RISTON v. STATE (2026)

Kimberly D. Riston (“Movant”) appeals the motion court's denial of her Rule 29.15 ¹ motion for post-conviction relief following her convictions for one count of second-degree murder (§ 565.021),² one count of first-degree robbery (§ 570.023), one count of tampering with a motor vehicle (§ 569.080), and two counts of armed criminal action (§ 571.015). Movant alleges trial counsel provided ineffective assistance by (1) failing to call three witnesses to testify in support of her duress defense to the tampering charge, and (2) failing to raise a duress defense as to Movant's robbery and armed criminal action charges. Finding the motion court's denial of post-conviction relief was not clearly erroneous, we affirm.

Facts and Procedural History

Movant and her boyfriend, Josue Martinez (“Martinez”), were staying at the Economy Inn in St. James, Missouri, on April 21, 2021. Victim was staying in the room next to Movant and Martinez. Shortly before the murder, Movant put her arms loosely around Martinez when they were standing outside their room, during which Martinez reached into Movant's pocket and took her pocket knife. Victim was standing next to his vehicle in the parking lot when Martinez approached him. As Movant exited their room with her dog, Martinez repeatedly stabbed Victim as he collapsed to the ground. Movant walked past Martinez and Victim and placed her dog in Victim's vehicle. Movant and Martinez both got into the vehicle, but eventually exited the car and walked away from the Economy Inn. Law enforcement found Victim's body in the parking lot and apprehended Movant and Martinez fleeing on foot approximately 15 miles from the Economy Inn.

Movant was charged with one count of first-degree murder, one count of first-degree robbery, two counts of armed criminal action, and one count of first-degree tampering with a vehicle.

Trial counsel contacted three witnesses who worked at hotels Movant and Martinez stayed at to testify that they saw Movant with a black eye. While trial counsel was serving a subpoena on one of the witnesses, the Baymont Inn's front desk clerk Mary Ellon Susan Saxon-White (“Saxon-White”), she told trial counsel about an incident where she was concerned Movant was trying to lure her out to the parking lot so Movant and Martinez could take money out of the hotel register. Trial counsel met with Movant and advised her that the three witnesses should not be called to testify because they already had photographic evidence of Movant's black eye and trial counsel did not want to risk injecting another potential robbery into the testimony. Movant agreed and trial counsel contacted the witnesses to tell them they would not have to testify at trial.

At trial, Movant called psychiatrist Dr. Charles Heller as an expert witness to testify to her duress defense. Dr. Heller testified Movant was in a domestic violence situation perpetrated by Martinez. Dr. Heller also testified Movant suffered from battered women's syndrome and was the victim of “battering, emotional abuse, coercion and control.” The duress defense was submitted to the jury only in relation to the tampering charge. Following the trial, Movant was found guilty of second-degree murder ³ in lieu of the first-degree murder charge and the remaining counts as charged, including tampering. Movant waived jury sentencing and was sentenced to a total of 23 years’ imprisonment by the trial court.

Movant's conviction was affirmed on direct appeal in State v. Riston, 677 S.W.3d 888 (Mo. App. S.D. 2023). Movant timely filed her pro se motion for post-conviction relief on February 15, 2024. The Public Defender's Office was appointed to represent Movant. However, the public defender represented they were not aware of their appointment until April 19, 2024. The amended motion was filed on June 28, 2024, and the motion court accepted it as timely under this Court's mandate in Borschnack v. State, 614 S.W.3d 561, 567-68 (Mo. App. S.D. 2020).⁴

An evidentiary hearing was held on October 8, 2024. All three of the witnesses trial counsel initially subpoenaed testified at the evidentiary hearing.

The manager of the Economy Inn in St. James, Missouri, Chintankumar Khasakia, testified that he was working on the morning of April 21, 2021, and saw Movant and Martinez. He testified he saw Movant with a black eye that morning.

Theresa Welch (“Welch”) was working the front desk at the Baymont Inn in Rolla, Missouri, on April 20, 2021, where Movant and Martinez stayed the night before they checked into the Economy Inn in St. James. Welch did not check Movant and Martinez into the hotel but did see them that day. Welch testified to initially seeing Movant at 4:30 in the afternoon without a black eye. However, at around 7:30 in the evening, Welch “threatened to call the police because of the argument [she] heard in [Movant and Martinez's] room.” When Movant and Martinez later left their room to walk their dog, Welch observed Movant with a black eye.

Saxon-White was the front desk clerk at the Baymont Inn in Rolla, Missouri, in April 2021. Saxon-White saw Movant and Martinez when they were checking out of the Baymont Inn. Saxon-White testified she observed Movant with a black eye and asked her if she was okay. Saxon-White testified Movant lowered her head and said “yes ma'am.”

Trial counsel testified during the evidentiary hearing that he chose not to call the aforementioned witnesses because of his concern about “injecting another thought of robbery into this case.” Trial counsel testified Movant agreed with him not to call the three witnesses “to not run the risk of injecting another thought of a planned robbery” and because they already had retained an expert witness to testify to the duress defense and had photographic evidence of Movant's black eye. Trial counsel also testified he did not submit a duress instruction for the robbery and armed criminal action charges because their theory of defense was that Movant had “no idea that [Martinez] was going to act the way he did, had no idea that [Martinez] was going to do what he did, in no way aided or encouraged [Martinez] in doing that, and certainly had no purpose in promoting anything that [Martinez] did.”

The motion court denied the motion for post-conviction relief and found that trial counsel exercised reasonable trial strategy in choosing not to submit a duress defense for the robbery and armed criminal action charges and not calling the three hotel staff witnesses. This appeal followed.

Standard of Review

Under Rule 29.15(k), this Court's review of the denial of a post-conviction relief motion is “limited to a determination of whether the findings or conclusions of the [motion] court are clearly erroneous.” Flaherty v. State, 694 S.W.3d 413, 416 (Mo. banc 2024). A judgment is clearly erroneous when “in light of the entire record, the court [of review] is left with the definite and firm impression that a mistake has been made.” Id. (citing Davis v. State, 486 S.W.3d 898, 905 (Mo. banc 2016)). We presume the motion court's findings are correct. Id. Appellate courts review the record “in the light most favorable to the motion court's judgment, accepting as true all evidence and inferences that support the judgment and disregarding evidence and inferences that are contrary to the judgment.” Holman v. State, 694 S.W.3d 484, 489 (Mo. App. S.D. 2024) (citing Oliphant v. State, 525 S.W.3d 572, 577 (Mo. App. S.D. 2017)). Movant has the burden of showing, by a preponderance of the evidence, the motion court's judgment is clearly erroneous. Rainey v. State, 696 S.W.3d 926, 929 (Mo. App. S.D. 2024).

To prevail on a claim of post-conviction relief on the basis of ineffective assistance of counsel, Movant must establish “(1) his or her counsel failed to exercise the level of skill and diligence that a reasonably competent attorney would in a similar situation (performance prong), and (2) the movant was prejudiced by that failure (prejudice prong).” Blade v. State, 685 S.W.3d 633, 637-38 (Mo. App. S.D. 2024) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). If Movant fails to satisfy either prong of the Strickland test, we need not consider the other. Id. (citing Anderson v. State, 66 S.W.3d 770, 775 (Mo. App. W.D. 2002)). Movant must also “overcome the strong presumption that trial counsel's assistance was reasonable and effective.” Hosier v. State, 593 S.W.3d 75, 81 (Mo. banc 2019) (citing Davis v. State, 486 S.W.3d 898, 905 (Mo. banc 2016)). Reasonable decisions of trial strategy are not considered a basis for an ineffective assistance of counsel claim. Id. (citing Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006)).

Analysis

Failure to Call Three Witnesses to Testify to Duress Defense

In her first point on appeal, Movant claims trial counsel was ineffective for failing to call the three hotel staff members as witnesses to testify to her duress defense – namely, to testify to their observation of the black eye Movant purportedly sustained at the hands of Martinez at around the time of the underlying incident.

To establish ineffective assistance of counsel for failure to investigate and call a witness at trial, Movant must show “(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.” Hollings v. State, 662 S.W.3d 821, 829 (Mo. App. E.D. 2023) (quoting Jones v. State, 519 S.W.3d 879, 885 (Mo. App. E.D. 2017)). Witness selection is a matter of trial strategy and is “virtually unchallengeable” in an ineffective assistance of counsel claim. Beck v. State, 637 S.W.3d 545, 552 (Mo. App. W.D. 2021) (citing Jindra v. State, 580 S.W.3d 635, 641 (Mo. App. W.D. 2019)). The failure to call a witness does not amount to ineffective assistance of counsel if the witness's testimony does not “unqualifiedly support a defendant.” Tinsley v. State, 258 S.W.3d 920, 926 (Mo. App. S.D. 2008) (citing Worthington v. State, 166 S.W.3d 566, 577 (Mo. banc 2005)).

Here, the three witnesses in question were employees at the hotels Movant and Martinez stayed at on or before April 21, 2021. Each testified before the motion court that they saw Movant with an injured eye at their respective hotels at around the time of the underlying incident. Movant alleges on appeal that this evidence of her eye injury (presumably, at the hands of Martinez) supported the proposition that her involvement in the crimes arose as a result of duress in the form of a fear of physical coercion by Martinez. However, the record in this case reflects that trial counsel presented other evidence at trial to substantially the same effect.

Trial counsel called Dr. Heller as an expert witness to testify to Movant's duress defense on the tampering charge which included testimony that Movant was a victim of intimate partner violence and she was subjected to “battering, emotional abuse, coercion and control.” Trial counsel also submitted into evidence photographs showing bruising on Movant's face. Movant fails to explain how the hotel staff's mere observations of the same bruising would have genuinely advanced her duress defense at trial. The prospective testimony from the three witnesses regarding Movant's injuries would have been cumulative of other evidence admitted at trial, and trial counsel was not ineffective for choosing to not present such evidence. See Williams v. State, 168 S.W.3d 433, 441 (Mo. banc 2005) (“Counsel will not be found ineffective for deciding not to introduce cumulative evidence”).

Movant additionally presents no evidence that this additional testimony would have in fact supported her duress defense, providing only conclusory allegations that this testimony would have supported the duress allegation. “[W]ithout more, a conclusory allegation is insufficient to establish a claim of ineffective assistance of counsel.” Tatham v. State, 715 S.W.3d 235, 242 (Mo. App. W.D. 2025) (quoting McLemore v. State, 635 S.W.3d 554, 563 (Mo. banc 2021)). Indeed, trial counsel testified he chose not to call the three witnesses because he was concerned about introducing another potential robbery attempt into the trial record based on his conversation with Saxon-White.⁵ Accordingly, these witnesses’ prospective testimony would not have unqualifiedly supported Movant's defense, and trial counsel's decision to avoid the risk of influencing the jury against Movant was grounded in reasonable trial strategy. See Bonds v. State, 719 S.W.3d 150, 156 (Mo. App. E.D. 2025) (trial counsel's assistance was not ineffective for not calling a witness whose testimony would have been harmful to movant's defense).

Significantly, the record also reflects that Movant agreed with trial counsel's decision to not call the three witnesses in light of trial counsel's aforementioned conversation with Saxon-White. Movant's acquiescence in this strategy further negates her claim of ineffective assistance. See Lindsey v. State, 700 S.W.3d 636, 643 (Mo. App. W.D. 2024) (a movant cannot succeed on an ineffective assistance of counsel claim based on a strategy by trial counsel that movant “agreed to and actively participated in”). As Movant has failed to establish that counsel was ineffective under Strickland, the motion court's judgment was not clearly erroneous. Point I is denied.

Failure to Plead Duress Defense to Robbery and Armed Criminal Action Charges

In her second point on appeal, Movant claims her counsel was ineffective for failing to assert a duress defense to her robbery and armed criminal action charges.⁶ Trial counsel submitted a duress instruction to Movant's tampering charge, but not for her robbery or armed criminal action charges. Trial counsel testified this decision was based on Movant's defense that she had “no idea that [Martinez] was going to act the way he did, had no idea that [Martinez] was going to do what he did, in no way aided or encouraged [Martinez] in doing that, and certainly had no purpose in promoting anything that [Martinez] did.”

Trial counsel is not ineffective for choosing to “pursue one reasonable trial strategy to the exclusion of another reasonable trial strategy.” Holman, 694 S.W.3d at 490 (quoting Worthington, 166 S.W.3d at 573). Here, trial counsel electing to pursue the trial strategy that Movant had no knowledge and no part in Martinez's actions by not submitting a duress instruction for the robbery and armed criminal action charges was reasonable because a duress instruction would have been inconsistent with that specific defense theory. See Lindsey, 700 S.W.3d at 644 (citing McNeal v. State, 500 S.W.3d 841, 844 (Mo. banc 2016) (“[T]his court has recognized that trial counsel makes an objectively reasonable choice not to submit an available instruction when the instruction would be inconsistent with the defense's theory at trial.” (internal quotations and emphasis omitted))); see also Holman, 694 S.W.3d at 490 (quoting Worthington, 166 S.W.3d at 573) (“Reasonable choices of trial strategy, no matter how ill[-]fated they appear in hindsight, cannot serve as a basis for a claim of ineffective assistance”). In light of the foregoing, Movant has not satisfied her burden of showing trial counsel's performance fell below the standard of a competent attorney.

Moreover, Movant has not established prejudice arising from the absence of a duress defense to the robbery and armed criminal action charges because the jury rejected the same duress defense with respect to her tampering charge. As a prospective duress defense to Movant's robbery and armed criminal action charges would have relied on the same theory and evidence the jury had already found to be unpersuasive on the tampering charge, there is little reason to believe that the jury would have acquitted Movant of robbery and armed criminal action if the defense had been raised as to these other charges. See Lindsey, 700 S.W.3d at 645 n.5 (movant was not prejudiced by a self-defense instruction not being submitted on all counts because the jury did not acquit movant on the self-defense instruction for his first degree murder charge).

Therefore, the motion court's findings that trial counsel was not ineffective for declining to pursue additional duress instructions was not clearly erroneous. Point II is denied.

Conclusion

The motion court's denial of post-conviction relief is affirmed.

FOOTNOTES

1.   All rule references are to Missouri Court Rules (2024).

2.   Unless otherwise indicated, all statutory references are to RSMo 2016, as amended through April 21, 2021, the date of the alleged crimes.

3.   None of the allegations in Movant's Amended Motion are directed at her conviction for second-degree murder, and thus we do not review the performance of trial counsel with respect to that conviction.

4.   In Borschnack, this Court found the public defenders were not given notice of their appointment to represent the movant and therefore we could not find abandonment. Instead, it was as if the motion court never appointed counsel and the filing deadlines under Rule 29.15(g) did not start until non-appointed counsel entered their appearance. 614 S.W.3d at 567-68. Similar to Borschnack, the Public Defenders’ Office in this case was not given notice of their appointment until April 19, 2024. This does not create a presumption of abandonment and the timeline for filing under Rule 29.15(g) did not start until the Public Defenders’ Office had notice. We hold that the motion court's finding that the amended motion was timely filed is not clearly erroneous.

5.   There is some discrepancy in the record regarding which witness was concerned about the incident with birds fighting and the potential robbery. Movant's Exhibit 1 – trial counsel's trial notes regarding Welch – states “birds” with no other details. However, at the evidentiary hearing, trial counsel testified Saxon-White was the witness who was concerned about the incident with the birds fighting and the potential robbery.

6.   Under § 562.071, duress is an affirmative defense that must be asserted by a defendant, who must show that the they were “coerced ․ by the use of, or threatened imminent use of, unlawful physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would have been unable to resist.” Duress may not be used as a defense to a murder charge.

MATTHEW P. HAMNER, J.

JENNIFER R. GROWCOCK, C.J. BRYAN E. NICKELL, J.