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Eye v. State

Court of Appeals of Missouri, Eastern District, Second Division

July 17, 2018

RANDALL EYE, Appellant,
v.
STATE OF MISSOURI, Respondent.

          Appeal from the Circuit Court of Washington County Honorable Wendy Wexler-Horn

          ROY L. RICHTER, JUDGE.

         Randall Eye ("Movant") appeals from the motion court's judgment denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. Movant was convicted, following a jury trial, of one count of attempt to manufacture methamphetamine ("meth"), three counts of possession with intent to create meth, and two counts of possessing a controlled substance. Movant was sentenced to 15 years on the one count of attempt to manufacture meth and seven years on each of the remaining counts, which were to run concurrent with each other, but consecutive to the attempt to manufacture count, for a total sentence of 22 years' imprisonment. This Court affirmed his convictions and sentences in State v. Eye, 492 S.W.3d 222 (Mo. App. E.D. 2016). We reverse the motion court's judgment and remand for an evidentiary hearing on Movant's claim of ineffective assistance of counsel.

         I. Background

         On November 28, 2012, narcotics officers investigating allegations of a meth production site arrived at Movant's residence. The officers observed a fire pit outside the residence with two men, including John Greer ("Greer"), and a woman standing near the fire pit. Movant was inside the residence and consented to a search when asked by the narcotics officers. During their search of the residence, the officers found aluminum foil with burn residue in the master bathroom's trashcan. One officer testified at trial that such foil was typically used to smoke meth. Also found in the trashcan were a coffee filter, two paper towels with a white substance that was later determined to be 4.43 grams of meth, and a plastic bottle with a clear liquid containing pseudoephedrine. In the master bedroom, the officers found hydrogen peroxide and prescription pill bottles containing ammonia nitrate pellets and sodium hydroxide.

         In a trashcan located near the porch, the officers found the same white substance as was located in the master bathroom, aluminum foil with burn residue, and plastic bags with cut off-corners. The officers' search of the fire pit, where they initially observed Greer and two others standing, recovered a lithium battery casing that had been opened and the lithium removed. The officers also found Sudafed packaging with the Sudafed pills removed. A searching officer testified that the items found during their search of the residence and fire pit are commonly used in the production of meth.

         At trial, one of the narcotics officers present at the search testified that Movant stated the aluminum foils were his, but that Movant claimed he was unaware of any of the other incriminating items found during the search. Movant called two witnesses to testify: Movant's mother, Verneda Eye ("Mother"), and Movant's stepdaughter, Shannon Greer ("Stepdaughter"). Both witnesses testified that Movant was not at his residence the three days preceding the officers' search.

         The jury found Movant guilty of attempt to manufacture meth, three counts of possession of chemical with the intent to create a controlled substance, and two counts of possession of a controlled substance. On June 28, 2016, this Court affirmed Movant's conviction and sentence. State v. Eye, 492 S.W.3d 222 (Mo. App. E.D. 2016). On March 20, 2017, the motion court denied Movant's motion for post-conviction relief without an evidentiary hearing. This appeal follows.

         II. Discussion

         Movant alleges two points on appeal. First, he argues the motion court erred in denying his motion for post-conviction relief because Movant alleged facts that his trial counsel ("Trial Counsel") provided ineffective assistance of counsel in that Trial Counsel failed to call Greer as a defense witness. Movant claims that Trial Counsel's failure to call Greer as a witness was prejudicial because Greer would have provided a viable defense and corroborated Movant's defense that he was not responsible for the incriminating items found by narcotics officers other than the aluminum foils with residue.

         Second, Movant alleges the motion court clearly erred in denying his motion for post-conviction relief because he alleged facts that the trial court erred in denying his motion for mistrial because the record established that Juror Number 46 failed to follow the court's instruction in that he discussed the case with others prior to deliberation.

         Movant contends that these errors denied him of his right to due process, a jury trial, effective assistance of counsel, and his right to a fair and impartial jury, in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, Section 10, 18(a), and 22(a) of the Missouri Constitution.

         A. Standard of Review

         We review a denial of post-conviction relief to determine whether the motion court's findings and conclusions are clearly erroneous. Forrest v. State, 290 S.W.3d 704, 708 (Mo. banc 2009). Findings and conclusions are clearly erroneous if, upon review of the entire record, we are left with the definite and firm ...


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