McLemore v. State

• Decision Date: 21 December 2021
• Docket Number: No. SC 98987,SC 98987
• Citation: 635 S.W.3d 554
• Parties: Ronald MCLEMORE, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

635 S.W.3d 554

Ronald MCLEMORE, Appellant,

v.STATE of Missouri, Respondent.

No. SC 98987

Supreme Court of Missouri, en banc.

Opinion issued December 21, 2021

McLemore was represented by Katie Curry of the public defender's office in Columbia, (573) 777-9977.

The state was represented by Garrick Aplin of the attorney general's office in Jefferson City, (573) 751-3321.

Patricia Breckenridge, Judge

Ronald McLemore appeals from the circuit court's judgment overruling his Rule 29.15 motion for postconviction relief without an evidentiary hearing. Mr. McLemore failed to show on appeal that the circuit court clearly erred in overruling his Rule 29.15 motion without an evidentiary hearing. While the record does not refute his claims that trial counsel's failure to object to statistics not in evidence, elicitation of unfavorable testimony, and presentation of a deficient opening statement were not reasonably competent, trial counsel's actions did not prejudice Mr. McLemore, and the record refutes his claim that trial counsel failed to present a coherent theory of defense in closing argument. The circuit court, therefore, did not clearly err in determining Mr. McLemore failed to plead facts not refuted by the record that, if true, resulted in prejudice entitling him to an evidentiary hearing. The judgment is affirmed.

Factual and Procedural Background

In 2016, the state charged Mr. McLemore with six felony sexual offenses: count I, enticement of Victim 1, a child younger than 14; count II, sexual misconduct by exposing his genitals to Victim 1, a child younger than 15; count III, enticement of Victim 2, a child younger than 14; count IV, sexual misconduct by exposing his genitals to Victim 2, a child younger than 15; count V, attempted sodomy in the first degree by trying to make Victim 1 touch his penis; and count VI, attempted sodomy in the first degree by trying to make Victim 2 touch his penis.

At trial, Mr. McLemore's counsel reserved his opening statement until after the close of the state's case-in-chief. During the defense's case, trial counsel called the victims’ mother, grandmother, and great-grandmother and elicited testimony from the grandmother and great-grandmother that Victim 1 did not have a reputation for truthfulness. The victims’ mother, however, testified Victim 1 did have a reputation for truthfulness.

During the state's closing argument, the prosecutor referred to statistics that one in four girls and one in six boys are sexually molested as children; roughly 90 percent of offenders are male acquaintances; and only 3 to 5 percent of perpetrators are prosecuted or convicted. These statistics were not in evidence, but trial counsel did not object to the reference. Instead, trial counsel responded during closing argument that, although the state was right as to the statistics, the jury was obligated to decide the case on its facts.

The jury found Mr. McLemore guilty of Counts I, II, IV, and V but acquitted him of Counts III and VI. Mr. McLemore waived jury sentencing, and the circuit court sentenced him to 10 years’ imprisonment for Count I and Count V, to be served consecutively, and four years’ imprisonment for Count II and Count IV, to be served concurrently.

In 2018, the office of chief disciplinary counsel filed an information against Mr. McLemore's trial counsel that included allegations trial counsel "failed to present evidence on Mr. McLemore's behalf" and "purposely let the prosecutor put it all out there so when it came to retrial, [Mr.] McLemore would have a better defense." The information also alleged trial counsel failed to file Mr. McLemore's direct appeal, and Mr. McLemore was unable to contact him for three months after sentencing. Trial counsel never filed a response to the information, so its allegations were deemed admitted, and he was disbarred in 2019.

Represented by new counsel, Mr. McLemore appealed, and the court of appeals affirmed the convictions. See State v. McLemore , 574 S.W.3d 342, 346 (Mo. App. 2019). Mr. McLemore then filed a Rule 29.15 motion to vacate, set aside, or correct the judgment, alleging trial counsel was ineffective for: (1) failing to object to the prosecutor's use during closing argument of statistics not in evidence, (2) eliciting testimony from the victims’ mother that Victim 1, who provided most of the evidence against Mr. McLemore, had a reputation for truthfulness; and (3) failing to present a coherent theory of defense in his opening statement and closing argument, failing to discuss Victim 1's reputation for untruthfulness in his opening statement and closing argument, and arguing in closing that he had no idea how the victims knew about ejaculation, supporting the state's theory of the case.¹

The circuit court overruled Mr. McLemore's motion without an evidentiary hearing, concluding:

Here, Movant's claims of ineffective assistance all derive from the trial record and can be analyzed without additional evidence. The record shows that all of the claims lack merit. In none of these claims did Movant demonstrate both incompetence and prejudice. Movant failed to overcome the legal presumption that trial counsel behaved reasonably.

Mr. McLemore appealed the circuit court's judgment, and this Court granted transfer after an opinion by the court of appeals. Mo. Const. art. V, sec. 10. On appeal, Mr. McLemore asserts the circuit court erred in overruling his ineffective assistance of counsel claims without an evidentiary hearing.

Standard of Review

Appellate review of the circuit court's ruling is limited to determining whether the circuit court's findings and conclusions are clearly erroneous, Rule 29.15(k), and a "movant is entitled to an evidentiary hearing only if: (1) [the movant] pleaded facts, not conclusions, warranting relief; (2) the facts alleged are not refuted by the record; and (3) the matters complained of resulted in prejudice to the movant," Booker v. State , 552 S.W.3d 522, 526 (Mo. banc 2018). The facts Mr. McLemore asserts warrant relief are trial counsel's actions allegedly resulting in ineffective assistance of counsel. To state a claim for ineffective assistance of counsel, the movant must allege facts "demonstrating: (1) that counsel's performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney, and (2) that counsel's deficient performance actually prejudiced the movant." Id. at 531.

In determining whether a movant has met his or her burden to show ineffective assistance of counsel, courts must indulge a strong presumption "that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland v. Washington , 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (internal quotation omitted). And whether counsel's performance conformed to the degree of skill, care, and diligence of a reasonably competent attorney is an "inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind." Harrington v. Richter , 562 U.S. 86, 110, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). Because the inquiry is an objective inquiry into the reasonableness of counsel's performance, an evidentiary hearing will not always be necessary to adjudicate claims of ineffective assistance of counsel.²

Analysis

In Mr. McLemore's first claim of error, he asserts the circuit court clearly erred in overruling his amended motion without an evidentiary hearing because his trial counsel provided ineffective assistance when he failed to object to the state reciting to the jury statistics not in evidence about the prevalence of the sexual abuse of children. During closing argument, the prosecutor stated:

Most of our population doesn't understand why an adult would want to do that to two little kids. And perhaps that's part of why it makes these cases difficult to prosecute. Part of our brains perhaps don't [sic] want to accept that this happens in our society, but we need to get over that as a society, because it's prevalent. In 2005 the center for disease control released findings from a study. And those findings were that one in four girls will be sexually molested or sexually abused before they turn 18. One in six boys. The Department of Justice tell [sic] us that 90 percent roughly of offenders are males who are acquaintances of the child. And that 3 to 5 percent of sexual abusers are ever prosecuted or convicted, 3 to 5 percent. People that each of us knows has [sic] been a victim of sexual abuse as a child in the past. We may not know it, but they're all around us.

These statements were harmful to Mr. McLemore's defense because the prosecutor was using statistics not in evidence to suggest to the jury it was likely Mr. McLemore committed the offenses with which he was charged.

Mr. McLemore claims his trial counsel was ineffective for failing to object, but the circuit court found trial counsel was not because counsel responded with "well-reasoned argument." The circuit court was correct that it can be reasonable trial strategy not to object to improper statements in the state's closing argument. Tisius v. State , 519 S.W.3d 413, 428 (Mo. banc 2017). Trial counsel may decide to forego an objection in favor of later responding in the defendant's closing argument to avoid creating the impression that the defense is concealing evidence from the jury.

But the record shows trial counsel did not respond to the state's improperly argued statistics with "well-reasoned argument." Trial counsel's response was as follows:

The State's right. This – these sort of things, and these accusations and allegations, my goodness, what's our society gone to or where has it been? You know, where's our morality? I agree. I agree. Those statistics that Mr. Merrell was talking about, those are just statistics. This is this case. This case is to be decided on the facts as you see them in this case. This fact – this case will not join those statistics in – in showing, uh, that there

...