431 S.W.3d 517
Mo. Ct. App.2014Background
- Movant Marcus McCoy appeals the denial of his Rule 29.15 post-conviction relief motion after an evidentiary hearing.
- Movant was convicted in 2011 of two counts of first-degree assault and two counts of armed criminal action for a 2008 shooting in St. Louis.
- At the first trial, alibi witness Makeia Dillingham testified; Movant did not testify; the trial ended in a mistrial.
- At the second trial, Henderson, C.R., and Miller testified; Dillingham was unavailable, so the defense read her first-trial alibi testimony and Movant again did not testify.
- Movant was sentenced to concurrent terms of 20, 15, and 12 years on the respective counts; the convictions and sentences were affirmed on appeal in 2012.
- Movant filed a pro se Rule 29.15 motion; appointed counsel filed an amended motion alleging ineffective assistance for failing to call Movant to testify, failing to preserve a claim in a motion for new trial, and withdrawing a mistrial request; after an evidentiary hearing, the motion court denied relief, and Movant appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance for not calling Movant as a witness | McCoy argues counsel should have called him. | Counsel would have advised against testifying due to risks; Movant never clearly requested to testify. | No error; Movant failed to prove prejudice. |
| Preservation of issue for appeal in motion for new trial | Counsel failed to preserve the quash issue for appellate review. | Rule 29.15 cannot be used to obtain review of issues that should have been raised on direct appeal; claim meritless. | Not cognizable or not prejudicial; denial affirmed. |
| Withdrawal of request for mistrial | Counsel withdrew mistrial request at Movant's direction to proceed to trial. | Movant wanted continuance; counsel acted per Movant’s instructions. | Counsel not ineffective; record supports withdrawal of mistrial request. |
Key Cases Cited
- Zink v. State, 278 S.W.3d 170 (Mo. banc 2009) (standard for reviewing Rule 29.15 findings; clear error)
- Worthington v. State, 166 S.W.3d 566 (Mo. banc 2005) (clear error standard; credibility determinations favored)
- Slater v. State, 147 S.W.3d 97 (Mo.App.W.D.2004) (reasonableness of trial strategy; no ineffective assistance absent exceptional circumstances)
- State v. Silas, 885 S.W.2d 716 (Mo.App.W.D.1994) (trial strategy and testimony decisions reviewed for effectiveness)
- Rios v. State, 368 S.W.3d 301 (Mo.App.W.D.2012) (credibility of witness is for motion court; defer to credibility findings)
- Dawson v. State, 315 S.W.3d 726 (Mo.App.W.D.2010) (overwhelming evidence of guilt limits prejudice from counsel error)