Date: 07-23-2024

Case Style:

Russell Donald Walker v. State of Missouri

Case Number: 18GE-cc00090

Judge: Roger M. Prokes

Court: 4th Judicial Circuit Court, Gentry County, Missouri

Plaintiff's Attorney:

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Defendant's Attorney: Gentry County Missouri District Attorney's Office

Description:

St. Maryville, Missouri crminal defense lawyer represented the Plaintiff seeking post conviction relief.

Walker was convicted of two counts of first-degree statutory rape following a jury trial and was sentenced to a combined total of fifty years' imprisonment.[4] Walker's convictions and sentences were affirmed on direct appeal. State v. Walker, 549 S.W.3d 7 (Mo. App. W.D. 2018). On direct appeal, this Court summarized the facts of the underlying criminal case as follows:

Walker's daughter, B.W., was born in August 2000. B.W. did not start living with Walker until 2009, when she and her brother moved into his apartment in Maryville. In 2011, B.W. and her brother moved with Walker to his residence in Burlington Junction. Walker was physically abusive to both B.W. and her brother. When B.W. was [ten] years old, Walker began having sexual intercourse with her. Walker continued to sexually abuse B.W. up until just before she turned [fourteen] years old in August 2014. In May, June, and July 2014, Walker had sex with B.W. every other day. Every time, Walker would tell her brother to go to his room and close the door. Then, Walker would grab B.W. by the wrist, tell her to "come on," take her into either his bedroom or the bathroom, remove their clothes, get on top of her, and stick his penis in her vagina. B.W. said that she knew

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what was going to happen when he grabbed her wrist because he had done it "a hundred times before."

B.W.'s best friend and her best friend's mother witnessed Walker behaving inappropriately with B.W. On one occasion, when Walker was dropping B.W. and her brother off at a school dance, B.W.'s friend and her mother saw Walker put his hands on B.W.'s waist and give her a prolonged kiss on the lips. B.W.'s friend's mother said that the kiss was "way too long for a parent to be kissing their child," and B.W.'s friend said that the "prolonged kiss" was uncomfortable to watch and was not the way parents usually kiss their kids. B.W.'s friend also said that, when she spent the night with B.W., she heard Walker call B.W. to come "cuddle," and she saw Walker and B.W. "spooning."

Eventually, B.W. and her brother ran away from Walker's residence and were placed in foster care. B.W. did not tell anyone about the sexual abuse until five months after they left Walker's residence. B.W. initially told her best friend, who, in turn, told her mother. B.W. then texted her own mother and disclosed that Walker had raped her. B.W. said that she waited to tell anyone about the sexual abuse because she was ashamed, embarrassed, afraid that people would judge her and make fun of her, and concerned that she and her brother would be split up if they were removed from Walker's residence.

B.W. disclosed to a Children's Advocacy Center forensic interviewer that Walker had put his penis in her vagina. B.W. had suicidal thoughts and was depressed over what happened to her and her brother. She was diagnosed with PTSD, anxiety, and depression.

The second victim in this case is N.G., who was born in November 2001. N.G. and her mother, who was dating Walker, moved in with him in 2010 when N.G. was nine years old and moved out in 2012 when N.G. was [eleven] years old. For the entire time N.G. lived with Walker, Walker had sexual intercourse with her in his bedroom every time her mother went to Walmart. Walker would drag N.G. into his bedroom, close the door, pull off her pants and his pants, and then put his penis in her vagina. N.G. did not tell her mother or anyone else about the sexual abuse because she was scared that she would get into trouble for it and be suspended from school.

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N.G. did not know how many times Walker had sexual intercourse with her, but she said that it had gone on for three years.

A medical exam revealed that N.G. had a complete transection of her hymen, which indicated a prior penetrative injury caused by something inserted into her vagina. During a forensic interview, N.G. initially denied any sexual contact with Walker. Later in the interview, however, she disclosed that Walker had sexual intercourse with her every other night when her mother went to Walmart.

According to N.G.'s mother, while she and N.G. lived with Walker in Burlington Junction, he would encourage her to leave the house and go to Walmart, which was [twenty] miles away. Sometimes, she went to Walmart two or three times a week and would be gone for an hour. The children would be at home in bed when she left. Whenever she was out in the evening on those occasions, Walker, who never volunteered to run these errands, would frequently call her near the time she would be returning to find out if she was on her way home and where she was. B.W.'s brother said that, every time B.W. or N.G. were in Walker's bedroom with Walker, he could hear groaning noises and the bed squeaking. ...

Walker testified at trial that he never sexually abused either B.W. or N.G.

This Court affirmed his convictions and sentences. Walker timely filed a pro se motion for post-conviction relief pursuant to Rule 29.15. Walker's appointed counsel timely filed an amended motion.

Pertinent to this appeal, Walker alleged his trial counsel was ineffective for failing to adequately cross-examine Director, and had trial counsel questioned her about the "impropriety of considering delayed disclosure, inconsistent disclosures, and recantations as diagnostic tools, there is a reasonable probability the result of the trial could have been different." Further, Walker alleged his trial counsel was ineffective for failing to investigate and present evidence of Walker's genital herpes because "a positive herpes test, in contrast to [B.W.] and [N.G.] showing no signs of herpes, would have provided the defense with independent evidence consistent with innocence."

On the issue of trial counsel's alleged ineffective cross-examination of Director, prior to trial, trial counsel filed a motion in limine to preclude introduction of evidence concerning Child Sexual Abuse Accommodation Syndrome ("CSAAS") and its components through Director's testimony.[5] CSAAS is used to explain a child's delayed disclosure of sexual abuse and/or denial of sexual abuse, but it is not diagnostic that sexual abuse did in fact occur. The trial court sustained the motion as to CSAAS, "but as far as the individual components thereof, if someone brushes up against those components, I don't have a problem with that being offered." Prior to Director's testimony at trial, trial counsel renewed his objection to the presentation of CSAAS evidence which the trial court overruled. An evidentiary hearing on Walker's 29.15 motion was held on November 10, 2022. At the hearing, trial counsel testified that he objected to Director testifying about CSAAS because it is not a diagnostic tool, and he was concerned that testimony about the component parts would lead the jury to understand the testimony about children's disclosures or denial of abuse as affirmative proof that the sexual abuse occurred, especially if the jury was relying on the testimony of the two child victims.

Trial counsel's trial strategy, regarding Director's testimony, was to make sure Director did not start saying CSAAS was diagnostic or that the two child victims showed signs of the syndrome. Trial counsel believed if he questioned Director about the components she testified about as not being diagnostic it could have opened the door to information he sought to keep out, which could have "backfired." Additionally, trial counsel's strategy was to show the jury that Director was biased based on her position with the Children's Advocacy Center and that employees of the center are "going to find sexual abuse because it [financially] benefits them to do so."

At the hearing, trial counsel also testified that at some point before trial he asked Walker if he had any sexually transmitted diseases ("STDs") and Walker replied in the negative; trial counsel recorded this in a memo for Walker's file. An investigator working with trial counsel also asked Walker two times if he had any STDs which Walker denied; this was also recorded in a memo for Walker's file. Trial counsel testified that the first time Walker said anything to him about having an STD was after the verdict was read at trial. Walker also testified at the hearing. Walker testified that he currently had herpes and got medically tested for them a few weeks after his sentencing. Walker first thought he had genital herpes around February 2009, because he started to have "major breakouts in [his] genital area." Walker stated he did not seek medical treatment because he was "ashamed and embarrassed." According to Walker, sometimes he would have these "breakouts" every month, and they would last for weeks. Walker testified his trial counsel and investigator knew about his genital herpes before trial.

On December 12, 2022, the motion court issued findings of fact, conclusions of law, and judgment denying Walker's motion for post-conviction relief. This appeal follows.

Walker v. State, WD85967 (Mo. App. Jul 23, 2024)

Outcome: Post conviction relief denied.

Afformed on appeal.

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