Donovan E. Tate v. State of Missouri, 461 S.W.3d 15

Donovan E. Tate was convicted by jury of first-degree robbery and armed criminal action for a Boost Mobile store robbery; convictions affirmed on direct appeal in State v. Tate, 390 S.W.3d 265 (Mo. App. E.D. 2013).
At trial the State introduced surveillance video showing a suspect matching Tate and an audio recording of a jail phone call between Tate and his girlfriend.
During voir dire the prosecutor questioned Juror 558 (a Black woman); the State used a peremptory strike against her citing hat, childcare employment, and demeanor; the trial court denied defense Batson challenge.
Tate filed a pro se Rule 29.15 post-conviction motion (amended) alleging ineffective assistance of appellate counsel (for not raising a Batson claim on appeal) and ineffective assistance of trial counsel (for failing to let Tate view/listen to surveillance video and audiotape before trial).
At the evidentiary hearing appellate counsel testified she made a strategic, informed decision not to press a Batson claim because the record lacked support; trial counsel testified she warned Tate about the recordings and video, discussed their damaging nature, encouraged a guilty plea, and that Tate insisted on trial. Tate testified he had not seen/heard the evidence pretrial and would have pled guilty.
The motion court found appellate and trial counsel credible, found Tate not credible on those points, and denied relief. The appellate court affirmed, concluding no clear error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appellate counsel was ineffective for not raising a Batson challenge to the peremptory strike of Juror 558	Tate: appellate counsel should have raised an obvious Batson error; a successful Batson claim would likely have led to reversal/remand	State: appellate counsel made a reasonable strategic decision not to raise a weak Batson claim because the record lacked the required facts to prove pretext	Denied — appellate counsel’s choice was a reasonable strategic decision; Tate failed Strickland performance prong
Whether trial counsel was ineffective for not providing Tate pretrial access to surveillance video and audiotape	Tate: trial counsel failed to share incriminating video/audio; had he known, he would have pleaded guilty (prejudice)	State: trial counsel credibly testified she informed Tate about the recordings, discussed their substance and consequences, encouraged a plea, and Tate insisted on going to trial	Denied — motion court credited trial counsel; Tate’s testimony found not credible; no clear error

Batson v. Kentucky, 476 U.S. 79 (prohibits race-based peremptory strikes)
Strickland v. Washington, 466 U.S. 668 (two-part ineffective-assistance test: performance and prejudice)
Jones v. Barnes, 463 U.S. 745 (no duty for appellate counsel to raise every nonfrivolous issue)
State v. Tate, 390 S.W.3d 265 (Mo. App. E.D. 2013) (direct appeal affirming convictions)
Sanders v. State, 738 S.W.2d 856 (Mo. banc 1987) (Missouri articulation of Strickland standard)
Baumruk v. State, 364 S.W.3d 518 (Mo. banc 2012) (appellate counsel may winnow issues strategically)