Appellant, Michael Cunningham, appeals his jury conviction for first degree burglary in violation of Section 569.160 R.S.Mo.1986. Appellant was sentenced as a prior offender to fifteen years imprisonment. Appellant also appeals the denial of his Rule 29.15 post-conviction relief motion alleging ineffective assistance of trial counsel.
*917 On appeal, appellant claims the trial court erred in: (1) denying his motion to force the state to elect between charging appellant with first degree burglary with intent to steal or with intent to rape and his motion for new trial because the failure of the court to force the state to elect the intent element of burglary denied appellant his right to be informed of the charges against him, his right to effective assistance of counsel, and his right to a fair trial; and (2) failing to intervene sua sponte in the state’s closing and rebuttal arguments when the prosecutor improperly referred to appellant’s failure to testify and in denying appellant’s motion for new trial for the same reason. Appellant also claims that the motion court erred in denying his Rule 29.15 motion based on ineffective assistance of counsel in that trial counsel failed to: (1) preserve a Batson issue for appeal; and (2) request the trial court to allow appellant to introduce expert testimony on eyewitness identification. We affirm.
The sufficiency of the evidence is not in dispute. The evidence viewed in a light most favorable to the verdict reveals the following. Victim lived in a first floor apartment in an apartment building at 6452 Alamo, Clayton, St. Louis County, Missouri. On October 27, 1988 at about seven p.m., she entered the apartment building through the front door, which was always open. She then unlocked her apartment front door, entered, and closed the door without locking it. Her apartment had a back door which led to the back door of the apartment building, which was always locked. When she entered her apartment, she placed a bank envelope and her purse on top of a stereo speaker next to the front door.
She spent the evening cleaning her apartment, doing laundry, and packing for a trip starting the next day. While doing so, she turned on all of the lights in her apartment.
Around 10 p.m., she took her trash to the dumpster located near the back door of the building. She exited her apartment through the back door, and went out the back door of the building. The rear of the building was lit with a floodlight attached to the building, a streetlight over the dumpster, and a streetlight in the alley next to the building.
As she walked to the dumpster, she was startled to see a man whom she did not recognize approaching her. She later identified this man as appellant. As she reached the dumpster, appellant came within an “arm’s length” of her and said, “Let me help you with that.” She said, “No, no, that’s okay.” Appellant lifted and held the lid of the dumpster for her as she dumped the trash. After dumping her trash, she turned and walked to the back door of the buflding and entered. From the back doorway, she watched appellant walk away from the dumpster until he was out of sight. From the time she left the building to when she could no longer see appellant, she viewed appellant for about thirty seconds to one minute.
Five minutes after returning to her apartment, she went to the laundry room to retrieve her laundry. After spending three or four minutes in the laundry room, she went back to her apartment. She took her suitcase out of her bedroom and placed it in her dining and living room area where she folded and packed her clothes. She also hung some clothes on the doorknob of a nearby closet.
Sometime between 10:30 and 10:45 p.m., her friend, Bruce, entered the apartment through the front door. He told victim that the front door was unlocked. Victim told him she was not aware of it.
As she hung another item on the doorknob, she noticed the closet door moving slightly. She opened the door, and saw appellant crouched in the closet, holding onto the inside doorknob. She looked at appellant for about five seconds and recognized him as the man she had encountered earlier at the dumpster.
Terrified, she pushed the door partially closed and ran into the kitchen, where she whispered to Bruce that there was a man in the living room closet. He went to the closet and found the door open and no one inside. He then discovered the front door was open. Bruce and victim searched the rest of the apartment but did not find appellant, who had apparently entered and exited the apartment through the front door. At some point during the search, he called the police who arrived at the apartment five minutes later. *918 Victim’s description given to the police was of a black male in his mid-to-late twenties, about five-foot seven or eight, 170 pounds, with a moustache, wearing a baseball cap, blue jeans, and a blue jacket.
On November 28, 1988, a Clayton police detective visited victim at work and showed her six photographs, and she told the detective none of the men pictured was the intruder. In December 1988, the detective met with victim at the Clayton Police Department where the detective showed her a second photo array. Victim picked appellant’s photo out of the array and identified him as the intruder.
On May 20, 1991, appellant was charged with first degree burglary pursuant to Section 569.160 R.S.Mo.1986. The indictment and the information in lieu of indictment alleged that appellant knowingly entered unlawfully an inhabitable structure possessed by the victim for the purpose of committing the crime of stealing or rape therein while victim was present in the structure.
On July 15, 1991, during voir dire, the prosecution questioned venireperson Taylor Calomese, who is black. In his responses, venireperson Calomese testified that: his step-daughter had been assaulted by a boyfriend in front of his residence four years ago; his car had been broken into twice; his automobile’s hubcaps and skirt had been stolen; and his cousin was a police officer. The prosecutor subsequently exercised one of his peremptory strikes against Mr. Calomese. During recess, appellant’s trial counsel and the prosecutor met with the court in camera. Appellant’s counsel told the court the following:
[Defense Counsel]: ... In terms of Bat-son, I just wanted to clarify for the record. My understanding was there were four black persons who made the panel from which we made our strikes. No. 1, Lizzie Mathis; No. 13, Taylor Calomese; No. 16, Valerie Pope; 18, Norman Mathis. I think those were the persons who were in the panel from which we made our six strikes. There’s another black, juror 28, in the alternate pool. Mr. Avioli has struck one of the black jurors, who is 13, Taylor Ca-lomese. My understanding is that — I don’t really have a Batson issue. For that reason I am not going — because I am left with three black jurors in my panel, I am not going to make a Batson objection at this time.
THE COURT: All right....
Soon after making this statement and during the same meeting with the court, appellant’s trial counsel objected to the charge of first degree burglary with intent to steal or to rape on the grounds that the intent to steal and the intent to rape are inconsistent. Trial counsel orally moved the court to force the state to elect whether it was charging appellant with first degree burglary with intent to steal or with intent to rape, and the court overruled the motion. Following presentation of its evidence, the state rested. Appellant presented no evidence, but moved for directed verdict of acquittal. The trial court denied the motion, but ruled that the state had not presented sufficient evidence to submit to the jury an instruction on first degree burglary with intent to rape.
During his closing argument, the prosecutor noted four times that the evidence was “uncontroverted”. The prosecutor made the following statements:
⅜ ⅝ ⅝ ⅜ ⅝ ⅜
(1) ... .the Judge instructed you on what ‘unlawfully’ means. She tells you it means to enter some place without the privilege to do so. It’s uncontroverted. She gave him no consent to come in there. He is crouched down in the closet. Is there any doubt he didn’t have a right to be there? No doubt.
(2) Second, ‘and entered an inhabitable structure’. We know it’s an inhabitable structure. This is where she lives, calls home — no doubt about it. ‘ — and located at 6452 Alamo and possessed by victim’. That’s all uncontroverted. No evidence to the contrary....
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
(3) Face to face again with the same man that she saw for thirty seconds outside. But this time it’s a little more scary. This time he is inside her home, crouched inside that closet. Is she ever *919 going to forget that face? She is face to face with uncontroverted, evidence for thirty-five seconds under good lighting. There is no evidence this is a dark room. Face to face, folks.
In addition, the prosecutor said the following during his rebuttal: “What was her opportunity to see? It is now uncontroverted, she admits it for you again, the evidence is thirty seconds.” Appellant’s trial counsel made no objections to the four statements. After closing arguments, the court submitted the case to the jury, and after deliberating three hours, the jury returned a verdict of guilty. On August 9,1991, appellant’s counsel moved for a new trial, which the trial court overruled. The court then sentenced appellant as a prior offender to fifteen years.
On December 12, 1991, appellant filed a pro se Rule 29.15 post-conviction relief motion which alleged ineffective assistance of trial counsel. Appointed counsel filed an amended motion on March 2, 1992. The evidentiary hearing was held on May 1,1992. On direct examination, trial counsel testified that she did not object to the state striking venireperson Calomese because only one of the state’s six strikes was against a black person, leaving three blacks on the venire panel. On cross-examination, counsel stated that she had tried twenty-six felony cases. She recalled that venireperson Calomese testified about how he and his stepdaughter were victims of crime, and that his cousin was a police officer. She also remembered that venireperson Calomese behaved oddly while testifying. Counsel also remembered that she probably did not object based on her trial experience, venireperson Calomese’s testimony, and her perception of his demean- or.
Also at the hearing, appellant introduced the testimony of Alvin C. Goldstein, Ph.D., an alleged expert on the reliability of eyewitness identification. Dr. Goldstein stated on direct that he would have testified at the trial on the issues of: cross-racial identification; over-estimation of the duration of the crime; the noncorrelation between witness confidence and accuracy of the identification; and the prejudicial photographic lineup where appellant was identified. On cross-examination, Dr. Goldstein testified he had not tested victim and had no independent means of determining her reliability as an eyewitnesses. The motion court denied the motion on March 27, 1992.
In his first point, appellant contends that the trial court abused its discretion when it denied appellant’s oral motion to force the state to elect whether it was charging appellant with first degree burglary with intent to steal or with intent to rape and his motion for new trial. Appellant argues the court’s error denied him his rights to be informed of the charges against him, to prepare and present an adequate defense, and to receive effective assistance of counsel, thus violating his rights under the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution, and Sections 10 and 18(a) of the Missouri Constitution.
An information or indictment must contain all essential elements of an offense charged as set out in the statute, and must clearly apprise defendant of the facts constituting the offense so as to enable the defendant to prepare a defense, to bar future prosecution for the same offense, and to permit the trial court to decide whether sufficient facts are alleged to support a conviction.
State v. Hogan,
*920
Appellant asserts that his oral motion requesting the court to force the state to elect between first degree burglary with intent to steal and first degree burglary with intent to rape was the equivalent to a bill of particulars. Appellant cites no authority in support of this proposition. Appellant contends that the trial court should have granted its oral motion because the crimes of burglary with intent to steal and burglary with intent to rape are inconsistent charges. Appellant claims that because stealing and rape are two completely separate crimes requiring proof of different elements, the charges in the indictment and information in lieu of indictment are inconsistent. Appellant relies on
State v. Fox,
Assuming arguendo that appellant’s oral motion is equivalent to a bill of particulars, the trial court did not err. The trial court has broad discretion in denying or granting a bill of particulars and its ruling will not be reversed without an abuse of discretion.
State v. Raines,
In his second point, appellant contends the trial court plainly erred by failing to intervene sua sponte when the prosecutor referred to appellant’s failure to testify during the state’s closing and rebuttal arguments. Specifically, the prosecutor referred to the evidence as “uncontroverted” three times during closing argument and once during rebuttal. Appellant contends the prosecutor made four indirect references to appellant’s failure to testify in violation of his rights under the Fifth and Fourteenth Amendments to the U.S. Constitution and Article I, Sections 10 and 19 of the Missouri Constitution.
Claims made for the first time on appeal are reviewed under plain error. Rules 29.12, 30.20. “Whether briefed or not, plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.” Rule 30.20. We are guided by
State v. Lee,
Here, we find that the prosecutor’s statements that the evidence was “uncontro-verted” did not directly and certainly refer to the appellant’s failure to testify. In his closing argument, the prosecutor argued that the evidence was “uncontroverted” that appellant entered an inhabitable structure unlawfully, and that victim looked at appellant for thirty-five seconds. In his rebuttal, the prosecutor argued that the evidence was “uncontrovert-ed” that victim saw appellant at the dumpster for thirty seconds. In these statements, the prosecutor was merely pointing out the weakness of appellant’s defense and not the appellant’s failure to testify. Point denied.
In appellant’s final two points, he contends the motion court erred when it denied his Rule 29.16 motion based on ineffective assistance of counsel. To prevail on an ineffective assistance of counsel claim a movant must show both that counsel’s performance was deficient and that the deficient performance prejudiced his defense.
Strickland v. Washington,
In his third point, appellant claims that trial counsel failed to perform as a reasonably competent attorney would have under the same or similar circumstances because she failed to object when the state used one of its peremptory strikes against a black venireperson and thus failed to preserve the Batson issue for appeal.
Initially, we note that the
Strickland
standard applies because the focus of our inquiry is on ineffective assistance of counsel and not whether the state exercised its peremptory strike for a racially discriminatory purpose.
Felton v. State,
In
Batson v. Kentucky,
The U.S. Supreme Court significantly expanded the scope of
Batson
in
Powers v. Ohio,
We note that after appellant’s trial, our Supreme Court invalidated the practice of placing decisive reliance upon the state’s failure to use all of its strikes to remove black venirepersons or the presence of blacks on the venire panel in
State v. Parker,
Appellant points out that the record indicates trial counsel waived preserving the Batson issue because three blacks remained on the venire panel. Appellant argues that a reasonable attorney under the circumstances would have made a Batson objection because: appellant was black; the victim and all the state’s witnesses were white; venireperson Calomese was qualified to act as a juror and he was one of only four blacks on the venire panel. Appellant concludes that counsel’s failure to make an appropriate and timely objection prejudiced him because appellant’s equal protection right to a jury selected in a nondiscriminatory manner was violated.
At the time of appellant’s trial, the law in Missouri was that counsel could consider the composition of the venire and the State’s use of its peremptory strikes in deciding whether to make a Batson objection. Given that trial counsel waived the Batson issue because the state removed one black venireperson which left three blacks on the panel, counsel’s failure to object did not constitute deficient performance.
In addition, counsel based her decision to waive the Batson issue on other factors besides the State’s use of its peremptory strikes and the composition of the remaining venire panel. The record on appeal shows that trial counsel had tried twenty-six felony cases. She testified that she remembered venireperson Calomese behaved oddly while testifying. At the post-conviction hearing, she stated that she probably did not object based on her trial experience, venireperson Calomese’s testimony, and her perception of his behavior. Thus, the motion court’s finding that trial counsel acted reasonably was not clearly erroneous. Point denied.
*923 In his fourth and final point, appellant claims the motion court erred in overruling his claim that trial counsel failed to perform as a reasonably competent attorney under the circumstances because she failed to request the court to allow her to introduce expert testimony on eyewitness identification. Appellant contends that his expert should have been allowed to testify on the issues of cross-racial identification, over-estimation of the duration of the crime, the noncorrelation between witness confidence and accuracy of the identification, and the prejudicial photographic lineup where appellant was identified.
The admissibility of testimony is within the discretion of the trial court, and we will not overturn its decision unless there is a showing of an abuse of discretion.
State v. Jordan,
Here, the record indicates that trial counsel fully cross-examined victim, the sole eyewitness, and described the difficulties of eyewitness identification in closing argument. Moreover, the trial court instructed the jury on the reliability of identification with MAI-CR3d 302.01. In addition, at the post-conviction hearing, the expert testified on cross-examination that he had conducted no tests on victim and that he had no independent way of calculating victim’s responses. Based on this evidence, the motion court found that the expert’s testimony had no probative value on any issue in the case and would have invaded the province of the jury on the issue of victim’s credibility. The court further found that even if trial counsel had attempted to offer such testimony, the trial court would have excluded it. This finding is consistent with the decisions in Lawhom, Whit-mill, and Hill. Thus, we hold that the motion court’s findings and conclusion that counsel acted reasonably were not clearly erroneous. Point denied.
Judgments affirmed.