. Hicks, 456 

S.W.3d 426 (Mo.App. 2015).

Movant filed a timely pro se Rule 29.15 motion for post-conviction relief. Counsel was 

appointed and filed a timely amended motion. In his amended motion, Movant alleged, inter 

alia, (1) that the State committed a Brady4 violation by failing to disclose certain evidence 

showing that Movant was not the owner of the Caprice (“claim 8(a)”), (2) that the State engaged 

in prosecutorial misconduct by misrepresenting to the jury that Movant was the owner of the 

Caprice (“claim 8(b)”), (3) that trial counsel was ineffective for failing to investigate the Caprice

(“claim 8(c)”), and (4) that errors alleged in the amended motion together amounted to 

cumulative error (“claim 8(h)”).

Following an evidentiary hearing, the motion court ultimately denied Movant’s amended 

motion. Movant timely appeals, raising five points relied on, which, for ease of analysis, we 

consider out of order. Additional relevant facts are set out in the discussion of each point, infra.

Standard of Review

This Court’s review of the denial of a Rule 29.15 motion for post-conviction relief is 

limited to determining whether the motion court’s findings of fact and conclusions of law are 

clearly erroneous. Rule 29.15(k); Williams v. State, 168 S.W.3d 433, 439 (Mo. banc 2005). 

 4 Brady v. Maryland, 373 U.S. 83 (1963).
4

Such “[f]indings and conclusions are clearly erroneous only if a full review of the record 

definitely and firmly reveals that a mistake was made.” Morrow v. State, 21 S.W.3d 819, 822 

(Mo. banc 2000). It is incumbent upon the movant in a post-conviction motion to prove his or 

her claims for relief by a preponderance of the evidence, Rule 29.15(i), and this Court presumes 

that the motion court’s findings and conclusions are correct, Wilson v. State, 813 S.W.2d 833, 

835 (Mo. banc 1991). “The trial court has the ‘superior opportunity to determine the credibility 

of witnesses,’ and this Court defers to the trial court’s factual findings and credibility 

determinations.” Zink v. State, 278 S.W.3d 170, 178 (Mo. banc 2009) (quoting State v. Rousan, 

961 S.W.2d 831, 845 (Mo. banc 1998)).

Discussion

Point 1 – Alleged Deficiencies in Form and Language of the Judgment not Preserved for 

Appellate Review

Movant’s first point contends:

The motion court clearly erred in denying claim 8(b) of [Movant’s] amended Rule 

29.15 motion without issuing sufficient findings of fact and conclusions of law on 

this claim in violation of Rule 29.15(j) and in derogation of Mr. Hicks’ right to 

due process of law under the Fourteenth Amendment to the United States 

Constitution and Article I, Section 10 of the Missouri Constitution, in that no 

exception to Rule 29.15(j) applies and the motion court’s findings of fact and 

conclusions of law are not sufficiently specific to permit meaningful appellate 

review.

In his argument, Movant identifies the following findings of fact and conclusions of law, 

contained in a footnote within the motion court’s discussion of claim 8(a), that he claims are 

insufficient to permit appellate review of claim 8(b): 

Movant also contends that the State engaged in prosecutorial misconduct by 

referring [to the Caprice] as “Defendant’s vehicle.” However, the jury was well

aware of the true ownership of the [Caprice] and the prosecution’s reference as 

such was referring to the Movant’s possession of the [Caprice] versus actual 

ownership. The Court finds the prosecutor’s testimony to be credible on this issue 

and does not find that the State was attempting to mislead the jury by that 

reference.
5

Movant faults these findings in two respects—(1) “the motion court’s footnote purporting to 

address claim 8(b) did not make any express conclusion of law as to this claim”, and (2) 

“because the motion court focused exclusively on the culpability of the prosecutor, neither was 

there analysis of the fairness of [Movant’s] trial in light of the way the Caprice was characterized 

or how the jury perceived the prosecutor’s characterization of the vehicle.” The State responds, 

and we agree, that Movant’s arguments are not preserved for appellate review.

Movant is correct that the rules governing post-conviction relief proceedings require that 

“[t]he court shall issue findings of fact and conclusions of law on all issues presented, whether or 

not a hearing is held.” Rule 29.15(j) (emphasis added). 

Rule 29.15(j) also mandates, however, that Rule 78.07(c) “shall apply” to post-conviction 

relief proceedings. Rule 78.07(c) is a rule of civil procedure that requires that “allegations of 

error relating to the form or language of the judgment, including the failure to make statutorily 

required findings, must be raised in a motion to amend the judgment in order to be preserved for 

appellate review.” (Emphasis added.) “The purpose of Rule 78.07(c) is to ensure that 

complaints about the form and language of judgments are brought to the attention of the trial 

court where they can be easily corrected, alleviating needless appeals, reversals, and rehearings.” 

Gerlt v. State, 339 S.W.3d 578, 584 (Mo.App. 2011) (quoting Hollingshead v. State, 324 

S.W.3d 779, 783 (Mo.App. 2010) (Howard, J., dissenting)). “In the event that such a motion is 

filed [under Rule 78.07(c)], it must ‘state with particularity the grounds therefor.’” In re 

Holland, 203 S.W.3d 295, 301–302 (Mo.App. 2006) (quoting Rule 55.26(a)). 

Here, after the motion court entered its order, on December 4, 2018, containing findings 

of fact and conclusions of law denying Movant’s claims, Movant timely filed a Motion to 
6

Amend the Judgment Pursuant to Rule 78.07(c) (the “motion to amend”).

5

 The motion to 

amend, however, did not assert any of the deficiencies related to claim 8(b) that Movant now 

raises in this appeal, supra. Instead, it contained only the general allegation that “[t]he Court’s 

Order of December 4, 2018[,] does not address all issues presented in the amended motion 

without ambiguity and in sufficient detail to allow meaningful review on appeal.”

This generic allegation does not point to any specific finding in the judgment that is 

alleged to be deficient or to any specific issue in the case for which findings or conclusions are 

alleged to be lacking in the judgment. Without such specificity and particularity, this allegation 

brings no case-related finding or issue to the attention of the trial court for potential correction. 

Indeed, this generic allegation could be asserted verbatim in any motion to amend any judgment 

in any court-tried civil case without regard to the specific issues involved in the case or the 

specific findings or lack of findings or conclusions in that particular judgment. If such an 

allegation was sufficient to comply with Rule 78.07(c) to preserve form and language of the 

judgment issues for appellate review, an attorney would risk malpractice for not routinely and 

rotely reciting it in a Rule 78.07(c) motion filed in every court-tried civil case. Such form over 

substance would defeat the purpose of the rule and, in effect, nullify it.

By generally challenging the entire judgment, Movant’s allegation in his motion to 

amend failed to direct the attention of the motion court here to any particular specific issue for 

which the findings or conclusions in this particular judgment were insufficient to allow for 

meaningful appellate review, much less the specific issues Movant raises in this appeal. Having 

failed to bring these specific and particular issues to the motion court’s attention in his Rule 

 5 The record does not reflect that the motion court ever ruled on the motion to amend or issued any revised findings 

of fact and conclusions of law. As such, the motion to amend was deemed denied after ninety days. See Rule 78.06.
7

78.07(c) motion to amend, Movant has failed to preserve them for appellate review. Movant’s 

first point is denied.

Point 3 – Prosecutorial Misconduct Claim not Cognizable

Movant’s third point contends:

The motion court clearly erred in denying claim 8(b) of the amended motion in 

derogation of [Movant’s] rights to due process of law and to a fair trial under the 

Sixth and Fourteenth Amendments to the United States Constitution and Article I, 

Sections 10 and 18(a) of the Missouri Constitution, in that, despite referring to the 

Caprice as “defendant’s vehicle,” the prosecutor knew [Movant] did not own the 

vehicle and deliberately suppressed the owner’s true identity until it crossexamined [Movant’s] alibi witness; the prosecutor’s actions gave the jury the 

impression [Movant] actually owned the Caprice, and by presenting this 

information to the jury during [Movant’s] case-in-chief, his defense was 

substantially prejudiced, since it required him to change strategy during trial and 

undermined the credibility of his defense.

This claim fails, however, because it is not cognizable in this Rule 29.15 proceeding.

“A freestanding claim of prosecutorial misconduct is generally not cognizable in a Rule 

29.15 proceeding.” Tisius v. State, 183 S.W.3d 207, 212 (Mo. banc 2006). “If the alleged 

misconduct was apparent at trial, then it is an issue for direct appeal, not a Rule 29.15 

proceeding.” Id. “Accordingly, this Court has reviewed claims of prosecutorial misconduct in a 

Rule 29.15 proceeding when the alleged misconduct was serious and would not be apparent 

during the trial.” Id.

Claim 8(b) alleged that “the State portrayed that the [Caprice] seized on the night of

September 2, 2010[,] belonged to [M]ovant when in fact it knew that it belonged to Alvin 

Crawford”6 and then “used its portrayal during trial of [M]ovant’s ownership of the [Caprice] to 

discredit [S]ister’s testimony.”

 6 In his brief, Movant identifies the following statements by the prosecutor that he argues imply Movant’s ownership 

of the Caprice: “They [(referring to the police)] assume that this might be [Movant’s] car[,]” “[Movant’s] car 

contains those valuables that were taken that day[,]” “They locate his vehicle there at Wal-Mart[,]” “He doesn’t 

want them to realize it’s his car[,]” and “They put the property into his vehicle.”
8

In specifically addressing claim 8(b), the motion court made the findings of fact and 

conclusions of law quoted in our discussion of point 1, supra. The motion court made additional

relevant findings, however, while discussing claim 8(a). It stated: 

Despite Movant’s assertions to the contrary, the record is clear that both Movant 

and his trial counsel were aware prior to trial that he was not the owner of the 

[Caprice]. In addition, testimony was introduced at trial that Movant was not the 

owner of the [Caprice]. Finally, trial counsel stated during his closing argument 

that Alan Ray Crawford was the owner of the [Caprice].

These factual findings, unchallenged by Movant, are relevant to claim 8(b) because, 

assuming without deciding there was prosecutorial misconduct as claimed, such misconduct

should have been apparent to Movant and his counsel who were fully aware that the Caprice did 

not belong to Movant. Movant, therefore, could have sought contemporaneous relief at trial and 

on direct appeal. The ability to have done both renders Movant’s claim 8(b) not cognizable in 

this Rule 29.15 proceeding. Tisius, 183 S.W.3d at 212. Movant’s third point denied. 

Point 4 – No IAC Finding is not Clearly Erroneous

Defendant’s fourth point contends:

The motion court clearly erred in denying claim 8(c) of the amended motion in 

derogation of [Movant’s] rights to effective assistance of counsel under the Sixth 

and Fourteenth Amendments to the United States Constitution and Article I, 

Sections 10 and 18(a) of the Missouri Constitution, in that, given he should have 

known Crawford owned the Caprice prior to trial from at least one item of 

discovery and [Movant] himself, trial counsel’s failure to depose Crawford or 

investigate the facts around the vehicle to uncover evidence that [Movant] was not 

driving the vehicle the night of the incident was unreasonable, and, given 

Crawford’s later admission he was also at the Walmart on the night in question, 

trial counsel’s decision not to change his trial strategy after a less than thorough 

investigation was not reasonable; because trial counsel’s failure to investigate the 

facts of Alvin Crawford’s ownership of the Caprice deprived [Movant] of a 

compelling third-party-guilt defense, [Movant] was prejudiced thereby.

We disagree.

In order to prevail on a post-conviction motion alleging ineffective assistance of counsel

(“IAC”), a movant must overcome a strong presumption of competence and demonstrate, by a 
9

preponderance of the evidence, that (1) counsel did not exercise the customary skill and 

diligence that a reasonably competent attorney would have exercised under the same or similar 

circumstances (“performance prong”), and (2) counsel’s failure to exercise such skill and 

diligence prejudiced the movant in some way (“prejudice prong”). Strickland v. Washington, 

466 U.S. 668, 687, 689 (1984); Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987). To 

satisfy the performance prong, a movant “must overcome the presumptions that any challenged 

action was sound trial strategy and that counsel rendered adequate assistance and made all 

significant decisions in the exercise of professional judgment.” State v. Simmons, 955 S.W.2d 

729, 746 (Mo. banc 1997). 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). In reviewing such claims, we are not required to 

examine both prongs, if a movant fails to satisfy the performance prong, we need not consider 

the prejudice prong, and vice versa. Strickland, 466 U.S. at 697; Sanders, 738 S.W.2d at 857.

Additionally,

[t]o succeed on a claim of ineffective assistance of counsel based on the failure to 

investigate evidence, [Movant] needed to (1) specifically detail the information 

his counsel failed to discover, (2) establish that a reasonable investigation 

conducted by counsel would have resulted in the timely discovery of such 

information, and (3) prove that the information would have aided or improved his 

position at trial.

Steele v. State, 551 S.W.3d 538, 548 (Mo.App. 2018).

Here, Movant’s claim 8(c) alleged that he received ineffective assistance of counsel “in 

that his trial counsel failed to conduct adequate investigation into the [Caprice] that was seized 
10

after the home invasion” and, specifically, failed to learn that Movant “was not driving the 

[Caprice] the night of the incident[.]”7 According to his argument in support of this claim,

Defense counsel’s investigation of the [Caprice] was of extreme importance to 

[M]ovant’s case especially in light of the fact that he presented an alibi defense 

and none of the victims could identify him. Joseph Vazquez, one of the victims, 

described movant as 5’8” to 5’10” tall a description that fits that of Alvin 

Crawford, a black man, whose vehicle was on the Walmart parking lot.

Movant relies upon three exhibits, Movant’s Exhibits A-1, A-2, and B, received into 

evidence, which purportedly came to light following Movant’s trial and convictions. The former 

two exhibits contain a purported copy of Crawford’s driver’s license reflecting Crawford’s 

height as 5’8” (“Crawford’s driver’s license”).

8

 The latter exhibit is an affidavit, purportedly by 

Crawford, containing the following sworn statement:

On or about the day of September 2, 2010[,] I, Alvin Crawford exited the 

Walmart on Sunshine and West byepass [sic] to discover my 1984 Chevy Caprice 

Classic was no longer in the parking lot. I was informed by Walmart staff that a 

car had been towed by Springfield Police Department. On September 22, 2010[,]

I arrived at the Springfield Police Department where my car was released to me

(“the Crawford affidavit”).

9

In denying claim 8(c), the motion court concluded that the alleged information trial 

counsel failed to discover “would not have yielded material evidence or a change in trial strategy 

sufficient to negate the overwhelming evidence by the State that Movant operated the [Caprice] 

on the night of the robbery.” (Emphasis added.) We find no clear error in the motion court’s 

 7 Movant also alleged in claim 8(c) of his amended motion that trial counsel was ineffective in failing to learn that 

“[M]ovant did not own the [Caprice],” “the police released the [Caprice] to its owner,” “the [Caprice] was destroyed 

by its owner,” and “the key that the police alleged they seized from [M]ovant would not have opened both the door 

and started the ignition[.]” By failing to address in his brief the motion court’s findings of fact and conclusions of 

law related to these additional allegations, Movant has either failed to assert or abandoned any claim of motion court 

error as to them. 8 Exhibits A-1 and A-2 are addressed in further detail in our discussion of point 2, infra. 9 Crawford’s sworn statement was subscribed on September 14, 2015, over two years after Movant’s trial and 

conviction. The motion court took judicial notice of the Crawford affidavit after post-conviction counsel moved to 

supplement the record on the basis that Crawford’s in-person testimony could not be secured for the evidentiary 

hearing because he was, at the time, in poor health. At oral arguments, post-conviction counsel disclosed that 

Crawford has since passed away.
11

determination that Movant suffered no prejudice and, therefore, need not address trial counsel’s 

performance.

The following relevant evidence was adduced at Movant’s trial. The break-in at the 

Vazquez residence took place sometime between 9:00 p.m. and 10:00 p.m. on September 2, 

2010. Jose Bibiano (“Bibiano”) and Casey Holt (“Holt”), were later positively identified by 

Joseph as the Hispanic man and white woman, respectively, who participated in the break-in. 

Soon after the break-in, these two individuals, along with Movant, were observed together by 

Walmart employees attempting to purchase expensive merchandise, including a flat panel 

television. Sometime between 11:45 and midnight, all three individuals exited the Walmart 

together and were walking towards the Caprice when they were arrested by police.

A search of Holt revealed a credit card, a debit card, and a cell phone, all of which 

belonged to Joseph, as well as receipts indicating several attempts to use Joseph’s cards after the 

break-in. When police began examining the Caprice, Movant was overheard asking, “What are 

they doing with my car?” Thereafter, the police seized a car key from Movant that unlocked the

Caprice. Following Movant’s grant of consent to search the Caprice, the police discovered the

stolen belongings from the Vazquez household, a silver handgun under the driver’s seat, a black 

pellet gun, a blue bandana, a black hoodie, and a knife.

Bibiano pleaded guilty to burglary, armed criminal action, and robbery. He agreed to 

testify against his accomplices and, at Movant’s trial, identified Movant and recounted how the 

three of them had committed the charged crimes.

Movant disagrees that this evidence was “overwhelming” as found by the motion court. 

To support his contrary argument, he notes that Bibiano provided “snitch” testimony, which is 

notoriously unreliable; that besides Bibiano, no one could positively identify Movant as the black 
12

man who participated in the break-in; that DNA and fingerprint evidence was inconclusive or 

nonexistent; and that the car key recovered from Movant would not turn over the Caprice’s 

engine. Thus, in light of such evidentiary deficiencies, Movant argues that evidence that 

Crawford, the owner of the Caprice, matched Joseph’s description of the black man involved in 

the break-in and was present at the Walmart around the relevant timeframe that the Caprice was 

discovered would have allowed Movant to present a viable third-party guilt defense.

Movant’s argument is not persuasive. There is no dispute that there was overwhelming

evidence connecting Bibiano, Holt, and the Caprice to the break-in and robbery. Thus, even

assuming without deciding that the relied-upon evidence concerning Crawford would have been 

admissible at Movant’s trial, that evidence does nothing to mitigate or explain Movant’s 

association with and connections to those individuals and the Caprice during the short timeframe 

following the break-in and preceding his arrest. While the Crawford affidavit supports that 

Crawford was in the Walmart that day and when he exited the Walmart the Caprice was not in 

the parking lot, those facts have little, if any, relevance in the context of this case absent any 

additional evidence, which Movant has not supplied, connecting Crawford to Bibiano and Holt

and disconnecting Movant from his exertions of possessory authority over the Caprice. 

In sum, Movant failed to show and ultimately persuade the motion court that evidence 

from Crawford’s driver’s license or trial testimony consistent with the information in the 

Crawford affidavit would have improved Movant’s position at trial. See Steele, 551 S.W.3d at 

548. Because Movant failed to demonstrate Strickland prejudice, the motion court did not 

clearly err in denying claim 8(c). Movant’s fourth point is denied. 

Point 2 – No Brady Violation Finding is not Clearly Erroneous

Movant’s second point contends: 
13

The motion court clearly erred in denying claim 8(a) of the amended motion 

alleging respondent’s Brady violation in derogation of [Movant’s] rights to due 

process of law and to a fair trial under the Sixth and Fourteenth Amendment of 

the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri 

Constitution, in that the Exhibits A-1 and A-2 Custody Tow Vehicle Release 

Forms respondent failed to disclose were exculpatory, not merely because they 

showed Alvin Crawford was the actual owner of the Caprice, but also because 

they confirmed Crawford matched the description of the African-American home 

invader. The absence of this exculpatory evidence was sufficient to undermine 

confidence in the trial’s outcome and the motion court’s contrary findings 

misapplied the Brady standard and were not supported by the record, which error 

should leave this Court with a definite and firm impression that a mistake has 

been made.

We disagree. 

Movant alleged in claim 8(a) of the amended motion that the prosecutor committed a 

Brady violation by failing to disclose to Movant that “paper work that was in the possession of 

the Springfield Police Department consisting of a vehicle release form, authorization to tow, and 

vehicle claim notification” (“the Caprice impoundment forms”).10

The following facts are relevant to this claim. The Caprice impoundment forms, received 

by the motion court into evidence as Exhibits A-1 and A-2, reflect that the Caprice was owned 

by and, after it had been towed by the police, claimed by and ultimately released to Crawford. 

As noted in our discussion of point 4, supra, the Caprice impoundment forms contain a copy of 

Crawford’s driver’s license, which states his height as 5’8”. Both Movant and his trial counsel 

testified that they had not received or do not recall receiving the Caprice impoundment forms 

from the State prior to or during the course of Movant’s trial. Movant claimed that he did not 

learn of the Caprice impoundment forms until they were discovered by his appellate counsel 

 10 In addition to Brady, Movant also claimed that a violation of Rule 25.03 had also occurred. See State v. Moore, 

411 S.W.3d 848, 852–54 (Mo.App.2013) (explaining that Brady obligations differ from those under Rule 25.03). 

However, we need not address Rule 25.03 in this appeal because Movant’s point relied on only challenges the 

motion court’s Brady analysis. See State v. Coody, 867 S.W.2d 661, 664 n.1 (Mo.App. 1993) (“We limit our review 

to matters raised in the points relied on.”).
14

during the pendency of Movant’s direct appeal. The prosecutor, however, testified that, although 

he could not be sure whether the Caprice impoundment forms had been turned over, it was his 

practice to turn over all discovery to the defense.

“If the State suppresses evidence favorable to a defendant and material to either the guilt 

or penalty phase, due process is violated.” Johnson v. State, 406 S.W.3d 892, 901 (Mo. banc 

2013) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). “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.’” Id. (quoting Strickler v. 

Greene, 527 U.S. 263, 281–82 (1999)). The third component, prejudice, is interchangeable with 

the materiality of the evidence. State v. Moore, 411 S.W.3d 848, 856 (Mo.App. 2013). 

“Evidence is material if there is a reasonable probability that its disclosure to the defense would 

have caused a different result in the proceeding.” State ex rel. Engel v. Dormire, 304 S.W.3d 

120, 128 (Mo. banc 2010) (citing Strickler, 527 U.S. at 280). “The materiality standard for 

Brady claims is established when ‘the favorable evidence could reasonably be taken to put the 

whole case in such a different light as to undermine confidence in the verdict.’” Id. (quoting 

Kyles v. Whitley, 514 U.S. 419, 435 (1995)). 

In rejecting claim 8(a), the motion court issued findings of fact and conclusions of law 

addressing the prejudice (materiality) prong of the above-described Brady analysis. Specifically, 

the motion court found that “Movant has failed to establish that the evidence in question was 

material.” The motion court also found that “Movant has also failed to establish that disclosure 

of the evidence in question would have caused a different result in the proceeding” and “[a]s 

such, Movant has failed to establish that he was prejudiced by not receiving the vehicle 
15

information[.]” In support of the former finding, the motion court noted that “the issue at trial 

was ... Movant’s possession and use of the [Caprice]” and then went on to list the evidence 

supporting the State’s argument that Movant possessed and used the Caprice. In support of the 

latter finding, the motion court listed evidence showing that Movant and defense counsel were 

aware before trial that Movant did not own the Caprice. The motion court went on to state that 

in light of the “extremely strong” evidence against Movant, which included evidence that he 

possessed the Caprice at the time of the underlying crimes and his identification by one of the 

victims, “there is nothing to support the Movant’s proposition that the disclosure of the [Caprice 

impoundment forms] prior to trial would have altered the outcome of this case.” The motion 

court also found defense counsel’s testimony to be credible that receipt of the Caprice 

impoundment forms would not have altered his trial strategy.

Movant asserts four arguments addressing the motion court’s findings of fact and 

conclusions of law. Movant argues, first, that trial counsel changed his strategy regarding the 

Caprice’s ownership after Sister testified that Crawford was its owner, thereby showing that trial 

counsel was unaware of this fact and would have changed his strategy if he had known, second, 

that the evidence against Movant was not strong and the Caprice impoundment forms would 

have provided him with evidence supporting a third party guilt defense, third, that the State 

argued Movant both owned and operated the Caprice, and, if trial counsel was made aware that 

Movant did not own the Caprice, trial counsel would have used that information to impeach the 

State’s evidence to the contrary, and fourth, that the motion court utilized an incorrect materiality 

standard in its Brady analysis. None of Movant’s arguments are persuasive. 

Movant’s first and third arguments—that trial counsel would have changed his trial 

strategy and would have impeached the State’s witnesses had trial counsel known about 
16

Crawford—fail because those arguments are refuted by the record. The motion court found that 

Movant and trial counsel already knew, before trial, of Crawford’s existence and that he owned 

the Caprice. We defer to the motion court’s factual findings and credibility determinations. 

Zink, 278 S.W.3d at 178.

Movant’s second argument—that Movant was denied a viable third-party guilt defense—

fails for a similar reason that Movant’s IAC claim in point 4, supra, failed. In that point, Movant 

failed to satisfy Strickland prejudice due to trial counsel’s failure to uncover the evidence of 

Crawford’s height (relying on Crawford’s driver’s license) and Crawford’s claim that while at 

the Walmart he discovered that the Caprice had been towed by police (relying on the Crawford 

affidavit). Here, the only evidence at issue are the Caprice impoundment forms containing a 

copy of Crawford’s driver’s license. We find no clear error in the motion court’s finding that the 

withholding of this evidence, showing merely that Crawford’s race and height fit within the 

parameters of Joseph’s initial general description of the black man involved in the break-in, fails 

to satisfy the Brady prejudice standard, as recited by Engle, supra. In other words, Movant 

failed to show and ultimately persuade the motion court that the withheld evidence, which 

showed no direct connection between Crawford and the break-in other than evidencing his 

ownership of the Caprice (which, as already stated, was known to the defense), could reasonably 

have put the whole case in such a different light as to undermine confidence in the verdict. 

Movant’s fourth argument—that the motion court utilized the incorrect legal standard for 

materiality—has two prongs, each of which fails for different reasons. Under the first prong, 

Movant argues that by analyzing “materiality” and “prejudice” as if they were separate elements, 

the motion court “unreasonably and impermissibly required [Movant] to prove an additional 

fourth component to the Brady standard articulated in Strickler v. Greene, 527 U.S. 263, 281-82 
17

(1999).” (Bold added.) Movant, however, fails to explain his reasoning or elaborate on this 

argument. The fact remains that Movant failed to prove Brady prejudice, which is also described 

as materiality. The motion court’s mere use of both terms to articulate this finding does not 

support the contention that it imposed an additional element upon Movant’s burden of proof. 

Under the second prong of Movant’s fourth argument, Movant takes issue with the

motion court’s statements that “Movant has also failed to establish that disclosure of the 

evidence in question would have caused a different result in the proceeding” and “there is 

nothing to support the Movant’s proposition that the disclosure of the ownership paperwork prior 

to trial would have altered the outcome of this case.” (Emphasis added.) Movant goes on to 

argue that 

Subsequent to Strickler, the United States Supreme Court explained that, under 

Brady, “[e]vidence qualifies as material when there is any reasonable likelihood it 

could have affected the judgment of the jury.” Wearry, 136 S.Ct. at 1006. 

Inasmuch, [Movant] “must only show that the new evidence is sufficient to 

undermine confidence in the verdict.” Id.; see also State ex rel. Engle v. 

Dormire, 304 S.W.3d 120, 128 (Mo. banc 2010) (citation omitted).[] In this way, 

[Movant] “can prevail even if...the undisclosed information may not have 

affected the jury’s verdict.” Wearry, 136 S.Ct. at 1006 n.6. The motion court 

included none of this distinctly different and more nuanced language from 

Wearry in its order denying claim 8(a). Accordingly, the motion court’s adoption 

of imperative language (i.e., “would”) when the Supreme Court of the United 

States has promulgated a permissive standard for Brady materiality (i.e., “could 

have affected”) should leave this Court with a definite and firm impression that a 

mistake has been made. Wearry, 136 S.Ct. at 1006.

(Bold added and citations to the record omitted.) The motion court however, was not mistaken 

and did not clearly err in citing to and relying upon controlling law. In reciting legal principles

comprising Brady prejudice, the motion court relied on Engle, supra, an opinion by the Supreme 

Court of Missouri, which itself relied on Strickler, for the principle that “[e]vidence is material if 

there is a reasonable probability that its disclosure to the defense would have caused a different 

result in the proceeding.” Engel, 304 S.W.3d at 128 (emphasis added). “[A] Missouri Supreme 
18

Court interpretation of federal constitutional law constitutes the controlling law within our state 

until either the Missouri Supreme Court or the United States Supreme Court declares otherwise.” 

Doe v. Roman Catholic Diocese of St. Louis, 311 S.W.3d 818, 823 (Mo.App. 2010). The 

second prong of Movant’s fourth argument has no merit.

For the aforementioned reasons, Movant has failed to demonstrate that the motion court’s 

denial of claim 8(c) was clearly erroneous. Movant’s fourth point is denied. 

Point 5 – No Cumulative Error Finding is not Clearly Erroneous

Movant’s fifth point contends:

The motion court clearly erred in denying claim 8(h) of the amended motion in 

derogation of [Movant’s] rights to due process of law and to a fair trial under the 

Sixth and Fourteenth Amendments to the United States Constitution and Article I, 

Sections 10 and 18(a) of the Missouri Constitution, in that the cumulative 

prejudicial effect from [Movant’s] claims 8(a), 8(b), and 8(c) demonstrate 

[Movant] did not receive a fair trial even without deciding whether claims 8(a), 

8(b), or 8(c) individually warrant reversal.

We disagree.

With regard to claim 8(h), the motion court quoted McDaniel v. State, 460 S.W.3d 18, 34 

(Mo.App. 2014), for the proposition that “[h]aving determined that none of Movant’s points 

amount to reversible error, there can be no reversible error attributable to their cumulative 

effect.” This is a correct statement of the law and, because Movant has failed to demonstrate 

error with claims 8(a), 8(b), and 8(c), the motion court’s application of McDaniel in this context 

was not clearly erroneous. Movant’s fifth point is denied. 

Decision

The motion court’s judgment is affirmed.

GARY W. LYNCH, P.J. – OPINION AUTHOR

NANCY STEFFEN RAHMEYER, J. – CONCURS

WILLIAM W. FRANCIS, JR., J. – CONCURS