Derrie S. Williams, Appellant, v. State of Missouri, Respondent.

DERRIE S . WILLIAMS, ) ) No. ED113255 Appellant, ) ) v. ) ) STATE OF MISSOURI, ) ) Filed: February 10, 2026 Respondent. )

APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS The Honorable Bryan L. Hettenbach, Judge Introduction Appellant Derrie Williams appeals the motion court's judgment denying his amended Rule 29.15 motion for post-conviction relief following an evidentiary hearing. 1 In two points on appeal, Appellant argues that he was denied effective assistance of counsel because trial counsel failed to allow Appellant to testify on his own behalf and failed to investigate and call two witnesses. Because the motion court's findings of fact and conclusions of law are not clearly erroneous, we affirm the motion court's judgment denying post-conviction relief.

1 All Rule references are to the Missouri Supreme Court Rules (2018).

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Factual and Procedural Background On September 5, 2014, J.D. and S.D. returned home from work by bus, arriving at their bus stop around 7:50 AM. At the same time, L.S., who lived near the bus stop, heard gunshots and called 911. She looked out her window and saw a man shoot J.D., prompting her to leave the house to render aid. She made eye contact with the shooter as he walked across the street. J.D.'s body was lying in front of Appellant's house and S.D.'s body was lying in front of a house around the street corner. Police responding to the scene found Appellant's DNA on a cigarette butt near J.D.'s body. Police questioned Appellant as part of the investigation, and Appellant told them he was at work when the shootings occurred. Months after the shooting, police spoke with L.S., who identified Appellant as the shooter. For several months following the identification, L.S. refused to cooperate, but after a body attachment was issued she was brought to the police station and identified Appellant in a photo lineup. Appellant was charged with two counts of first-degree murder and two counts of armed criminal action. L.S. testified at trial, identifying Appellant as the shooter. Appellant did not testify. Following the jury trial, Appellant was convicted of one count of first-degree murder, one count of second-degree murder, and two counts of armed criminal action. Appellant was sentenced as a prior and persistent offender to life imprisonment without the possibility of parole for the first-degree murder charge and concurrent life sentences on the remaining three counts. Appellant's convictions and sentence were affirmed in State v. Derrie S. Williams, 590 S.W.3d 401 (Mo. App. E.D. 2019). Appellant timely filed a pro se motion for post-conviction relief and counsel was appointed. Post-conviction counsel timely filed an amended motion. The motion court held an evidentiary hearing. D.M., who worked with Appellant at the time of the shooting, testified that he had worked with Appellant that day, but had arrived at work after

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Appellant had already arrived and after the shooting occurred. C.W., Appellant's aunt, with whom he resided at the time of the shooting, testified that she saw Appellant leave for work before 7:00 AM the morning of the shooting but was taking her child to school when the shooting occurred. After the evidentiary hearing, the motion court denied Appellant's claims. 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 erroneous. Shockley v. State, 579 S.W.3d 881, 892 (Mo. banc 2019); Rule 29.15(k). "Findings and conclusions are clearly erroneous if, after a review of the entire record, the court is left with the definite and firm impression that a mistake has been made." Price v. State, 422 S.W.3d 292, 294 (Mo. banc 2014) (quoting Davis v. State, 486 S.W.3d 898, 905 (Mo. banc 2016)). This Court defers to "the motion court's superior opportunity to judge the credibility of witnesses." Flaherty v. State, 694 S.W.3d 413, 419 (Mo. banc 2024). For an ineffective assistance of counsel claim, the Strickland standard applies. McFadden v. State, 619 S.W.3d 434, 445 (Mo. banc 2020). "Under Strickland, a movant must demonstrate that: (1) his or her counsel failed to exercise the level of skill and diligence that a reasonably competent counsel would in a similar situation, and (2) he or she was prejudiced by that failure." Johnson v. State, 406 S.W.3d 892, 898-99 (Mo. banc 2013). Both prongs of the test must be shown by a preponderance of the evidence. Strong v. State, 263 S.W.3d 636, 642 (Mo. banc 2008). To satisfy the first prong, the movant must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland v. Washington, 466 U.S. 668, 689 (1984). The second prong, prejudice, is satisfied when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding

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would have been different." Johnson, 406 S.W.3d at 899 (internal quotations omitted). "A reasonable probability exists when there is a probability sufficient to undermine confidence in the outcome." Tisius v. State, 519 S.W.3d 413, 420 (Mo. banc 2017) (quoting McLaughlin v. State, 378 S.W.3d 328, 337 (Mo. banc 2012)). Point I: Right to Testify In Point I, Appellant argues that the motion court erred in denying his amended motion after an evidentiary hearing because trial counsel was ineffective for advising him not to testify in his own defense, thereby depriving him of his constitutional right to testify. Appellant alleges that trial counsel made the decision about whether he would testify, rather than allowing Appellant to decide. Appellant further alleges that, but for his counsel's ineffectiveness, there is a reasonable probability that the outcome of his trial would have been different. "A criminal defendant has a constitutional right to testify in his own behalf at trial." State v. Davis, 318 S.W.3d 618, 637 (Mo. banc 2010), as modified on denial of reh'g (Aug. 31, 2010) (citing Rock v. Arkansas, 483 U.S. 44, 51 (1987)). Only the defendant can waive the right to testify, and such a waiver "must be made knowingly and voluntarily." State v. Adkison, 517 S.W.3d 645, 651 (Mo. App. W.D. 2017). To ensure there is a knowing waiver, the "trial court must engage in a colloquy with the defendant to make certain the defendant understands exactly what rights and privileges he or she is waiving, as well as the dangers associated with waiving constitutional rights." State v. Driskill, 459 S.W.3d 412, 426 (Mo. banc 2015) (internal quotations omitted).

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The circuit court engaged in the following colloquy with Appellant: THE COURT: All right. Mr. Williams, you have been sitting here during this trial and your lawyer has just told me that he has completed presenting all evidence for you. He has told me that you made a decision that you are not going to testify in your own defense. Is that the decision that you have made? APPELLANT: Yes, sir. THE COURT: And have you had enough time to discuss that decision with your lawyer? APPELLANT: Yes, sir. THE COURT: Do you have any questions you need to stop and ask him before proceeding with this trial and submitting this matter to the jury? APPELLANT: No, sir. THE COURT: You understand that if there is a story that you need to tell this jury, you, yourself, that this is the time to do that. I can still get them back down here and you can tell them that story; do you understand? APPELLANT: Yes, sir. THE COURT: So once we submit it to them, that opportunity is gone; you understand that? APPELLANT: Yes, sir. THE COURT: And you believe that this is adequately your own decision that you have made? APPELLANT: Yes, sir. THE COURT: All right. Any questions from me about this at all? APPELLANT: No, sir. When a defendant has made a knowing and voluntary waiver, "trial counsel's advice on whether or not to testify generally will be a matter of trial strategy." Davidson v. State, 308 S.W.3d 311, 320 (Mo. App. E.D. 2010). "The choice of one reasonable trial strategy over another is not ineffective assistance." Strong, 263 S.W.3d at 642. Trial counsel's advice on whether or not to testify "does not constitute a ground for post-conviction relief, absent

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exceptional circumstances." Hickey v. State, 328 S.W.3d 225, 231 (Mo. App. E.D. 2010); see also Hurst v. State, 301 S.W.3d 112, 118 (Mo. App. E.D. 2010). At the evidentiary hearing, trial counsel testified that he advised Appellant not to take the stand because he worried about Appellant's statements to the police. Trial counsel also testified that although he could not remember the specifics of the conversation, Appellant ultimately decided he did not want to testify and understood that it was his own decision. This testimony from trial counsel is consistent with the exchange between Appellant and the circuit court during trial in which Appellant told the court he would not testify. Furthermore, Appellant testified at the evidentiary hearing that he believed it was best to follow his counsel's advice, but stated trial counsel "probably said it was probably up to me." Appellant's evidentiary hearing testimony is consistent with Appellant's colloquy with the circuit court and with trial counsel's evidentiary hearing testimony. Thus, the motion court did not clearly err in finding that this claim lacked merit. Point I is denied. Point II: Failure to Investigate and Call Witnesses In Point II, Appellant argues that the motion court erred in denying his amended motion after an evidentiary hearing because trial counsel was ineffective for failing to interview, investigate, and call two material witnesses whose testimony would have provided Appellant a viable defense. Appellant asserts that the witnesses were available to testify and could have been located through reasonable efforts. Appellant alleges that, but for his counsel's ineffectiveness, there is a reasonable probability that the outcome of his trial would have been different. To succeed on a claim of ineffective assistance of counsel based on inadequate investigation, "a movant must allege (1) what information plea counsel failed to discover; (2) that a reasonable investigation or preparation would have resulted in the discovery of such information, and (3) that the information would have aided or improved their defense." Dunn v.

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State, 689 S.W.3d 822, 825 (Mo. App. E.D. 2024). Additionally, to succeed on a claim of ineffective assistance of counsel based on the failure to call a particular witness, a movant "must establish the witnesses' testimony would have produced a viable defense." Shockley, 579 S.W.3d at 910. "When defense counsel believes a witness' testimony would not unequivocally support his client's position, it is a matter of trial strategy not to call him, and the failure to call such witness does not constitute ineffective assistance of counsel." Winfield v. State, 93 S.W.3d 732, 739 (Mo. banc 2002). Appellant's arguments regarding failure to investigate and failure to call witnesses are not supported by the record. Appellant has not met his burden to prove that trial counsel failed to investigate and would have found evidence that would have aided his defense. Rather, trial counsel testified at the evidentiary hearing that he did contact D.M. and C.W. and neither witness's testimony supported an alibi defense. See Dunn, 689 S.W.3d at 825. Moreover, D.M., Appellant's co-worker at the time of the shooting, testified at the evidentiary hearing that he was asleep at 7:50 AM during the shooting, and he showed up to work late and therefore could not verify whether Appellant was already at work before the shooting occurred. Finally, while C.W. testified at the evidentiary hearing that Appellant left for work before 7:00 AM and Appellant was not outside the house when she left to take her daughter to school at 7:45 AM, t his testimony does not account for Appellant's actual whereabouts at 7:50 AM when the shooting occurred. Neither D.M. or C.W. produced testimony that "unequivocally support[ed]" an alibi defense, so it was a matter of trial strategy to choose not to call them as witnesses. Winfield, 93 S.W.3d at 739. Trial counsel will not be found ineffective for choosing one reasonable trial strategy over another. Strong, 263 S.W.3d at 642. Thus, the motion court did not clearly err. Point II is denied.

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Conclusion For the foregoing reasons, the judgment of the motion court denying post-conviction relief is affirmed.

RENÉE D. HARDIN-TAMMONS, PRESIDING JUDGE

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