Appellant contends that the State improperly bolstered the credibility of some of their witnesses and improperly attempted to impeach another one of its witnesses.  The State merely reviewed the credentials of the witnesses.  Trial counsel was not ineffective for failing to object, and appellant was not prejudiced by this evidence of the witnesses’ credentials.  One of the State’s witnesses, Tom Masterson, stated on the stand that he could not remember who he saw at the bar the night of the murder.  The State then read from his deposition questions and answers, asking if he remembered them.  Appellant was not prejudiced because Masterson stated nothing that was not already before the jury.  Masterson stated that he saw the appellant, Becky, Candy Richmond, Sanders, Niki Bouge, and Mike Frederick at the bar.  Niki Bouge testified that she was at the bar with Sanders, and appellant testified that he was there that evening as well.  This testimony is not damaging to the appellant. 

Appellant also argues that the state improperly failed to establish the expertise of witnesses who were called to give an expert opinion.  Trial counsel was not ineffective for failing to raise this objection because the state adduced that the witnesses had sufficient knowledge and expertise to testify and aid the trier of fact.  State v. Futo, 932 S.W.2d 808, 820 (Mo. App. E.D. 1996).

Appellant claims that trial counsel was also ineffective for failing to object to numerous, specific statements by the prosecution during guilt-phase closing arguments.   The prosecutor mentioned that appellant had access to depositions and prior testimony of witnesses and that he had to "come up with an explanation."  Appellant complains that the prosecutor denigrated appellant’s testimony and his suggestion that police had planted evidence.  "A prosecuting attorney may comment on the evidence and the credibility of witness and, in the process, may belittle and point to the improbability and untruthfulness of specific testimony."  State v. Weaver, 912 S.W.2d 499, 513 (Mo. banc 1995), cert. denied, ___ U.S. ___, 117 S. Ct. 153, 136 L. Ed. 2d 98 (1996).  Counsel was not ineffective for failing to make a meritless objection to these statements. 

The prosecutor said "not only is this his day in court, this is State of Missouri versus Rick Clay, and this is our only day in court."  Appellant apparently contends that this was an improper statement about appellant’s exercise of his procedural and substantive due process rights.  The prosecution was summing up and asking the jury to consider carefully the State’s evidence and to return with a guilty verdict.  Appellant was not prejudiced by this argument.

The prosecutor stated that the victim’s killer dropped the bullet.  Appellant argues that this was a misstatement of the facts because no footprints were found near the bullet.  On the contrary, this statement was based on a reasonable inference from the evidence that police officers found a dry bullet in wet grass as they followed appellant’s trail from the Camaro to the levee.  A state’s witness testified that this bullet "had been loaded into the same magazine as the fired cartridge casings recovered from the crime scene."

The prosecutor stated that Officer McFerren left no footprints by the Camaro because he "gingerly approached" the car.  The prosecutor explained that he "backed, he went up, reached in and turned off the vehicle, didn’t touch a thing."  This matches the testimony by McFerren, that he was cautious in approaching the vehicle to "make sure there wasn’t anyone in the back seat."  The prosecutor did not exaggerate this testimony by his description.  The evidence supported the statement; thus, the appellant was not prejudiced by the statement.

The prosecutor said that the State did not get to choose its own witnesses.  "That was in that deck of cards that was dealt to us."  This, appellant argues, personalized the case.  This was not a personal comment, but rather an explanation that the State was not free to pick its witnesses, so trial counsel was not ineffective for failing to object.  See Rowe v. Farmers Ins. Co., Inc., 699 S.W.2d 423, 424 (Mo. banc 1985).

Appellant asserts that trial counsel was ineffective for failing to object to several improper arguments by the State in its penalty-phase opening argument.  Appellant claims that the prosecution personalized the case by saying "appreciate verdict" and "verdict spoke out against senseless violence."  An argument is personalized only if it suggests a personal danger to the jurors or their families if the defendant were to be acquitted.  State v. Phillips, 940 S.W.2d 512, 519 (Mo. banc 1997).  The prosecutor’s remarks were a reference to the verdict itself, and not to any potential danger to the jurors.  There was no ineffective assistance in failing to object.

Appellant also contends that the prosecution misstated the law by referring to aggravating circumstances as "special circumstances."  The prosecution used the term "special circumstances" in the context of explaining aggravating circumstances.  The appellant was not prejudiced when trial counsel did not object.

The State argued that the killing was depraved.  Appellant asserts that no evidence supported this aggravator.  In fact, there was sufficient medical evidence that the first shots were disabling, in order to submit this aggravating circumstance to the jury, and trial counsel was not ineffective for failing to object. 

The  prosecution referred to the facts of appellant’s prior arrest, about which the appellant himself testified during the guilt phase. As a general proposition the facts and circumstances surrounding prior convictions, not just the existence of those convictions, may be introduced during the penalty phase, and the trial court has discretion to control the evidence of these circumstances.  State v. Whitfield, 837 S.W.2d 503, 511-12 (Mo. banc 1992);  Debler, 856 S.W.2d at 657.  Consequently, counsel was not ineffective for failing to make this meritless objection.

Appellant’s final assertions of ineffective assistance relate to his attorney’s failure to object to alleged prosecutorial misconduct in the penalty-phase closing arguments.  To successfully raise an ineffectiveness claim based on failure to object to a penalty-phase closing argument, the appellant must show that counsel failed to exercise the degree of skill, care, and diligence of a reasonably competent attorney and that there is a reasonable probability that, but for the counsel’s errors, the result would have been different.  Tokar, 918 S.W.2d at 768.  To determine whether appellant was prejudiced by counsel’s failure to object, this Court applies the following factors:  "1) measure what type of prejudice arose from the prosecutor’s argument; 2) examine what the defense counsel did in his argument to minimize the prejudice; 3) review the jury instructions to see if the jury was properly instructed in the case; and 4) consider all of the aggravating and mitigating information to determine whether there is a reasonable probability that the outcome of the sentencing phase would have been different."  Tokar, 918 S.W.2d at 768, citing Newlon v. Armontrout, 885 F.2d 1328, 1337 n.10 (8th Cir. 1989), cert. denied, 497 U.S. 1038, 110 S. Ct. 3301, 111 L. Ed. 2d 810 (1990).

The appellant asserts that the prosecutors repeatedly misstated the law, injected irrelevant considerations, and inserted their personal beliefs into the case.  A prosecutor’s statement of personal opinion or belief not drawn from the evidence is improper.  State v. Storey, 901 S.W.2d 886, 901 (Mo. banc 1995); State v. Jackson, 499 S.W.2d 467, 471 (Mo. 1973).   However, none of the claimed erroneous statements would have affected the outcome of the penalty phase, and certainly trial counsel’s failure to object did not affect the outcome.

First, appellant argues that the State improperly personalized the case by saying that the victim could have been getting dressed when he was shot.  The victim was found with his shoes off, and appellant argues that the jury reasonably could have inferred that he was getting undressed.  Likewise, the prosecutor’s statement is also a reasonable inference from the evidence.  Whichever inference the jury actually drew from the evidence had little if anything to do with its assessment of the punishment or its determination of guilt; therefore, counsel’s failure to object was not outcome-determinative.

Second, although the prosecutor said that he found it difficult to sign the information in the case, this statement, and counsel’s failure to object to it, could not have changed the outcome of the penalty phase.  It suggested that the prosecutor, as well as the jury, had to consider the case carefully.  Trial counsel was not ineffective for failing to object to this statement. 

Appellant’s third contention is that the prosecutor misstated the law by arguing that if a crime was "horrible," the depravity of mind aggravator was proved.  Appellant mischaracterizes the State’s argument because the prosecutor did not say that "horrible crime" was a definition of the depravity of mind aggravator, but rather was describing the facts of the crime at that point in the trial. 

Fourth, appellant argues that trial counsel was ineffective for failing to object when the prosecutor told the jury that it must sentence appellant to death in order to restore peace to New Madrid.  The prosecutor stated:

We have a peaceful community in New Madrid. A community . . . peaceful no more.  Decisions such as this are hard.  They are difficult.  But if we are to restore and have a peaceful law abiding society, then there are decisions we must make.  Do not let the civility and quietness of a court proceeding overshadow the real brutality and horribleness and vileness of this crime.

The prosecutor then asked the jury to return a verdict of death.  This argument was not improper because a prosecutor may call upon the jurors' common experience in arguments concerning the prevalence of crime in the community and the personal safety of its inhabitants.  State v. Clemmons, 753 S.W.2d 901, 909 (Mo. banc 1988).  The prosecutor may refer to the need for strong law enforcement as a deterrent to crime and infer the effect of the jury's failure to perform its duty and uphold the law.  State v. Gilmore, 681 S.W.2d 934, 944 (Mo. banc 1984).

C. Sufficiency of Evidence

Appellant argues that the evidence presented was insufficient as a matter of law to convict him of the murder.  The standard for reviewing claims challenging the sufficiency of evidence is well-established:

On review, the Court accepts as true all of the evidence favorable to the state, including all favorable inferences drawn from the evidence and disregards all evidence and inferences to the contrary.  In reviewing a challenge to the sufficiency of the evidence, appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt.

State v. Dulaney, 781 S.W.2d 52, 55 (Mo. banc 1989) (citations omitted).  In considering whether the evidence is sufficient to support the verdict, this Court considers whether a reasonable juror could find each of the elements beyond a reasonable doubt.  State v. Grim, 854 S.W.2d 403, 411 (Mo. banc 1993).  The State had the burden of proving that appellant 1) knowingly 2) caused the victim’s death 3) after deliberation.  State v. O’Brien, 857 S.W.2d 203, 217 (Mo. banc 1993). 

Deliberation is "cool reflection upon the matter for any length of time, no matter how brief."  Section 565.002.3 RSMo 1994.  The victim was shot four times, and deliberation may be inferred from multiple wounds.  State v. Johnston, 957 S.W.2d 734, 748 (Mo. banc 1997); State v. Roberts, 709 S.W.2d 857, 863 (Mo. banc 1986), cert. denied, 479 U.S. 946, 107 S. Ct. 427, 93 L. Ed. 2d 378 (1986).

To be criminally liable as an accomplice, the defendant must personally deliberate but need not personally perform each act constituting the elements of the crime, and any evidence that shows affirmative participation in aiding the principal to commit the crime is sufficient to support a conviction.  State v. Jeffries, 858 S.W.2d 821, 824 (Mo. App. 1993).  In this case, the State presented evidence that Martindale met with appellant repeatedly.  Appellant testified that he was at the Martindale residence immediately before the time of the murder.  The State also presented evidence that appellant left the Martindale residence in Martindale’s car and fled from the police.  Moreover, the officers found only one set of shoeprints leaving the car, which were identified as made by the appellant’s shoes.  During the subsequent search, an officer found a dry .380 cartridge in dew-covered grass, and an expert testified at trial that this cartridge matched the expended cartridges at the crime scene.  The jury could have reasonably inferred that appellant dropped the cartridge.  The appellant’s presence at the crime scene and flight therefrom are evidence of consciousness of guilt.  State v. Rodden, 728 S.W.2d 212, 219 (Mo. banc 1987). 

The defense presented a theory that appellant went to the Martindale house with Sanders that night to sell drugs and that Sanders had not backed out of the conspiracy.  To that effect, appellant testified that he was with his friend Sanders at the time the victim was shot.  However, this testimony was contradicted by the testimony of Sanders and two other witnesses.  They all testified that Sanders was not with appellant at the time of the murder, but with friends at a bar.  "Exculpatory statements, when proven false, evidence a consciousness of guilt and therefore bear directly on the issue of guilt or innocence."  Id. at 219.  Therefore, based on this evidence, the jury could reasonably conclude that appellant killed the victim.

Finally, appellant argues that on appeal, a court applies the equally valid inference rule that, "where two equally valid inferences can be drawn from the same evidence, the evidence does not establish guilt beyond a reasonable doubt."  On the contrary, this Court abolished the "two inference" rule in Grim.  State v. Chaney, 967 S.W.2d 47, 54 (Mo. banc 1998).

III. Rule 29.15 Appeal

In his appeal from the denial of his Rule 29.15 motion for post-conviction relief, appellant claims that several reversible errors were committed by the motion court.  Appellant also raised many of the same claims of ineffective assistance of counsel that are presented in his direct appeal, and he challenges the motion court’s denial of those claims as well.  This Court reviews the denial of post-conviction relief to determine whether the motion court’s findings of fact and conclusions of law are "clearly erroneous." Rule 29.15(j); Tokar, 918 S.W.2d at 761.  Findings and conclusions are clearly erroneous if, after a review of the entire record, the appellate court is left with the definite impression that a mistake has been made.  Shurn, 866 S.W.2d 468-69.

Appellant first argues that the motion court made erroneous evidentiary rulings, and thus erred in finding that appellant presented insufficient evidence to support his claims.  Appellant claims that the motion court erred in denying his motion for the court to either dispense with witness fees or order payment of fees.  Appellant believes that due to a conflict of interest, he was denied funds to pay witness fees to accompany subpoenas.  Moreover he asserts that subpoenas for Rule 29.15 actions are invalid unless accompanied by the payment of witness fees.  Rule 57.09(c).  However, even if fees were required to accompany the subpoena, appellant must show who would have testified, what they would have testified to, and that they would have provided him a viable defense. 

Appellant’s counsel first requested that the Missouri State Public Defender System pay the fees.  He made this request to Dan Gralike, the Deputy Director of the system, who had previously represented Sanders, a witness for the State in appellant’s trial.  Gralike denied appellant’s counsel’s request for payment of the fees, but then withdrew that order because of the appearance of a conflict of interest.  Appellant’s counsel then requested witness fees from Gralike’s supervisor, J. Marty Robinson, the Director of the system, and he also denied the request.  Appellant does not claim that Robinson had any conflict of interest that would influence his decision to deny witness fees.  In addition, Appellant’s post-conviction counsel moved to withdraw because a conflict of interest prevented him from obtaining witness fees.  There is no constitutional right to counsel in a post-conviction proceeding.  State v. Hunter, 840 S.W.2d 850, 871 (Mo. banc 1991), cert. denied, 509 U.S. 926, 113 S. Ct. 3047, 125 L. Ed. 2d 732 (1993).  Therefore, the motion court did not clearly err in its denial of witness fees.

In his post-conviction motion, appellant raised the claim that his jury was not drawn from a fair cross-section of the community.  The motion court denied appellant’s request to order that venire lists for Callaway County be made available to an expert witness who might have testified that the jury selection procedures at trial were constitutionally inadequate.  Appellant claims that the motion court clearly erred in denying this request.  He does not allege that any particular cognizable group was underrepresented, but merely names an expert who could testify that the jury selection methods were inadequate if he found such proof in the venire lists.  This point is denied.

Appellant claims that the motion court erred in precluding appellant from presenting certain evidence of Sanders’ drug use.  At the post-conviction hearing, appellant attempted to establish that Mark Brown Green would have testified at the trial that he had seen Sanders use drugs, but the State objected and the motion court sustained the objection.  The motion court then denied appellant’s motion to make an offer of proof.  The motion court did not clearly err in sustaining the State’s objection.  The purpose of the question was to show that Brown’s testimony would have corroborated the appellant’s testimony that he went to the Martindale house to sell drugs, not to kill the victim.  The answer to the question whether Sanders had used drugs would have been inadmissible as evidence of a witness’ prior bad acts or of his propensity to use drugs.  State v. Foster, 854 S.W.2d 1,4 (Mo. App. W.D. 1993) (evidence of witness’ past bad acts inadmissible for impeachment because not related to truth or veracity of witness). 

Appellant claims that the motion court erred in denying his request, in violation of his Sixth Amendment right to confront witnesses against him, for an in camera review of the disciplinary records of Officer McFerren, who testified at trial for the State.  He sought the files to ascertain whether Officer McFerren had ever lied about cases in the past.  He asks this Court to reverse and remand for a new motion hearing or for a new trial.  However, "[t]he defendant is not entitled to information on the mere possibility that it might be helpful, but must make ‘some plausible showing’ how the information would have been material and favorable."   Parker, 886 S.W.2d at 916-917.  Because appellant did not allege any particular facts that might have been material, the motion court did not err in denying his request for in camera review.

Appellant claims that the motion court clearly erred in its assessment of potential prosecutorial misconduct.  At trial, the State stated that Sanders could receive ten years in prison.  After appellant’s trial Sanders was sentenced to five years’ probation in exchange for testifying against appellant.  Appellant argued in his Rule 29.15 motion that the State committed prosecutorial misconduct in violation of his due process rights by failing to reveal the possibility of probation for Sanders, and therefore, a new trial should be granted.  Appellant argues that he was prejudiced because had the jury known that Sanders would get probation for his testimony, the jury would have assessed his credibility negatively based on a motive to give testimony favorable to the State. However, the motion court found that the plea agreement was not made until long after appellant’s trial. The State does not commit prosecutorial misconduct for failing to reveal information that did not exist at the time. The motion court did not find prejudice and did not clearly err.

In addition to appellant’s claims that the motion court made several erroneous evidentiary rulings and other findings, appellant further contends that the motion court erred in denying post-conviction relief for ineffective assistance of trial counsel.  The ineffective assistance claims made up the bulk of appellant’s argument in his Rule 29.15 motion and in his appeal from the motion court’s denial of that motion.  Many of these allegations have already been addressed in the discussion of appellant’s direct appeal.  Of the ineffective assistance issues not already addressed, appellant waived some of the issues and the other issues raised are insufficient to establish ineffective assistance. 

In actions under Rule 29.15, any allegations or issues that are not raised in the Rule 29.15 motion are waived on appeal.  State v. Wheat, 775 S.W.2d 155, 157 (Mo. banc 1989).  Several of the arguments that appellant raises in his appeal from the motion court’s finding of no ineffective assistance were not raised in his Rule 29.15 motion and thus are waived.  With respect to the ineffective assistance claims considered by the motion court, the motion court found:  "None of the motions and objections that movant claims should have been raised appears to be so prejudicial, or so lacking in an underlying trial strategy, to merit a finding of ineffective assistance of counsel."  As noted in Part II.B, the test for ineffective assistance is that counsel must have failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise in similar circumstances and appellant was prejudiced as a result.  Strickland, 466 U.S. at 687; Sanders, 738 S.W.2d at 857.  Trial strategy is not a ground for claiming ineffective assistance of counsel.  Shurn, 866 S.W.2d at 468.

The motion court found that trial counsel was not ineffective for failing to challenge the jury selection method.  As previously discussed, because appellant does not allege that any cognizable group was underrepresented, the motion court did not clearly err in denying this claim. 

Appellant claims that trial counsel was ineffective for failing to object to the trial court’s mention of the O.J. Simpson trial and for failing to make an offer of proof when the trial court sustained an objection to appellant’s testimony.  The trial court made the reference in passing to assure jurors that Clay’s trial would not last so long, and it is reasonable trial strategy not to object to such a statement to avoid highlighting it.  The trial court sustained a State objection to appellant’s testimony about a conversation with Stacy Martindale concerning drugs.  However, defense counsel did elicit from appellant that the conversation was not about murder, as the State alleged, and at a later point in Clay’s testimony defense counsel elicited several times that appellant’s asserted purpose for being at the murder scene was to sell Stacy drugs.  Appellant was not prejudiced by defense counsel’s failure to make an offer of proof.  The motion court did not clearly err in denying these claims.

Appellant also claims that counsel was ineffective for failing to correct a venireperson’s misunderstanding about the relative costs of the death penalty and life without parole.  The venireperson stated that she would hesitate to sentence someone to life without parole because of the expense.  The motion court found that counsel was not ineffective and sustained the State’s objection to expert testimony on the relative costs of the sentences.  The motion court did not clearly err because "constitutional imposition of the death penalty does not require, or indeed allow, jury consideration of the costs and benefits of the death penalty."  Brown, 902 S.W.2d at 295.