Rodney P. Mcintosh (hereinafter, “Mov-ant”) appeals from the motion court’s overruling of his Rule 29.15 post-conviction relief motion without an evidentiary hearing. Movant failed to demonstrate that defense counsel was ineffective for failing to call a witness, to object to the prosecutor’s voir dire questions, and to offer evidence regarding the victim’s prior sexual abuse allegation. Movant’s claim of prose-cutorial misconduct for comments made during closing argument is not cognizable pursuant to Rule 29.15, and therefore, is unreviewable. The motion court’s judgment is affirmed.
Factual and Procedural History
Movant met C.P. (hereinafter, “Mother”) and her three-year-old daughter, H.P. (hereinafter, “Victim”), in November 2004 through their mutual friend, Angelo Veal (hereinafter, “Veal”). Veal was a close friend of Mother, Victim’s godfather, and a former boyfriend of Movant’s sister. Veal and Movant lived and worked together.
Movant and Mother developed a personal familial relationship during which time Movant babysat Victim on three separate occasions. The first occasion occurred at Veal’s home on McPherson Avenue in the City of St. Louis. The second occasion occurred at Veal’s new home after they moved to Jennings in St. Louis County.
In the early morning hours of January 6, 2005, Victim woke up whimpering and indicated she had to use the bathroom. Mother accompanied her to the bathroom, and when Victim began to urinate, she started to cry. Victim told Mother her “tee-tee” hurt, which was Victim’s word for vagina. When Mother asked what happened, Victim said, “[Movant] touched my tee-tee.” Victim told Mother that Movant had been tickling her and instructed her to lay down on the couch, where he pulled off her pants, and touched her vagina. Afterward, Movant gave her candy.
Later that afternoon, Mother took Victim to Cardinal Glennon Children’s Hospital, where an examination revealed some redness in Victim’s vaginal’area. Victim spoke to a detective with the child abuse unit and a forensic interviewer at a child advocacy center and told each of them that Movant touched her vagina with his hand. Approximately two weeks later, Victim told Mother that the first time Movant touched her vagina was at Veal’s new home in Jennings, and afterward, he gave her cake and ice cream.
Movant was charged with one count of first-degree statutory sodomy, section 566.062, RSMo 2000,
Movant filed a pro se motion for post-conviction relief pursuant to Rule 29.15. Counsel was appointed, and an amended motion was filed with a request for an evidentiary hearing. Movant alleged he received ineffective assistance of counsel when defense counsel failed to: (1) call Veal as a witness; (2) object to the prosecutor’s improper voir dire questions; and (3) present evidence that Victim made a prior sexual abuse allegation against another individual. Movant also alleged the prosecutor committed misconduct in seeking to exclude the evidence of Victim’s prior allegation but then used the absence of that evidence to bolster the state’s case against him. The motion court overruled Movant’s' post-conviction relief motion without an evidentiary hearing. Movant appealed. After a per curiam opinion by the court of appeals, this Court granted transfer. Mo. Const. art. V, sec. 10; Rule 83.04.
Standard of Review
When reviewing the motion court’s denial of a post-conviction relief motion, this Court presumes the motion court’s ruling is correct. McLaughlin v. State,
To be entitled to post-conviction relief for ineffective assistance of counsel, a movant must show by a preponderance of the evidence that his or her trial counsel failed to meet the Strickland test to prove his or her claims of ineffective assistance of counsel. Strickland v. Washington,
A movant must overcome the strong presumption defense counsel’s conduct was reasonable and effective. Smith,
To establish the prejudice requirement of Strickland, a movant must prove prejudice. Johnson v. State,
Failure to Call a Witness
Movant alleges the motion court clearly erred when it denied his post-conviction relief motion without an evidentiary hearing because he alleged facts not refuted conclusively by the record, which if proven, would entitle him to relief. Movant claims defense counsel was ineffective for failing to produce Veal as a witness, and he is entitled to an evidentiary hearing on this issue.
After the trial court pronounced Mov-ant’s sentence, it questioned Movant about his satisfaction with defense counsel’s services pursuant to Rule 29.07(b)(4). Mov-ant indicated he had “reservations” about the services he received. Movant stated he wanted defense counsel to depose potential witnesses, including Veal. Defense counsel explained, “I spoke to [ ] Veal and I did not like some of the things he said, so I didn’t want to use him as a witness.” The circuit court asked, “So you did in fact receive the names and based upon your professional opinion your assessment of your defense at trial you decided that they would not best suit any defense on behalf of your client?” Defense counsel answered, “Correct.” The circuit court concluded Movant received effective assistance of counsel.
Movant raised this claim in his Rule 29.15 motion, asserting that Veal would have testified that Movant did not touch Victim in a sexual manner when the three of them were together at Veal’s home in Jennings. Movant alleges Veal’s testimony would rebut this prior uncharged conduct and would impeach Victim’s and Mother’s testimony. The motion court denied this claim, finding the claim was re
At the conclusion of final sentencing, Rule -29.07(b)(4) requires the trial court to conduct an inquiry and advise the defendant of his or her right to seek relief pursuant to Rule 29.15 if applicable. At the inquiry, the trial court must examine the defendant to determine preliminarily whether defense counsel offered effective assistance during his or her representation. “The examination shall be on the record and may be conducted outside the presence of the defendant’s counsel. At the conclusion of the examination the court shall determine whether probable cause exists to believe the defendant has received ineffective assistance of counsel.” Id. ' '
This Court has explained the scope and purpose of the Rule 29.07(b)(4) inquiry:
The Rule 29.07(b)(4) proceedings are not a critical stage of the criminal justice system. Proceedings under Rule 29.07(b)(4) are effectively a ‘preliminary hearing,’ on ineffective assistance of counsel,, for post-conviction relief. The rule restricts the trial court to a narrow determination: whether probable cause exists to believe defendant received ineffective assistance of counsel. This proceeding does not replace an evidentiary hearing under Rule 29.15(h), where a movant is typically represented by counsel under Rule 29.15(e). In a Rule 29.07(b)(4) proceeding, the court limits itself to examining the defendant as to specific complaints and determining whether such complaints demonstrate probable cause that counsel was ineffective.
State v. Debler,
This rule withstood a Sixth Amendment constitutional challenge in State v. Ervin,
“The issue of whether a defendant is entitled to an evidentiary hearing on a claim of ineffective assistance of counsel under state procedural rules is different from an evaluation of an ineffectiveness claim on the merits.” State v. Driver,
In Schmedeke, the movant alleged his defense counsel was ineffective for failing to have certain witnesses present. Prior to voir dire for the criminal trial, the mov-ant informed the trial court of his desire to have these witnesses present. Defense counsel stated she thoroughly investigated the case, and the decision not to call the witnesses was a matter of trial strategy. Defense counsel also stated that she did not “want to get into anything specifically” because she thought it would harm the movant’s case. The motion court used defense counsel’s explanation to deny the movant an evidentiary hearing when he raised this claim in his Rule 29.15 motion. The Eastern District reversed, remanding the case for an evidentiary hearing, stating:
[C]ounsel did not state the basis for her trial strategy. The mere assertion that trial counsel’s conduct was trial strategy is not sufficient to preclude a movant from obtaining relief on a claim of ineffective assistance of counsel. To be the basis for denying post-conviction relief, the trial strategy must be “reasonable.” Because an evidentiary hearing was not conducted, counsel was not given the opportunity to explain the strategy to exclude the witnesses’ testimony. In this particular case, the record does not conclusively show that counsel’s decision was reasonable trial strategy.
Schmedeke,
In Sublett, the movant alleged defense counsel was ineffective for failing to call certain alibi witnesses. Defense counsel filed a supplemental motion for a new trial on the ground of newly discovered evidence, in which he alleged that the movant learned about these witnesses after trial and that he could not have known about them beforehand. The supplemental motion was filed out of time and not considered by the trial court. The motion court later found the record conclusively demonstrated that the movant was not entitled to relief. The Western District reversed for an evidentiary hearing, stating:
An evidentiary hearing may reveal that defendant had not informed his counsel before trial of the alibi he now claims in his Rule 29.15 motion, or it may reveal that counsel had well-founded strategic reasons for not calling the alibi witnesses. Without an evidentiary hearing, however, with the court’s findings thereon, we deal in speculation and conjecture.
Sublett,
In Matthews v. State, the movant claimed defense counsel was ineffective for failing to play a surveillance tape of a drug transaction. The motion court overruled the movant’s claim without an evidentiary hearing. The trial record reflected that the movant and defense counsel had a long discussion about whether to play the tape, and despite strong encouragement from the movant and his family, defense counsel chose not to do so. Matthews,
Movant claims that unlike in Matthews, there is nothing in. the record here to support a showing that defense counsel discussed his decision not to call Veal as a witness with Movant in order to deny him an evidentiary hearing on the issue. While this may be true, Movant failed to raise defense counsel’s failure to discuss the issue with him in his Rule 29.15 motion for relief. As such, Movant’s reliance on Matthews is misplaced.
Another issue not raised in Movant’s motion, but which generated concern during oral argument, was to what extent the motion court and a reviewing court could rely upon the unsworn testimony offered by defense counsel at the Rule 29.07(b)(4) inquiry. This concern was discussed in Payne v. State,
[Movant] does not contend it was erroneous for trial counsel to respond to a question by the trial court at the time of sentencing. Nor does he contend the motion court is not entitled to consider counsel’s unsworn answer as part of the record when determining whether the record refutes any factual allegations in the Rule 29.15 motion. The issue regarding the propriety of trial counsel answering the question, while still representing defendant, is not before this court. Certainly, the attorney’s answer is not a matter of sworn testimony, but it is presumptively a truthful answer. Moreover, the answer would certainly be the same in the event of an evidentiary hearing.
Id. at 342.
An attorney is an officer of the court who is bound by the rules of professional conduct. Rule 4-3.3(a)(l) states an attorney “shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.” Hence, defense counsel had a duty to answer the circuit court truthfully when asked why he decided not to call Veal as a witness despite being unsworn at the Rule 29.07 inquiry.
Of course, the attorney’s statements in the Rule 29.07 inquiry are not made under oath or subject to cross-examination, nor would the movant have the benefit of inde
Having recognized that the issue of'whether Movant is entitled to an evidentiary hearing on a claim of ineffective assistance of counsel pursuant to Rule 29.07(b)(4) is different from an evaluation of an ineffectiveness claim on the merits, we turn to the merits of Movant’s claim. To prevail on a claim of ineffective assistance of counsel for failure to call a witness, the movant must demonstrate: “1) [t]rial counsel knew or should have known of the existence of the witness; 2) the witness could be located through reasonable investigation; 3) the witness would testify; and 4) the witness’s testimony would have produced a viable defense.” Worthington v. State,
Defense counsel’s decision to not produce Veal as a witness did not rise to the level of ineffectiveness under Strickland. Movant has not asserted any factual allegations in his post-conviction relief motion that contradict or rebut defense counsel’s stated reasons for choosing not to produce Veal as a witness that would entitle him to an evidentiary hearing. Movant has not put forth any facts demonstrating defense counsel was untruthful, mistaken, or unreasonable when stating on the record that he did not like what Veal had to say and therefore, he did not call him to testify because he would not aid Movant’s defense. Even if Veal’s testimony could offer some value to Movant, he has not presented any facts negating that defense counsel determined otherwise after investigating him. “It is not ineffective assistance of counsel for an attorney to pursue one reasonable trial strategy to the exclusion of another, even if the latter would also be a reasonable strategy.” Clayton v. State,
Moreover, Movant cannot demonstrate prejudice from any alleged error in that Veal’s testimony would not have provided a viable defense to the charge that occurred at Mother’s home in the City of St. Louis or to the uncharged conduct. Not only was Veal a close friend of Mother’s and Victim’s godfather, but Mother also testified Veal stated “he was always in his room” when Movant babysat Victim. The motion court did not clearly, err.in denying this claim without an evidentiary hearing.
Failure to Object during Voir Dire
Movant next claims the motion court clearly erred when it denied his post-conviction relief motion without an eviden-tiary hearing because defense counsel was ineffective for failing to object to the prosecutor’s questioning of the venire 'panel, which he alleges sought a commitment as to how prospective jurors would treat certain evidence. The motion court found there was nothing prejudicial or otherwise inappropriate about the prosecutor’s questions because they were intended to flesh out potential prejudice and bias.
“[Ajrgument or a presentation of the facts in explicit detail during voir dire is inappropriate.” State v. Baumruk,
Movant alleges defense counsel failed to object to a litany of questions posed by the prosecutor to the potential venire panel asking whether the potential jurors could return a verdict under certain circumstances. These questions included whether the jurors would: (1) require physical evidence to be present in order to convict; (2) need more than testimonial evidence; (3) need to hear from more than one eyewitness; (4) discount the credibility of the state’s witnesses who were police officers; (5) discount the credibility of a child victim who delayed reporting the incident; (6) require more than touching with a hand or finger only; and (7) require evidence of injury to convict.
The prosecutor’s questions elicited little to no response from the venire panel when posed. Moreover, these are common questions asked during criminal trials and have been upheld routinely as an appropriate means of rooting out bias and prejudice that would impair a potential juror’s ability to perform his or her duties. See State v. McCain,
The question that elicited the strongest reaction from the venire panel was whether it could convict Movant based upon the sole eyewitness testimony of a three-year-old child. Several jurors expressed concern about Victim’s age and whether they would believe her testimony. Eight jurors indicated they wanted to hear from more witnesses, needed more evidence, or could not believe a child so young because she was either coached, confused, or flat-out lying.
“An insufficient description of the facts jeopardizes appellant’s right to an impartial jury.” Clark,
It is evident from the diverse responses to this question that the prosecutor correctly surmised the potential jurors held strong beliefs, cutting in favor of both parties, about Victim’s credibility given her tender age. This potential bias and prejudice was critical to unearth given that the crux of the state’s case turned on the jury’s assessment of Victim’s credibility. Thus, the question was appropriate, and defense counsel cannot be deemed ineffective for failing to object to the prosecutor’s appropriate line of questioning. Any objection lodged by defense counsel would have been non-meritorious. Forest v. State,
Failure to Present Evidence of Prior Allegations
Movant claims the motion court clearly erred when it denied Movant’s postconviction relief motion without an evi-dentiary hearing because defense counsel was ineffective for failing to introduce evidence of Victim’s prior sexual abuse allegation. Movant argues the motion court failed to recognize the multiple ways this evidence could have been used or presented when it denied his claim. Specifically, Movant argues this evidence would serve to impeach Victim and Mother and to rebut the state’s closing argument regarding Victim’s veracity.
The prosecutor offered an oral pretrial motion in limine seeking to prevent defense counsel from asking any questions or making any suggestions regarding a prior sexual 'abuse allegation made by Victim. The prosecutor said the prior allegation was irrelevant “since it hasn’t been proven false.” Defense counsel agreed the prior allegation had not been proven false. Defense counsel stated, “I looked up the Western District case and the defense attorney tried to bring out ... prior accusations with someone else, and try to show that the victim knew vocabulary, and because of that ... the Western District
The trial transcript contains scant detail regarding the circumstances surrounding this prior allegation, other than the parties’ agreement that it had not been proven false. It is undisputed that Victim made some prior sexual abuse allegation, but this allegation would not be admissible at trial except under limited circumstances. Section 491.015, commonly referred to as the “rape shield” statute, creates a presumption that evidence of a victim’s prior sexual conduct is irrelevant. State v. Brown,
This evidence would have been inadmissible, and defense counsel cannot be found ineffective for failing to offer inadmissible evidence. McLaughlin,
Prosecutorial Misconduct
Finally, Movant alleges the motion court clearly erred when it denied his postconviction relief motion without an evi-dentiary hearing because the record demonstrates the prosecutor committed misconduct by arguing matters the circuit court excluded at the prosecutor’s request. Specifically, Movant alleges the prosecutor sought to exclude evidence of Victim’s pri- or sexual abuse allegation but later allegedly used the absence of that evidence during closing argument to bolster Victim’s credibility. The motion court found the prosecutor did not argue to the jury that evidence did not exist when it did or that witnesses and evidence it knew existed did not exist. Rather, the motion court stated the prosecutor made a general statement about behaviors and other characteristics of a young sexual abuse victim.
Rule 29.15 is not a substitute for direct appeal. State v. Carter,
The prosecutorial misconduct that Mov-ant complains of in his post-conviction motion was apparent at trial. The prosecutor’s comments during closing argument were recorded as part of the trial transcript provided to Movant for preparation of his direct appeal. As such, this claim is
Conclusion
Movant’s motion for post-conviction relief failed to allege facts not refuted conclusively by the record to support his claims for ineffective assistance of counsel. The motion court’s judgment overruling Movant’s claims without an evidentiary hearing is affirmed.
Notes
. All statutory references are to RSMo 2000 unless otherwise indicated.
. The opinion does not state what explanation defense counsel offered.
. One juror said she would want to hear from a child psychologist because she "wouldn't just take what [Victim] said ... I would need more.” The same juror thought Victim "may not remember detail by detail and it could be something that was made up in her head....” Another juror stated he felt "the child could have been coached to say whatever it is she had to say about it.” A third juror indicated, "there might be a problem” and "you never know what is going on with them!” A fourth juror stated she would need more evidence or another witness instead of just a three-year-old child, even though she believed "a three year old is trying to tell the truth with what they think happened ... I think they can be swayed a lot by adults on what they think could have happened.” A fifth juror stated, "a little more evidence would be nice.” A sixth juror indicated that
. One juror, who served on a previous child sex abuse case, stated, "If there is enough evidence I could believe her.” Another juror characterized himself as "very adamant about child abuse and child neglect” and "would probably tend to believe her if she was sincere in what she was saying.” A third juror said she could base her verdict on one child eyewitness. A different juror who worked at a daycare with two-, three-, four-, and five-year-olds stated, "You really have to believe them and listen to them with everything that they tell you because we have taught them everything that they do.” A final juror said she would listen to the child.