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McDaniel v. State

Court of Appeals of Missouri, Eastern District, Fourth Division

December 23, 2014

THOMAS A. MCDANIEL, Appellant,
v.
STATE OF MISSOURI, Respondent

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[Copyrighted Material Omitted]

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Appeal from the Circuit Court of Jefferson County. 10JE-CC00706. Honorable Gary P. Kramer.

FOR APPELLANT: Richard H. Sindel, Clayton, MO.

FOR RESPONDENT: Chris Koster, Attorney General, Jennifer A. Rodewald, Asst. Atty. Gen., Jefferson City, MO.

ROBERT M. CLAYTON III, JUDGE. Patricia L. Cohen, P.J., and Roy L. Richter, J., concur.

OPINION

ROBERT M. CLAYTON III, JUDGE

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Thomas A. McDaniel (" Movant" ) appeals the judgment denying his Rule 29.15[1] motion for post-conviction relief following an evidentiary hearing. We affirm.

I. BACKGROUND

On September 14, 2006, Movant was charged by information with one count of first-degree statutory sodomy. The information alleged that between December 1, 2005 and December 31, 2005, Movant had deviate sexual intercourse with the victim (" Victim" ), who was less than twelve years old, by touching Victim's penis with his hand.

A. The Evidence Adduced at Trial

The following evidence was adduced at Movant's jury trial.

Movant's family and Victim's family were neighbors. Victim was friends with Movant's son Evan,[2] and the children would spend a lot of time at each other's homes and have sleepovers.

On December 26, 2005, Victim, who was nine years old at the time, spent the night at Movant's home to celebrate Evan's birthday. Victim testified at trial that on that date, Movant lay down next to Victim with his head near Victim's ribs, and Movant then put his hand down Victim's pants and touched Victim's penis with his hand.

When Victim returned home on the morning after the incident, he appeared sad, quiet, and withdrawn, and he told his mother he did not want to go back to Movant's house. Victim's mother tried to find out what was wrong, but Victim said he did not want to talk about what had happened. Additionally, when asked at trial how he felt on the day after the incident, Victim testified, " [n]ot too good."

For the next few months after the December 26 incident, Victim would play with Evan and Evan's brother Drew at Victim's house, but Victim refused to go to Movant's house. During this time, Movant began to repeatedly call Victim's parents about Victim's unwillingness to play with Evan at Movant's house. In one of the conversations, Movant told Victim's parents that, as part of a lie detector test Movant had taken as part of an issue involving a real estate commission, Movant had the examiner ask him questions about Victim to prove to Victim's parents that Movant " wasn't messing around with [Victim]" and " wasn't touching [Victim]." At the time Movant made that statement to Victim's parents, nobody had yet accused Movant of doing anything inappropriate with Victim.

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After Movant's statement to Victim's parents about the lie detector test, Victim's parents asked Victim if everything was okay between him and Movant. Victim then told his parents that Movant had pulled Victim's shorts to the side and touched Victim's penis with his hand.

Victim's parents contacted the police about Victim's allegation, and Movant was subsequently arrested. Movant was then charged with committing one count of first-degree statutory sodomy.

At trial, Movant's counsel called Movant's son Evan and Movant's wife Joyce to testify, and both witnesses denied ever seeing Movant touch Victim's penis or put his hands in Victim's pants. Movant's counsel briefly called Evan's brother Drew as a witness, but counsel withdrew him as witness after he was non-responsive and the court had concerns with his competency.

B. Relevant Procedural Posture

After hearing the evidence at trial, the jury found Movant guilty of first-degree statutory sodomy. The jury recommended a sentence of five years of imprisonment, and the trial court sentenced Movant in accordance with the jury's recommendation. Movant filed a direct appeal, and this Court affirmed his conviction and sentence in State v. McDaniel, 307 S.W.3d 653 (Mo. App. E.D. 2010).

1. Movant's Rule 29.15 Motion and the Evidentiary Hearing

Movant subsequently filed a pro se Rule 29.15 motion for post-conviction relief. The motion court appointed post-conviction counsel for Movant, and an amended Rule 29.15 motion was filed alleging the following six claims which are relevant to this appeal. First, Movant's Rule 29.15 motion alleges a claim of prosecutorial misconduct pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), on the basis that the State failed to disclose " crucial impeachment evidence." Second, the post-conviction motion asserts counsel was ineffective for failing to adequately investigate the existence of recordings of interviews of Victim from the Children's Advocacy Center (" CAC" ). Third, Movant's Rule 29.15 motion alleges trial counsel was ineffective for failing to call an expert witness to testify regarding techniques for interviewing children. Fourth, the Rule 29.15 motion asserts trial counsel was ineffective for failing to adequately prepare Movant's son Drew to testify. Fifth, the post-conviction motion alleges trial counsel was ineffective for failing to call Movant's son Jason as a witness. And finally, Movant's Rule 29.15 motion alleges trial counsel was ineffective for failing to preserve tape-recorded evidence of a threatening message left on Movant's answering machine by Victim's parents.

On March 29, 2013, the motion court held an evidentiary hearing on Movant's Rule 29.15 motion where several individuals testified[3] including Movant, Movant's wife, and Movant's two sons, Drew and Jason. Other witnesses at the hearing included Dr. Ann Dell Duncan, a clinical psychologist, and Daris Almond, Movant's defense attorney prior to trial. Phil Eisenhauer and Melinda Gorman, Movant's defense attorneys prior to and during trial, also testified at the hearing.

In addition, Exhibit A, part of the discovery provided to Movant's trial counsel by the State prior to trial, was discussed at the evidentiary hearing. The exhibit is also part of the record on appeal and is

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relied on by both parties on appeal. Exhibit A is a thirty-four page " forensic evaluation summary/report" prepared by evaluator Michele Mechlin at the CAC. Exhibit A states Ms. Mechlin had one interview session with Victim's mother and one interview session with Victim's father. The exhibit also states that Ms. Mechlin interviewed Victim at the CAC in five separate sessions held on March 24, 2006, March 27, 2006, March 30, 2006, April 4, 2006, and April 5, 2006. Exhibit A consists of, (1) identifying information detailing the date of the report, Victim's name, date of birth, and a summary of the seven interview sessions conducted by Ms. Mechlin; (2) a " presenting problem" section indicating why Victim was being evaluated at the CAC; (3) Ms. Mechlin's summary of Victim's developmental history based upon Ms. Mechlin's sessions with Victim's parents; (4) a " disclosure summary" containing Ms. Mechlin's summary of Victim's parents' report and Victim's report of the December 2005 incident between Movant and Victim; (5) transcribed portions of Ms. Mechlin's March 30, 2006 and April 4, 2006 interview sessions with Victim[4]; (6) a " behavioral checklist" section summarizing the results of evaluation forms and reports prepared by Victim, Victim's parents, and Victim's teachers; and (7) Ms. Mechlin's summary and recommendations.

2. Events Occurring After the Evidentiary Hearing

On April 18, 2013, after the evidentiary hearing on Movant's Rule 29.15 motion took place, the State disclosed documents to Movant's post-conviction counsel which related to Ms. Mechlin's interviews at the CAC.[5] These documents consist of, (1) what appears to be complete transcripts of three interviews Ms. Mechlin had with Victim on March 30, 2006, April 4, 2006, and April 5, 2006; and (2) ninety-three pages of additional records relating to Ms. Mechlin's evaluation of Victim which include evaluation forms and reports completed by Victim's parents and teachers as well as Ms. Mechlin's progress notes from various interviews.[6] It is undisputed those documents were not disclosed to defense counsel prior to trial.

Subsequently, Movant's post-conviction counsel requested additional time to supplement the record, and the motion court granted Movant's request. On May 29, 2013, post-conviction counsel informed the motion court of the transcripts of Ms. Mechlin's interviews and ninety-three pages of additional records and submitted the documents to the court. Counsel's letter stated, " [i]t is my position . . . the[ ]

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documents can and should be made part of the record without a further hearing."

On June 10, 2013, the motion court entered a judgment denying all of Movant's post-conviction relief claims set forth in his Rule 29.15 motion, noting that the court considered the documents submitted by Movant's counsel on May 29, 2013.[7] This appeal followed.

II. DISCUSSION

Movant raises seven points on appeal, each of which contends the motion court erred in denying his Rule 29.15 motion for post-conviction relief. Movant's first point on appeal argues the motion court erred in denying his claim of prosecutorial misconduct. Movant's second, third, fourth, fifth, and sixth points on appeal assert the motion court erred in denying his various ineffective assistance of counsel claims. Finally, Movant's seventh point on appeal maintains the motion court erred in failing to find cumulative error with respect to Movant's ineffective assistance of counsel claims.

A. Standard of Review

Our Court reviews the denial of a Rule 29.15 motion for post-conviction relief only to determine if the findings of fact and conclusions of law of the motion court are clearly erroneous. Rule 29.15(k); McCoy v. State, 431 S.W.3d 517, 520 (Mo. App. E.D. 2014). Findings and conclusions are clearly erroneous if, after a review of the entire record, we are left with the definite and firm impression that a mistake has been made. McCoy, 431 S.W.3d at 520. This Court presumes that the motion court's findings are correct. Id.

B. Movant's Prosecutorial Misconduct Claim

In his first point on appeal, Movant asserts the motion court erred in denying his prosecutorial misconduct claim. Movant asserts the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to timely disclose portions of transcripts of Ms. Mechlin's interviews with Victim and portions of the additional records relating to Ms. Mechlin's evaluation of Victim. It is undisputed that these specific documents were not disclosed to defense counsel prior to trial.

Pursuant to Brady, due process is violated where the State suppresses evidence favorable to the accused that is material with respect to either guilt or punishment. Barton v. State, 432 S.W.3d 741, 761 (Mo. banc 2014). In order to make a successful Brady claim, the defendant has the burden to show, (1) the evidence at issue is favorable to the defendant, either because it is exculpatory or impeaching; (2) the evidence was suppressed by the State, either willfully or inadvertently; and (3) the defendant was prejudiced as a result of the suppression of the evidence, i.e., that the evidence is material. Id.; See State v. Reed, 334 S.W.3d 619, 626 (Mo. App. E.D. 2011) (holding that the defendant has the burden to prove elements of a Brady claim). Evidence is considered material if:

there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair

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trial, understood as a trial resulting in a verdict worthy of confidence. The materiality inquiry is not simply a matter of whether, after discounting the inculpatory evidence, there remains sufficient evidence to support the conviction. Rather, the question is whether the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.

Barton, 432 S.W.3d at 761 (quoting Strickler v. Greene, 527 U.S. 263, 280, 289-90, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)) (internal citations and quotations omitted).

In his appellant's brief, Movant cites to specific portions of the transcripts of Ms. Mechlin's interviews with Victim and specific portions of the additional records relating to Ms. Mechlin's evaluation of Victim which Movant claims give rise to a Brady violation. Because it is Movant's burden to prove a Brady violation exists, we will determine only whether those specifically-cited portions of evidence violate Brady.

1. Portions of the Transcripts

Movant cites to five different portions of the transcripts which were not disclosed to defense counsel until after trial, four portions of Ms. Mechlin's March 30, 2006 interview with Victim and one portion of Ms. Mechlin's April 4, 2006 interview with Victim:

[Ms. Mechlin]: And you told me that at that first house um, that you lived at[,] that that's where [Movant] started touching you?
[Victim]: I mean the second house.
[Ms. Mechlin]: Was it the second house? [Victim]: No the third ...

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