McIntosh v. State

Decision Date26 November 2013
Docket NumberNo. SC 93118.,SC 93118.
Citation413 S.W.3d 320
PartiesRodney P. McINTOSH, Appellant, v. STATE of Missouri, Respondent.
CourtMissouri Supreme Court

OPINION TEXT STARTS HERE

Scott Thompson, Public Defender's Office, St. Louis, for Appellant.

Shaun J. Mackelprang, Attorney General's Office, Jefferson City, for Respondent.

GEORGE W. DRAPER III, Judge.

Rodney P. Mcintosh (hereinafter, Movant) appeals from the motion court's overruling of his Rule 29.15 post-conviction relief motion without an evidentiary hearing. Movant failed to demonstrate that defense counsel was ineffective for failing to call a witness, to object to the prosecutor's voir dire questions, and to offer evidence regarding the victim's prior sexual abuse allegation. Movant's claim of prosecutorial misconduct for comments made during closing argument is not cognizable pursuant to Rule 29.15, and therefore, is unreviewable. The motion court's judgment is affirmed.

Factual and Procedural History

Movant met C.P. (hereinafter, Mother) and her three-year-old daughter, H.P. (hereinafter, “Victim”), in November 2004 through their mutual friend, Angelo Veal (hereinafter, “Veal”). Veal was a close friend of Mother, Victim's godfather, and a former boyfriend of Movant's sister. Veal and Movant lived and worked together.

Movant and Mother developed a personal familial relationship during which time Movant babysat Victim on three separate occasions. The first occasion occurred at Veal's home on McPherson Avenue in the City of St. Louis. The second occasion occurred at Veal's new home after they moved to Jennings in St. Louis County. The third occasion occurred at Mother's home on North Tucker Boulevard in the City of St. Louis on January 5, 2005.

In the early morning hours of January 6, 2005, Victim woke up whimpering and indicated she had to use the bathroom. Mother accompanied her to the bathroom, and when Victim began to urinate, she started to cry. Victim told Mother her “tee-tee” hurt, which was Victim's word for vagina. When Mother asked what happened, Victim said, [Movant] touched my tee-tee.” Victim told Mother that Movant had been tickling her and instructed her to lay down on the couch, where he pulled off her pants, and touched her vagina. Afterward, Movant gave her candy.

Later that afternoon, Mother took Victim to Cardinal Glennon Children's Hospital, where an examination revealed some redness in Victim's vaginal area. Victim spoke to a detective with the child abuse unit and a forensic interviewer at a child advocacy center and told each of them that Movant touched her vagina with his hand. Approximately two weeks later, Victim told Mother that the first time Movant touched her vagina was at Veal's new home in Jennings, and afterward, he gave her cake and ice cream.

Movant was charged with one count of first-degree statutory sodomy, section 566.062, RSMo 2000,1 for the incident that occurred at Mother's home. Mother, Victim, the examining doctor, the detective, the forensic interviewer, and Movant testified at trial. Movant vehemently denied touching Victim in any inappropriate manner. The jury found Movant guilty. Movant was sentenced as a prior offender to twenty-five years' imprisonment. Movant's conviction was affirmed on appeal. State v. McIntosh, 231 S.W.3d 255 (Mo.App.E.D.2007).

Movant filed a pro se motion for post-conviction relief pursuant to Rule 29.15. Counsel was appointed, and an amended motion was filed with a request for an evidentiary hearing. Movant alleged he received ineffective assistance of counsel when defense counsel failed to: (1) call Veal as a witness; (2) object to the prosecutor's improper voir dire questions; and (3) present evidence that Victim made a prior sexual abuse allegation against another individual. Movant also alleged the prosecutor committed misconduct in seeking to exclude the evidence of Victim's prior allegation but then used the absence of that evidence to bolster the state's case against him. The motion court overruled Movant's post-conviction relief motion without an evidentiary hearing. Movant appealed. After a per curiam opinion by the court of appeals, this Court granted transfer. Mo. Const. art. V, sec. 10; Rule 83.04.

Standard of Review

When reviewing the motion court's denial of a post-conviction relief motion, this Court presumes the motion court's ruling is correct. McLaughlin v. State, 378 S.W.3d 328, 336–37 (Mo. banc 2012). Appellate review of a motion court's action shall be limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 29.15(k). Findings and conclusions are clearly erroneous if, after reviewing the entire record, this Court is left with the “definite and firm impression that a mistake has been made.” Smith v. State, 370 S.W.3d 883, 885 (Mo. banc 2012). This Court will find a motion court clearly erred in overruling a request for an evidentiary hearing pursuant to Rule 29.15 only if a movant can demonstrate: (1) that the postconviction motion alleged facts, not conclusions, warranting relief; (2) the facts alleged were not refuted conclusively by the record; and (3) the matters complained of resulted in prejudice to the movant. Baumruk v. State, 364 S.W.3d 518, 525 (Mo. banc 2012).

To be entitled to post-conviction relief for ineffective assistance of counsel, a movant must show by a preponderance of the evidence that his or her trial counsel failed to meet the Strickland test to prove his or her claims of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a movant must demonstrate that: (1) defense counsel failed to exercise the level of skill and diligence that a reasonably competent counsel would in a similar situation, and (2) he or she was prejudiced by that failure. Id. at 687, 104 S.Ct. 2052.

A movant must overcome the strong presumption defense counsel's conduct was reasonable and effective. Smith, 370 S.W.3d at 886. To overcome this presumption, a movant must identify “specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance.” Zink v. State, 278 S.W.3d 170, 176 (Mo. banc 2009). Trial strategy decisions may be a basis for ineffective counsel only if that decision was unreasonable. Id. [S]trategic choices made after a thorough investigation of the law and the facts relevant to plausible opinions are virtually unchallengeable....” Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006).

To establish the prejudice requirement of Strickland, a movant must prove prejudice. Johnson v. State, 388 S.W.3d 159, 163 (Mo. banc 2012). Prejudice occurs when “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Deck v. State, 68 S.W.3d 418, 429 (Mo. banc 2002) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

Failure to Call a Witness

Movant alleges the motion court clearly erred when it denied his post-conviction relief motion without an evidentiary hearing because he alleged facts not refuted conclusively by the record, which if proven, would entitle him to relief. Movant claims defense counsel was ineffective for failing to produce Veal as a witness, and he is entitled to an evidentiary hearing on this issue.

After the trial court pronounced Movant's sentence, it questioned Movant about his satisfaction with defense counsel's services pursuant to Rule 29.07(b)(4). Movant indicated he had “reservations” about the services he received. Movant stated he wanted defense counsel to depose potential witnesses, including Veal. Defense counsel explained, “I spoke to [ ] Veal and I did not like some of the things he said, so I didn't want to use him as a witness.” The circuit court asked, “So you did in fact receive the names and based upon your professional opinion your assessment of your defense at trial you decided that they would not best suit any defense on behalf of your client?” Defense counsel answered, “Correct.” The circuit court concluded Movant received effective assistance of counsel.

Movant raised this claim in his Rule 29.15 motion, asserting that Veal would have testified that Movant did not touch Victim in a sexual manner when the three of them were together at Veal's home in Jennings. Movant alleges Veal's testimony would rebut this prior uncharged conduct and would impeach Victim's and Mother's testimony. The motion court denied this claim, finding the claim was refutedbecause defense counsel clearly stated on the record he was aware of Veal's existence, he spoke to him, and concluded Veal would not make a good witness for Movant. Movant now argues that the motion court's denial of relief, based solely on defense counsel's “meager comments” at the Rule 29.07 inquiry, left a definite and firm impression a mistake has been made.

At the conclusion of final sentencing, Rule 29.07(b)(4) requires the trial court to conduct an inquiry and advise the defendant of his or her right to seek relief pursuant to Rule 29.15 if applicable. At the inquiry, the trial court must examine the defendant to determine preliminarily whether defense counsel offered effective assistance during his or her representation. “The examination shall be on the record and may be conducted outside the presence of the defendant's counsel. At the conclusion of the examination the court shall determine whether probable cause exists to believe the defendant has received ineffective assistance of counsel.” Id.

This Court has explained the scope and purpose of the Rule 29.07(b)(4) inquiry:

The Rule 29.07(b)(4) proceedings are not a critical stage of the criminal justice system. Proceedings under Rule 29.07(b)(4) are effectively a ‘preliminary hearing,’ on ineffective assistance of counsel, for post-conviction relief. The rule restricts the trial court to a narrow determination: whether probable cause exists to...

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