Barmettler v. State
399 S.W.3d 523
Mo. Ct. App.2013Background
- Barmettler was convicted by a jury of statutory sodomy in the first degree and child molestation in the first degree; the judgment was affirmed on direct appeal in 2011.
- Barmettler filed a Rule 29.15 post-conviction relief motion alleging ineffective assistance of trial and appellate counsel, including failure to challenge verdict directors and failure to present an alibi defense.
- The verdict directors for both counts were nearly identical and did not distinguish the charged acts from uncharged acts, creating a potential risk of non-unanimous verdict.
- Celis-Garcia, a later Supreme Court decision, held that similarly drafted verdict directors could violate the right to a unanimous verdict and suggested modifying verdict directors in multi-act cases.
- The motion court denied relief without an evidentiary hearing; on appeal the court considered whether the alleged ineffectiveness and prejudice could entitle Barmettler to post-conviction relief, ultimately affirming dismissal for lack of prejudice with respect to the verdict-director claim and denying the alibi claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial/appellate counsel were ineffective over verdict directors | Barmettler argues verdict directors were too broad, risking non-unanimity | Barmettler's claim fails given trial evidence and lack of prejudice | No prejudice; no post-conviction relief on verdict-director claim |
| Whether trial counsel was ineffective for failing to call an alibi witness | Alibi evidence could have supported defense | Evidence would not establish a viable alibi; only partial timing would be covered | No viable alibi defense; no evidentiary hearing warranted |
Key Cases Cited
- Celis-Garcia, 344 S.W.3d 150 (Mo. banc 2011) (verdict directors in multi-act cases can violate unanimity; MAI Note on Use cautionary guidance)
- Deck v. State, 68 S.W.3d 418 (Mo. banc 2002) (ineffective assistance prejudice standard; reasonable probability of different outcome)
- Strickland v. Washington, 466 U.S. 668 (1984) (establishes standard for deficient performance and prejudice)
- Morrow v. State, 21 S.W.3d 819 (Mo. banc 2000) (requires showing that alleged deficiency would have produced a viable defense)
- Pope, 733 S.W.2d 811 (Mo. App. W.D. 1987) (note that verdict-director issues have long recognized risks to unanimity in multi-act cases)
- Note on Use 6 MAI-CrBd 304.02, (demonstrated within Celis-Garcia) (Mo. banc 2011) (suggests modifying verdict directors to distinguish separate acts to avoid non-unanimity)
- Day v. State, 770 S.W.2d 692 (Mo. banc 1989) (standard of review for Rule 29.15 adjudications)
- Vaca v. State, 314 S.W.3d 331 (Mo. banc 2010) (presumption of correctness of motion court findings; clear error standard)