David O. Love, Appellant, v. State of Missouri, Respondent.

DAVID O. LOVE, ) ) No. ED113032 Appellant, ) ) v. ) ) STATE OF MISSOURI, ) ) Filed: November 12, 2025 Respondent. )

APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS The Honorable Timothy J. Boyer, Judge Introduction Appellant David Love appeals the motion court's judgment denying his amended Rule 29.15 motion for post-conviction relief following an evidentiary hearing. In three points on appeal, Appellant argues that trial counsel was ineffective for repeatedly stating Appellant was part of a gang during voir dire, for failing to include a limiting instruction on the use of Appellant's prior bad acts in the self-defense and defense of others instructions, and for failing to move to quash the jury panel due to a fair community cross-section violation. We affirm the motion court's judgment. Factual and Procedural Background

Appellant was charged as a prior and persistent offender with first-degree murder and armed criminal action for events that occurred on July 6, 2018. On that evening, Appellant and a

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friend, APB, went to a gas station in St. Louis where they encountered Victim. Victim confronted Appellant and APB about a prior altercation that had occurred between Victim and another individual, AW. Victim demanded that Appellant and APB pick a side in the altercation. APB refused to take a side, however, Victim refused to take "no" for an answer. APB testified that Victim pushed off the retaining wall he had been leaning against and got close to APB, however, APB testified that Victim did not touch him and that Victim did not directly threaten him or display a gun. Nevertheless, APB thought Victim was going to fistfight him and that he was "coming for me." It was at that moment that Appellant suddenly pulled a gun from his bag and shot at Victim, emptying the gun's magazine. Victim was struck at least ten times. Victim fell to the ground and Appellant and APB ran from the scene. Nearly four years later, a jury trial was held where Appellant testified in his own defense, claiming that Victim alarmed him by telling him and APB that he knew their families and where they stayed. Appellant testified that Victim became aggressive when APB refused to take a side and that his body language was aggressive. He stated that he had often seen Victim carrying a gun in the past. When asked why he shot Victim, Appellant testified that he believed that APB's life and his own life were in danger and that "any occasion could have happened." The jury was instructed on self-defense and defense of others. During deliberations, the jury asked for clarification of the words "reasonably believes" within both the instructions. After deliberating for six hours, the jury found Appellant guilty of second-degree murder and armed criminal action. The circuit court sentenced Appellant to concurrent terms of 24 years on each count. Appellant prematurely filed his pro se Rule 29.15 motion for postconviction relief on November 21, 2021, while his direct appeal was still pending with this Court. The motion court

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granted Appellant 120 days from the date of this Court's mandate in his appeal to file his amended Rule 29.15 motion. Appellant's convictions were affirmed by this Court in State v. Love, 649 S.W.3d 402 (Mo. App. E.D. 2022), on September 8, 2022. An amended Rule 29.15 motion was filed by Appellant's appointed counsel on January 5,

1. Appellant raised four claims, including (1) that trial counsel was ineffective for indicating

that Appellant was part of a gang, (2) that trial counsel was ineffective for failing to include a prior bad acts limiting paragraph to the self-defense and defense of others instructions, (3) that trial counsel was ineffective for failing to move to quash the jury panel due to a fair cross-section violation, and (4) that appellate counsel was ineffective for failing to assert a speedy trial violation on appeal. On June 15, 2023, Appellant filed a motion requesting access to juror data held by the Office of the State Court Administrator relevant to Appellant's claim of ineffective assistance of counsel due to a failure to make a fair cross-section violation claim. The State filed a response to the motion, and the motion court subsequently denied the motion on November 14, 2023. The motion court granted an evidentiary hearing on all of Appellant's amended motion claims except for the fair cross-section violation claim, and the hearing was held on May 2,

1. At the hearing, Appellant renewed his motion seeking juror data, which the court denied,

and post-conviction counsel presented evidence on all the claims except the fair cross-section claim. On August 21, 2024, the motion court issued its findings of fact and conclusions of law denying Appellant's Rule 29.15 motion. This appeal follows. Standard of Review

Appellate review of a judgment denying a Rule 29.15 motion for post-conviction relief is limited to whether the motion court's findings of fact and conclusions of law are clearly

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erroneous. Shockley v. State, 579 S.W.3d 881, 892 (Mo. banc 2019); Rule 29.15(k). The motion court's findings and conclusions are clearly erroneous only if a full review of the record leaves the reviewing court with "the definite and firm impression that a mistake has been made." Moore v. State, 458 S.W.3d 822, 829 (Mo. banc 2015). The motion court is "entitled to believe all, part, or none of the evidence presented at the post-conviction hearing." State v. Hunter, 840 S.W.2d 850, 863 (Mo. banc 1992). The motion court's findings are presumed correct. McLaughlin v. State, 378 S.W.3d 328, 336-37 (Mo. banc 2012). "We 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." Oliphant v. State, 525 S.W.3d 572, 577 (Mo. App. S.D. 2017); see also State v. Gilbert, 103 S.W.3d 743, 748 (Mo. banc 2003). A movant has the burden to show by a preponderance of the evidence that the motion court clearly erred in its ruling. Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009). Discussion

Appellant raises three points on appeal. In Point I, Appellant argues that the motion court erred in denying his motion because trial counsel was ineffective for repeatedly stating that Appellant was involved in a street gang. In Point II, Appellant alleges the court erred in denying his motion because trial counsel was ineffective for failing to include in the self-defense and defense of others instructions a paragraph explaining the limited use to which jurors could consider the evidence of Appellant's alleged prior bad acts. Finally, in Point III, Appellant contends that trial counsel was ineffective for failing to move to quash the jury panel due to a fair community cross-section violation.

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Timeliness of Amended Rule 29.15 Motion

Before addressing the merits of Appellant's claims, we must address the timeliness of Appellant's amended Rule 29.15 motion and whether Appellant was abandoned by post- conviction counsel. "The filing deadlines for post-conviction relief motions are mandatory and cannot be waived." Saddler v. State, 686 S.W.3d 720, 723 (Mo. App. E.D. 2024) (quoting Watson v. State, 536 S.W.3d 716, 717 (Mo. banc 2018)). When post-conviction counsel is appointed, an amended motion seeking post-conviction relief filed beyond the deadline can constitute "abandonment" of the movant. Harley v. State, 633 S.W.3d 912, 916 (Mo. App. E.D. 2021) (citing Moore, 458 S.W.3d at 825). "If an amended motion seeking post-conviction relief is untimely, the motion court is required to conduct an independent inquiry into the reason for the untimely filing to determine whether post-conviction counsel abandoned the movant, which must be done before considering the merits of the amended motion and the evidence in support." Id. (citing Moore, 458 S.W.3d at 825). The outcome of this inquiry dictates which claims are reviewed by the motion court. Id. at 918 (citing Moore, 458 S.W.3d at 826). "Abandonment arises when the conduct of appointed postconviction counsel is 'tantamount to a total default in carrying out the obligations imposed upon appointed counsel under the rules.'" Jones v. State, 643 S.W.3d 918, 920-21 (Mo. App. E.D. 2022) (quoting Bain v. State, 407 S.W.3d 144, 147 (Mo. App. W.D. 2013)). "If the motion court determines that the movant was abandoned by appointed counsel's untimely filing of an amended motion, the court is directed to permit the untimely filing." Moore, 458 S.W.3d at 826. But "[i]f the motion court finds that a movant has not been abandoned, the motion court should not permit the filing of the amended motion and should proceed with adjudicating the movant's initial motion." Harley, 633 S.W.3d at 917 (quoting Moore, 458 S.W.3d at 825). "The motion court must also make a

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sufficient record of the abandonment inquiry." Id. "Upon review of the record, if this Court determines there has been no independent inquiry into abandonment, then we must reverse and remand for the circuit court to conduct the inquiry." Id. (quoting Brown v. State, 602 S.W.3d 846, 850 (Mo. App. E.D. 2020)). Missouri courts have recognized limited exceptions to the requirement that a case be remanded for an abandonment inquiry. 1 Recently, the Missouri Supreme Court found that remand for an abandonment inquiry is unnecessary where "the record unmistakably demonstrates appointed counsel abandoned [the movant] by failing to timely file an amended motion, and these failures were not due to any negligence or intentional failure to act by [the movant]," specifically applicable where "the record plainly shows appointed counsel's failures resulted from incorrectly determining which version of the rules to follow." Nelson v. State, 719 S.W.3d 729, 735 (Mo. banc 2025). Relevant to the timeline of this case, the version of Rule 29.15 in effect at the time of Appellant's sentencing on October 25, 2021, provided 60 days from the date of this Court's mandate on Appellant's direct appeal to file an amended motion. The rule was subsequently amended from 60 days to 120 days, which went into effect on November 4, 2021. Both versions of the rule included the same "schedule," which provided that "[t]his Rule 29.15 shall apply to all proceedings wherein sentence is pronounced on or after January 1, 2018." Finally, the rule was again amended and went into effect on July 1, 2023, which changed only the "schedule"

1 One exception allows appellate courts to proceed without remanding when all of the claims in a movant's pro se motion have been incorporated into and adjudicated along with the claims in the amended motion. Childers v. State, 462 S.W.3d 825, 828 (Mo. App. E.D. 2015). Another exception is implicated when post-conviction counsel files an affidavit or other sworn statement asserting that the late filing of the amended motion was not the movant's fault but was the result of counsel's late receipt of the notice of appointment and counsel's heavy caseload. Gale v. State, 508 S.W.3d 128, 130 (Mo. App. S.D. 2016).

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portion of the Rule to provide that "[f]or sentences pronounced on or after January 1, 2018, postconviction relief proceedings shall be governed by the provisions of Rule 29.15 in effect on the date of the movant's sentencing." Here, Appellant's amended Rule 29.15 motion was filed on January 5, 2023—119 days after this Court's mandate on September 8, 2022. In the motion and at the evidentiary hearing, post-conviction counsel argued that the motion was timely because the November 4, 2021, amendment to Rule 29.15, which extended the filing period from 60 days to 120 days, retroactively applied to Appellant's post-conviction proceedings because it was procedural in nature and the matter was still pending at the time of the amendment. However, the Missouri Supreme Court in Scott v. State has recently clarified that, while the "schedule" in Rule 29.15 was not changed in the 2021 amendment, Missouri courts must nevertheless apply t he version that was in effect at the time of the appellant's sentencing, regardless of any later amendments. Scott v. State, 719 S.W.3d 723, 727 (Mo. banc 2025). Because Appellant was sentenced on October 25, 2021, the version of Rule 29.15 effective through November 3, 2021 (last amended January 1, 2018) applies to Appellant's postconviction proceeding regardless of the later amendments. Id. Accordingly, Appellant's amended Rule 29.15 motion was due on or by November 7, 2022, making his filing on January 5, 2023, untimely. Consequently, the motion court was required to conduct an abandonment inquiry and issue specific findings. While the record does confirm that such an inquiry occurred, we find that the incorrect version of the rule was applied and the finding that the amended motion was timely filed was incorrect. We therefore find that Appellant's motion was untimely and that Appellant was abandoned by post-conviction counsel, who testified to as much at the evidentiary hearing. However, pursuant to the Missouri Supreme

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Court's decision in Nelson, because we find that the record supports that the untimely filing was the result of counsel incorrectly determining which version of the rule applied, we find remand for further abandonment inquiries unnecessary and decline to remand for this reason. See Nelson v. State, 719 S.W.3d at 735. Thus, we address the merits of Appellant's points. Point One: Counsel's Gang References Were Not Shown To Be Unreasonable Trial Strategy or Prejudicial In his first point on appeal, Appellant alleges that the motion court erred in denying his motion because trial counsel was ineffective for repeatedly indicating during voir dire and while questioning witnesses during trial that Appellant was involved in a street gang. Appellant argues that such references constituted an unreasonable trial strategy in that any alleged gang membership was irrelevant to the charges at issue and only served to terrorize the venire panel and the petit jury, therefore prejudicing Appellant. In support of his argument, Appellant points to various statements of the venire panel that Appellant argues "cast a pall over the proceedings that no amount of instruction or backpedaling could cure." During voir dire, trial counsel attempted to inquire about the venire panel's attitudes and biases to gang related activity in anticipation of the subject being raised during trial in the context of Appellant's alleged gang affiliation. Trial counsel stated, Now, the next thing I want to talk to you about, and this can be a tough subject for people, is gangs. I expect you may hear that several of the witnesses in this case are sort of affiliated with or associated with what the police would call a gang.... Does anyone think hearing that, that Mr. Love and some of the witnesses you may hear are associated with or affiliated with what the police call a gang, does anyone think knowing that might make it a little bit harder for you to presume Mr. Love innocent? Many members of the venire panel expressed possible biases related to gang activity or membership, as well as fears regarding potential retaliation for serving on the jury. Most of the venirepersons who expressed an opinion were struck and did not serve on the jury. Of the

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venirepersons who responded to trial counsel's questions, only three served on the jury and all expressed that they could be fair in considering the evidence and reaching a verdict. To succeed on a claim of ineffective assistance of counsel, a movant must show by a preponderance of the evidence facts, not mere conclusions, demonstrating: (1) counsel failed to conform to the degree of skill, care, and diligence of a reasonably competent attorney under similar circumstances, and (2) counsel's deficient performance prejudiced the movant. Strickland v. Washington, 466 U.S. 668, 687 (1984); McLaughlin, 378 S.W.3d at 337. If a movant fails to satisfy either element of the test, they are not entitled to relief. Creighton v. State, 520 S.W.3d 416, 422 (Mo. banc 2017). "A movant must overcome the strong presumption that trial counsel's conduct 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, 906 (Mo. banc 2016) (internal quotations omitted)). "To overcome this presumption, a movant must identify specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance." Id. "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." Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006). "Strategic choices made after a thorough investigation of the law and the facts relevant to plausible opinions are virtually unchallengeable." Id. "It is not ineffective assistance of counsel to pursue one reasonable trial strategy to the exclusion of another reasonable trial strategy." Id. "Prejudice occurs when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Hosier, 593 S.W.3d at 81 (quoting Davis, 486 S.W.3d at 906).

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At the evidentiary hearing, trial counsel testified that she decided to ask the venire panel about gangs because she believed the topic would come up during trial regarding how Appellant and Victim were acquainted and because it was in Appellant's statement to the police. "The purpose of voir dire is to discover bias or prejudice in order to select a fair and impartial jury." State v. Conaway, 557 S.W.3d 372, 377 (Mo. App. W.D. 2018) (quoting State v. Clark, 981 S.W.2d 143, 146 (Mo. banc 1998)). "There is no rigid formula for an adequate voir dire. Consequently, a liberal latitude is allowed in the examination of jurors, as long as the scope of voir dire remains commensurate with its purpose to discover bias or prejudice in order to select a fair and impartial jury." Id. (quoting State v. Ousley, 419 S.W.3d 65, 73 (Mo. banc 2013)) (citations and internal quotation marks omitted). As such, it was not unreasonable trial strategy for trial counsel to inquire about the venire panel's biases related to gangs, as trial counsel correctly believed the subject would be discussed at trial. Additionally, Appellant cannot show prejudice resulting from trial counsel's comments, because the comments Appellant advances as evidence that the panel was somehow affected by the discussions of gangs were from venirepersons who either did not serve on the jury or explicitly stated that they could fairly consider the evidence in reaching a verdict. In fact, Appellant fails to demonstrate how the venire panel or the jury were influenced in any substantive manner so as to have affected the outcome of his trial. For these reasons, we find that the motion court did not clearly err in denying Appellant's claim of error. Point I is denied. Point Two: Trial Counsel's Failure To Include Limiting Provisions To Jury Instructions For Self- Defense and Defense of Others Was Neither Unreasonable Nor Prejudicial In his second point on appeal, Appellant claims that the motion court erred in denying his Rule 29.15 motion because counsel was ineffective for failing to include in the self-defense and

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defense of others jury instructions a paragraph explaining the limited use to which jurors could consider the evidence of Appellant's supposed prior bad acts. 2 Specifically, Appellant asserts that trial counsel admitted that she was unaware of the limiting provision, but that she would have included it had she known about it, thus constituting unreasonable conduct. Appellant further argues that he was prejudiced by the failure to include the limiting instruction because the jury was impermissibly allowed to consider his supposed bad acts "as evidence that he was a bad guy, that he was not a believable witness, and that he was somehow less deserving of the benefit of the doubt." "Within the context of ineffective assistance of counsel claims concerning evidence of prior bad acts or prior felony convictions, the prejudice determination often depends on other evidence of guilt adduced at trial." Harris-Applewhite v. State, 713 S.W.3d 263, 271 (Mo. App. S.D. 2025). "Courts may consider the extent and nature of the evidence presented at trial to determine whether the jury's verdict was based on any perceived propensity of a defendant to violate the law rather than on actual evidence of the crimes charged." Id. (citing Hosier, 593 S.W.3d at 84). Even if trial counsel's behavior was unreasonable, Appellant's mere speculation that the jury improperly considered the evidence of his prior bad acts, without more, is insufficient to establish that he was prejudiced in the context of an ineffective assistance of counsel claim. Hosier, 593 S.W.3d at 84. While Appellant argues that it was obvious that the jury considered

2 MAI-CR 4th 406.06 and 406.08, regarding self-defense and defense of others, both provide the following optional paragraph under "Evidentiary Matters," [1] Evidence has been introduced (of the reputation of the defendant for being [Insert trait or traits, such as "peaceful and law-abiding" or "violent and turbulent."]) (and) (of the reputation of [Identify victim.] for being [Insert trait or traits.]). You may consider this evidence in determining who was the initial aggressor in the encounter (and for no other purpose).

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and struggled with these defenses based on the clarifying questions they asked during deliberation and the length of their deliberation, this fails to amount to more than speculation and does not establish in any way that the jury improperly considered the evidence of his prior offenses when coming to their decision. See id. Additionally, while Appellant claims that the outcome of the trial would have been different if the instruction had been given because there was ample evidence to support his defense of self-defense or defense of others, Appellant has failed to establish that any possible consideration of Appellant's prior bad acts meaningfully influenced the jury so as to cause them to outrightly reject his defense theories. This is especially true in light of the evidence in the record supporting the jury's rejection of his self-defense and defense of others claims, including the lack of any evidence that Victim was the initial aggressor by either displaying a weapon, explicitly threatening Appellant or APB, or touching or attacking Appellant or APB; the lack of evidence proving that Appellant reasonably believed that he and APB were facing the threat of imminent death or serious physical injury; or the lack of evidence proving that deadly force was reasonably necessary under the circumstances. See id. Therefore, because Appellant has not proven that he was prejudiced by trial counsel's conduct, we find the motion court did not clearly err in denying this claim. Point II is denied. Point Three: Appellant Failed to Properly Substantiate or Support His Claim That Trial Counsel Was Ineffective for Failing To Assert a Fair Cross-Section Violation In his third and final point on appeal, Appellant argues that the motion court clearly erred in denying his claim without an evidentiary hearing because trial counsel was ineffective for failing to move to quash the jury panel due to a fair cross-section violation. Appellant asserts that the obvious disparity in the makeup of the venire panel consisting of white and African American people compared to the population of the City of St. Louis was clear that trial counsel

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should have been alerted to the violation and should have moved to quash the panel. Following his amended motion, Appellant filed a motion seeking relevant demographic information and data held by the Office of the State Court Administrator ("OSCA") that he claimed would have supported his claim. The motion court subsequently denied the motion and denied an evidentiary hearing on the claim. To be entitled to an evidentiary hearing, a movant must show: "(1) he pleaded facts, not conclusions, warranting relief; (2) the facts alleged are not refuted by the record; and (3) the matters complained of resulted in prejudice to the movant." Stevenson v. State, 645 S.W.3d 589, 593 (Mo. App. E.D. 2022) (quoting Booker v. State, 552 S.W.3d 522, 526 (Mo. banc 2018)) (internal quotations omitted). We again apply the two-pronged Strickland test outlined above.

To establish a prima facie violation of the fair cross-section requirement of the sixth amendment, a defendant must show: (1) that the group alleged to be excluded is a "distinctive" group within the community, (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community, and (3) that this under-representation is due to systematic exclusion of the group in the jury selection process. State v. Lawson, 693 S.W.3d 82, 94 (Mo. App. E.D. 2023), transfer denied (Aug. 15, 2023). In its findings of facts and conclusions of law, the motion court determined that Appellant had failed to adequately plead any facts establishing that the disproportionate representation of African Americans in his jury pool was the result of systemic exclusion. Notably, while Appellant's amended motion included the demographic information of his jury, Appellant alleged no facts related to other venire panels around the same time of his trial and Appellant did not file his motion for access to OSCA's demographic data until six months after he filed his motion. While we acknowledge that such information was likely accessible only through a court order granting access to OSCA's juror data, Appellant's delayed request only

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after the filing of his amended motion was simply too little too late in this instance based on the pleading requirements set out in Rule 29.15 requiring motions to allege facts, not conclusions, to support claims. Accordingly, we find that Appellant was not entitled to an evidentiary hearing on this claim because he failed to plead facts, not conclusions, warranting relief. Thus, the trial court did not clearly err in denying this claim. Point III is denied. Conclusion For the foregoing reasons, the judgment of the circuit court is affirmed.

RENÉE D. HARDIN-TAMMONS, PRESIDING JUDGE

Angela T. Quigless, J., and Thomas C. Clark II, J., concur.