Hatcher v. State

4 S.W.3d 145, 1999 Mo. App. LEXIS 1342, 1999 WL 777759
CourtMissouri Court of Appeals
DecidedAugust 24, 1999
DocketNo. 22651
StatusPublished
Cited by6 cases

This text of 4 S.W.3d 145 (Hatcher 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
Hatcher v. State, 4 S.W.3d 145, 1999 Mo. App. LEXIS 1342, 1999 WL 777759 (Mo. Ct. App. 1999).

Opinion

GARRISON, Chief Judge.

Everett E. Hatcher (“Movant”) was charged, as a prior offender, with the felony of sodomy. A jury found him guilty, and the trial court sentenced him to a term of life imprisonment. Movant appealed his conviction. This Court affirmed the conviction and sentence in State v. Hatcher, 941 S.W.2d 884 (Mo.App. S.D.1997). Movant thereafter filed a motion for post-conviction relief with a request for an evidentiary hearing pursuant to Rule 29.15.1 The motion court denied the request for a hearing as well as the motion for post-conviction relief. Movant appeals.

The evidence in the light most favorable to the verdict shows that Movant and his wife, Lillian,2 traveled to the home of her daughter, Rhonda, for a visit on October 21, 1994. Rhonda and her husband have three children, one of whom is B.M., the victim in this case, who was then five years old. On the evening of October 26, 1994, B.M. fell asleep on the couch in the living room. Movant told B.M. to “get up” and he put his hands on B.M.’s “private part.” Movant then made B.M. “suck his wiener” and “peed” or ejaculated in B.M.’s mouth, causing B.M. to vomit.

Movant and his wife returned to their home on November 3, 1994. Rhonda spoke with B.M. on that day and asked him what made him sick when Movant was visiting. B.M. told Rhonda that he was afraid he would get into trouble and he did not want to tell. A few days later, however, B.M. told his mother what had happened, and the family reported the incident to the Division of Family Services.

Appellate review of the denial of a Rule 29.16 motion for post-conviction relief is limited to a determination whether the findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); State v. Schaal, 806 S.W.2d 659, 667 (Mo. banc 1991). The findings and conclusions are clearly erroneous only if a review of the entire record leaves the appellate court with a definite and firm impression that a mistake has been made. Schaal, 806 S.W.2d at 667. An evidentiary hearing is not required unless the motion meets three requirements: 1) the motion must allege facts, not conclusions, warranting relief; 2) the facts alleged must raise matters not refuted by the files and records in the case; and 3) the matters complained of must have resulted in prejudice. White v. State, 939 S.W.2d 887, 893 (Mo. banc 1997), cert. denied, 522 U.S. 948, 118 S.Ct. 365, 139 L.Ed.2d 284 (1997); State v. Starks, 856 S.W.2d 334, 336 (Mo. banc 1993). To prevail on a claim of ineffective assistance of counsel, a movant must show that his counsel’s performance was deficient, i.e. below the degree of skill, care, and diligence of a reasonably competent attorney, and that the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Simmons, 955 S.W.2d 729, 746 (Mo. banc 1997). To prove prejudice, a movant must show a “reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” State v. Clay, 975 S.W.2d 121, 135 (Mo. banc 1998). If he fails to satisfy either the performance or prejudice prongs of the test, his claim fails. Id .

Movant first claims that the motion court clearly erred in denying his Rule 29.15 motion without an evidentiary hearing on the theory that his appellate counsel was ineffective by not raising two issues in his direct appeal. The issues which he [148]*148contends would have resulted in reversal if they had been raised on direct appeal relate to the trial court’s ruling in which it sustained the State’s motion in limine and barred the defense from presenting evidence: (1) that B.M. was initially diagnosed with gonorrhea of the throat, and (2) that Movant sought an order of protection from his wife, Lillian, who was a witness for the State.

Movant’s amended 29.15 motion alleged:

Appellate counsel was ineffective for fading to argue on direct appeal that the trial court erred in sustaining the State’s motion in limine regarding testimony and evidence 1) that the victim was diagnosed as having gonorrhea in his throat and 2) that [Movant] sought an order of protection from his wife, Lillian Hatch-er. Defense counsel argued that the gonorrhea diagnosis was important, because it showed that family members were prompted to explain why the five-year old victim would have gonorrhea in his throat and showed that the victim likely was led to making up a story about Mr. Hatcher. Once the diagnosis was found to be false positive, the investigation had begun, and the witnesses were already committed to their false accounts. Trial counsel properly preserved the issue by attempting to elicit the testimony during trial and including the issue in the motion for new trial.

It is important to note that a movant in a post-conviction motion case is limited to the issues raised before the motion court. See State v. Twenter, 818 S.W.2d 628, 641 (Mo. banc 1991); State v. Davison, 920 S.W.2d 607, 611 (Mo.App. W.D.1996). Here, the claims asserted by Movant in his amended motion related to his appellate counsel’s failure to raise as an issue in the direct appeal, the trial court’s sustaining of the State’s motion in limine. A ruling on a motion in limine, however, is interlocutory in nature because it is subject to change during the course of the trial. State v. Purlee, 889 S.W.2d 584, 592 (Mo. banc 1992). An in limine ruling “is merely a preliminary expression of the court’s opinion as to the admissibility of the evidence” and is subject to change when presented in the proper perspective in the trial of the case. Evans v. Wal-Mart Stores, Inc., 976 S.W.2d 582, 584 (Mo.App. E.D.1998) (quoting Brown v. Hamid, 856 S.W.2d 51, 55 (Mo. banc 1993)). A motion in limine, in and of itself, preserves nothing for appeal. Purlee, 889 S.W.2d at 592. To preserve the issue of exclusion of evidence for appeal, an offer of proof must be made at trial demonstrating why the evidence is relevant and admissible. Evans, 976 S.W.2d at 584. The proponent of the evidence must attempt to present the excluded evidence at trial, and if an objection to the proffered evidence is sustained, the proponent must then make an offer of proof. Id. The fact that Movant’s claim of ineffectiveness of appellate counsel relates to the failure to raise an issue which is not, in itself, cognizable on appeal would require denial of the claim.

Even though Movant’s contention in his amended Rule 29.15 motion related to the failure to raise an issue on appeal about the sustaining of the State’s motion in limine, he did also refer in that motion to the fact that trial counsel preserved the issue at trial by attempting to present the evidence and raised it in the motion for new trial.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Terry T. Watson v. State of Missouri
Missouri Court of Appeals, 2016
Wainwright v. State
143 S.W.3d 681 (Missouri Court of Appeals, 2004)
Honeycutt v. State
54 S.W.3d 633 (Missouri Court of Appeals, 2001)
Galindo v. State
30 S.W.3d 900 (Missouri Court of Appeals, 2000)
Kelley v. State
24 S.W.3d 228 (Missouri Court of Appeals, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
4 S.W.3d 145, 1999 Mo. App. LEXIS 1342, 1999 WL 777759, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hatcher-v-state-moctapp-1999.