Eye v. State, 551 S.W.3d 671

Movant Randall Eye was convicted by a jury of attempt to manufacture meth, three counts of possession with intent to create meth, and two counts of possession of a controlled substance; total sentence 22 years. The convictions and sentences were previously affirmed on direct appeal (State v. Eye).
Officers searched Movant’s residence after receiving a tip; they found meth residue on aluminum foil, 4.43 grams of meth in towels/coffee filter, pseudoephedrine liquid, lithium battery casing, Sudafed packaging, hydrogen peroxide, ammonium nitrate pellets, and sodium hydroxide. Movant admitted ownership of the foil but denied knowledge of other items.
At trial Movant presented alibi-type testimony from his mother and stepdaughter that Movant had not been at the residence for the three days before the search; stepdaughter described John Greer acting peculiarly and handling trash.
Movant later filed a Rule 29.15 post-conviction motion claiming (1) ineffective assistance of trial counsel for failing to call Greer as a defense witness, who allegedly would have admitted responsibility for the incriminating items (except the foil), and (2) juror misconduct because Juror 46 said he had made up his mind.
The motion court denied relief without an evidentiary hearing; Movant appealed. The appellate court reversed in part and remanded for an evidentiary hearing on the ineffective-assistance claim, but denied relief on the juror-misconduct claim.

Issue	Eye's Argument	State's Argument	Held
Whether trial counsel was ineffective for not calling Greer	Greer would have testified he (not Eye) was responsible for incriminating items and corroborated Eye’s absence	Failure to call Greer was sound trial strategy or would have been cumulative; no prejudice	Reversed and remanded for an evidentiary hearing on this claim (Greer’s alleged admission re: items was not refuted by record)
Whether juror misconduct (Juror 46 said he’d made up his mind) warranted relief	Trial court erred in not granting mistrial for juror bias	Issue was or should have been raised on direct appeal; not proper Rule 29.15 ground	Denied — claim could have been raised on direct appeal; no evidentiary hearing warranted

State v. Eye, 492 S.W.3d 222 (Mo. App. E.D. 2016) (prior appeal affirming convictions and sentences)
Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective assistance standard)
Coates v. State, 939 S.W.2d 912 (Mo. banc 1997) (standards for evidentiary hearing on post-conviction motion)
Forrest v. State, 290 S.W.3d 704 (Mo. banc 2009) (presumption of counsel effectiveness; appellate standard for reviewing post-conviction denials)
Rutlin v. State, 435 S.W.3d 126 (Mo. App. E.D. 2014) (requirements to allege a witness trial counsel failed to call)
Bucklew v. State, 38 S.W.3d 395 (Mo. banc 2001) (decision not to call witness presumed trial strategy)
Worthington v. State, 166 S.W.3d 566 (Mo. banc 2005) (witness whose testimony would not unqualifiedly support defendant does not establish ineffective assistance)
Johnson v. State, 406 S.W.3d 892 (Mo. banc 2013) (testimony is cumulative and may preclude ineffective-assistance relief)
Routt v. State, 493 S.W.3d 904 (Mo. App. E.D. 2016) (failure to call cumulative witness not ineffective assistance)
Barnes v. State, 334 S.W.3d 717 (Mo. App. E.D. 2011) (definition of cumulative evidence)
State v. Wilson, 812 S.W.2d 213 (Mo. App. E.D. 1991) (juror misconduct is trial error and ordinarily for direct appeal)