author: STITH, Judge.

text:
    Michael Shane WORTHINGTON, Appellant, v. STATE of Missouri, Respondent.
    No. SC 85783.
    Supreme Court of Missouri, En Banc.
    May 31, 2005.
    Rehearing Denied Aug. 2, 2005.

      William J. Swift, Office of the Public Defender, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Adriane D. Crouse, Assistant Atty. Gen., Jefferson City, MO, for Respondent.
   STITH, Judge.

Michael Shane Worthington pled guilty to the first-degree murder of Melinda Griffin. Mr. Worthington then chose to try the penalty phase of his trial to the judge rather than to a jury. The judge imposed the death penalty. This Court affirmed his conviction and death sentence, and his related convictions for first-degree burglary and forcible rape, in State v. Worthing-ton, 8 S.W.3d 83 (Mo. banc 1999). Mr. Worthington then sought post-conviction relief, which was denied. Mr. Worthing-ton now appeals that ruling, arguing that the motion court should have found that trial counsel was ineffective in numerous respects, including unreasonable trial strategy in failing to sufficiently investigate and present evidence about certain aspects of his social history, failing to object to certain evidence, failing to object to the trial judge’s refusal to recuse herself and failure to call certain witnesses. He further alleges that the sentencing and post-conviction judges were not impartial and that the State does not have the ability to perform constitutional executions. This Court has exclusive jurisdiction because the death penalty was imposed. Mo. Const, art. V, sec. 10; Order of June 16, 1988. For the reasons set out below, this Court finds that the motion court did not err in denying post-conviction relief. Affirmed.

I. BACKGROUND FACTS

On direct appeal, this Court found the following facts:

“On September 29,1995, appellant, Wor-thington, and a friend from work, Jill Morehead, were at his condominium in Lake St. Louis, watching television. At about 4:00 p.m., they left to pick up their paychecks from their employer, a local supermarket. They returned to the condo and had dinner and drinks. They then went to a nightclub where each had three drinks. After about two hours, Worthing-ton and Morehead drove to Jennings where Worthington told Morehead he had to pick up money owed to him by a friend. Worthington later testified that he actually went to pick up drugs. Morehead stayed in her vehicle, while Worthington was in the house for about 15 minutes. They drove back to his condo where he left Morehead. Morehead left the condo when Worthington did not return after about 45 minutes.
“Later that night, Worthington saw that the kitchen window was open in the condominium of his neighbor, Melinda Griffin. Worthington had seen Ms. Griffin around the condominium complex. He got a razor blade and gloves, and when he returned to her condo, he saw that a bathroom light had been turned on. Worthington cut through the screen. He confronted Ms. Griffin in the bedroom. He covered her mouth to stop her screams and strangled her until she became unconscious. Wor-thington began to rape her and she regained consciousness. Worthington raped Ms. Griffin with such force that he bruised the inside of her vagina, tore both labia minora, and made a large, deep tear between her vagina and anus. Ms. Griffin fought Worthington, and he beat her and strangled her to death. The wounds on her neck showed that Worthington used a rope or cord in addition to his hands to strangle her. He stole her jewelry, credit cards, mobile phone, keys, and her car.
“The next morning, September 30, 1995, a police officer pulled Worthington over, driving Ms. Griffin’s ear. The officer noticed a woman’s items in the car such as make-up and shoes, but the car had not been reported stolen.
“The next day, October 1, a neighbor discovered Ms. Griffin’s body. When police arrived, they found the screen in the kitchen window had been cut to gain entry. They found Ms. Griffin’s body lying bruised, bloody, and naked at the foot of the bed, with a lace stocking draped across it. All the bedroom drawers had been pulled open. DNA testing later established that semen found on Ms. Griffin’s body came from Worthington.
“Police officers found Worthington that evening, but when he saw the police he pulled out a knife, held it to his throat, and threatened to commit suicide. Police officers convinced him to put the knife down and brought him into custody. Worthing-ton was wearing a fanny pack containing jewelry and keys belonging to Ms. Griffin.
“At the police station, Worthington relayed his story of four days of drinking and getting high. After being presented with the evidence against him, Worthing-ton confessed to the killing but could not remember the details since, he said, he was prone to blackouts when using alcohol and cocaine. At the time the offenses occurred, Worthington said he was extremely high on Prozac, cocaine, marijuana, and alcohol. He also said that two friends, Darick and Anthony, helped him with the burglary. However, this story was inconsistent with the physical evidence and with subsequent statements made by Worthington. Worthington pleaded guilty to the crimes charged. The judge imposed the death penalty for the murder conviction, as well as prison terms for the other offenses.”

II. STANDARDS FOR REVIEW OF DENIAL OF POST-CONVICTION RELIEF

This Court’s review of the motion court’s denial of post-conviction relief is limited to a determination of whether the findings of fact and conclusions of law are clearly erroneous. Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000). 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.” Id. The motion court’s findings are presumed correct. Black v. State, 151 S.W.3d 49, 54 (Mo. banc 2004).

In order to be entitled to post-conviction relief, a movant is required to show by a preponderance of the evidence that: 1) counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances, and 2) counsel’s deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Deck v. State, 68 S.W.Bd 418, 425 (Mo. banc 2002).

Mr. Worthington bears a heavy burden in attempting to satisfy the first prong of the Strickland test, for he must overcome a strong presumption that counsel provided competent representation by showing “that counsel’s representation fell below an objective standard of reasonableness.” Deck, 68 S.W.3d at 425-426. See also Rule 29.15(i); Middleton v. State, 103 S.W.3d 726, 732 (Mo. banc 2003). This standard is met by identifying specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance. Id. at 425. It is presumed that counsel’s conduct was reasonable and effective. Clayton v. State, 63 S.W.3d 201, 206 (Mo. banc 2001). “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.” Cole v. State, 152 S.W.3d 267, 270 (Mo. banc 2004); Knese v. State, 85 S.W.3d 628, 633 (Mo. banc 2002). It is also not ineffective to pursue one reasonable trial strategy to the exclusion of another reasonable trial strategy. Clayton, 63 S.W.3d at 207.

To satisfy the second prong of the Strickland test, a movant must show “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Middleton, 103 S.W.3d at 733. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. “In order to show prejudice in a guilty plea case, a defendant must prove that, but for the errors of counsel, he would not have pled guilty and would have demanded a trial.” State v. Roll, 942 S.W.2d 370, 375 (Mo. banc 1997).

Because the penalty phase was tried to a judge, it is particularly difficult to meet this . standard. In court-tried cases judges are given great latitude in the admission of evidence because of the presumption that they will not give weight to incompetent evidence. Pike v. Pike, 609 S.W.2d 397, 403 (Mo. banc 1980). “Because of this, it is difficult to base reversible error on the erroneous admission of evidence in a court-tried case.” Blackburn v. Richardson, 849 S.W.2d 281, 291 (Mo. App. S.D.1993). Erroneous admission of such evidence constitutes harmless error if other properly admitted evidence supports the judgment. Id. Further, because “judges are presumed to not consider improper evidence at sentencing,” State v. Carter, 955 S.W.2d 548, 560 (Mo. banc 1997), “this Court presumes that inadmissible evidence” relevant to sentencing “is neither prejudicial nor fundamentally unfair in court-tried matters.” Id.

III. GUILT PHASE ERROR — FAILURE TO INVESTIGATE

By pleading guilty, Mr. Wor-thington waived any claim that counsel was ineffective except to the extent that the conduct affected the voluntariness and knowledge with which the plea was made. Roll, 942 S.W.2d at 375. “In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052.

Mr. Worthington argues counsel acted unreasonably in not further investigating his social and medical history. In regard to the guilt phase, he alleges that had an adequate investigation been done he would not have pled guilty but would have proceeded to trial using a diminished capacity defense. In support, at the post-conviction hearing, he presented the testimony of three experts, Dr. Jonathan Pincus, Dr. Dennis Cowan, and Dr. Robert Smith, who together testified that he had a variety of serious mental and physical disorders, including Tourette’s syndrome, attention deficit hyperactivity, obsessive compulsive disorder, bipolar disorder, frontal lobe cerebral brain dysfunction, and post-traumatic stress disorder.

The motion court was not required to believe these doctors’ diagnoses, which were not otherwise supported by prior medical opinions and which were based on very limited experience with Mr. Wor-thington. Dr. Pincus’ diagnosis was based on a single meeting more than four years after the murder and rape. Similarly, Dr. Smith examined Mr. Worthington over four years after the crime and the majority of the tests he administered related to substance abuse issues. Dr. Cowan also had just a single meeting with Mr. Wor-thington almost five years after the murder. Because of their limited familiarity with him, these experts necessarily largely based their conclusions on his own self-reporting of symptoms, history, and condition. While the motion court could have accepted their conclusions, it was not required to do so. It found that Mr. Wor-thington was not a reliable or credible witness due to his conflicting testimony throughout the proceedings, and this greatly undermined the reliability of these experts’ diagnoses.

Furthermore, the fact that Mr. Wor-thington found experts who were willing to testify at the post-conviction stage that he had a variety of medical disorders does not mean that counsel were ineffective in failing to find similar experts before deciding that a diminished capacity defense would not be effective and recommending that Mr.'Worthington plead guilty. While he argues that their decision not to pursue this defense resulted from lead defense counsel’s refusal to provide necessary funds for investigation and his failure to seek such funds from the State as permitted by Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the record supports the motion court’s contrary conclusions.

Defense counsel were seasoned capital-litigation attorneys, with extensive experience in criminal and death penalty litigation. Prior to the work done on this case, Mr. Green had been involved in 40 to 50 capital cases. He had received training from the state and had attended national seminars and symposiums on how to litigate a capital ease. Mr. Rosenblum’s area of practice was exclusively criminal defense. He had tried 150 or more jury trials, with over 50 being homicide cases and seven being capital cases. In a deposition taken for the post-conviction hearing, Mr. Rosenblum stated that he had initially considered and investigated the benefit of presenting a diminished capacity defense. To assist him in deciding whether to take that approach, he had hired a psychiatrist, Dr. Kevin Miller, who met with Mr. Worthington twice and reviewed his records. But, like the State’s expert, Dr. Miller found that Mr. Worthington did not suffer from mental disease or defect at the time of the offense and that he could appreciate the nature, quality, and wrongfulness of his conduct. Mr. Rosenblum testified that he believed that in general, diminished capacity defenses do not go over well and are difficult to defend, that he believed that it would be an “uphill battle” to present the defense with all the evidence of Mr. Worthington’s drug and alcohol abuse, and that the portion of Dr. Miler’s report that supported the defense was outweighed by the negative effect it might have. In particular, he feared Dr. Miller’s report would corroborate Dr. Gi-von’s anti-social personality and malingering diagnoses, and so he made a strategic decision not to pursue the diminished capacity defense.

While defense counsel could have continued to consult additional experts in the hope of finding one who might support a diminished capacity defense, counsel is not required to seek out an expert who might provide more helpful testimony. Taylor v. State, 126 S.W.3d 755, 762 (Mo. banc 2004). Counsel is entitled to instead pursue other reasonable defense strategies. Id.

Further, there was no showing that lack of funds played an improper part in that decision. The evidence showed that a family friend hired Mr. Rosenblum for $50,000. Mr. Rosenblum in turn contracted for Mr. Green to look for mitigating evidence and to investigate social history for $10,000. While Mr. Green at one point said he asked Mr. Rosenblum to give him additional funds so he could conduct further investigation on issues regarding mitigation and DNA testing, it is not ineffective to consider cost in deciding what type of investigation to do and how to do it, so long as the resulting investigation is adequate. Mr. Worthington has failed to show that counsel did not adequately investigate using other means.

Defense counsel did have sufficient funds to hire two experts on the issue of diminished capacity. One, Dr. Miller, as noted, ultimately did not testify when counsel decided not to pursue a diminished capacity defense, but he was available. A second expert, Dr. Evans, did testify on behalf of the defense in the penalty phase. In these circumstances, counsel cannot be found to have failed to sufficiently investigate a diminished capacity defense in the guilt phase. Rather, counsel instead made a strategic choice to advise Mr. Worthing-ton to plead guilty and concentrate on his penalty phase defense. A reasonable strategy, even if it looks imperfect in hindsight, cannot provide the basis for an ineffective assistance of counsel claim. Cole, 152 S.W.3d at 270.

While Mr. Green initially stated that he also wanted money for a DNA expert, he said he then determined that it would not be necessary. Moreover, Mr. Worthington did not offer any evidence that, had a DNA expert been located, the expert would have been able to testify favorably to the defense. Absent a showing that further investigation would have provided such evidence, no prejudice could have resulted from the failure to further attempt to obtain a defense DNA expert. See State v. Davis, 814 S.W.2d 593, 603-604 (Mo. banc 1991) (“When a movant claims ineffective assistance of counsel for failure to locate and present expert witnesses, he must show that such experts existed at the time of trial, that they could have been located through reasonable investigation, and that the testimony of these witnesses would have benefited movant’s defense”).

In sum, it was not unreasonable for defense counsel to conclude that the risk of a death sentence was greater if Mr. Wor-thington went to trial than if he pled guilty and the penalty phase was tried to the judge. Mr. Worthington at the time agreed and made a knowing decision to plead guilty. Based on this evidence, the court did not err in concluding that it was reasonable to plead guilty rather than attempt a diminished capacity defense.

IV. PENALTY PHASE ERRORS

A. Failure to Investigate Social History.

Mr. Worthington also argues that his counsels’ alleged failure to adequately investigate his social history made their penalty phase defense ineffective. He alleges that a more thorough investigation would have provided counsel with facts with which they could have countered inaccuracies in the testimony offered by the State’s expert, Dr. Max Givon, in support of the latter’s diagnosis of anti-social personality disorder. In particular, he alleges that Dr. Givon testified that he exhibited severe conduct disorder before he was age 15 based on the belief that he had intentionally burned his friend, Butch Mackey, over 90 percent of his body. At his post-conviction hearing, Mr. Worthington presented the testimony of Butch’s father and stepmother, Mr. and Mrs. Mackey, who testified that it was Butch’s brother, Rich-ey, who was burned, not by defendant but by two other boys. They said that they would have so testified at trial, but no one had contacted them.

Even assuming the Mackeys’ testimony was accurate — they made it clear that their knowledge of the incident was based on hearsay and counsel was unable to bring Butch or Richey to testify because they had their own problems with the law — the failure to investigate this collateral issue did not constitute ineffective assistance. Correcting the record as to who caused the burns was relevant only to the extent that the incident affected Dr. Gi-von’s diagnosis of anti-social personality disorder and, in turn, to the extent that diagnosis affected the trial court’s decision to impose the death penalty. Because extrinsic evidence cannot normally be used to impeach a non-party witness on a collateral issue, counsels’ failure to undertake further investigation that might have revealed such extrinsic evidence was not prejudicial. State v. Dunson, 979 S.W.2d 237, 242 (Mo. App. W.D.1998); Brewer v. Raynor Mfg. Co., 23 S.W.3d 915, 919 (Mo.App. S.D. 2000).

Even assuming that extrinsic evidence impeaching Dr. Giypn’s diagnosis would have been admissible had the burning incident been central to that diagnosis, there was no showing that this was the case. Defendant failed to call Dr. Givon at the post-conviction hearing or otherwise present evidence at that hearing that Dr. Givon relied on the burning incident in reaching his diagnosis. Dr. Givon’s testimony at the trial indicates that the incident was not important to that diagnosis.

.Dr. Givon testified that he principally based his diagnosis of anti-social personality disorder on Mr. Worthington’s “pervasive pattern of disregard for and violation of the rights of others occurring since age 15 years” (emphasis added). He said this pattern included unlawfulness, deceit, im-pulsivity, irritability and aggression as indicated by fights and assaults, reckless disregard for safety, failure to sustain consistent work behavior, and lack of remorse.

Dr. Givon said that anti-social personality disorder also manifests itself as conduct disorder before age 15 and that Mr. Wor-thington showed such conduct disorder. But, he did not state that the burning incident was necessary to this conclusion. To the contrary, he stated that conduct disorder manifests itself as “aggression, fighting, crimes against property, stealing, behavior in school, fire setting, vandalism, things of that nature.” He then listed dozens of examples of conduct disorder that Mr. Worthington told him about. They began at age six or seven and continued into his teen years, of which the incident in which Mr. Worthington’s friend was burned was only one, albeit remarkable, part:

He stated that he was suspended from school hundreds of times because of getting in trouble, being uncontrollable, too hyper.... He wás involved in fights because people were messing with him. He had admitted setting his own home on fire twice as well as a garbage truck and he also said that he was always doing something destructive and made the remarkable statement that we burned our friend, Butch Mackey, over ninety percent of his body. I was eleven then. We were throwing gas on each other. He admitted to stealing and shoplifting when younger, beginning at age six or seven ...
... they were unable to control him in school. Therefore, he went to special behavior disorder school in Peoria. He said at age seven, eight, and nine he and his cousin broke into people’s houses, stole alcohol and tomatoes. Age seven, eight, he burned a couple of houses ... shot out windows with BB guns, ... he was doing burglaries with his father, that’s what he stated. He said he was very first arrested at age six or seven for shoplifting....

As is evident, Dr. Givon was simply repeating what Mr. Worthington had told him, not vouching for its accuracy. Moreover, he did not state he particularly relied on the burning incident, nor that he believed that it showed intent to injure his friend. He simply reported that Mr. Wor-thington had told him that “we” burned our friend when “we” were throwing gas on each other. This description is more consistent with a reckless game than intentionally injuring another. Nothing suggests that, had the facts as to that incident been further explored, Dr. Givon’s diagnosis would have changed. The failure to further investigate the burning incident was not ineffective.

B. Failure to Call Parents as Witnesses.

Mr. Worthington claims that his counsel was ineffective in not presenting mitigation evidence by calling his parents at trial to testify to their abuse and neglect of him and in not showing that many of the juvenile crimes attributed to him were in fact committed by his parents, who thought they could get away with blaming him for the crimes because he was a juvenile.

To prevail on a claim of ineffective assistance of counsel for failure to call a witness, the following must be shown: “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.” Hutchison v. State, 150 S.W.3d 292, 304 (Mo. banc 2004). Even then, “counsel’s decision not to call a witness is presumptively a matter of trial strategy and will not support a claim of ineffective assistance of counsel unless the defendant clearly establishes otherwise.” Id. As a matter of trial strategy, the determination to not call a witness is virtually unchallengeable. State v. Jones, 885 S.W.2d 57, 58 (Mo.App. W.D.1994). “If a potential witness’s testimony would not unqualifiedly support a defendant, the failure to call such a witness does not constitute ineffective assistance.” Id.

This case demonstrates the wisdom of these rules. For instance, Mr. Worthing-ton asks this Court to find that his mother should have been called at trial and that counsel’s failure to do so constituted ineffective assistance because she would have testified to her abuse of him and that she had committed many of the crimes for which he was blamed. Yet,-although she was present at the hearing, counsel chose not to call her as a witness to support this contention. The court below' could well have found that the decision was made not to call her because her testimony would not have supported Mr. Worthington’s assertions that she would have aided in his defense at trial.

Indeed, that is the intendment of the testimony offered at the post-conviction hearing by one of Mr. Worthington’s trial counsel. He testified that he chose not to call Mr. Worthington’s mother at the trial because he was afraid that her testimony would undermine the defense’s mitigation theory that Mr. Worthington had a horrible childhood because his mother continually tried to portray herself as a good mother rather than as the abusive woman Mr. Worthington claimed she had been. He also believed that she was high on crack on the day she would have testified at trial. It was not unreasonable for counsel to make the strategic choice that it was better to use records of Mr. Worthington’s history of abuse from Illinois than to call his mother at the trial.

Similarly, failure to call Mr. Worthing-ton’s father was not ineffective. Although counsel knew of the father’s potential to be a witness, he was difficult to locate. Further, the evidence at the post-conviction hearing indicated that he had not had contact with his son since 1997 and they did not have much of a relationship.

In this situation, counsel decided that it made more sense to call Mr. Worthington’s maternal aunt, Carol. She was able to testify to much of the same evidence that Mr. Worthington’s parents would have offered. As noted, evidence of his abuse as a child also came in through records obtained from Illinois. Other evidence was also introduced concerning his childhood and social history. Based on the evidence that was offered, the trial judge in fact found that Mr. Worthington was abused and neglected and was raised in a dysfunctional household. She nonetheless imposed the death penalty. The motion court did not err in holding that offering additional evidence of such abuse by calling Mr. Worthington’s parents was not necessary nor was its absence prejudicial.

C. Failure to Disqualify Judges Schneider and Nichols.

Judge Nichols. Mr. Worthington alleges that counsel were ineffective because counsel did not cheek with him before waiving a potential conflict of interest on the part of Judge Nichols. The issue did not arise until Charlotte Peroti stated in the course of her testimony that her son was named Anthony Hansen. At that point, Judge Nichols informed counsel that when she heard that name she realized that she had been appointed guardian ad litem for Anthony some 10 to 12 years earlier, when he was about six years old and had received burns in a hot bath. She had not recognized Ms. Peroti until then. She asked whether either party had a concern about her continuing as judge in this circumstance. Counsel for Mr. Wor-thington specifically testified that he had no concern and waived any conflict. Mr. Worthington now says that his counsel was ineffective in waiving this potential conflict since Mr. Worthington had identified Anthony Hansen as a co-participant in the crime and his mother was a witness for the State.

Trial counsel was not required to consult with his client before waiving the conflict. Defense counsel has wide discretion in determining what strategy to use in defending his or her client. “A client is bound by the decisions of counsel as to the management of the trial and as to stipulations which give effect to that strategy.” State v. Hurt, 931 S.W.2d 213, 214 (Mo.App. W.D.1996). The accused has the right to make certain fundamental decisions, such as whether to plead guilty, waive a jury, testify or appeal; other decisions are for the attorney alone, even without consultation with the client. Id. Waiving the disqualification of a judge is not one of these fundamental decisions that must be personally made by the accused. See State v. Bailer, 949 S.W.2d 269, 274 (Mo.App. E.D.1997).

Neither was the decision not to seek disqualification unreasonable. At the post-conviction hearing, Mr. Green testified that he and Mr. Rosenblum decided after consultation to waive the conflict as a matter of trial strategy. Mr. Green had conducted an extensive background investigation on Judge Nichols prior to advising Mr. Worthington to plead guilty. Mr. Green further testified that he spoke with other attorneys in the community about Judge Nichols, that he determined that she was fair and a person of integrity, and that he had not found any negative information about her. Counsel were not ineffective in failing to object to Judge Nichols remaining on the case despite her prior representation of Anthony in an unrelated matter.

Perhaps aware of the discretion accorded defense counsel in a circumstance such as this, Mr. Worthington also alleges that Judge Nichols should have recused herself sua sponte when she became aware of her prior representation of Anthony because it created the appearance of impropriety.

There is a presumption that a judge acts with honesty and integrity and will not preside over a trial in which he or she cannot be impartial. Smulls v. State, 10 S.W.3d 497, 499 (Mo. banc 2000). A judge should only be disqualified if a reasonable person would find an appearance of impropriety and question the impartiality of the court. Id. Whether a fact requires recusal depends on the factual context, which:

gives meaning to the kind of bias that requires disqualification of a judge. Specifically, a disqualifying bias or prejudice is one that has an extrajudicial source and results in an opinion on the merits on some basis other than what the judge learned from the judge’s participation in a case. In cases requiring recusal, the common thread is either a fact from which prejudgment of some evidentiary issue in the case by the judge may be inferred or facts indicating the judge considered some evidence properly in the ease for an illegitimate purpose.

Id. (internal quotation marks omitted).

Mr. Worthington has not met this standard here. This Court held on direct appeal that Mr. Worthington’s claim that two friends, including Anthony Hansen, helped him with the burglary was inconsistent with the physical evidence and with later statements made by Mr. Worthington. There is also no evidence that Judge Nichols’ representation gave her any extrajudicial source of information about the present case or caused her to prejudge any issue or to look favorably upon Ms. Peroti.

Finally, Mr. Worthington alleges that counsel was ineffective for not moving to disqualify Judge Nichols on the basis that she was biased in favor of the death penalty because members of the public called upon her, through the press and in letters, to impose the death penalty and because her opponent in a judicial election stated that a judge’s view on the death penalty is a legitimate election issue. But, he cites to no cases holding that public pressure requires a judge to recuse solely on that basis. Such an argument must be rejected.- Were it otherwise, persons could improperly force the recusal of an impartial judge merely by creating a public controversy about the judge. In the absence of evidence showing that the publicity and calls for the death penalty affected Judge Nichols’ impartiality, the mere existence of publicity did not require her recusal.

The record further reveals that Judge Nichols took reasonable measures to limit any perceived public pressure to impose the death penalty by delaying sentencing until the day after the election, an election that she lost. Mr. Worthington asks this Court to speculate that she might have imposed the death penalty because she wanted favorable publicity in the event she decided to seek public office at some point in the future, but such speculation has no foundation in the record.

Judge Schneider. Judge Schneider won Judge Nichols’ seat in the election and presided over the post-conviction motion hearing. Mr. Worthington argues that Judge Schneider’s campaign comments on the death penalty created the appearance that she had prejudged his case and counsel should have demanded her recusal. But the prosecutor, not Judge Schneider, made many of the statements Mr. Worthington refers to, and in any event the prosecutor lost his bid for reelection.

The only statements attributed to Judge Schneider are that “the death penalty and life in prison is an issue all citizens are concerned about ... The judge can take the place of the jury, so it is important that public officials share their values and beliefs” and “it’s very important for a judge to reflect the values of the community.” These statements were about the death penalty in general, not Mr. Wor-thington. Judge Schneider had not been elected at the time and, thus, wasa not even the judge assigned to his ■ case. These statements do not indicate that Judge Schneider would rule based on improper motive or not fairly consider the claims made by Mr. Worthington in his post-conviction motion.

D. Failure to Disclose Correct Name of Prosecution Witness.

On direct appeal, Mr. Worthing-ton argued that the State failed to give the defense notice of its intent to call Charlotte Peroti to testify to instances of uncharged misconduct, specifically that he burglarized her apartment, tried to sexually assault her, and stole her car. This Court found that the issue was not properly preserved, since counsel allowed this testimony to come in without objection, but reviewed for plain error. This Court also found that the danger of undue weight being given to uncharged misconduct was greatly reduced because the case was tried to a judge rather than to a jury, 8 S.W.3d at 91. See also Carter, 955 S.W.2d at 560.

On direct appeal, this Court concluded, “[a]s to Ms. Peroti’s testimony, the state had endorsed her two years before the penalty phase. Defense counsel was prepared to cross-examine her on the details of her failure to report the burglary and assault to police. Absent objection, there is no basis under plain error analysis for concluding that the admission of the evidence was prejudicial to Worthington.” 8 S.W.3d at 91.

Mr. Worthington now argues that counsel were ineffective in failing to object to the lack of adequate notice of Ms. Peroti’s testimony and in failing to seek a continuance to investigate the basis of Ms. Pero-ti’s allegations. Because the quoted passage in the Court’s opinion used the term “plain error”, but then said that the error caused no prejudice rather than merely stating that it caused no manifest injustice, the State and Mr. Worthington disagree as to whether this Court’s ruling on direct appeal precludes Mr. Worthington from now alleging these errors as a basis for post-conviction relief. See Deck, 68 S.W.3d at 427-428 (finding of no prejudice on appeal precludes finding of prejudice on post-conviction review, but in rare cases court may find an error that did not constitute manifest injustice nonetheless creates a reasonable probability that, but for the error, the result would have been different, entitling defendant to post-conviction relief).

This Court need not resolve that disagreement, for, assuming the issue may be raised as a basis for post-conviction relief, Mr. Worthington has not shown that there is a reasonable probability that the result of the penalty trial would have been different had counsel objected to the lack of notice of Ms. Peroti’s testimony and sought a continuance.

As this Court noted on direct appeal, Ms. Peroti had been listed as a witness for two years under the name of Charlotte Kirn. Defendant endorsed her and all of the State’s witnesses as his own. Even if counsel did not know until she got on the stand that Charlotte Peroti and Charlotte Kirn were the same person, Mr. Worthing-ton had mentioned Ms. Peroti numerous times in his statement to police after his arrest and counsel knew all about the events to which she testified and cross-examined her effectively about them. While counsel was not aware of Ms. Pero-ti’s bad check conviction, he did establish her bias against Mr. Worthington, her attempt to get him arrested for drug trafficking, her belief that he was corrupting her son, and her dislike of him. There is no reasonable probability that the minor additional impeachment value of showing that she had a prior bad check conviction and that she may have exaggerated her role as a police informant affected the outcome of the case.

E. Failure to Object to Other Evidence of Non-Statutory Aggravators.

Mr. Worthington argues that counsel were also ineffective in failing to object to other evidence of non-statutory aggravators, such as his bad behavior in school and in jail, prior uncharged misconduct with friends, burglaries undertaken with his father, and other similar evidence. On direct appeal, admission of this evidence was found not to be plain error because most of it was stipulated to by the defense.

Defense counsel testified at the post-conviction motion that he wanted the court to see some of the records Mr. Worthing-ton now argues should have been objected to, because they were relevant to mitigation in that they showed the dysfunctional family in which Mr. Worthington grew up and were evidence of prior abuse. Furthermore, this was a court-tried case, and counsel testified that in deciding not to object he considered that the court would see the evidence anyway in ruling on the objections and much of the evidence would subsequently be before the court in the pre-sentence investigation and the court could consider it when making a decision on punishment. Thus, an objection, even if successful, would not have prevented the judge from being aware of the information.

Ineffective assistance of counsel is rarely found in cases of a failure to object. State v. Holloway, 877 S.W.2d 692, 697 (Mo.App. E.D.1994). It will only be deemed ineffective when the defendant has suffered a substantial deprivation of his right to a fair trial. Id. “In addition, counsel is not ineffective for failing to make nonmeritorious objections.” Id.

It was not unreasonable for counsel to conclude that it was better not to object and instead to use the positive aspects of the information to support the claim that Mr. Worthington should not receive death. Counsel cannot be ineffective for making reasonable choices of trial strategy, even if in hindsight another strategy might have been more favorable. Cole, 152 S.W.3d at 270.

Further, given the large amount of evidence of prior crimes that was admissible and the evidence of prior arrests and other bad acts that had to be put before the judge to make some of Mr. Worthington’s arguments, there is no reasonable probability that any error in admitting some additional prior bad act evidence was so prejudicial that the result of the proceeding would have been different if that evidence had not been admitted.

Mr. Worthington also alleges that counsel should have objected to the victim impact evidence introduced by the State because it was so excessive as to be unduly inflammatory. This Court rejected a nearly identical claim on direct appeal. Wor-thington, 8 S.W.3d at 89. While this Court reviewed that claim under a plain error standard, it nonetheless determined that the State is allowed to do more than present a brief glimpse of the victim’s life, Id. at 90, and held that the amount of victim impact evidence admitted was neither excessive nor unduly inflammatory merely because the witnesses were permitted to read prepared statements that indicated they wanted a message to be sent and that justice be served. Further, this Court conducted an independent review of the proportionality of the sentence and found it was not the result of passion, prejudice or other arbitrary factors. Id. at 89-91.

This Court reaffirms those conclusions here. It is clear that some victim impact evidence was admissible. State v. Storey, 40 S.W.3d 898, 909 (Mo. banc 2001) (victim impact evidence is admissible under the United States and Missouri constitutions and violates them only “if it is so unduly prejudicial that it renders the trial fundamentally unfair”). Assuming, without deciding, that an excessive amount of victim impact evidence was offered, this Court cannot say there is a reasonable probability that the result of the proceeding would have been different if a lesser amount of victim impact evidence had been admitted. Deck, 68 S.W.3d at 429. Much of the evidence was similar in nature. Any prejudicial effect was greatly limited by the fact that the case was tried to the court, rather than a jury, because judges are “presumed not to consider improper evidence when sentencing a defendant.” Roll, 942 S.W.2d at 378.

V. INABILITY OF STATE TO PERFORM CONSTITUTIONAL EXECUTIONS

Finally, Mr. Worthington argues that execution by lethal injection, and its related procedures, causes death by a process that involves lingering death, mutilation, and unnecessary and wanton infliction of pain in violation of the Eighth and Fourteenth Amendments to the United States Constitution. In support of his claim, he cites the case of Emmitt Foster, who was executed by the State in 1995. Mr. Wor-thington alleges that Foster’s execution took 30 minutes to carry out and that Foster convulsed during the execution. Further, Mr. Worthington cites to nine other lethal injection executions from other states that involved similar incidents.

For the reasons set out in Morrow v. State, 21 S.W.3d 819, 828 (Mo. banc 2000), the argument that lethal injection is unconstitutional per se because if improperly performed it may result in unnecessary and wanton infliction of pain and so constitute cruel and unusual punishment is rejected.

VI. CONCLUSION

For the reasons set out above, the judgment is affirmed.

All concur.

      . Worthington, 8 S.W.3d at 86-87.

      . His allegations that this failure affected the penalty phase trial are discussed infra.

      . As it is unknown what method, if any, of lethal injection may be utilized by the State of Missouri at such future time, if any, as Mr. Worthington’s right to seek relief in state and federal courts is concluded and his execution date and method are set, it is premature for this Court to consider whether a particular method of lethal injection violates the Eighth Amendment because it causes lingering, conscious infliction of unnecessary pain.


source: Caselaw Access Project

author: LAURA DENVIR STITH, Judge.

license: Public Domain

text:
    KIRKWOOD GLASS CO., INC., Appellant, v. DIRECTOR OF REVENUE, Respondent.
    No. SC 86347.
    Supreme Court of Missouri, En Banc.
    June 21, 2005.
    Rehearing Denied Aug. 2, 2005.

      James C. Owens, Katherine S. Walsh, Chesterfield, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., James R. Layton, State Solicitor, Roger Freudenberg, Missouri Department of Revenue, Jefferson City, MO, for Respondent.
    Galen P. Beaufont, William D. Geary, Kansas City, MO, for amicus curiae Missouri Municipal League, St. Louis County Municipal League, and City of Kansas City.
    Ivan L. Schraeder, St. Louis, MO, for amicus curiae Missouri Association of Counties.
    Patricia A. Hageman, Edward J. Han-lon, Office of the City Counselor, St. Louis, MO, for amicus curiae City of St. Louis.
   PETITION FOR REVIEW OF A DECISION OF THE ADMINISTRATIVE HEARING COMMISSION

LAURA DENVIR STITH, Judge.

In January 2003, Kirkwood Glass filed an application for a use tax refund with the Department of Revenue, alleging an overpayment of local use taxes and seeking a refund for amounts remitted from September 1999 through June 2002. It claimed that the Missouri statutes permitting cities and other localities to impose local use taxes, see sections 144.757 to 144.761, RSMo 2000, violate article I, section 8, clause 3 of the United States Constitution (the “Commerce Clause”).

Specifically, Kirkwood Glass argues that Missouri’s use tax statutes impermissibly burden interstate commerce. It notes that under some circumstances the statutes permit a purchaser to pay less in sales tax to purchase an item at retail from a particular Missouri local jurisdiction than it would pay in use tax if it purchased the same item from an out-of-state vendor but had it delivered to a different, higher-taxing Missouri local jurisdiction. It concedes the purchaser would pay the same or less use tax as sales tax if it had the item delivered by the out-of-state vendor to the local Missouri taxing jurisdiction in which it bought the item at retail.

The Director of Revenue denied Kirk-wood Glass’ application for refund. It sought review of the decision by the Administrative Hearing Commission (AHC), which upheld the denial of the application for refund, finding it had no authority to reach the constitutional issue. Because Kirkwood Glass’ appeal concerns the construction and validity of the revenue laws of the State, review is by this Court. Mo. Const, art. V, sec. 3.

The AHC properly denied Kirkwood Glass’ application for refund. A court is not required to compare purchases in one jurisdiction with deliveries to another jurisdiction in determining the constitutionality of a use tax. Under the United States Supreme Court’s decision in Associated Industries of Missouri v. Lohman, 511 U.S. 641, 647, 114 S.Ct. 1815, 128 L.Ed.2d 639 (1994), a statute permitting imposition of a local use tax does not unconstitutionally burden interstate commerce where, as here, the statute requires such local use taxes to be less than or equal to the sales tax imposed on goods purchased in the locality to which the out-of-state item is delivered. Accordingly, the decision of the AHC is affirmed.

I. ANALYSIS

A Standard of Review.

This Court upholds the factual determinations of the AHC “when authorized by law and supported by competent and substantial evidence ... Sec. 621.193. See also Ford Motor Co. v. Dir. of Revenue, 97 S.W.3d 458, 460 (Mo. banc 2003). In the instant case, the parties submitted this case on stipulated facts. This Court determines issues of law, including the constitutionality of Missouri statutes, de novo. Id.

B. Missouri Sales Tax Laws.

Missouri imposes a uniform state use tax “for the privilege of storing, using or consuming within this state any article of tangible personal property ... Sec. 144.610. Use taxes are meant to complement, supplement, and protect sales taxes by eliminating the incentive to purchase from out-of-state sellers in order to avoid local sales taxes. Fall Creek Const. Co., Inc. v. Dir. of Revenue, 109 S.W.3d 165, 169 (Mo. banc 2003). They do this by taxing transactions in which no sales tax can be imposed because the items were purchased outside of Missouri. Smith Beverage Co. of Columbia, Inc. v. Spradling, 533 S.W.2d 606, 607 (Mo.1976).

Cities such as Kirkwood, and other local jurisdictions, are authorized to impose a local sales tax on purchases made at retail within a particular local jurisdiction. Sec. 32.087, RSMo Supp.2004. Only if a local taxing jurisdiction chooses to impose such a local sales tax does the Missouri statute permit that jurisdiction to impose a local use tax, and the statute provides that the-local use tax cannot be greater than the local sales tax imposed in the particular locality involved. Sec. 144.757.

Essentially, this means that in jurisdictions that have elected to impose them, local use taxes may be collected on the sale of goods that are purchased outside of Missouri and delivered to the jurisdiction in question in an amount equal to or less than the local sales tax. Id.; 12 C.S.R. 10-117.100(1). For instance, if.a local jurisdiction, such as a city, imposes a local sales tax of 3.10 percent on purchases made at retail in the city, then it may impose a local use tax Qn purchases made from out-of-state vendors but delivered to persons in that city of not more than 3.10 percent. Sec. 144.757.

C. Commerce Clause Limitations on Local Use Taxes.

Kirkwood Glass now challenges sections 144.757, 144.759, and 144.761, alleging that these statutes, and local use taxes imposed in reliance on them, violate the Commerce Clause of the United States Constitution, article I, section 8, clause 3, by impermissi-bly discriminating against interstate commerce.

"The Commerce Clause grants power to Congress to regulate commerce among the various States. U.S. Const, art. I, sec. 8, cl. 3. Implicit in the clause is also the “negative” or “dormant” command that “a State may not tax a transaction or incident more heavily when it crosses state lines than when it occurs entirely within the State ... ”. Associated Industries, 511 U.S. at 647, 114 S.Ct. 1815 (internal quotations omitted). See also Oregon Waste Systems, Inc. v. Dept. of Environmental Quality, 511 U.S. 93, 98, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994).

It is clear that the Commerce Clause does not prohibit all state or local use taxes. If a state or locality imposes a sales tax, it may impose a compensatory use tax, but the use tax must be truly compensatory in nature, that is, “the burdens imposed on interstate and intrastate commerce must be equal.” Associated Industries, 511 U.S. at 648, 114 S.Ct. 1815. See also Halliburton Oil Well Cementing Co. v. Reily, 373 U.S. 64, 70, 83 S.Ct. 1201, 10 L.Ed.2d 202 (1963) (“equal treatment for in-state and out-of-state taxpayers similarly situated is the condition precedent for a valid use tax on goods imported from out-of-state”). If a use tax is compensatory, it is valid and will not be struck down as discriminating against interstate commerce. Henneford v. Silas Mason Co., Inc., 300 U.S. 577, 582-83, 57 S.Ct. 524, 81 L.Ed. 814 (1937).

The 1992 version of the Missouri use tax analyzed by the Supreme Court in Associated Industries was not merely compensatory. Sec. 144.748, RSMo Supp.1992 (repealed 1996), imposed a uniform state use tax of 1.5 percent on each item bought out-of-state and delivered to Missouri, even if the item was delivered to a person or entity in a local taxing jurisdiction that imposed no, or a lesser, local sales tax.

As the Supreme Court noted, this meant that a person who purchased an item at retail in a city with a local sales tax of less than 1.5 percent would pay less tax than would a person who lived in that city who ordered the item from an out-of-state vendor and so had to pay thé uniform, 1.5 percent state use tax. The two taxes, thus, were not substantially equivalent, and the use tax, therefore, was constitutionally infirm, for, “[wjhere the use tax exceeds the sales tax, the discrepancy imposes a discriminatory burden on interstate commerce.” Associated Industries, 511 U.S. at 649, 114 S.Ct. 1815. The Supreme Court remanded for this Court to determine whether the unconstitutional provisions could be severed.

D. Constitutionality of Missouri’s Amended Local Use Tax Statutes.

On remand, this Court found that the unconstitutional provisions could Hot be severed and struck down section 144.748 in its entirety. Associated Industries of Missouri v. Dir. of Revenue, 918 S.W.2d 780, 785 (Mo. banc 1996). The legislature then enacted the use tax laws at issue in this case, sections 144.757 to 144.761. These laws were intended to avoid the pitfalls identified by the Supreme Court in Associated Industries by providing that a local jurisdiction’s use tax cannot be greater than its sales tax, stating:.

Any county or municipality ... may, by a majority vote of its governing body, impose a local use tax if a local sales tax is imposed as defined in section 32.085, RSMo, at a rate equal to the rate of the local sales tax in effect in such county or municipality ...

Sec. 144.757 (emphasis added).

Kirkwood Glass now argues that the challenged laws again result in an impermissible burden on interstate commerce because it is possible for Kirkwood and other buyers to pay more use tax in one Missouri city than they would pay in sales tax if they purchased goods in a different Missouri city. Specifically, the parties stipulated that when Kirkwood Glass purchased goods in the city of Kirkwood, it paid a total sales tax of 7.325 percent. This was made up of a state sales tax of 4.225 percent and a local city sales tax of 3.10 percent. The city’s local use tax was 1.25 percent. So, when Kirkwood Glass bought an item from an out-of-state vendor and had it delivered to itself in the city, it paid a state use tax of 4.225 percent and a local use tax 1.25 percent, or a total use tax of 5.475 percent. Thus, it actually paid less in use tax than sales tax. This is constitutionally permissible, for, although a use tax can only be compensatory for a sales tax, the Supreme Court has “not suggested that lesser burdens on interstate trade are impermissible ... ”. Associated Industries, 511 U.S. at 652 n. 4, 114 S.Ct. 1815.

The parties’ stipulation also provides that if Kirkwood Glass purchases goods in the town of Williamsburg, it incurs a total sales tax of only 4.725 percent because Williamsburg has a local city sales tax of only .5 percent. Williamsburg has no use tax. Thus, Williamsburg does not discriminate against interstate commerce, because a person buying a product from out-of-state for delivery in Williamsburg would pay .5 percentage points less use tax on the product than he or she would pay in sales tax were the item bought in Williamsburg.

But, Kirkwood Glass says, if it bought an item in Williamsburg, it would pay less sales tax than if it bought that item from an out-of-state vendor and had it delivered to Kirkwood. This, it asserts, constitutes an improper burden on interstate commerce. The question for this Court, then, is whether, by permitting such a result, Missouri’s use tax statutes discriminate against interstate commerce by authorizing local taxing jurisdiction A to impose local use taxes on out-of-state purchases that are higher than local sales taxes that local taxing jurisdiction B would impose on similar purchases made in that locality. The answer is found in the Supreme Court’s decision Associated Industries.

In striking down the Missouri statute at issue in that case, the Supreme Court made very clear that under the Commerce Clause, it is “in localities where the use tax exceeds the sales tax, [that] the system is impermissibly discriminatory... Associated Industries, 511 U.S. at 643, 114 S.Ct. 1815 (emphasis added). In other words, in determining whether a use tax is considered to be compensatory for a sales tax and therefore not discriminatory, one compares the use tax imposed on ‘purchases subject to use tax in a particular local jurisdiction with other purchases subject to sales tax made in that same local jurisdiction. One does not compare purchases made in the first jurisdiction with those made in some other locality. As the Supreme Court stated in striking down the former version of Missouri’s use tax, which imposed the same 1.5 percent use tax in every Missouri jurisdiction, even if the local sales tax were a lesser amount:

But in Missouri, whether the 1.5% use tax is equal to (or lower than) the local sales tax is a matter of fortuity, depending entirely upon the locality in which the Missouri purchaser happens to reside. Where the use tax exceeds the sales tax, the discrepancy imposes a discriminatory burden on interstate commerce. Out-of-state goods brought into such a jurisdiction are subjected to a higher levy than are goods sold locally.

Id. at 648-49, 114 S.Ct. 1815 (emphasis added).

In other words, Associated Industries prohibited a particular local jurisdiction from discriminating against interstate commerce by charging a higher use tax than sales tax, because a state, “may not grant its political subdivisions a power to discriminate against interstate commerce that the'State lacked in the first instance.” Id. at 653, 114 S.Ct. 1815. But, several states “that provide political subdivisions some authority to impose use taxes have devised systems to ensure that use taxes are not higher than sales taxes within the same taxing jurisdiction.” Id. at 654-55, 114 S.Ct. 1815 (emphasis added), citing, Ga.Code Ann., sec. 48-8-110, 111 (Supp. 1994) (couples local use and sales taxes).

•This is exactly what the Missouri legislature did when enacting the local use tax laws at issue here. As noted earlier, these statutes expressly provide that no local use tax can be imposed that exceeds the local sales tax of the jurisdiction, by stating:

Any county or municipality ... may, by a majority vote of its governing body, impose a local use tax if a local sales tax is imposed as defined in section 32.085, RSMo, at a rate equal to the rate of the local sales, tax in effect in such county or municipality ...

Sec. 144.757 (emphasis added). This means that no purchaser is required to pay a higher tax on items shipped to that jurisdiction than they would if they purchased the item in-state within the same locality. Out-of-state sellers are also assured that purchasers will not pay a higher tax than if the item were purchased instate within the same locality. In fact, since several jurisdictions within Missouri impose no local use taxes at all, many out-of-state purchases are taxed at a lower rate than were the item purchased in-state in the same jurisdiction to which the out-of-state item would be delivered.

II. CONCLUSION

Kirkwood Glass cannot manufacture a constitutional infirmity in the tax laws by manipulating the ultimate location for the sale or delivery of the item. While it, like any purchaser, is free to have items shipped from out-of-state to any local Missouri jurisdiction, just as it is free to purchase items from any local taxing jurisdiction within the state, for commerce clause purposes the courts will compare the use and sales tax charged by a single taxing jurisdiction to determine whether the use tax is compensatory. So long as, within each taxing jurisdiction, an item purchased from an out-of-state vendor will never be taxed at a higher tax than would be charged had the item been purchased from a vendor in that locality, there is no undue burden on interstate commerce.

Because Missouri’s use tax statutes requires local use taxes to be limited to an amount that is compensatory for any local sales tax imposed, see Fall Creek Const. Co., 109 S.W.3d at 169, they are constitutional. Accordingly, the AHC’s decision is affirmed.

All concur.

      . All statutory citations are to RSMo 2000 unless otherwise indicated.

      . A prior version of the law, enacted in 1990, was repealed before it went into effect. Sec. 144.747, Supp.1990 (repealed). In 2004, the Missouri General Assembly made minor amendments to two of the challenged statutes, sections 144.757 and 144.759, RSMo Supp. 2004, which are not relevant to this opinion.


author: LISA WHITE HARDWICK, Judge.

text:
    STATE of Missouri, Respondent, v. James Joe CARRUTH, Appellant.
    No. WD 64067.
    Missouri Court of Appeals, Western District.
    July 5, 2005.

      Dimitra Yvette Massey, Kansas City, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before: SMART, P.J., HOLLIGER and HARDWICK, JJ.
   LISA WHITE HARDWICK, Judge.

James Carruth was convicted of possession of a controlled substance, § 195.202, and sentenced as a prior offender to a six-year prison term. On appeal, he challenges the sufficiency of the evidence to support his status as a prior offender.

At trial, the State sought to prove Car-ruth had been previously convicted of a felony under the name “DeShawn Jones.” The State presented a certified copy of a 1993 conviction for DeShawn Jones from the City of St. Louis for felony possession of a controlled substance. The State also offered Exhibit 21, which was a card containing the fingerprints taken from DeSh-awn Jones on January 17, 1992, following his arrest on the felony charge.

Marcia Hale, a laboratory technician with the Missouri Highway Patrol testified that the fingerprints in Exhibit 21 matched the fingerprints taken from Carruth after his most recent arrest. The circuit court admitted Exhibit 21 into evidence, overruling a defense objection that the fingerprint card had not been authenticated by someone from the St. Louis City Police Department. The court then relied on the fingerprint evidence in determining that Carruth was a prior offender who had committed a felony under the name of DeShawn Jones.

In his sole point on appeal, Carruth contends the court abused its discretion in admitting Exhibit 21 without foundational evidence to show how the fingerprint card was prepared. The trial court has broad discretion in determining whether to admit or exclude evidence. We review such matters for an abuse of discretion and will reverse only upon a showing of prejudicial error. State v. Kirk, 134 S.W.3d 804, 806 (Mo.App.2004).

The State contends that only plain error review is available because the issue on appeal differs from the evidentiary objection at trial and, thus, Carruth failed to preserve his claim. At trial, Carruth objected that Exhibit 21 had not been properly authenticated by the officer who took the prints. On appeal, he argues the fingerprint card was not properly authenticated because there was no evidence showing its mode of preparation. Although the trial objection and argument on appeal are phrased differently, both raise foundational challenges to the manner in which the fingerprints were originally obtained. The defense objection preserved the claim on appeal. Accordingly, abuse of discretion is the appropriate standard of review.

The circuit court admitted Exhibit 21 into evidence under the business records exception to the hearsay rule. Section 490.680 defines this exception under Missouri law:

A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.

The trial court has considerable discretion in determining whether a sufficient foundation exists to support the admission of business records, provided that minimal requirements are met. State v. Williams, 797 S.W.2d 734, 739 (Mo.App.1990).

Fingerprint cards can be admitted under the business records exception even when the qualifying witness is not the person who took the fingerprints. Id. The qualifying witness must establish that he or she has knowledge of the standard procedures used by a particular jurisdiction to collect fingerprints from arrestees. Id.

The testimony of Marcia Hale was sufficient to satisfy this foundational requirement. Hale is a latent print technician and a custodian of records for the Highway Patrol. She is certified to take, classify, and compare fingerprints, having completed eighty hours of forensic identification training and an additional six months of on-the-job training as a latent technician. Hale testified that the Highway Patrol maintains a computerized database of fingerprint cards received from the St. Louis City Police Department and other agencies. The Police Department records the fingerprints by rolling each of the arrestee’s fingertips across a “ten-print card.” The Police Department then scans the card into a computer, where the fingerprints are captured and digitally transmitted to the Highway Patrol for database storage in the Automated Fingerprint Identification System (AFIS). Hale testified that the ten-print card records are maintained by the Highway Patrol in the ordinary course of business.

Hale further testified that the Highway Patrol received and maintained fingerprint records for DeShawn Jones from the St. Louis Police Department. She compared those records with the fingerprints the Highway Patrol had received for James Carruth from the Columbia Police Department. Based on her training in forensic identification, Hale determined that the two sets of fingerprints came from the same person.

Hale’s testimony established the standard procedures used by the St. Louis Police Department to collect fingerprints. Her testimony qualified Exhibit 21 for admission as a business record under Section 490.680 because she identified the mode of preparation of the fingerprint card at the time of arrest and confirmed that it was transmitted to and maintained by the Highway Patrol in the usual course of business. We find no abuse of the circuit court’s discretion in admitting the evidence, nor in relying upon it to determine that Carruth was a prior offender.

The judgment of the circuit court is affirmed.

All concur.

      . All statutory citations are to the Missouri Revised Statutes 2000, unless otherwise indicated.


author: NANNETTE A. BAKER, Judge.

text:
    Sarah E. RAY, Appellant, v. Stanley A. WISDOM, Respondent.
    No. ED 85102.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 5, 2005.

      G. William Wynne, St. Louis, MO, for appellant.
    Michael P. Shea, Benicia Baker-Livorsi, Co-Counsel, St. Charles, MO, for respondent.
   NANNETTE A. BAKER, Judge.

Sarah E. Ray (“Wife”) and Stanley A. Wisdom (“Husband”) were married on June 28, 1997 in St. Louis County, Missouri. On March 11, 2003, Wife filed a divorce petition in the Circuit Court of St. Charles County. In the first count of her petition, Wife sought a decree of dissolution of her marriage to Husband and alleged the requisite separation of the parties. In the second count, Wife sued Husband for “Tortious Infection” with a sexually transmitted disease.

Wife was diagnosed with genital herpes in August of 2002 by her treating physician, Dr. Hani Charles Soudah (“Dr. Sou-dah”). Wife had been married to Husband for approximately five years at that time. She testified that from approximately a year prior to the marriage of the parties through the date of the separation in 2002, Wife had sexual relations only with Husband. Wife testified that she first experienced symptoms of genital herpes while she was still living with Husband. She testified that she first started exhibiting symptoms which, in her lay opinion, were attributable to genital herpes in March, 2002. She experienced swelling, pain and blisters in the vaginal area. Wife did not seek medical advice concerning the symptoms until her annual physical examination on August 12, 2002. She believed she had some sort of cyst or ingrown hair, and did not realize something was wrong until the third time the symptoms came back. Wife admitted that it is possible to have one or two genital herpes outbreaks before a person should recognize that something is wrong.

Since the initial diagnosis, Wife has had “flareups” of the disease every two to' three months. Dr. Soudah prescribed Famvir, to be taken when she experiences symptoms. The “flareups” included lesions, pain and swelling, fatigue and headaches. The pain and discomfort have necessitated cancellation of appointments and other plans.

Wife also stated that she had difficulty discussing the disease with a man in whom she was interested. Instead, she told him that she was not interested in him “in that' way”. At the time of trial, she was still unable to tell a man that she has genital herpes, and that relations with her would involve risk. She sought out and began meeting with a therapist/counselor to help with these issues, incurring costs in the process.

Husband testified that, during-his marriage to Wife, he had a sexual relationship with a female who was an employee of the United States Postal Service, where he also worked. He testified that the woman had never indicated to him that she had a sexually transmitted disease. Husband maintained that he did not knowingly give Wife genital herpes. Husband also testified that he did not know he had the disease until November 2003. He was alerted that Wife had the disease when she sued him. Then he was tested, and although he tested positive for the disease, as of the date of trial he testified that he had never had any outbreaks. Furthermore, Wife testified that she never saw any evidence that Husband had any outbreak of herpes during their time together.

Husband was questioned on cross examination regarding the possibility that he had experienced symptoms of genital herpes without realizing it. He answered that he had “so many medical conditions that they intertwine, I mean, you know, I spent two years in Vietnam, I was exposed to Agent Orange and I’ve got diabetes because of that. That thing alone makes you depressed and all kinds of other things on its own and you take in all the other medical conditions I got, its just I don’t know.” He stated that he has never discussed his herpes infection with a physician. Nor has he sought medical advice about how to avoid spreading the disease.

Both parties were sexually active before their marriage. As a result, Husband and Wife underwent premarital HIV testing, which was negative. Neither party was tested for any other sexually transmitted diseases when they got married in 1997.

Dr. Soudah testified on behalf of Wife. Dr. Soudah had been Wife’s regular family physician since 1996. He is board certified in internal medicine. After he diagnosed Wife with genital herpes, Dr. Soudah advised Wife that the disease was transmitted only by sexual contact. He testified that it presents either on the skin or in the external genitalia. He also testified that sometimes some patients have fevers, chills, fatigue, or a lymph node enlargement.

Dr. Soudah testified that, in his opinion, the incubation time of genital herpes can be from three to seven days and that the incubation period has been documented in “the literature” from one day to up to 26 days. He testified that it is possible for someone to infect another person even if they have not manifested any symptoms. He also stated that the herpes virus was incurable and sometimes people would not have symptoms but still be able to transmit the disease. He said that it was very unlikely for a person who never exhibited symptoms to transmit the disease to another person. He also testified that a person who has the virus would exhibit symptoms at some point. He stated that it was very unlikely that Wife had the disease before she got married but did not show symptoms until 2003. He testified, “So if she had no symptoms and she was not treated before, the likelihood that she had the disease is zero.” He stated that most patients seek treatment initially and that was documented in “the literature.”

At the conclusion of Wife’s case, Husband moved for a directed verdict. Husband’s motion for a directed verdict was sustained. Specifically, the court found that there was no evidence that Husband had symptoms. The court concluded there was no evidence that Husband knew or should have known that he had genital herpes, and thus had no duty to protect Wife from infection. This appeal follows.

Wife’s first claim is that the trial court erred in granting Husband’s Motion for Directed Verdict in that there was sufficient evidence put forth at trial to withstand Defendant’s Motion for Directed Verdict. She also claims the trial court also erred in denying her motion for new trial. In her second point, Wife asserts that the trial court erred in entering a Directed Verdict for Husband because the trial court required that Husband have actual knowledge of his infection, or that he admit to awareness of having symptoms of genital herpes, in order to establish a case for negligent transmission of the virus. We find that the trial court erred in sustaining Husband’s Motion for Directed Verdict. We reverse and remand for a new trial.

Husband first asserts that the appeal should be dismissed because Wife’s points relied on do not meet the requirements of Rule 84.04. However, because Wife’s arguments under these points are sufficient to inform this court and opposing party of the precise matters presented for review, this contention is denied. See Adams v. Adams, 108 S.W.3d 821, 832 (Mo.App. W.D.2003).

Standard of Review

In reviewing a directed verdict granted for a defendant, an appellate court views the evidence and permissible inferences most favorable to the plaintiff, disregards contrary evidence and inferences, and determines whether the plaintiff made a submissible case. Thong v. My River Home Harbour, Inc., 3 S.W.3d 373, 377 (Mo.App. E.D.1999). Directing a verdict is a drastic measure. Id. A presumption therefore is made in favor of reversing the trial court’s judgment sustaining a motion for directed verdict unless the facts and inferences therefrom are so strongly against the plaintiff as to leave no room for reasonable minds to differ as to a result. Id. If reasonable minds can draw different conclusions from the facts, a directed verdict is not proper. Schaffer v. Bess, 822 S.W.2d 871, 876 (Mo.App. E.D.1991).

Each and every element essential to establish the liability of a defendant must be supported by substantial evidence. Bond v. California Comp, and Fire Co., 963 S.W.2d 692, 696 (Mo.App. W.D.1998). In this regard, substantial evidence is competent evidence from which a trier of fact can reasonably decide the case. Id. A directed verdict is proper only if one or more of the elements of a cause of action are not supported by substantial evidence. Id.

Preservation

Husband contends that the issues were not properly preserved for review and a plain error standard should be used. Husband asserts that Wife’s post trial motion, which was titled “Memorandum in Support of Petitioner’s Motion for New Trial and in the Alternative for Other Relief’ was insufficient to preserve issues because it was not denominated “Motion for New Trial” as is required by Rule 78.07. Even though the motion was not denominated “Motion for New Trial,” it did comport with Rule 78.07 in that it made allegations of error and requested a new trial be granted. It was sufficient to put the trial court on notice of the errors Wife was claiming.

Husband also claims that this motion was untimely in that the judgment was not a final judgment when this motion was filed. The original cause in this case contained multiple counts, including a tort count and a dissolution count. This court has previously recognized that in multi-count cases such as this one, disposing of the tort count first is desirable so that the trial court can consider the evidence presented and the jury verdict on the tort count when deciding the dissolution count. See, State ex rel M.D.K v. Dolan, 968 S.W.2d 740 (Mo-App. E.D.1998). Generally, a decision is not final if the decision or order disposes of less than all claims. Avidan v. Transit Cas. Co., 20 S.W.3d 521, 523 (Mo. banc 2000). An appeal will only lie from a final judgment. Section 512.020; Rule 74. However, under Rule 74.01, a judge may enter a, judgment as to one or more, but fewer than all of the claims upon an express determination that there is “no just reason for delay” and terminate the action as to that claim.

However, even when the trial court certifies its judgment as final for purposes of appeal, the trial court’s determination is not conclusive and this court must still decide whether the partial judgment actually qualifies as a final judgment. D’Agos-tino v. D’Agostino, 54 S.W.3d 191, 197 (Mo.App. W.D.2001). For purposes of Rule 74.01(b), the court must dispose of at least one entire claim. Nicholson Const. Co. v. Missouri Highway and Transp. Com’n, 112 S.W.3d 6, 10 (Mo.App. W.D. 2003). In this case, the court made an express finding in its Findings, Conclusions and Judgment that there is no just reason for delay. Furthermore, this claim was completely adjudicated and the trial court has resolved all issues as to all parties. Thus, we find that the partial judgment qualifies as a final judgment in this case.

In Wife’s motion, in addition to requesting a new trial and asserting claims of error, the motion included, as alternate relief requested by Wife, a request that the court find a finding of “no just reason for delay,” that the court granted. Husband contends that, until after the court entered a finding of “no just reason for delay,” the judgment was not final, and a motion for new trial could not preserve for appellate review any issues contained therein. Husband reasons that Wife should be required to file the motion again after the court entered the finding of “no just reason for delay” in order to preserve the issues set out in the motion for appellate review. We do not find this argument compelling.

Rule 78.04 requires only that a Motion for New Trial be filed “no later than thirty days after the entry of judgment.” (emphasis added). It does not address what happens to a motion filed before the entry of final judgment. As support for his contention, Husband cites footnote 110 of Elam v. Alcolac, Inc., 765 S.W.2d 42, 230 (Mo. App. W.D.1988). This language, dicta interpreting a law review article about Rule 74.01(b), does not seem to support Husband’s argument. The footnote states, “the motion for new trial and other post judgment events do not commence to mature until the action is terminated as to all the claims and all the parties.” This language does not indicate that motions made before the court has made a finding that there is no just reason for delay have no effect, but that they “do not mature” or do not become effective until the proper procedures which make the partial judgment appealable have been followed.

Motion for Directed Verdict

Wife claims in her first point that the trial court erred in sustaining Husband’s motion for directed verdict and in denying Wife’s motion for a new trial in that the evidence was sufficient to withstand Defendant’s motion for directed verdict. We agree.

In 1986, the Missouri Supreme Court struck down the previous doctrine of spousal immunity. S.A.V v. K.G.V., 708 S.W.2d 651 (Mo. banc 1986). The court found that spousal immunity was not a bar to a negligence action and permitted a spouse to bring a claim against the other for infection with a sexually transmitted disease. Id. at 653. The claim in S.A.V. was “that respondent willfully, recklessly and negligently transmitted the disease to Appellant without informing her of his infection.” S.A.V. at 652. Later, this court held that such a claim could properly be brought as an additional count in a petition for dissolution of marriage. See, Dolan, 968 S.W.2d 740. The court stated that “a wife can sue her husband for giving her herpes.” Id. at 745. In 2000, the Western District also considered a negligent transmission of herpes case in which the parties were not married. Deuschle v. Jobe, 30 S.W.3d 215, 218 (Mo.App.W.D.2000).

The court in Deuschle set out an examination of the elements of a negligent transmission of genital herpes case which aids us in analyzing this case. In Missouri, it has been long established that the elements of a negligence action are (1) a legal duty on the part of the defendant to conform to a certain standard of conduct to protect others against unreasonable risks; (2) a breach of that duty; (3) a proximate cause between the conduct and the resulting injury; and (4) actual damages to the claimant’s person or property. Id. at 218. One has the legal duty to exercise reasonable care by disclosing a contagious venereal disease before entering into sexual relations with another. Id. at 218-219. In an action for a negligent transmission of a venereal disease, a person is liable if he knew or should have known that he was infected with the disease and failed to disclose or warn his sexual partner . about this unreasonable risk of harm before engaging in a sexual relationship. Id. at 219. It is foreseeable that one’s sexual partner is susceptible to the disease if the infected person is aware he has the disease or suffers symptoms of the disease. Id. Therefore, one who knows or should know that he or she is infected with genital herpes is under a duty to either abstain from sexual contact with others, or at least to warn others of infection prior to having sexual contact with them. Id.

The trial court in this case determined that Wife did not present sufficient evidence for the jury to find that Husband knew or should have known that he had a sexually transmitted disease. However, we do not agree. At trial, Dr. Soudah testified that with an ongoing herpes infection, patients usually complain of fatigue. He added that sometimes they have symptoms such as fevers, chills, lymph node enlargement, discharge and lesions on the genitalia. He testified that incubation periods for the virus can generally be between three to seven days, but incubation periods from as few as one day to as many as 26 days also have been documented. He testified that it is very unlikely for a person to infect another person if they have never had symptoms. He also stated that one can carry the virus without manifesting symptoms and if one has a chronic disease, it is possible to transmit to the partner without having symptoms. When asked if it is possible to have the symptoms of fatigue, fever and chills, etc, without ever having any lesions, Dr. Soudah stated that it was very unlikely and “[a]l-most always the lesions are there.” He also stated that if Wife was not treated before she got married the likelihood that she had the disease before she got married is zero.

Husband testified that he did not have lesions. He testified that he had other illnesses, such as diabetes and Agent Orange exposure. He stated that if he had other symptoms, such as fatigue or fevers, he would attribute those symptoms to his previous illnesses. He also testified that the woman with whom he had an affair never informed him that she had the disease nor was he aware that she had any symptoms. Wife testified that she did not notice that Husband had any symptoms.

The trial court granted' Husband’s'Motion for Directed Verdict after Wife presented her case because Wife failed to provide evidence from which the jury would be able to determine that Husband either knew or should have known that he had a sexually transmitted disease as is required under Deuschle. However, we find that Wife submitted sufficient evidence from which the jury could have determined that Husband knew or should have known that he had the disease. There was expert testimony to the effect that most people who have the disease experience symptoms. Dr. Soudah testified that a person who has the virus would exhibit symptoms at some point. He stated that most patients seek treatment initially and that was documented, in “the literature.”

He stated that it was very unlikely that Wife had the disease before she got married but did not show symptoms until 2003. He testified, “So if she had no symptoms and she was not treated before, the likelihood that she had the disease is zero.” Wife testified that she did not have other sexual partners during her marriage, so it is a reasonable inference that Wife got the disease from sexual contact with Husband. Dr. Soudah stated that it was very unlikely for a person who never exhibited symptoms to transmit the disease to another person. Prom this, there is a reasonable inference that Husband, who transmitted the disease to Wife, experienced symptoms.

Husband admitted to having an extramarital affair. When Husband was asked if he experienced any symptoms, Husband did not deny that he may have had symptoms. Husband stated that if he had symptoms, he would have attributed them to other diseases he had. Husband testified that he never had lesions.

Resolution of the credibility of the witnesses and weight of the evidence is for the jury to determine. Thus, the jury should have been given an opportunity to weigh the testimony to determine if Husband should have known he had the disease. The jury could infer from the fact that Husband had an extramarital affair, from Dr. Soudah’s testimony that most people have symptoms and seek treatment, and from Husband’s statement that he may have had symptoms and attributed them to something else, that Husband should have known he had the disease. Alternatively, the jury may have believed that Husband should not have known he had the disease, because he claimed he never had lesions and he attributed any symptoms he was having to his other diseases. In this case, there were questions regarding witness credibility and the weight of the evidence. These questions should have been left to the jury. Point granted.

Because this point is outcome determinative, we do not need to address Wife’s second point.

Reversed and remanded for new trial.

CLIFFORD H. AHRENS, P. J., and GLENN A. NORTON, J., concur.

      . All rule references are to Mo. Rules Civ. Pro.2004 unless otherwise indicated.

      . All statutory references are to RSMo 2004 unless otherwise indicated.

      . This case extended the doctrine set forth in Townsend v. Townsend, wherein the court allowed an interspousal claim for an intentional tort. 708 S.W.2d 646 (1986).

      . Husband seems to indicate, in the facts portion of his brief, that the testimony of Dr. Soudah was improper because Dr. Soudah was Wife’s treating physician and "the transcript does not reflect” that he was testifying as an expert. Husband implies that Dr. Sou-dah should not have been allowed to offer expert testimony. However, Husband did not raise this issue in his points relied on or the argument portion of his brief. Thus, we deem this issue abandoned. See Luft v. Schoerihoff, 935 S.W.2d 685 (Mo.App. E.D.1996).