DERONE BOOKER v. STATE OF MISSOURI (2026)

Derone Booker (“Booker”) appeals the Circuit Court of Greene County's (“motion court's”) Order Denying Movant's Amended Motion to Vacate, Set Aside or Correct Judgment and Sentence Under Rule 29.15 (the “Judgment”) denying his amended Rule 29.15 motion for post-conviction relief after an evidentiary hearing.¹ In one point on appeal, Booker argues that the motion court erred in denying his claim that trial counsel had inaccurately advised him that he could appeal the waiver of his right to testify, which caused Booker to unknowingly and involuntarily waive his right to testify, and that “but for that affirmative misadvice, [ ] Booker would have testified to provide exculpatory context for a key piece of evidence, creating a reasonable probability of a different outcome.” Because Booker has not met his burden to show that trial counsel provided him with “affirmative misadvice” constituting ineffective assistance of counsel, the motion court's Judgment is affirmed.

Factual Background and Procedural History

Booker was charged as a prior and persistent offender with one count of the class A felony of robbery in the first degree.² Viewed in the light most favorable to the verdict, the evidence adduced at trial showed the following:

On June 13, 2018, at around 9:30 p.m., Booker pulled into a Walgreens parking lot in a U-Haul truck. He went inside and asked the front cashier where the condoms were. He returned with several items, including lubricant, VirMax natural male enhancement, and a personal massager. The cashier rang up the items and placed them in a bag, at which point Booker produced what appeared to be a black gun and ordered her to “give it all” to him. The cashier took the money from the register and gave it to Booker. Booker placed the money in the bag with the items he had gathered earlier and left the store. The police were then called. They responded to the store that evening, talked with the cashier, and obtained a description of Booker, who was described as a black male around 5’8”, wearing dark-colored clothing with white lettering on the front, and a dark hat with the Disney character “Dopey” on it. Police were also apprised of the U-Haul truck Booker had arrived in, and were able to locate it at an Economy Inn motel several blocks away. Inside the room that the U-Haul was parked in front of, police discovered the items Booker had brought to the Walgreen's cashier to ring up with his fingerprints on them, including the gun used during the robbery and the holster used with it,³ a check made payable to Booker along with other banking documents with Booker's name on them, and a credit card in Booker's name. A search of the U-Haul produced the “Dopey” hat, and the carbon copy of a check made out to Booker. While he was being held at the Greene County Jail, Booker attempted to solicit false testimony from a fellow inmate, who disclosed the attempt in deposition and at trial. Booker also had two calls with a female associate using the jail's phone system during which they discussed assaulting a witness recently brought into custody who could connect him to the U-Haul and the motel room where the U-Haul was located.

Following the State's presentation of evidence at trial and a recess during which trial counsel spoke with Booker about whether or not he would testify, the trial court conducted an on-the-record colloquy regarding Booker's right to testify, during which the following exchange took place:

[Trial Court:] So what I want to do is make sure that you fully understand that you have a right not to testify. It is a constitutional right. No one can make you do that at any time, and your exercising it is perfectly within your constitutional rights. And, in fact, if that's what you choose to do, the jury will be instructed that that's not something that they're supposed to draw any sort of negative from in terms of your case. Do you understand that?

[Booker:] Yes.

[Trial Court:] The other side of the coin is true as well. That is that while no one can make you testify at any time, it is your choice, and if you decide you wanted to testify in your own defense, that's solely your decision also and you could do that. Do you understand that?

[Booker:] Yes.

[Trial Court:] And so -- and as far as talking to your attorneys is concerned, of course, they're officers of the court and well experienced. They can give you advice in the case, but you understand it's your decision either way, not theirs. Do you understand that?

[Booker:] Absolutely.

[Trial Court:] All right. And so is it correct that you have decided not to testify in this case?

[Booker:] I've chosen not to testify.

[Trial Court:] All right. And that, again, is your decision. No one has put any pressure on you, made any promises, or anything of that nature?

[Booker:] No, sir.

The jury found Booker guilty as charged. The trial court sentenced Booker to life imprisonment on June 17, 2022. During sentencing, the State related that Booker had been previously convicted of two counts of robbery in the first degree and two counts of assault in the first degree back in 1994, when he shot two people while robbing a gas station. On this prior conviction, Booker had been sentenced to life imprisonment. The trial court sentenced Booker to life imprisonment to run concurrent with any other existing sentence. Following sentencing, Booker complained to the trial court about the alleged misadvice of trial counsel which forms the basis of the current point on appeal. Regarding trial counsel's advice and the judicial colloquy, Booker stated:

Well, the main problem I had, one of the main issues, man, is that I didn't take the stand, and I didn't take the stand based on his advice. And I remember coming in front of you and you telling me that ultimately it was my decision. However, it wasn't really explained to me -- I didn't feel it was -- I felt pressured like there was not enough time. I had to make my decision in moments.

․ So I didn't intelligently make the decision, man. Like, I didn't know it was absolute. And when [trial counsel] tells me, “I was just going to tell you just to waive and put it in the appeals” -- but it's not an appealable issue, man.” So I felt like -- I felt like I didn't have all the information provided I needed to make that decision, man.

․.

There was no way for anybody to answer what the prosecution was saying but me. I'm the only person that could have witnessed it, like that phone call. You know, they twisted that phone call and made it something it wasn't, man. I'm the only person that could have said that. So, yeah, I feel -- yeah, I feel -- I'm kind of messed up about that.

At that time, the trial court found there was no probable cause to believe that trial counsel had been ineffective. Booker filed a direct appeal in this Court challenging his conviction and sentence on the basis of insufficient evidence and that the trial court erred in not granting a mistrial. This Court found no error and affirmed Booker's conviction in an unpublished Order and Statement in case number SD37612. This Court issued its mandate on June 26, 2023.

Booker prematurely filed his pro se Rule 29.15 motion on August 1, 2022, before this Court's mandate issued. A Missouri State Public Defender was appointed to represent him on August 22, 2022. An Amended Motion to Vacate, Set Aside, or Correct Judgment and Sentence (the “Amended Motion”), which requested an evidentiary hearing, was timely filed within 120 days following the filing of this Court's mandate October 24, 2023.

An evidentiary hearing was held on the Amended Motion on August 6, 2024. At that time, the motion court took notice of the underlying criminal case, the direct appeal, and the unpublished memorandum opinion of this Court. Trial counsel testified at the hearing that he believed he advised Booker not to testify due to Booker's prior convictions for “some serious crimes” similar to those he was charged with in this case that would not have “looked good based on [Booker's] theory of defense” and would have come in if Booker took the stand. When asked about whether trial counsel advised Booker on whether he could appeal waiving his right to testify, the following exchange took place between Booker's motion counsel and trial counsel:

[Motion Counsel:] Do you recall explaining to Mr. Booker that he would have the right to appeal his conviction?

[Trial Counsel:] I'm sure that I told him, if he was convicted, he would have a right to appeal.

[Motion Counsel:] Do you believe that there's any chance that the conversation about his right to testify and the conversation about his right to an appeal could have happened concurrently?

[Trial Counsel:] There's a chance. I don't remember.

[Motion Counsel:] And if there was a situation where Mr. Booker believed he would have the ability to appeal his waiver of testifying at trial, do you believe that there's anything you may have advised or said during that conversation that could have led to that understanding by Mr. Booker?

[Trial Counsel:] I don't really understand your question. I'm sorry.

[Motion Counsel:] Sorry. That's my fault.

So Mr. Booker believed -- or was under the impression that he would be able to appeal his decision to waive his right to testify. If you were discussing his rights at trial, do you believe there's any way that he could have reached that understanding based on the advice you generally give?

[Trial Counsel:] I can't speak for Mr. Booker, but I would have discussed with him that if he wanted to take my advice and not testify, that the judge would have asked him questions. And I'm sure that -- I believe [the trial court] did ask him those questions. And I would have never encouraged my client or told a client that he should lie to the judge in answering those questions.

[Motion Counsel:] Understood.

Booker testified at the hearing that he met with trial counsel and another attorney during a trial recess to discuss how things were going, and when discussing the phone call and whether he should testify to provide context to it, his trial counsel told him “to waive and put it in the appeal” and that Booker took that to mean “I had two chances at this thing. You know, if we go and get a guilty verdict, it's okay because we can still appeal it” and that he would have an opportunity to testify during his appeal. On cross examination the State reframed the advice in question as “if you had concerns about that recorded conversation, you could still waive your right to testify and still take up issues about that [phone call] in appeal.” Booker rejected this interpretation. When asked about the colloquy with the trial court, Booker stated that it did not conflict with the advice he received from trial counsel because the colloquy did not specifically discuss that the waiver of his right to testify could not be appealed.

The motion court found that Booker did not unknowingly, unintelligently, or involuntarily waive his right to testimony, denied his other claims, and entered the Judgment overruling the Amended Motion. This appeal followed.

Standard of Review

Rule 29.15(k) provides: “Appellate review of the trial court's action on the motion filed under this Rule 29.15 shall be limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous.” Appellate courts presume the motion court's findings are correct and a “judgment is clearly erroneous when, in light of the entire record, the court is left with the definite and firm impression that a mistake has been made.” Davis v. State, 486 S.W.3d 898, 905 (Mo. banc 2016) (internal quotations omitted).

Flaherty v. State, 694 S.W.3d 413, 416 (Mo. banc 2024). The motion court is entitled to believe all, part, or none of the evidence presented at the motion hearing. Id. at 419.

[W]e [in turn] view 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. O'Shea v. State, 288 S.W.3d 805, 807 (Mo.App. S.D.2009); see also Storey v. State, 175 S.W.3d 116, 125 (Mo. banc 2005). “At a post-conviction relief evidentiary hearing, the motion court determines the credibility of the witnesses and is free to believe or disbelieve the testimony of any witness, including that of the Movant.” Hurst v. State, 301 S.W.3d 112, 117 (Mo.App. E.D.2010).

Stewart v. State, 387 S.W.3d 424, 428 (Mo. App. S.D. 2012).

Analysis

In his only point on appeal, Booker claims:

The motion court clearly erred in denying claim 8(C) of Mr. Booker's amended motion that his attorney was ineffective for inaccurately advising that he could appeal his waiver of his right to testify in violation of the right to effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution, in that counsel's affirmative misadvice caused Mr. Booker to unknowingly and involuntarily waive his fundamental right to testify, and but for that misadvice, Mr. Booker would have testified to provide exculpatory context for a key piece of evidence, creating a reasonable probability of a different outcome.

To obtain post-conviction relief for a claim of ineffective assistance of counsel, a movant must prove each prong of the two-pronged Strickland ⁴ test. Anderson v. State, 564 S.W.3d 592, 600 (Mo. banc 2018). Under Strickland, a movant must prove by a preponderance of evidence that (1) counsel's performance did not meet that of a reasonably competent attorney, and (2) that because of counsel's actions, movant was prejudiced. Casey v. State, 711 S.W.3d 908, 913 (Mo. App. E.D. 2025) (citing Strickland, 466 U.S. at 687). If a movant fails to establish either prong, then we need not consider the other, and the ineffective-assistance claim must fail. Washington v. State, 681 S.W.3d 347, 354 (Mo. App. E.D. 2023). To satisfy the performance prong, “[a] [m]ovant must overcome the strong presumption that trial counsel's conduct was reasonable and effective.” Casey, 711 S.W.3d at 913 (quoting Johnson v. State, 406 S.W.3d 892, 899 (Mo. banc 2013)).

The performance prong of Strickland “calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind.” Harrington v. Richter, 562 U.S. 86, 110, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (emphasis added). In evaluating the performance prong, “every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. In other words, “the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances.” Id. at 688, 104 S.Ct. 2052. “Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 689, 104 S.Ct. 2052 (emphasis added) (internal quotations omitted).

Flaherty, 694 S.W.3d at 421.

To satisfy the prejudice prong, Movant must establish that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Shockley v. State, 579 S.W.3d 881, 892 (Mo. banc 2019) (internal citation omitted). A “reasonable probability” is one sufficient to undermine confidence in the outcome of the proceeding. Tisius v. State, 519 S.W.3d 413, 420 (Mo. banc 2017).

“Although the right to testify is a fundamental constitutional right, it may be voluntarily and knowingly waived by the criminal defendant.” Lott v. State, 147 S.W.3d 842, 845 (Mo. App. S.D. 2004). “The decision to testify solely rests with the defendant, but the defendant is entitled to receive reasonably competent advice.” Rousan v. State, 48 S.W.3d 576, 585 (Mo. banc 2001) (internal quotations and citation omitted). To ensure there is a voluntary and knowing waiver of a constitutional right:

[T]he “best practice for a trial court is to question the defendant personally, on the record, to ensure that the defendant understands the right, understands what is lost in the waiver, has discussed the issue with defense counsel, and voluntarily intends to waive the right.” [State v. Baxter, 204 S.W.3d 650, 655 (Mo. banc 2006)]. Following this procedure, a defendant later has no argument to later declare the waiver was ineffective. Id.

State v. Driskill, 459 S.W.3d 412, 426 (Mo. banc 2015).⁵

Here, the motion court conducted a hearing and found that Booker failed to satisfy the performance prong of Strickland – that he failed to meet his burden to prove that counsel was ineffective because there was no credible testimony showing that Booker's waiver was unknowing, unintelligent, or involuntary. First, in order to grant Booker's claim, the motion court had to believe that trial counsel in fact advised Booker “that he could appeal his waiver of his right to testify.” Trial counsel testified at the hearing that he believed he advised Booker not to testify due to Booker's prior convictions for “some serious crimes” similar to those he was charged with in this case that would not have “looked good based on [Booker's] theory of defense” and would have come into evidence if Booker took the stand. Trial counsel further testified he would have explained to Booker that his decision not to testify would result in a judicial colloquy about that waiver, and trial counsel would never have encouraged Booker to lie to the trial court during that colloquy. Booker testified that he met with trial counsel and another attorney during a trial recess to discuss how things were going, and when they were discussing the phone call and whether he should testify to provide context to it, trial counsel told him “to waive and put it in the appeal.” Booker further testified that he took that to mean “I had two chances at this thing. You know, if we go and get a guilty verdict, it's okay because we can still appeal it[,]” and that he would have an opportunity to testify during his appeal.

In its Judgment, the motion court stated:

[Trial counsel] testified that he would have advised [Booker] not to testify, that he believed he explained to [Booker] the consequences of waiving his right to testify, and that had he testified his prior felonies would have come in and affected their defense in the case. [Trial counsel] testified that he told his client he had the right to appeal but not the specific ability to appeal the waiver of his right to testify.

․.

[The trial judge] questioned [Booker] about his right to testify being his decision alone [to which Booker] answered “Absolutely.” [ ] During the same inquiry [Booker] confirmed he was made [sic] any promises regarding giving [sic] his right not to testify. [ ] As there has been no evidence present[ed] to refute the testimony and record outlined above that shows unknowing, unintelligent, and involuntary waiver, [Booker's] [ ] claim is denied.

This Court does not determine that the motion court's findings and conclusions are clearly erroneous. There was no testimony at the evidentiary hearing that trial counsel ever advised Booker that he could appeal his decision to waive his right to testify and then testify at the appeal or on a later date. Even Booker himself testified that trial counsel simply advised him “to waive and put it in the appeal” while discussing his jail phone calls coming into evidence and whether testifying to provide context would be worth it. While Booker interpreted that statement to mean that “[he] had two chances at this thing. You know, if we go and get a guilty verdict, it's okay because we can still appeal it[,]” and that he would have an opportunity to testify during his appeal, there was no credible testimony that trial counsel ever provided advice to that effect to Booker.

Further, the motion court found that the trial court record supported a valid waiver of Booker's right to testify: “[The trial judge] questioned [Booker] about his right to testify being his decision alone [to which Booker] answered ‘Absolutely.’ [ ] During the same inquiry [Booker] confirmed he was made [sic] any promises regarding giving [sic] his right not to testify.” Trial counsel testified that he would not have counseled Booker to lie to the trial court when questioned in colloquy about waiving his right to testify. During the colloquy Booker confirmed to the trial court that he understood his decision not to testify was his decision alone and that nobody had pressured him or promised him anything with regard to his right to testify. The trial court's colloquy complies with the best practices set forth in Driskill for establishing a voluntary and knowing waiver of a constitutional right. See Driskill, 459 S.W.3d at 426.

Because the motion court determines the credibility of the witnesses and is entitled to believe all, part, or none of the evidence presented at the motion hearing, and we view the record in the light most favorable to the motion court's judgment presuming the motion court's findings are correct, we are not left with the definite and firm impression that a mistake has been made here. We determine that Booker failed to meet his burden to overcome the strong presumption that trial counsel's performance was reasonable and effective. As Booker has failed to establish the performance prong of the Strickland test, we need not consider the prejudice prong of his ineffective-assistance claim. See Washington, 681 S.W.3d at 354.

Conclusion

The motion court's findings and conclusions were not clearly erroneous. The motion court's Judgment overruling Booker's Amended Motion is affirmed.

FOOTNOTES

1.   All rule references are to Missouri Court Rules (2022).

2.   See section 570.023 RSMo 2016, including changes effective January 1, 2017.

3.   An officer testified that the gun “was actually a replica of an actual firearm ․ commonly referred to as a pellet pistol[,]” and the holster was a “black covering” that was “some type of Velcro that had been fashioned into a holster.”

4.   Strickland v. Washington, 466 U.S. 668 (1984).

5.   While this part of Driskill dealt with a right to be present before the court, subsequent cases have applied the “best practice” of a judge questioning a defendant in colloquy to confirm voluntary and knowing waiver of the right to testify. See Bateman v. State, ED 113579, 2026 WL 994965, at *3 (Mo. App. E.D. Apr. 14, 2026); Williams v. State, 730 S.W.3d 334, 338 (Mo. App. E.D. 2026); and State v. Adkison, 517 S.W.3d 645, 652 n.4 (Mo. App. W.D. 2017).

JENNIFER R. GROWCOCK, C.J. – OPINION AUTHOR

JACK A. L. GOODMAN, J. – CONCURS BRYAN E. NICKELL, J. – CONCURS