FRANKLIN v. STATE (2026)

Daniel Franklin (Movant) appeals from the order denying his amended Rule 29.15 motion to set aside the following 10 convictions: two counts of child molestation in the first degree; one count of enticement of a child; three counts of statutory sodomy in the first degree; one count of unlawful use of a weapon; and three counts of statutory rape in the first degree. See § 566.067; § 566.151; § 566.062; § 571.030.1(4); and § 566.032.¹ The Honorable Dean Dankelson served as both the trial judge and the motion court judge.

In Movant's sole point on appeal, he contends the motion court clearly erred in denying claim 8(b) (Claim B) of his amended motion because Movant's trial counsel (Trial Counsel) was ineffective “for failing to take corrective action to remedy [Movant's] difficulty hearing the trial proceedings[.]” Movant argues that the motion court clearly erred by denying this claim because Trial Counsel knew Movant was having trouble hearing but took no action to remedy the issue.

Factual and Procedural Background

This case primarily centers on two trips Movant took with several children during the summer of 2017 to a trailer owned by Movant's relative. During the jury trial on the aforementioned charges, four child victims testified similarly about activities that occurred on these trips and being subjected to sexual abuse by Movant.²

At the time of trial, COVID-19 precautions were still in place, and masking and social-distancing requirements complicated the process of conducting jury trials. At a pre-trial hearing, the trial court specifically noted that clear face shields would be provided “for everybody in the courtroom.” Each witness wore either a face mask or a clear face shield and testified using a microphone.

Prior to the testimony of the State's first witness (Victim 1), the following colloquy occurred:

[Trial Counsel]: It's my understanding that the witnesses are going to be provided clear face shields. ․ It would be my request that she be outfitted with a clear face shield so the jurors can observe her demeanor.

[The Court]: At this point in time she's comfortable the way she is, she is going to testify like this.

Victim 1 testified wearing a face mask covering her mouth and nose. Before the second witness took the stand, Trial Counsel requested that all future witnesses wear clear face shields, and that request was granted.

During the testimony of the fifth witness (Victim 5), Trial Counsel stated that he was having difficulty hearing her. The prosecutor adjusted the microphone and asked Victim 5 to speak louder. She then continued her testimony without further comment on the issue.

Movant testified in his own defense. At several points during his testimony, Movant stated that he could not hear or understand certain questions because of hearing loss. The record also reflects, however, numerous extended exchanges during which Movant answered questions without any apparent difficulty.

At the outset of Movant's testimony, Movant asked Trial Counsel to repeat the request to state his name before responding. Movant was then able to answer the next seven questions without issue.

Later, when Movant was asked by Trial Counsel about whether certain events worried his granddaughters, he responded:

A. I didn't hear you.

Q. To your knowledge did this worry your granddaughters?

A. I'm not understanding.

Q. Did this worry your granddaughters?

A. Did what – where were my granddaughters?

Q. Did it worry your granddaughters?

A. Where were they?

Q. Did it worry –

A. Oh, did it worry my granddaughters. You've got to excuse me. I'm deaf in one ear and can't hear out the other, but I don't know. They never made no indication that it did.

Following this exchange, Movant answered the next 20 questions largely without issue. He asked Trial Counsel to repeat himself only twice, stating that he either “didn't understand” or “didn't hear” the question. During this portion of testimony, Movant described his various injuries and ailments but did not mention hearing impairment. When asked about the testimony of the victims, Movant did not indicate that he had been unable to hear them but rather asserted that most of their testimony was false.

During the approximately 34-question cross-examination, Movant asked the prosecutor twice to repeat his question. When asked about Victim 5's testimony, Movant stated, “I didn't hear half of what [Victim 5] was saying here.” The State later asked Movant if he heard each of the victims testify that he bought them alcohol to drink, to which he responded, “Yeah, I heard that[.]”

The jury convicted Movant on all counts and recommended that Movant be sentenced to 30 years’ imprisonment for each count of child molestation in the first degree, 30 years’ imprisonment for enticement of a child, 99 years’ imprisonment for each count of statutory sodomy in the first degree, four years’ imprisonment for unlawful use of a weapon, and 99 years’ imprisonment for each count of statutory rape in the first degree.

The trial court sentenced Movant in accordance with the jury's recommendation, with most counts to run consecutively, for a total of 628 years of imprisonment. The trial court then made the following inquiry:

Q. You have been represented in this case by [Trial Counsel]. Do you have any complaints or criticisms of the work he has done on your behalf?

A. Well, yes and no. I mean, he did all right on some things. Some things he didn't point out.

Q. What complaints do you have, sir?

A. Well, the girls has all lied for one thing. Right on the stand they lied and he didn't catch it and point it out. And there was no physical evidence whatsoever. But [Trial Counsel] and me didn't agree on a few points and I don't feel that I was represented properly.

Q. Anything else you wish to add to that?

A. Nothing that you would want to hear.

Q. Well, this is your time to make your statement, sir.

A. All right. Here in the United States we are supposed to be innocent until proven guilty. I was not. I was picked up and arrested before even an investigation was done. There is no investigation. There was no evidence whatsoever. I didn't do these things and no one wants to hear the real story, so that's what I've got to say that I didn't do it.

Q. And that was the nature of the defense that was provided by [Trial Counsel] at your trial and he vigorously cross-examined the detective about those issues, didn't he?

A. I can't quite hear you.

Q. That's okay. [Trial Counsel] did vigorously cross-examine [the detective] about those issues and also cross-examined all of the girls on those issues, did he not?

A. But like I said, there were some things that he missed.

Q. Okay. Anything else you wish to add then?

A. Like I said, I would wish to have a new trial because I was bamboozled on that one. The detective and them, that interrogation tape, that was laid over to make an answer to a question that I didn't even answer at that time. I was denied an attorney during that interrogation. And they never told me what the interrogation was about.

Q. Anything else you wish to add, [Movant]?

A. Other than this country sucks, that's it.

On direct appeal, Movant raised claims asserting: (1) the trial court erred by allowing Victim 1 to testify wearing a face mask; (2) the trial court admitted improper expert testimony; and (3) the evidence was insufficient to prove the charges against Movant. This Court denied the claims of error and affirmed the convictions.

In Movant's amended Rule 29.15 motion, he claimed that Trial Counsel was ineffective for, inter alia, failing to take corrective action when Movant advised counsel during trial that Movant was having difficulty hearing the proceedings. Movant stated that he “has 30% hearing loss in one ear and 40% hearing loss in the other.” He claimed to have advised Trial Counsel of his hearing issues both before and during trial.

At the evidentiary hearing, Trial Counsel testified by deposition. He testified that he had been able to hear Victim 1's testimony, despite her wearing a face mask rather than a shield, and that there was a microphone in front of each witness who testified. He acknowledged that, during the State's closing argument, the prosecutor stated that “poor [Victim 1] was so breathy it was hard to understand her sometimes.” Trial Counsel also testified that three other witnesses testified about the same incidents discussed in Victim 1's testimony.

Trial Counsel noted that he believed Movant had told him “a time or two” that he could not hear during his trial, but he did not think much of it because the participants were all wearing face masks and spread out due to social-distancing requirements. He elaborated, “I hadn't seen anything earlier that really led me to believe that he had difficulty other than maybe a time or two on Zoom [where Movant stated] I couldn't hear that.”

When asked whether he recalled any incidents at trial of Movant expressing that he could not hear or understand, Trial Counsel responded, “I think he testified that he couldn't hear most of the testimony.” Trial Counsel then stated, “if I thought he couldn't hear what was going on, if he's like, I can't hear anything, I would have stopped the trial and asked for assisted hearing[.]” He did not recall Movant saying at the end of either day of the trial that he had not heard any of the testimony or that he had any concerns in that regard.

Movant was the sole live witness at the evidentiary hearing. While he was able to give his testimony largely without issue, there were four instances in which he asked for the question to be repeated, once due to his post-conviction counsel speaking too fast.

Movant testified that he “had hearing problems for quite a long while[.]” When asked how his hearing issues affected his ability to hear what was going on during his trial, he responded:

Well, I couldn't hardly hear anything that [Trial Counsel] was talking about and there was several things that all the lawyers approached the bench on ․ I didn't hear half of that. There was other things. He turned and asked me a couple of questions I couldn't answer, and he turned around real quick before I had a chance to really say anything.

With respect to discussing his ability to hear the State's witnesses, Movant testified that he could hear them “[w]hen they was speaking, yeah, but when they played some recordings, I couldn't hear what they were saying.” He testified that he heard “about half, maybe, a little over” of the trial proceedings and that he informed Trial Counsel of his trouble hearing “several times.”

Movant's medical records from the Department of Corrections were admitted in evidence at the evidentiary hearing. In these records, Movant's hearing impairment is twice mentioned. In July of 2021, three months after trial, medical staff noted that he was hard of hearing. In March of 2022, nearly a year after trial, it was documented that Movant had “moderate hearing loss in his left ear” and “severe hearing loss” in his right.

In denying Movant's amended Rule 29.15 motion, the motion court stated:

After sentence was pronounced against Movant, this Court inquired of Movant about the representation provided to him by [Trial Counsel]. Nowhere during that inquiry does Movant mention his difficulty in hearing crucial portions of the trial, indeed, he discussed witness testimony from the trial: “Well, the girls has all lied for one thing. Right on the stand they lied and [Trial Counsel] didn't catch it and point it out.”

Additionally, [Trial Counsel] testified during his deposition that any complaints by Movant about his ability to hear would have been addressed by himself or a second chair. If Movant had any questions about what testimony had just been given, a member of the defense trial team would have explained whatever Movant needed to understand the proceedings.

This Court finds that Movant has failed to meet his burden and has not established deficient performance or prejudice. This Court denies Movant's Claim B.

This appeal followed.

Standard of Review

Our review is limited to a determination of whether the motion court's findings and conclusions are clearly erroneous. Rule 29.15(k); see Flaherty v. State, 694 S.W.3d 413, 416 (Mo. banc 2024). We presume the findings and conclusions are correct and will reverse only when, in light of the entire record, we are left with a firm and definite impression a mistake has been made. Flaherty, 694 S.W.3d at 416. In applying this standard, we “defer to the motion court's superior opportunity to judge the credibility of witnesses and recognize the circuit court is entitled to believe all, part, or none of the evidence presented at the post-conviction hearing.” Id. at 419 (citation modified).

Discussion and Decision

Movant contends the motion court clearly erred by finding that Trial Counsel was not ineffective for failing to take corrective action to remedy his difficulty hearing at trial. Movant argues that Trial Counsel's failure affected Movant's ability to consult with his attorney for cross-examination of the witnesses against him and his ability to testify in his own defense.

The two-pronged Strickland test is applied when a movant claims post-conviction relief based upon the alleged ineffective assistance of trial counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009). The movant must prove the following two elements by a preponderance of the evidence: (1) that counsel's performance did not conform to the degree of skill and diligence of a reasonably competent attorney; and (2) that as a result thereof, the movant was prejudiced. Zink, 278 S.W.3d at 175.

To succeed on the performance prong, the movant must overcome a strong presumption that counsel's performance was reasonable and effective by showing specific acts or omissions that, under the circumstances, fell outside the wide range of effective assistance. Anderson v. State, 564 S.W.3d 592, 600 (Mo. banc 2018). To satisfy the prejudice prong, the movant must show that there is a reasonable probability that, but for counsel's alleged errors, the outcome would have been different. Id. at 601. “If the movant fails to satisfy either the performance prong or the prejudice prong, we need not consider the other.” Farr v. State, 408 S.W.3d 320, 322 (Mo. App. 2013).

“It is manifest that every criminal defendant must have a reasonable degree of rational understanding of the proceedings against him, and must have the ability to consult with his lawyer.” Stanley v. State, 490 S.W.3d 389, 393 (Mo. App. 2016). The motion court's finding, that Trial Counsel's performance was not deficient, is not clearly erroneous.

Nothing in the record demonstrates that Movant was unable to understand the proceedings. Although Movant stated several times during his testimony that he could not hear or understand the questions being asked, both the prosecutor and Trial Counsel repeated the questions until Movant was able to hear and respond appropriately.

Moreover, when Trial Counsel questioned Movant about the testimony against him, Movant responded that most of the statements were false. Later, during the trial court's inquiry into Trial Counsel's representation, Movant asserted that the witnesses “lied and [Trial Counsel] didn't catch it and point it out.” These admissions by Movant prove that he was able to hear and understand the testimony against him. According to Movant's own statements, he understood the testimony well enough to catch inaccuracies that he alleges Trial Counsel missed. Movant's need to have questions repeated alone is insufficient to prove that he was unable to understand the proceedings against him.

Movant argues that his case is analogous to Peeler v. State, 750 S.W.2d 687 (Mo. App. 1988). We disagree. In Peeler, Samuel and Dennis Peeler, who were father and son, argued that the motion court erred by finding their trial counsel was not ineffective for failing to request an interpreter for Samuel, who had “severe to profound bilateral hearing loss.” Id. at 688-89. The Peelers’ trial counsel was aware that Samuel had a hearing impairment. Id. at 689. The trial judge likewise was made aware of Samuel's hearing impairment but decided that an interpreter was unnecessary. Id. The trial judge even acknowledged the issue, stating to the son, “I'm not sure that your father understood everything I told him because of his hearing loss.” Id.

At the Peelers’ post-conviction proceedings, the movants presented testimony of an audiologist who had examined Samuel several years prior to trial. Id. The audiologist concluded that at the time of Samuel's examination, he was unable to understand spoken English except under ideal conditions. Id. Samuel testified that he understood none of the voir dire or trial testimony and instead relied on his son's notes to keep him abreast of the proceedings. Id. The eastern district of this Court reversed Samuel's conviction, concluding that, although Samuel could understand the questions directed to him on examination, the audiologist's testimony established that he was likely unable to understand the proceedings as a whole. Id. at 690-91.

The case at bar is factually distinguishable. Trial Counsel testified that he was not aware of Movant's hearing impairment before trial. He stated that the only indication was Movant's difficulty hearing “maybe a time or two” during Zoom meetings. The motion court found this testimony credible. Likewise, the trial court judge (who also served as the motion court judge) was not made aware of any alleged hearing impairment until Movant testified during direct examination that he was “deaf in one ear and can't hear out the other.” Movant never informed the trial court that he was unable to hear witness testimony or otherwise understand the proceedings.

At the evidentiary hearing on Movant's amended Rule 29.15 motion, Movant submitted Department of Corrections medical records noting hearing issues. However, those records documented examinations conducted after trial, including one nearly a year later. Thus, the only evidence regarding Movant's alleged inability to hear at the time of trial was his own testimony. The motion court found that testimony was not credible.

This Court defers to the motion court's determination of witness credibility, as it is in a superior position to evaluate the same. Lusk v. State, 655 S.W.3d 230, 235 (Mo. App. 2022). “The motion court is not required to believe the testimony of the movant or any other witness, even if uncontradicted[.]” Id. (citations omitted). After reviewing the whole record and deferring to the motion court's credibility findings, as we must, Movant failed to prove that he was unable to understand the proceedings.

Because Movant failed to satisfy the performance prong of the Strickland test, his claim of ineffective assistance of counsel fails, so we need not consider the prejudice prong. Farr, 408 S.W.3d at 322. The motion court's findings and conclusions are not clearly erroneous. The order denying Movant's amended Rule 29.15 motion is affirmed.

FOOTNOTES

1.   All rule references are to Missouri Court Rules (2021). All statutory references are to RSMo (2016), effective January 1, 2017.

2.   A fifth child victim was not present on these trips but testified about other instances of sexual abuse by Movant.

JEFFREY W. BATES, J. – OPINION AUTHOR

BECKY J. WEST, J. – CONCUR BRYAN E. NICKELL, J. – CONCUR