State v. McCarter

883 S.W.2d 75, 1994 Mo. App. LEXIS 1313, 1994 WL 414564
CourtMissouri Court of Appeals
DecidedAugust 10, 1994
DocketNos. 18593, 19087
StatusPublished
Cited by6 cases

This text of 883 S.W.2d 75 (State v. McCarter) 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
State v. McCarter, 883 S.W.2d 75, 1994 Mo. App. LEXIS 1313, 1994 WL 414564 (Mo. Ct. App. 1994).

Opinion

PARRISH, Chief Judge.

Randel McCarter (defendant) was convicted, after a jury trial, of sexual abuse in the [76]*76first degree, a class D felony. § 566.100.1 He was sentenced to imprisonment for a term of 5 years. Following his conviction, defendant filed a motion for post-conviction relief pursuant to Rule 29.15. The motion court granted defendant’s Rule 29.15 motion and ordered a new trial.

Defendant appeals the judgment of conviction in his criminal case, No. 18593. The state appeals the order granting defendant’s Rule 29.15 motion and order for a new trial, No. 19087. The appeals were consolidated as required by Rule 29.15(l). This court dismisses No. 18593 and affirms No. 19087.

The appeal of the order granting defendant’s Rule 29.15 motion is dispositive of both appeals. Only those facts relative to the trial court’s action in No. 19087 need be recited.

The person who defendant was accused of having subjected to sexual contact was a ten-year-old boy with whom defendant babysat. One of the witnesses who testified at the criminal trial was a social worker, Deborah McCoy. Ms. McCoy was an employee of the Missouri Division of Family Services. She investigated the allegations of sexual abuse that led to the filing of criminal charges against defendant. At the conclusion of her investigation, Ms. McCoy prepared a three-page report that she sent to the prosecuting attorney. Defendant’s trial attorney2 obtained a copy of the report prior to trial.

During the state’s evidence at defendant’s criminal trial, defendant’s trial attorney cross-examined Ms. McCoy about differences in her trial testimony and her report. In response to the attorney’s questions, she acknowledged that some of the circumstances she described in her direct testimony were not included in her report. She also acknowledged that her report included the statement that a physician who examined the victim found nothing abnormal.

Defendant’s attorney called no witnesses at the criminal trial. The only evidence he offered was a copy of Ms. McCoy’s report, Defendant’s Exhibit A. In addition to the information in Defendant’s Exhibit A that was used in cross-examining Ms. McCoy, the report stated that in 1985 defendant was accused of having sexually abused three of his grandchildren. It stated:

On August 15, 1985 there was a reason to suspect report of sexual abuse made against Randel McCarter. It was found that his grandsons, Timothy Sartin, age eight, and Scottie Gribble, told of Mr. McCarter having anal intercourse with them. Their sister, Rhonda Hendrix, age six, also told of Randel fondling her. There were no criminal charges filed with these incidents.

Defendant’s Exhibit A was admitted in evidence.

In closing argument the prosecuting attorney read the above-quoted paragraph of the report to the jury. Defendant’s trial attorney objected at that time although the exhibit from which the prosecutor read was offered in evidence by the defense attorney. The trial court overruled the objection.

After the jury retired to deliberate, it requested “all exhibits of evidence except the video tape.” 3 Defendant’s trial attorney objected to Defendant’s Exhibit A being provided to the jury contending, “[I]t may be in [sic] inflammatory to the jury.” The objection was overruled.

The motion court’s findings of fact and conclusions of law include:

The Court finds that the trial attorney’s performance with respect to Defendant’s Exhibit A was deficient and outside the [77]*77range of professionally competent assistance; and that he failed to exercise the customary skill and diligence that a reasonably competent attorney would have performed under similar circumstances. The Court further finds that [defendant] was prejudiced thereby in that there is a reasonable probability that but for the aforesaid errors of his attorney he would have been acquitted on the remaining count.

The state, as appellant in No. 19087, presents one point. It contends the motion court erred in granting defendant’s Rule 29.15 motion on the basis of ineffective assistance of trial counsel “because trial counsel’s testimony at the evidentiary hearing proved that his decision [to offer Defendant’s Exhibit A in evidence] was a reasonable trial strategy.”

Appellate review of a Rule 29.15 proceeding is undertaken in accordance with Rule 29.15(j).

Review is limited to a determination of whether the findings, conclusions and judgment of the motion court are clearly erroneous. Rule 29.15(j); Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987). Findings and conclusions are deemed clearly erroneous only if a review of the entire record leaves the appellate court with the definite and firm impression that a mistake has been made. Sidebottom v. State, 781 S.W.2d 791, 795 (Mo. banc 1989).

State v. Stepter, 794 S.W.2d 649, 656 (Mo. banc 1990).

The motion court granted defendant’s Rule 29.15 motion on the basis of ineffective assistance of trial counsel. The Sixth Amendment right to counsel in a criminal case, see Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), includes the right to effective assistance of counsel. Thomas v. State, 516 S.W.2d 761, 764 (Mo.App.1974). Appellate review of claims of ineffectiveness of counsel is explained in Griffin v. State, 794 S.W.2d 659 (Mo. banc 1990):

In reviewing the determinations of the motion court with respect to movant’s claims of ineffectiveness of counsel, this Court focuses on (1) counsel’s performance, and (2) if that performance is deficient, whether prejudice resulted from the deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1983); Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987). “Counsel’s performance is assessed by determining if counsel acted ‘reasonably within prevailing professional norms under all circumstances.’ See Sanders at 858.” Driscoll v. State, 767 S.W.2d 5, 7 (Mo. banc 1989). “Reasonably effective assistance may be defined as ‘the skill and diligence that a reasonably competent attorney would exercise under similar circumstances.’ ” State v. Sanders, supra, at 858, quoting Thomas v. Lockhart, 738 F.2d 304, 307 (8th Cir.1984) (emphasis in Sanders).

Id. at 663.

In finding that the introduction into evidence of Defendant’s Exhibit A, the report prepared by social worker Deborah McCoy,4

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Cite This Page — Counsel Stack

Bluebook (online)
883 S.W.2d 75, 1994 Mo. App. LEXIS 1313, 1994 WL 414564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mccarter-moctapp-1994.