Richard D. Davis vs. State of Missouri

In May 2006, police discovered Spicer’s body in a shallow grave in Lafayette

County. Movant was identified as a suspect in that investigation. Search warrants

executed on Movant’s apartment and workplace recovered numerous items, including a

video camera and several videotapes. The videotapes depicted Movant and his girlfriend

repeatedly physically and sexually assaulting Spicer and Ricci. One videotape recorded

the moment of Spicer’s death while being sexually assaulted by Movant’s girlfriend.

Movant confessed to killing Spicer during the sexual assault, cleaning her body with

bleach, and dumping her body in the shallow grave.

The state filed a twenty-six count amended information charging Movant with

first-degree murder for Spicer’s death and multiple counts of first-degree assault, forcible

rape, and forcible sodomy of Spicer and Ricci. Movant did not testify or present

witnesses during the guilt phase of his trial. Instead, Movant’s counsel cross-examined

the state’s witnesses to show that Movant got “caught up” in the moment and did not

deliberate during Spicer’s murder. The jury convicted Movant of all counts except one count of first-degree assault against Ricci.1

The state submitted three statutory aggravators: (1) that Movant had one or more

serious assaultive convictions; (2) that Spicer’s murder involved depravity of mind; and

In August 2012, Movant pleaded guilty to first-degree murder for Ricci’s death in a separate proceeding.

(3) that Spicer’s murder occurred while Movant was engaged in the perpetration of rape.

The state presented evidence that Movant and his girlfriend took Ricci to a remote area,

murdered her, and set her body on fire in an attempt to destroy evidence. Additional

evidence showed that, while evading arrest, Movant and his girlfriend kidnapped,

sexually assaulted, sodomized, and beat a five-year-old child. The state presented further

evidence of other crimes, including that Movant previously raped and sodomized a

woman at knifepoint.

During the penalty phase, Movant presented mitigation testimony from a

psychologist, Dr. Steven Mandracchia (hereinafter, “Dr. Mandracchia”).

Dr. Mandracchia evaluated Movant’s mental condition, at the time of the crimes and at

trial, and assessed whether developmental issues contributed to his conduct. Dr.

Mandracchia testified that physical and sexual abuse, including beatings by his

stepfather, lack of interpersonal connections in Movant’s family, as well as his exposure

to inconstant adult figures, prevented normal development. Dr. Mandracchia testified

that by the age of six, family members were setting up real or simulated sexual acts for

Movant and his sister to engage in, and by age ten, Movant was engaging in sexual

activity with a number of people. By age fifteen, regular sexual activity had become

“routine,” and Movant became involved in anal sex, rough sex, and group sex. An aunt

made him engage in sexual activity with his sister. There was evidence indicating that

Movant was molested by his stepfather. Medical records revealed that Movant was

depressed, was anxious, had low self-esteem, and that his anger and his sexuality became

associated. Dr. Mandracchia concluded that Movant had several severe personality

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disorders, including antisocial personality disorder, narcissism, and paranoid personality

disorder.

Movant testified during the penalty phase. Movant expressed sorrow for what he

had done to his victims and explained the history of abuse in his family. Movant also

called a former girlfriend, another friend, and his sister to testify on his behalf.

After hearing all of the evidence, the jury found all three statutory aggravators

were met and recommended Movant be sentenced to death for Spicer’s murder. The

circuit court sentenced Movant in accordance with the jury’s recommendation. This

Court affirmed Movant’s conviction and sentence. Davis, 318 S.W.3d at 618.

Movant then filed a pro se motion to vacate his first-degree murder conviction and

sentence pursuant to Rule 29.15. Appointed counsel filed an amended motion. Movant

submitted a 218-page document as an attachment to the amended motion, raising a

number of additional ineffective assistance of counsel claims. Attached to the 218-page

document was a separate thirty-seven page document raising arguments related to the

suppression issues presented at trial. After a six-day evidentiary hearing, the motion

court entered a 135-page judgment overruling Movant’s motion. Movant appeals.

Standard of Review

This Court reviews the denial of post-conviction relief to determine whether the

motion court’s findings of fact and conclusions of law are clearly erroneous. Rule

29.15(k). “A judgment is clearly erroneous when, in light of the entire record, the court

is left with the definite and firm impression that a mistake has been made.” Swallow v.

State, 398 S.W.3d 1, 3 (Mo. banc 2013). The motion court’s findings are presumed

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correct. Johnson v. State, 406 S.W.3d 892, 898 (Mo. banc 2013). This Court defers to

“the motion court’s superior opportunity to judge the credibility of witnesses.” Barton v.

State, 432 S.W.3d 741, 760 (Mo. banc 2014) (quoting State v. Twenter, 818 S.W.2d 628, 635 (Mo. banc 1991)).2

To be entitled to post-conviction relief for ineffective assistance of counsel, a

movant must show by a preponderance of the evidence that his or her trial counsel failed

to meet the Strickland test in order to prove his or her claims. Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under Strickland, Movant must

demonstrate that: (1) his trial counsel failed to exercise the level of skill and diligence

that a reasonably competent trial counsel would in a similar situation, and (2) he was

prejudiced by that failure. Id. at 687, 104 S. Ct. 2052.

Movant must overcome the strong presumption that trial counsel’s conduct was

reasonable and effective. Johnson, 406 S.W.3d at 899. To overcome this presumption, a

movant must identify “specific acts or omissions of counsel that, in light of all the

circumstances, fell outside the wide range of professional competent assistance.” Zink,

278 S.W.3d at 176. Trial strategy decisions may be a basis for finding ineffective 2 Movant alleges the motion court’s credibility findings do not defeat a claim of prejudice in that the motion court’s determination cannot substitute for a jury’s appraisal at the time of trial, citing Kyles v. Whitley, 514 U.S. 419, 449, n.19, 115 S. Ct. 1555, 1573, 131 L.Ed.2d 490 (1995). “Simply because the motion court found individuals to be credible on certain issues and not credible on others does not indicate any error by the motion court.” Zink v. State, 278 S.W.3d 170, 192 (Mo. banc 2009). The motion court’s rejection of certain witness testimony as non-credible goes to whether Movant met his burden of demonstrating a claim for relief, not whether the jury would have believed that witness at trial.

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assistance of counsel only if that decision was unreasonable. Id. “[S]trategic choices

made after a thorough investigation of the law and the facts relevant to plausible opinions

are virtually unchallengeable[.]” Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006)

(quoting Strickland, 466 U.S. at 690, 104 S. Ct. at 2052).

“To establish relief under Strickland, a movant must prove prejudice.” Johnson,

406 S.W.3d at 899. Prejudice occurs when “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.”

Deck v. State, 68 S.W.3d 418, 429 (Mo. banc 2002) (citing Strickland, 466 U.S. at 694,

104 S. Ct. 2052). Prejudice in a death penalty case is “a reasonable probability that, but

for counsel’s deficient performance, the jury would have concluded the balance of

aggravating and mitigating circumstances did not warrant death.” Forrest v. State, 290

S.W.3d 704, 708 (Mo. banc 2009) (quoting State v. Kenley, 952 S.W.2d 250, 266 (Mo.

banc 1997)).

Point I – Retention of a Male Trauma Expert

In his first point, Movant alleges the motion court clearly erred in denying his

claim that trial counsel were ineffective for failing to call an appropriate expert to present

Movant’s complete psychosocial, psychosexual, and trauma history in the penalty phase

of the trial as mitigating evidence. Movant argues Dr. Mandracchia had no expertise in

assessing or evaluating males with trauma stemming from sexual abuse. Movant claims

that if the jury had heard testimony from an expert that specialized in evaluating males

who suffered sexual abuse, there is a reasonable probability he would have received a life

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sentence because the jury would have been provided with a reason for Movant’s

behavior.

In a death penalty case, trial counsel has an obligation to investigate and discover

all reasonably available mitigating evidence. Johnson v. State, 388 S.W.3d 159, 165

(Mo. banc 2012). Trial counsel’s selection of which expert witnesses to call at trial is

generally a question of trial strategy and is virtually unchallengeable. Goodwin v. State,

191 S.W.3d 20, 29 (Mo. banc 2006). To show ineffective assistance of counsel based on

failure to present an expert witness, a movant is required to show what the evidence

would have been if called. Twenter, 818 S.W.2d at 636. However, 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.” Strong v. State, 263 S.W.3d 636, 652 (Mo.

banc 2008) (quoting Rompilla v. Beard, 545 U.S. 374, 383, 125 S. Ct. 2456, 162 L. Ed.

2d 360 (2005)).

To support his claim, Movant presented the testimony of Dr. Victoria Reynolds

(hereinafter, “Dr. Reynolds”), a clinical psychologist who specializes in trauma.

Dr. Reynolds interviewed Movant three times over approximately thirteen hours,

reviewed a portion of Movant’s records, penalty phase trial testimony excerpts, and

interviewed Movant’s sister and a childhood friend. Dr. Reynolds’ evaluation focused on

Movant’s childhood and adolescent psychosexual history. Dr. Reynolds discussed

Movant’s family history, childhood, his relationship with his mother and stepfather, and

several instances of sexual abuse that occurred during Movant’s childhood and

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adolescence. Dr. Reynolds ultimately concluded Movant was “disregulated,” meaning

“he alternates between pulse, extremes of relatedness, over-relatedness, overattachment,

obsessionality … or feelings of guilt and protection ….” Dr. Reynolds explained Movant

can also “be completely cut off to the point that he does not understand the feelings” of

other people or that people are in pain. Dr. Reynolds did not offer a diagnosis, and her

opinions were not meant to evaluate any activity or actions related to the underlying

crimes.

Dr. Reynolds did not review certain records, Movant’s trial testimony, or view the

videotapes depicting the crimes or Movant’s police interrogations. Dr. Reynolds did not

ask Movant about the crimes themselves. Dr. Reynolds stated it was a “given” going into

Movant’s evaluation that he suffered from trauma because it was her understanding that

she would only be contacted if there is “a very strong reason to suspect there is [trauma].”

Dr. Reynolds described Movant as “fully cooperative.” Movant did not refuse to speak

about any subject but, instead, went into explicit detail about several prior instances of

abuse. Dr. Reynolds admitted she had post-trial access to substantially more information

concerning Movant’s alleged history of sexual abuse than did Dr. Mandracchia.

Dr. Reynolds recognized issues with Movant’s credibility, testifying that “[i]t’s

possible that at times some of the information [Movant] was giving [her] was not

accurate for whatever reason,” and that if Movant lied to her about his prior history, the

foundation for her opinion “collapses.” Dr. Reynolds also admitted that Movant told her,

“I reinvent myself everyplace I live” and that Movant “probably told me things that aren’t

true. Does that mean I am going to have difficulty sorting out the veracity of some?

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Yes.” Dr. Reynolds further conceded she was unable to corroborate Movant’s allegations

of sexual abuse. Dr. Reynolds attempted to rationalize Movant’s many contradictions as

indicia or “footprints” of the trauma he suffered, rather than consider it was self-serving

testimony in a post-conviction proceeding.

The motion court categorically rejected Dr. Reynolds’ testimony, finding she was

not a credible witness. The motion court noted that most of the critical sources upon

which Dr. Reynolds based her opinions and conclusions were either unreliable, non

credible, or both. The motion court specifically referenced Dr. Reynolds’ reliance upon

Movant’s self-reported, post-conviction disclosures of sexual abuse that were not made to

the defense team prior to trial. The motion court explicitly found Movant was “not a

valid, reliable, or credible source of information of any kind or to any degree.” This

Court defers to the motion court’s credibility determinations and finds the motion court

did not clearly err in reaching this conclusion.

Movant alleges trial counsel were ineffective for failing to provide the jury with a

reason for his behavior. Movant concedes that Dr. Mandracchia’s testimony during the

penalty phase touched upon several subjects presented by Dr. Reynolds, but argues

Dr. Mandracchia’s testimony did not provide a complete picture of the multiple forms of

sexual, physical, and emotional trauma Movant suffered due to multigenerational incest,

sexual and physical abuse, drug use, and prostitution to which he was subjected during

childhood. The motion court specifically rejected this argument, finding Dr. Reynolds’

testimony provided a different “gloss” or “spin” to the testimony presented at trial. The

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motion court also found Dr. Mandracchia was “more than qualified to diagnose Movant

and offer his opinions at trial.”

While trial counsel has a duty to present relevant mitigating evidence, trial counsel

is not obligated to shop for an expert witness who might provide the most or more

favorable testimony. McLaughlin v. State, 378 S.W.3d 328, 343 (Mo. banc 2012).

Further, trial counsel’s failure to develop or present evidence that is cumulative to that

presented at trial does not constitute ineffective assistance of counsel. Forrest, 290

S.W.3d at 709.

Dr. Mandracchia took into account Movant’s childhood sexual abuse, and stated

that drug use, physical abuse, abandonment, and lack of positive role models all played a

part in Movant’s development. While Dr. Mandracchia did not use the word “trauma” to

describe what Movant endured during his childhood and adolescence, this concept was

conveyed to the jury during Dr. Mandracchia’s penalty phase testimony. Trial counsel

were not ineffective for failing to shop for a more favorable expert who would present

cumulative evidence.

Finally, Movant’s full communication and cooperation with Dr. Reynolds during

their post-conviction interactions was in stark contrast to Movant’s behavior pretrial,

where he persistently refused to cooperate with trial counsel and the mental health experts retained to evaluate him.3 The record is replete with references to Movant’s

recalcitrance and unwillingness to cooperate prior to and during the trial.

3 Movant argues that his lack of cooperation was related directly to his mental illness, which was supported amply by evidentiary hearing testimony. As will be discussed

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Tom Jacquinot (hereinafter, “Jacquinot”) was lead trial counsel during Movant’s

case. Jacquinot described the communication issues the defense team had with Movant

in detail. Jacquinot testified about Movant’s reluctance to work with the experts who

were retained and Movant’s unwillingness to discuss any prior instances of sexual abuse.

Jacquinot testified that he considered hiring an expert in sexual and physical trauma for

Movant but ultimately decided against it due to Movant’s lack of cooperation. The

motion court found Jacquinot’s explanation credible and that it constituted a reasonable

trial strategy.

Susan Elliott (hereinafter, “Elliott”) also represented Movant at trial. Elliott

testified at the evidentiary hearing that Movant would not listen to counsel’s advice and

wanted to control the course of any trial discussion. Elliott described Movant as a

difficult client who did not want to talk about himself. Elliott stated that Movant did not

work with the defense team, he was mistrustful, he was not forthcoming with

information, and he attempted to have them fired several times during their

representation.

Movant’s defense team also included Carol Muller (hereinafter, “Muller”), a

mitigation specialist. Muller testified that it was difficult to obtain Movant’s confidence

and that he was very mistrustful of everyone on his defense team after having a

challenging experience with previous defense counsel. Muller described Movant as

“very closed up” and reluctant to talk about any specifics regarding his sexual abuse.

infra, the motion court found this testimony non-credible and went so far as to question whether Movant even suffered from bipolar I disorder based on the evidence presented.

12

Muller also testified that Movant was not a good historian and did not disclose much

information to the team.

Dr. Mandracchia testified via pretrial deposition about his difficulty in obtaining

information from Movant. Dr. Mandracchia described Movant as vague, extremely

reluctant, and resistant to discussing any possibility that sexual abuse occurred. At one

point Movant outright refused to disclose whether his stepfather abused him.

Dr. William Logan (hereinafter, “Dr. Logan”) also worked with Movant prior to

trial. Dr. Logan described his relationship with Movant at one point as “fragile” and that

he avoided “agitating” Movant during their sessions. Dr. Logan’s contact ceased well

before trial when communications broke down, and Dr. Logan decided further meetings

would not be helpful. Accordingly, Dr. Logan was not called as a witness on Movant’s

behalf. Jacquinot believed Dr. Logan was not the best advocate for Movant because their

relationship deteriorated and Dr. Logan seemed frustrated, angry, and manipulated by

Movant.

This Court will not find trial counsel ineffective for employing strategic decisions

regarding expert witnesses where the record reflects the defendant failed to cooperate

with the defense team regarding evaluation by those witnesses. See Strong, 263 S.W.3d

at 649-50; State v. Brown, 998 S.W.2d 531, 550 (Mo. banc 1999); and State v. Simmons,

955 S.W.2d 729, 747 (Mo. banc 1997). Moreover, trial counsel is not ineffective for

pursuing one reasonable trial strategy to the exclusion of another. Barton, 432 S.W.3d at

749. The motion court did not clearly err in overruling Movant’s claim on this issue.

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Failure to Call a Witness to Testify

Movant raises several points alleging trial counsel were ineffective for failing to

call Dr. Logan to testify at the guilt and penalty phases of his trial regarding Movant’s

mental health issues. “Ordinarily the choice of witnesses is a matter of trial strategy and

will support no claim of ineffective assistance of counsel.” Barton, 432 S.W.3d at 750

51 (quoting State v. Harris, 870 S.W.2d 798, 816 (Mo. banc 1994)). “This is because

‘strategic choices made after thorough investigation of law and facts relevant to plausible

options are virtually unchallengeable.’” Id. at 751. “To prove ineffective assistance for

failure to call a witness, the 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.’” Glass v. State, 227 S.W.3d 463, 468 (Mo. banc 2007) (quoting Hutchison v. State, 150 S.W.3d 292, 304 (Mo. banc 2004)).4 This

standard of review will guide the analysis of Movant’s next five points on appeal.

Point II – Competence to Stand Trial

Movant argues the motion court clearly erred in denying his claim that trial

counsel were ineffective for failing to present testimony from Dr. Logan to challenge

Movant’s competency to stand trial. Movant alleged he was not competent to be tried, as

evidenced by a letter dated August 24, 2007 (hereinafter, “the August 2007 letter”). This

letter, drafted by Movant, purportedly documented his behavioral changes after ingesting

4 Hutchison was overruled on other grounds by Mallow v. State, 439 S.W.3d 764, 770 n.3 (Mo. banc 2014).

14

a prescribed psychotropic medication and identified potential witnesses who observed

these personality changes. Dr. Logan reviewed the August 2007 letter and other evidence

in connection with Movant’s post-conviction relief claims. Dr. Logan opined that

Movant had bipolar I disorder and suffered from this disorder prior to the time the crimes

occurred. Dr. Logan concluded that Movant was incapable of assisting his defense and

was incompetent to be tried for Spicer’s murder. Movant’s Rule 29.15 motion concedes

that he had the capacity to understand the proceedings against him but claims that his

ability to “collaborate and adequately provide information that would have facilitated a

more comprehensive mental disease” was impaired. Section 552.020.1, RSMo 2000,5 provides, “No person who as a result of mental

disease or defect lacks capacity to understand the proceedings against him or to assist in

his own defense shall be tried, convicted or sentenced for the commission of an offense

so long as the incapacity endures.” A defendant is competent when he or she “has

sufficient ability to consult with his [or her] lawyer with a reasonable degree of rational

understanding and has a rational as well as factual understanding of the proceedings

against him [or her].” State v. Baumruk, 85 S.W.3d 644, 648 (Mo. banc 2002) (quoting

State v. Johns, 34 S.W.3d 93, 104 (Mo. banc 2000)). Movant is presumed to be fit to proceed and bears the burden of proof to demonstrate otherwise. Section 552.020.8.6

5 All statutory references are to RSMo 2000 as supplemented. 6 Movant criticizes the state for failing to counter Dr. Logan’s opinion as to Movant’s competence with any evidence of its own. However, section 552.020.8 makes clear that Movant bears the burden of proving he is incompetent to proceed, and the state’s actions in attacking the underlying sources that served as the basis Dr. Logan’s opinion was proper.

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In March 2006, Movant was treated by a psychiatrist, Dr. Wade Hachinksy

(hereinafter, “Dr. Hachinsky”), for anxiety and depression. Dr. Hachinsky diagnosed

Movant with generalized anxiety disorder, depressive disorder not otherwise specified,

and did not rule out the possibility that Movant suffered from bipolar I disorder.

Dr. Hachinsky prescribed Lexapro, an antidepressant known as a selective serotonin

reuptake inhibitor (“SSRI”), and Ativan. Dr. Hachinsky did not prescribe a mood

stabilizer. This treatment occurred approximately two weeks before Ricci’s murder and

less than two months before Spicer’s murder. At a follow up appointment,

Dr. Hachinsky changed Movant’s medication from Lexapro to Paxil, another SSRI

medication. When Dr. Hachinsky saw Movant ten days after Ricci’s murder and a few

days after Spicer’s murder, Dr. Hachinsky described Movant as stable and indicated the

medications were working.

Jacquinot testified that the defense team never fully discounted the fact that

Movant had mood disorders or possible bipolar disorder. Jacquinot asked Dr. Logan to

evaluate Movant for competence to stand trial. Dr. Logan discussed his findings at a

pretrial deposition. Dr. Logan recommended medication that he believed would aid

Movant’s mood, but he did not diagnose Movant with any mental diseases or disorders

that would indicate Movant was incompetent to stand trial. Dr. Logan stated he read

Dr. Hachinsky’s records closely when making this evaluation and was aware Dr.

Hachinsky did not rule out the possibility that Movant suffered from bipolar I disorder.

Dr. Logan ultimately concluded that, despite ongoing discussions about Movant’s

competence, he could never determine beyond a reasonable degree of medical certainty

16

that Movant was not competent to stand trial. Dr. Logan also stated pretrial that

Movant’s “behavior was too organized for a manic episode.” When asked if Movant was

competent to stand trial, Dr. Logan replied, “It’s a close one, but I’d say yes.”

Dr. Mandracchia also evaluated Movant and found him competent to stand trial.

Dr. Logan’s opinions changed after he evaluated Movant in connection with the

post-conviction relief proceedings. Dr. Logan reviewed various materials, including the

August 2007 letter, which contained pages of purported changes to Movant’s behavior

after ingesting the SSRI medication, and institutional mental health records that indicated

Movant was afflicted with bipolar I disorder. Dr. Logan also interviewed Movant. At the

evidentiary hearing, Dr. Logan opined that Movant suffered from bipolar I disorder,

which qualified as a severe mental disease or defect rendering him incompetent to stand

trial for Spicer’s murder.

Jacquinot testified neither expert retained pretrial stated they saw a significant

severity or a continuous manic episode throughout the time period leading up to and

through the crimes that would constitute a full or partial chapter 552 defense. Jacquinot

had no recollection of receiving the August 2007 letter or giving it to Dr. Logan. Elliott

did not recall the August 2007 letter specifically, but she recalled some of the things that

were mentioned in the letter and attempted to corroborate the information contained

therein, but to no avail.

The motion court ultimately concluded Dr. Logan was a non-credible witness for a

number of reasons. The motion court found Dr. Logan’s testimony “very suspect”

because it relied upon Movant’s self-reported thoughts and behaviors years after the fact

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and after being convicted. The motion court specifically found Movant to be a non

credible witness on any matter and Dr. Logan’s reliance upon any information obtained

from Movant to formulate his opinions significantly damaged Dr. Logan’s credibility.

The motion court found fault with Dr. Logan’s actions in “consistently and knowingly

avoid[ing] or fail[ing] to seek out information during the post-conviction phase of the

case that may have disproven, disconfirmed, or altered his diagnosis.” In summation, the

motion court explicitly discounted Dr. Logan’s opinion that Movant suffered from

bipolar I disorder, finding the evidence Dr. Logan relied upon to reach this diagnosis was

suspect and did not “provide a reliable basis for the determination that Movant currently

is, or has been, afflicted with bipolar disorder at any time in the past.”

With respect to the August 2007 letter, the motion court found, and the record

reflects, that in the absence of the letter, Dr. Logan did not testify that if he had the letter

prior to trial, its contents would have changed or altered his pretrial diagnosis. Given that

Dr. Logan testified that Movant’s thoughts were too disorganized and hard to follow prior

to trial, discussing the contents of the August 2007 letter, which were largely cumulative

of other information Dr. Logan had available to him, would not have produced additional,

viable information.

Finally, Movant again argues that all of his uncooperativeness was evidence of his

incompetence. The motion court rejected this finding. “When communication problems

are caused by the defendant’s desire to control the defense, as opposed to mental

impairments, and there is no indication that the defendant is generally incapable of

cooperating with counsel, the defendant does not demonstrate that he is incompetent to

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stand trial.” Zink, 278 S.W.3d at 185 n.8. Based on the foregoing, Movant failed to

demonstrate that he would have been found incompetent to stand trial. The motion court

did not err in overruling Movant’s claim.

Point III – Diminished Capacity due to Bipolar I Disorder

Movant alleges the motion court clearly erred in denying his claim that trial

counsel were ineffective for failing to call Dr. Logan during the guilt phase to support a

diminished capacity defense based upon Dr. Logan’s diagnosis that Movant suffered

from bipolar I disorder. Movant claims that had trial counsel provided Dr. Logan with all

available information, including the August 2007 letter, and presented this evidence to

the jury, there is a reasonable probability that Movant would not have been convicted of

first-degree murder.

Section 552.015.2(8) permits a defendant to present evidence that he or she suffers

from a mental disease or defect “[t]o prove that the defendant did or did not have a state

of mind which is an element of the offense.” This is commonly referred to as the

diminished capacity defense. State v. Walkup, 220 S.W.3d 748, 754 (Mo. banc 2007).

“Evidence of diminished capacity is intended simply to negate an element of the state’s

case -- a culpable mental state -- which is the state’s burden to prove beyond a reasonable

doubt.” Id. at 755.

Trial counsels’ failure to present a diminished capacity defense was a matter of

reasonable trial strategy. Jacquinot testified that he based this decision on the pretrial

assessments of Drs. Mandracchia and Logan, both of whom found there was no evidence

of diminished capacity presented. Movant argues that trial counsel were ineffective for

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failing to provide the August 2007 letter to the doctors so that they could make an

informed diagnosis. As discussed previously, Dr. Logan had access to Dr. Hachinsky’s

records and information from Movant detailing his purported changes in behavior around

the time of the crimes. Any failure by trial counsel to supply this letter was not

prejudicial because it was cumulative to the evidence Dr. Logan had available to him to

formulate an opinion about any potential diminished capacity defense. Trial counsel will

not be found ineffective for failing to present cumulative evidence. Dorsey v. State, 448

S.W.3d 276, 295 (Mo. banc 2014). Finally, Jacquinot testified that given the

overwhelming weight of the evidence, including the fact that Spicer’s murder was

captured on videotape, he did not think the jury would believe a diminished capacity

defense. Trial counsel will not be found ineffective for choosing to pursue one

reasonable trial strategy to the exclusion of another. Barton, 432 S.W.3d at 749. The

motion court did not clearly err in overruling Movant’s claim on this issue.

Point IV – Mitigation Evidence of Bipolar I Disorder

Movant argues the motion court clearly erred in denying his claim that trial

counsel were ineffective for failing to call Dr. Logan during the penalty phase to present

evidence of Movant’s bipolar I disorder diagnosis. Movant claims that had trial counsel

presented the August 2007 letter to support Dr. Logan’s diagnosis and the other

foundations for his opinion, there is a reasonable probability that Movant would not have

been sentenced to death.

“Virtually no limits are placed on the relevant mitigating evidence a capital

defendant may introduce concerning his own circumstances.” Hutchison, 150 S.W.3d at

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304 (quoting Tennard v. Dretke, 542 U.S. 274, 124 S. Ct. 2562, 2570, 159 L. Ed. 2d 384

(2004)). Prevailing professional standards for capital defense work require trial counsel

to “discover all reasonably available mitigating evidence ....” Wiggins v. Smith, 539 U.S.

510, 524, 123 S. Ct. 2527, 2537, 156 L. Ed. 2d 471 (2003). This evidence includes

“medical history, educational history, employment and training history, family and social

history, prior adult and juvenile correctional experience, and religious and cultural

influences.” Id. at 524, 123 S. Ct. at 2537. Section 565.032.3 outlines mitigating

circumstances, including extreme mental or emotional disturbance, extreme distress or

domination by another, and substantial impairment of capacity to appreciate the

criminality of his or her conduct or to conform it to the requirements of law.

Movant faults trial counsel for failing to present evidence of his bipolar I disorder

diagnosis to the jury during the penalty phase as relevant mitigating evidence. This claim

relies largely on the same arguments and evidence presented in Movant’s diminished

capacity claim. The motion court explicitly rejected Dr. Logan’s opinion that Movant

suffered from bipolar I disorder because Dr. Logan’s resources, methodology, and

reliance on Movant as a credible reporter of his symptoms were suspect and non-credible.

The record further reflects that trial counsel attempted to gather as much

mitigating evidence as they could because they believed Movant’s case was better tried in

the penalty phase due to the overwhelming weight of evidence demonstrating Movant’s

guilt. The defense team specifically investigated whether Movant suffered from any

mental illness that would serve as a statutory mitigating factor. Both Drs. Logan and

Mandracchia informed the defense team prior to trial that he did not. In light of the

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appalling and gruesomely documented evidence presented as aggravating circumstances

to support the death penalty in this case, there was no reasonable probability that

Dr. Logan’s proposed testimony would have resulted in Movant receiving a different

sentence. The motion court did not clearly err in ruling on this issue.

Point V – Not Guilty by Reason of Insanity due to Bipolar I Disorder

Movant contends the motion court clearly erred in denying Movant’s claim that

trial counsel were ineffective for failing to call Dr. Logan during the guilt phase to

support a not guilty by reason of insanity (“NGRI”) defense, relying on Movant’s bipolar

I disorder diagnosis. Movant argues that had trial counsel presented this evidence, there

is a reasonable probability Movant would have been found not guilty by reason of mental

disease or defect.

Section 552.030.1 provides, “A person is not responsible for criminal conduct if,

at the time of such conduct, as a result of mental disease or defect such person was

incapable of knowing and appreciating the nature, quality, or wrongfulness of such

person’s conduct.” NGRI “is considered an affirmative defense, requiring the defendant

to carry the burden of proving that he has a mental disease or defect excluding

responsibility” at the time of the conduct charged. Walkup, 220 S.W.3d at 755.

Dr. Logan testified at the evidentiary hearing that he did not have sufficient

information upon which to determine whether an NGRI defense was viable prior to trial.

However, after examining additional information, including the August 2007 letter,

Dr. Logan opined at the evidentiary hearing that Movant suffered from bipolar I disorder

and lacked responsibility for his crimes.

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Jacquinot testified that the defense team never fully discounted the fact that

Movant had mood disorders or possible bipolar disorder. However, Drs. Logan and

Mandracchia both testified that when they examined Movant prior to trial, there was no

evidence Movant suffered from any mental disease or defect that would relieve him of

responsibility for Spicer’s murder. When Elliott and Muller consulted with Dr. Logan

prior to trial about any potential insanity defense, Dr. Logan told them that he believed

his role would be better served in mitigation, thus, creating a reasonable inference that an

insanity defense was not viable. Jacquinot also testified that if a retained expert opined

Movant could utilize the NGRI defense, he would be less inclined to present that expert’s

testimony at trial. Jacquinot explained that the expert’s opinion would be “far enough off

the mark given the totality of the evidence in [Movant’s] case, that you would lose

credibility with the jury if you went for a full-blown insanity defense.” Jacquinot felt that

any expert “that was going to endorse NGRI in this case would be grossly overreaching.”

“When defense counsel believes a witness’ testimony would not unequivocally

support his client’s position, it is a matter of trial strategy not to call him, and the failure

to call such witness does not constitute ineffective assistance of counsel.” Winfield v.

State, 93 S.W.3d 732, 739 (Mo. banc 2002). The decision to forego the NGRI defense

was reasonable trial strategy given the lack of evidence to support the claim and

Jacquinot’s belief that an expert asserting such a claim would not be a credible witness.

This Court must defer to the motion court’s findings that Dr. Logan was not a

credible witness and that his pretrial deposition testimony wholly contradicted his post

conviction testimony. The motion court explicitly found:

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Dr. Logan’s knowing failure to view the actual crime videotapes while opining that Movant was not responsible for the very act Dr. Logan chose not to watch -- choosing instead to take Movant’s post-conviction word for his state of mind during that event -- had a devastating impact on Dr. Logan’s credibility. This failure was so fundamental that it failed to provide any credibility to Dr. Logan’s opinions.

The motion court did not clearly err in failing to grant Movant post-conviction relief on

this issue.

Point VI – Involuntary Intoxication due to SSRI Medication

Movant argues the motion court clearly erred in denying his claim that trial

counsel were ineffective for failing to call Dr. Logan during the guilt phase to support

either an involuntary intoxication or diminished mental capacity defense based upon the

fact that Movant was prescribed SSRI medication without a mood stabilizer. Movant

claims this medication caused him to not know or appreciate the nature, quality, or

wrongfulness of his conduct and there is a reasonable probability that Movant would not

have been convicted of first-degree murder. Alternatively, Movant contends this

evidence should have been presented during the penalty phase in mitigation, wherein

Movant would not have been sentenced to death. Movant raised this claim in his pro se

attachment to the amended Rule 29.15 motion and included approximately thirty-five

pages of alleged symptoms, witness names, and citations to various studies and articles,

which he claims support his allegation that his behavior changes leading up to the crimes

were caused by the SSRI medication.

Section 562.076.1 provides, “A person who is in an intoxicated or drugged

condition, whether from alcohol, drugs or other substance, is criminally responsible for

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conduct unless such condition is involuntarily produced and deprived him [or her] of the

capacity to know or appreciate the nature, quality or wrongfulness of his conduct.” The

defendant bears the burden of injecting the issue of an involuntary intoxicated or drugged

condition at trial. Section 562.076.2.

Movant filed several pro se pretrial motions complaining that trial counsel were

failing to pursue a defense that Movant’s behavior changed dramatically after he started

taking prescribed SSRI medication. During his pretrial deposition, Dr. Logan noted

Dr. Hachinksy prescribed Ativan and Lexapro, which Movant claimed did not work very

well. Dr. Logan suspected if the medication did not work well, Movant did not take them

for long. After Movant’s medication was adjusted, Dr. Logan found the medications

were “pretty standard clinical dosages” that would not have caused any “marked change”

in Movant’s behavior.

Elliott testified at the evidentiary hearing that she was responsible for investigating

any defense surrounding Movant’s ingestion of SSRI medications prior to the period the

crimes occurred. Elliott conducted research on the internet and contacted Dr. Logan to

discuss whether an SSRI defense would be a viable option in Movant’s case. Elliott

acquired Dr. Hachinsky’s records and information from Movant about alleged changes in

his behavior due to the medication. Elliott also attempted to corroborate Movant’s

alleged behavior by speaking to Movant’s coworkers but was unsuccessful.

Elliott and Muller met with Dr. Logan to discuss the particulars of the defense.

Elliott was prepared to discuss Dr. Hachinsky’s records and the information Movant

provided about the purported changes in his behavior, but she did not do so because

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Dr. Logan “cut it off at the pass.” Elliott testified that Dr. Logan told her the SSRI

defense was not viable because the crimes required planning and there was another

person involved in the crimes at the time they occurred. Elliott indicated she was

surprised at how dismissive Dr. Logan was regarding the defense. Dr. Logan further

indicated the SSRI defense would not be viable mitigating circumstance evidence. Elliott

stated Dr. Logan did not solicit any additional information about Movant’s behavior

while on the SSRI medication because too much time had elapsed between the ingestion

of the medication and the death of the victims.

Muller testified at the evidentiary hearing that she attended the meeting with

Elliott and Dr. Logan to discuss the SSRI defense. Muller testified they brought a

document Movant prepared with information about his claim that the SSRI medication

affected his mental state and gave it to Dr. Logan. Muller echoed Elliott’s testimony that

Dr. Logan indicated that the SSRI defense was not viable because Movant had a

codefendant and had planned the murders. Jacquinot also testified that given the time

periods and Movant’s actions, Jacquinot did not feel the SSRI medication was a prime

motivator in Movant’s actions. After Jacquinot felt the SSRI defense was explored fully,

the defense team abandoned it.

After Movant was convicted, Dr. Logan assessed Movant again for the post

conviction case. Dr. Logan claimed the information he had access to post-trial was

different than the pretrial information because it was “more detailed,” noting Movant was

being treated with medication for bipolar I disorder and his thoughts were more

organized. Dr. Logan testified that when a person takes an SSRI medication, the drug

26

can ease nerve transmissions and have the clinical effect of alleviating depression. In a

small percentage of patients, the drug can cause a phenomenon wherein the patient

becomes manic or exhibits mania symptoms when bipolar disorder is present. Some

individuals have a worsening of symptoms, including suicide and violence, while taking

these mediations.

Dr. Logan testified that he told the defense team the SSRI medication aggravated

Movant’s condition and likely made him exhibit symptoms of mania. While Dr. Logan

agreed that the SSRI defense was not viable, he believed the defense team confused the

SSRI defense with a phenomenon called “switching.” Dr. Logan explained that

“switching” occurs when “someone gets an antidepressant -- it doesn’t even have to be an

SSRI antidepressant -- and it causes them to switch from a state of depression to mania.”

Dr. Logan stated that “switching” is different from the SSRI defense because the patient

need not take a specific type of antidepressant; instead, “switching” is a phenomenon that

occurs with patients who have bipolar disorder. Dr. Logan believed Movant was

experiencing episodes of “rapid cycling” and that prescribing SSRI medication without a

mood stabilizer triggered further manic symptoms in late March 2006. Dr. Logan

conceded that Movant initiated the idea of presenting an SSRI defense and sent

Dr. Logan articles about “switching” and “rapid cycling.”

The motion court found Dr. Logan’s testimony about the defense team confusing

the concepts of the SSRI defense and “switching” to be noncredible. Dr. Logan

repeatedly testified in a deposition prior to the evidentiary hearing that he did not recall

the specific conversation with Elliott or his attempt to explain the difference between the

27

SSRI defense and “switching.” The motion court noted, “Dr. Logan exhibited a poor and

inaccurate recollection of events, many of which he testified to in a definitive manner,

only to be later impeached and admit that he was in error.” The Court will defer to the

motion court’s superior opportunity to assess witness credibility and its attendant factual

findings. Zink, 278 S.W.3d at 178. The motion court also found Dr. Logan’s testimony

that he attempted to discuss the differences to be “completely and utterly non-credible”

because there was “no credible evidence that the issue of ‘switching’ was ever raised by

Dr. Logan at any time prior to trial ….” The motion court’s assertion is borne out by the

record.

In addition to outlining why Dr. Logan was not a credible witness, the motion

court determined that had Dr. Logan been called as a witness at trial, his testimony on

this specific issue would not have provided unqualified support for Movant’s defense, but

“it may have substantially damaged it.” Further, the record demonstrated Dr. Logan had

Dr. Hachinsky’s treatment records prior to trial, was aware of Movant’s prescriptions and

that Movant potentially was suffering from bipolar I disorder at that time, but dismissed

the defense outright. Finally, the motion court determined that Elliott’s and Muller’s

recollections of their pretrial meeting with Dr. Logan to discuss the SSRI defense were

credible.

The record reflects Movant did not present evidence at the evidentiary hearing to

support his claim that he was involuntarily intoxicated at the time of Spicer’s murder.

Accordingly, Dr. Logan’s testimony would not have provided a viable defense. Trial

counsel were not ineffective for failing to present Dr. Logan’s testimony regarding the

28

SSRI medication after fully investigating the issue. The motion court did not clearly err

in overruling Movant’s pro se claim on this issue.

Points VII and VIII – Preparing Movant to Testify

Movant’s final two points concern his right to testify and trial counsel’s

effectiveness in preparing him to testify in both the guilt and penalty phases of the trial.

Movant raised these claims in his pro se attachment to the amended Rule 29.15 motion.

The decision whether to exercise the right to testify rests exclusively with the

defendant. Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983).

As a general matter, “an attorney’s advice regarding whether or not a defendant should

testify is a matter of trial strategy.” State v. George, 937 S.W.2d 251, 257 (Mo. App.

E.D. 1996). When defendants later claimed ineffective assistance of counsel regarding

such advice, appellate courts have held that “[b]arring exceptional circumstances, such a

claim is not a ground for relief.” Id.; State v. Williams, 853 S.W.2d 371, 378 (Mo. App.

E.D. 1993); and Kenney v. State, 46 S.W.3d 123, 129 (Mo. App. W.D. 2001).

Preparing Movant to Testify During the Guilt Phase of Trial

Movant maintains the motion court clearly erred in denying his pro se claim that

trial counsel were ineffective for failing to themselves prepare for Movant to testify or

prepare Movant to testify and for failing to call Movant as a witness at trial. Movant

argues trial counsel ignored Movant’s repeated assertions that he “wanted to be heard.”

Movant believes trial counsel should have understood that it was important that questions

be prepared prior to trial and Movant be advised as to the proper topics of testimony.

29

Movant claims that had trial counsel prepared Movant to testify, Movant would have

been able to testify in the guilt phase, rather than be forced invoke his right to not testify.

The record reflects that at the conclusion of the state’s evidence, the circuit court

extensively examined Movant about his right to testify. Movant stated repeatedly that he

“wanted to be heard” and that trial counsel would not ask the questions Movant wanted

posed during his testimony. The circuit court explained to Movant that defense counsel

was bound by the rules of evidence and Movant could not take the stand to provide

narrative testimony. The circuit court allowed Movant to consult privately with trial

counsel for an extended period of time prior to announcing whether he wished to testify

during the guilt phase. When trial resumed, Movant indicated his frustration at the fact

that trial counsel would not ask the questions Movant wanted asked. Movant stated, “I

do not want to testify … [b]ecause I would be testifying to basically just what the

prosecution wants.”

Jacquinot testified at the evidentiary hearing that Movant expressed to him on

many occasions that he “wanted to be heard” during the guilt phase of the trial and they

discussed the possibility of Movant testifying “weeks in advance” of trial. When

Jacquinot tried to explore what Movant meant by “wanting to be heard,” Movant

provided no specific information. Jacquinot admitted there was little preparation for

Movant’s guilt phase testimony because the defense team could not get to the point of

discussing specific topics with Movant. Jacquinot testified that he never told Movant he

could not testify during the guilt phase. The motion court found this testimony credible.

Moreover, the record refutes this claim because Movant was apprised fully of his right to

30

testify and made the knowing and voluntary decision to waive that right during the guilt

phase. See Davis, 318 S.W.3d at 637.

Even if trial counsel were ineffective for failing to prepare Movant to testify

during the guilt phase, Movant has suffered no prejudice. To determine prejudice, courts

inquire whether the defendant expressed a desire to testify, what the substance of the

defendant’s testimony would have been, whether trial counsel misled the defendant about

his or her right to testify, and whether the defendant was not informed of the right to

testify at all. Kenney, 46 S.W.3d at 129. Movant was informed of his right to testify,

expressed a desire to do so prior to waiving that right, and was not misled by Jacquinot

regarding his right to testify. However, Movant did not testify at the evidentiary hearing

to explain what the substance of his testimony would have been had he taken the stand in

his defense. There was also ample evidence in the record regarding Movant’s lack of

cooperation with trial counsel that prevented them from formulating appropriate topics

for questioning during the guilt phase. Trial counsel will not be found ineffective due to

a client’s failure to cooperate in the case. State v. Brown, 902 S.W.2d 278, 298 (Mo.

banc 1995). The motion court did not clearly err in ruling on this issue.

Preparing Movant to Testify During the Penalty Phase of Trial

Movant argues the motion court clearly erred in denying his claim that trial

counsel were ineffective, in that by failing to prepare Movant for guilt phase testimony,

trial counsel inhibited Movant’s ability to give coherent penalty phase testimony.

Movant argues that had he presented coherent penalty phase testimony, there is a

reasonable probability that he would not have been sentenced to death.

31

The circuit court made an extensive record during the penalty phase regarding

Movant’s right to testify and his desire to be questioned in a certain manner. Movant

indicated he could not get trial counsel to ask the questions Movant wanted asked. The

circuit court explained repeatedly that trial counsel were bound by the rules of evidence

and relevancy to determine what questions were appropriate to be posed during Movant’s

testimony and that Movant would be subject to cross-examination by the state. Movant

was given time to consult with trial counsel about whether to testify. Jacquinot

recommended Movant not testify; however, Movant indicated he wished to act against

that advice and take the stand. The circuit court explained that trial counsel would make

the decision of what questions to ask, and Movant agreed to testify under those

guidelines. Movant was then granted additional time to provide trial counsel with

questions he wanted asked during the penalty phase.

While Movant’s penalty phase testimony was disjointed at times and

nonresponsive to the questions asked, Movant was able to put forth some testimony

regarding the abuse he suffered as a child and adolescent. Movant admitted he had

difficulty disclosing information to people he did not trust, which included the defense

team and prior therapists. Movant also briefly testified to seeing Dr. Hachinksy in the

months leading up the murders and feeling as though he was “wound real tight.”

“Defense counsel has wide discretion in determining what strategy to use in

defending his or her client.” Worthington v. State, 166 S.W.3d 566, 578 (Mo. banc

2005). “[T]he tactical decisions as to how to conduct examination of witnesses,

including that of the defendant, lie with counsel.” Davis, 318 S.W.3d at 636.

32

Jacquinot testified he prepared questions for the penalty phase of the trial, wherein

he created an outline and “a game plan of where we wanted to go.” Jacquinot informed

Movant he could not take the stand and start talking about issues. The record

demonstrates Movant was allowed time to provide additional questions to Jacquinot prior

to testifying. The motion court determined Jacquinot was a credible witness regarding

his preparation and attempt to elicit testimony from Movant at trial. This Court defers to

this credibility determination.

Further, Movant cannot demonstrate prejudice resulted because Movant did not

testify at the evidentiary hearing to put forth any evidence about how he would have

changed his penalty phase testimony had Jacquinot prepared him more fully or articulate

any specific questions he wanted Jacquinot to ask that were not asked. The motion court

did not clearly err in overruling this claim.

The motion court did clearly err in overruling the totality of Movant’s Rule 29.15 motion for post-conviction relief after an evidentiary hearing. The motion court’s judgment is affirmed.