McIntosh v. State
2013 Mo. LEXIS 301
Mo.2013Background
- Movant Rodney McIntosh was convicted of first-degree statutory sodomy based primarily on the testimony of a three-year-old victim and sentenced to 25 years; conviction affirmed on direct appeal.
- Movant filed a pro se Rule 29.15 post-conviction motion (with counsel later appointed) alleging ineffective assistance of trial counsel and prosecutorial misconduct; the motion court denied relief without an evidentiary hearing.
- Alleged counsel errors: (1) failing to call Angelo Veal as a witness; (2) failing to object to prosecutor voir dire questions; and (3) failing to offer evidence of the victim’s prior sexual-abuse allegation.
- Movant also claimed the prosecutor committed misconduct by seeking to exclude evidence of the prior allegation then referring to its absence in closing argument; trial transcript reflected the dispute.
- The Supreme Court reviewed whether the Rule 29.15 motion alleged facts not conclusively refuted by the record and whether counsel’s choices were objectively unreasonable and prejudicial under Strickland.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Failure to call Veal as a witness | Veal would deny sexual touching at Jennings and impeach victim/mother; counsel was ineffective for not calling him | Counsel investigated Veal, spoke with him, and decided his testimony would be unfavorable — a reasonable trial strategy | Denied: counsel’s on-the-record explanation was not rebutted; movant failed to show prejudice or that counsel’s strategy was unreasonable |
| Failure to object to prosecutor voir dire | Counsel should have objected to questions that allegedly sought juror commitments about how they would treat evidence | Questions were routine to probe bias about child testimony and admissibility; objections would be meritless | Denied: questions were appropriate to uncover bias about a three-year-old eyewitness; no deficient performance |
| Failure to present victim’s prior allegation | Evidence of prior allegation would impeach credibility and counter prosecutor’s argument | The prior-allegation evidence was presumptively inadmissible under Missouri’s rape-shield law and parties agreed it hadn’t been proven false | Denied: movant didn’t show any admissible theory or foundation; counsel cannot be ineffective for failing to offer inadmissible evidence |
| Prosecutorial misconduct (closing argument) | Prosecutor sought exclusion of prior-allegation evidence then used its absence to bolster credibility | Alleged misconduct was apparent from the trial record and properly preserved on direct appeal; Rule 29.15 is not a substitute for direct appeal | Denied as not cognizable in Rule 29.15 (and, on the merits, the comments were permissible) |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (established ineffective-assistance standard) (prejudice and deficient performance test)
- State v. Debler, 856 S.W.2d 641 (Mo. banc 1993) (scope of Rule 29.07(b)(4) sentencing inquiry)
- Baumruk v. State, 364 S.W.3d 518 (Mo. banc 2012) (standards for granting an evidentiary hearing under Rule 29.15)
- Worthington v. State, 166 S.W.3d 566 (Mo. banc 2005) (requirements to show ineffective assistance for failure to call a witness)
- State v. McCain, 845 S.W.2d 99 (Mo. App. E.D.1993) (voir dire on whether jurors can convict on testimonial evidence alone)