Giaimo v. State

41 S.W.3d 49, 2001 Mo. App. LEXIS 564, 2001 WL 314607
CourtMissouri Court of Appeals
DecidedApril 3, 2001
DocketNo. ED 78143
StatusPublished
Cited by3 cases

This text of 41 S.W.3d 49 (Giaimo v. State) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Giaimo v. State, 41 S.W.3d 49, 2001 Mo. App. LEXIS 564, 2001 WL 314607 (Mo. Ct. App. 2001).

Opinion

RICHARD B. TEITELMAN, Judge.

Anthony M. Giaimo, appellant, was convicted of six counts of sodomy, § 566.060 RSMo 1994, and one count of second-degree sexual misconduct, § 566.093 RSMo 1994.1 Appellant was sentenced to five consecutive fifteen-year terms, one consecutive seven-year term, and one concurrent six-month term of imprisonment. This court affirmed appellant’s convictions and sentence. State v. Giaimo, 968 S.W.2d 157 (Mo.App. E.D.1998). Appellant subsequently filed a Rule 29.15 motion for post-conviction relief which set forth numerous allegations of ineffective assistance by both trial and appellate counsel. The motion court denied the motion without an eviden-tiary hearing and issued written findings of fact and conclusions of law in support of its decision. We reverse and remand in part and affirm in part.

Standard of Review

Appellate review of the motion court’s ruling is limited to determining whether the findings and conclusions are clearly erroneous. Rule 29.15(k). The motion court’s ruling will be found clearly erroneous only if, after review of the entire record, we are left with a definite and firm impression that a mistake has been made. Morrow v. State, 21 S.W.3d 819, 822 (Mo. banc 2000).

To prove ineffective assistance of counsel, appellant must show by a preponderance of the evidence that trial counsel did not demonstrate the customary skill and diligence that a reasonably competent attorney would display rendering similar services under the existing circumstances and that he was thereby prejudiced. State v. Clay, 975 S.W.2d 121, 135 (Mo. banc 1998) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

To be entitled to an evidentiary hearing on a motion for post-conviction relief based on ineffective assistance of counsel, appellant must: (1) allege facts, not conclusions, warranting relief; (2) the facts alleged must not be refuted by the record; and (3) the matters complained of must have resulted in prejudice. Morrow v. State, 21 S.W.3d 819, 822-823 (Mo.banc 2000). To demonstrate prejudice, the facts alleged must show a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. Id. at 823. Furthermore, unlike other civil pleadings, this court will not draw factual inferences or implications in a Rule 29.15 motion from bare conclusions or from a prayer for relief. Id. at 822.

Discussion

Appellant sets forth three points on appeal. In Point I, appellant makes multiple allegations of ineffective assistance of [52]*52counsel. Specifically, appellant contends that trial counsel failed to adequately cross-examine witnesses, properly object to the admission of evidence of uncharged acts, retain and call expert and lay witnesses, introduce evidence, file pre-trial discovery motions and investigate alternate perpetrators. In Point II, appellant alleges that the motion court improperly failed to recuse itself or allow an evidentia-ry hearing on appellant’s motions for recu-sal. Point II also includes an allegation that trial counsel was ineffective for failing to file the motion for recusal at an earlier time. In Point III, appellant alleges that appellate counsel was ineffective for failing to raise an issue on direct appeal as to the constitutionality of Section 566.025.

As a preliminary matter, we note that appellant’s Point I does not comply with the Rule 84.04(d) requirement that each point shall specifically identify the challenged ruling or action. Although Missouri courts have held that an improperly drafted point relied on preserves nothing for review, it is also recognized that in criminal cases it is preferable to decide cases on the merits to avoid punishing appellant for the shortcomings of counsel. State v. Rehberg, 919 S.W.2d 548, 548 (Mo.App. W.D.1995), citing State v. Sloan, 756 S.W.2d 508, 505 (Mo. banc 1988), cert. denied, 489 U.S. 1040, 109 S.Ct. 1174, 103 L.Ed.2d 236 (1989). Thus, we will exercise our discretion and review the claims raised in appellant’s Point I on the merits.

To aid our discussion, we have separated appellant’s Point I claims of ineffective assistance of counsel into the following subpoints: (I) failure to retain and call expert witnesses; (II) failure to investigate alternate perpetrators; (III) inadequate cross-examination; (IV) failure to “properly object” to evidence of uncharged acts; (V) failure to introduce evidence; (VT) failure to file pre-trial motions; (VII) failure to call lay witnesses. We conclude that the motion court clearly erred by denying appellant relief without an eviden-tiary hearing with respect to subpoints I and II. The motion court did not clearly err in denying appellant relief without an evidentiary hearing on the remaining sub-points in Point I.

I. Failure to Retain and Call Expert Witnesses.

Appellant alleges that trial counsel was ineffective in failing to retain and call expert witnesses Ann Dell Duncan, Ralph Underwager and Holida Wakefield. To establish that counsel was ineffective for failure to present expert witness testimony, appellant must show that: (1) the witness could have been located through reasonable investigation; (2) the witness would have testified if called; and (3) the testimony would have provided a viable defense. State v. Davis, 814 S.W.2d 593, 603-604 (Mo.banc 1991). Although appellant must overcome a strong presumption that counsel provided effective assistance, we note that counsel must make a reasonable and informed decision not to conduct a particular investigation. State v. Butler, 951 S.W.2d 600, 608 (Mo.banc 1997).

Dr. Ann Dell Duncan

On its face, appellant’s Rule 29.15 motion sets forth factual allegations that are sufficient to establish a claim that counsel was ineffective in failing to retain and call Dr. Duncan as an expert witness. Appellant alleged that Dr. Duncan is an expert in child sexual abuse cases with special expertise in analyzing interviewing techniques to ensure that the interviews are conducted properly and are not unduly suggestive. Appellant further alleged that he had requested that trial counsel contact Dr. Duncan and that Dr. Duncan, if called, would have testified that the children’s [53]*53statements were unreliable because investigators had employed improper interviewing techniques and “coached” the children throughout the interview process. Because a substantial part of the evidence against appellant came from the statements of the children, appellant also alleged that Dr. Duncan’s testimony would have altered the outcome of the trial.

The motion court denied appellant’s claims on three grounds. First, the motion court determined that appellant’s claims had previously been disposed of on direct appeal. This is incorrect.

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Related

Giaimo v. State
113 S.W.3d 688 (Missouri Court of Appeals, 2003)
Alhamoud v. State
91 S.W.3d 119 (Missouri Court of Appeals, 2002)
Boyd v. State
86 S.W.3d 153 (Missouri Court of Appeals, 2002)

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Bluebook (online)
41 S.W.3d 49, 2001 Mo. App. LEXIS 564, 2001 WL 314607, Counsel Stack Legal Research, https://law.counselstack.com/opinion/giaimo-v-state-moctapp-2001.