Dauda Kohlheim v. State of Missouri
2016 Mo. App. LEXIS 197
| Mo. Ct. App. | 2016Background
- Movant Dauda Kohlheim was convicted by a jury of second-degree statutory rape; he was a prior and persistent felony offender. The jury heard victim testimony and DNA evidence; a defense DNA expert could not exclude Movant as a possible contributor.
- The State did not call a key witness, Tashia Roberts, in its case-in-chief; defense called her and Movant testified, admitting prior convictions after being advised he could be cross-examined on them.
- During closing arguments, the prosecutor commented on (1) why Roberts was not called and (2) the lab’s protocol for DNA testing (saying the county would not incur DNA testing unless semen was first indicated); defense counsel did not object.
- At sentencing the court noted Movant refused to cooperate with the probation interview, found no remorse, advised Movant that as a prior/persistent offender the sentence could be enhanced to 15 years, and sentenced him to 15 years (within statutory range).
- Movant filed a Rule 29.15 post-conviction motion claiming ineffective assistance of trial counsel for: (1) failing to advise him he could receive a 15-year sentence (affecting plea decision); (2) failing to object during the prosecutor’s closing; and (3) failing to object to the sentence as excessive/retaliatory. The motion court denied relief after an evidentiary hearing; appellate court affirmed.
Issues
| Issue | Kohlheim's Argument | State's Argument | Held |
|---|---|---|---|
| 1. Counsel failed to advise of 15-year exposure, causing rejection of plea | Counsel did not tell Kohlheim strength of evidence (DNA, credibility) so he rejected 7-year plea and went to trial facing 15 years | Counsel testified he warned Kohlheim of 15-year exposure, discussed enhancements and trial risks; Kohlheim acknowledged knowing max exposure | Denied — record and counsel testimony show Kohlheim was informed of 15-year max and trial risks; motion court credibility finding not clearly erroneous |
| 2. Counsel ineffective for not objecting to prosecutor’s rebuttal about not calling Roberts | Prosecutor’s comments improperly vouched and argued facts not in evidence; objection would likely have changed outcome | Statements were proper retaliation to defense argument that State withheld Roberts; any objection would have been overruled; failure to object presumed strategic | Denied — prosecutor’s rebuttal permitted; objection would be non-meritorious and no prejudice shown given strength of evidence |
| 3. Counsel ineffective for not objecting to sentence as excessive/retaliatory | Sentence was excessive and reflected punishment for exercising right to trial and asserting innocence; counsel should have objected | 15-year sentence was within statutory range; court considered appropriate factors (lack of remorse, noncooperation), not impermissible retaliation; no factual showing sentencing was determined by exercise of trial right | Denied — sentence lawful and within range; no factual showing of retaliatory sentencing; objection would have lacked merit |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective assistance test: performance and prejudice)
- Smith v. State, 370 S.W.3d 883 (Mo. banc 2012) (Missouri discussion of Strickland standard)
- Matthews v. State, 175 S.W.3d 110 (Mo. banc 2005) (standard of appellate review for Rule 29.15 denials)
- Peterson v. State, 149 S.W.3d 583 (Mo. App. W.D. 2004) (deference to counsel strategy and propriety of rebuttal to provoked argument)
- Morse v. State, 462 S.W.3d 907 (Mo. App. E.D. 2015) (defendant must show trial was a determinative factor for retaliatory sentencing)
- Worthington v. State, 166 S.W.3d 566 (Mo. banc 2005) (counsel not ineffective for failing to make non-meritorious objections)
- State v. Hooper, 842 S.W.2d 889 (Mo. App. S.D. 1992) (sentence within statutory range cannot be deemed excessive on appeal)