Pollard v. State, 807 S.W.2d 498 (Mo. 1991). · Go Syfert
Pollard v. State, 807 S.W.2d 498 (Mo. 1991). Cases Citing This Book View Copy Cite
78 citation events (24 in the last 25 years) across 3 distinct courts.
Treatment trajectory · 1991 → 2026 · click a year to view as-of
1991 2008 2026
Cited for
At page 502 Denying claims of ineffective assistance of counsel26 citing cases“even if the amended motion had been filed on time, that would not have affected the result.”1 citing court quotes it
  • Krider v. State, 44 S.W.3d 850 (Mo. Ct. App. 2001).published
    We found that to review that point “would go far beyond the narrow compass of Sanders and Luleff , and as stated in Sanders ‘would defeat the clear provision of subsection (k).’ ” Id., quoting Pollard v. State, 807 S.W.2d 498, 502 (Mo. ban…
  • State v. Gardner, 955 S.W.2d 819 (Mo. Ct. App. 1997).published
    Pollard v. State, 807 S.W.2d 498, 502 (Mo.banc 1991).
  • Edwards v. State, 954 S.W.2d 403 (Mo. Ct. App. 1997).published 2 cites
    As instructed by Lulejf, the motion court went on to consider the merits of Mr. Edwards’ pro se motion. 807 S.W.2d at 498.
  • Hillum Safat Qital Abdullah, Also Known as Tommie Lee West v. Michael Groose, 44 F.3d 692 (8th Cir. 1995).published 2 cites
    “as a matter of grace”
  • State v. Parker, 886 S.W.2d 908 (Mo. 1994).published
    Pollard v. State, 807 S.W.2d 498, 502 (Mo. banc), cert. denied, — U.S. -, 112 S.Ct. 383 , 116 L.Ed.2d 334 (1991).
  • Reid v. State, 877 S.W.2d 253 (Mo. Ct. App. 1994).published
    State v. Ervin, 835 S.W.2d 905 (Mo. banc 1992); Pollard v. State, 807 S.W.2d 498, 502 (Mo. banc), cert. denied, — U.S. -, 112 S.Ct. 383 , 116 L.Ed.2d 334 (1991).
  • State v. Mills, 872 S.W.2d 875 (Mo. Ct. App. 1994).published 2 cites
    The lack of verification, under the circumstances here, does not require remand.” Jackson, 822 S.W.2d at 958 (citing Pollard v. State, 807 S.W.2d 498, 502 [7] (Mo. banc), cert. denied, - U.S. -, 112 S.Ct. 383 , 116 L.Ed.2d 334 (1991)).
  • Gooden v. State, 846 S.W.2d 214 (Mo. Ct. App. 1993).published
    “Allegations of ineffective assistance of post-conviction counsel are categorically unreviewable.” Id. at 928-29 , citing Pollard v. State, 807 S.W.2d 498, 502 (Mo. banc), cert. denied, — U.S. -, 112 S.Ct. 383 , 116 L.Ed.2d 334 (1991).
  • McDaris v. State, 843 S.W.2d 369 (Mo. 1992).published
    Pollard v. State, 807 S.W.2d 498, 502 (Mo. banc 1991).
  • Burgin v. State, 847 S.W.2d 836 (Mo. Ct. App. 1992).published
    Pollard v. State, 807 S.W.2d 498, 502 (Mo. banc), cert. denied, — U.S.-, 112 S.Ct. 383 , 116 L.Ed.2d 334 (1991).
Show 16 more citing cases
  • State v. Boyd, 842 S.W.2d 899 (Mo. Ct. App. 1992).published 2 cites
    Whatever the quality of postconviction counsel’s performance, the' defendant’s allegations are not cognizable under Rule 29.15, Pollard, 807 S.W.2d at 502 [6], and are “categorically unreviewable.” Ervin, 835 S.W.2d at 928-29 [48], Point I…
  • State v. Hunter, 840 S.W.2d 850 (Mo. 1992).published
    State v. Ervin, 835 S.W.2d 905 (Mo. banc 1992); Pollard v. State, 807 S.W.2d 498, 502 (Mo. banc), cert. denied, — U.S. -, 112 S.Ct. 883 , 116 L.Ed.2d 334 (1991).
  • Adams v. State, 842 S.W.2d 882 (Mo. Ct. App. 1992).published 2 cites
    The principle that a postconviction proceeding cannot be used to challenge the effectiveness of postconviction counsel has been reaffirmed by the Supreme Court of Missouri since Rules 24.035 and 29.15 replaced Rule 27.26. 3 Pollard v. Stat…
  • State v. Nolin, 833 S.W.2d 456 (Mo. Ct. App. 1992).published
    Pollard v. State, 807 S.W.2d 498, 502 (Mo. banc 1991); Sloan v. State, 779 S.W.2d 580, 583 (Mo. banc 1989), cert. denied, 494 U.S. 1060 , 110 S.Ct. 1537 , 108 L.Ed.2d 776 (1990).
  • Crawford v. State, 834 S.W.2d 749 (Mo. 1992).published 2 cites
    This Court held that there was no showing that appointed counsel had “acted to ascertain whether sufficient facts [were] asserted in the pro se motion and whether the movant included all grounds known to him.” 807 S.W.2d at 498.
  • Hoffman v. State, 816 S.W.2d 930 (Mo. Ct. App. 1991).published
    Pollard v. State, 807 S.W.2d 498, 502 (Mo. banc 1991); Sloan v. State, 779 S.W.2d 580, 583 (Mo. banc 1989), cert. denied — U.S.-, 110 S.Ct. 1537 , 108 L.Ed.2d 776 (1990).
  • Roberts v. State, 535 S.W.3d 789 (Mo. Ct. App. 2017).published 2 cites
    See Pollard v. State, 807 S.W.2d 498, 502 (Mo. banc 1991); Franklin v. State, 655 S.W.2d 561, 563 (Mo. App. E.D. 1983). ., The record on appeal does.not contain the jury’s verdicts or the trial court’s sentence and judgment but we obtained…
  • Daron J. Parker v. State of Missouri, No. ED103798 (Mo. Ct. App. Oct. 25, 2016).published
    See Pollard v. State, 807 S.W.2d 498, 502 (Mo. banc 1991).
  • State v. Chambers, 891 S.W.2d 93 (Mo. 1995).published
    See Pollard v. State, 807 S.W.2d 498, 502 (Mo. banc), cert. denied, 502 U.S. 943 , 112 S.Ct. 383 , 116 L.Ed.2d 334 (1991); Luleff v. State, 807 S.W.2d 495, 498 (Mo. banc 1991); Sanders v. State, 807 S.W.2d 493, 495 (Mo. banc 1991).
  • Gleason v. State, 877 S.W.2d 254 (Mo. Ct. App. 1994).published
    See Pollard v. State, 807 S.W.2d 498, 502 (Mo. banc 1991), cert. denied, — U.S. -, 112 S.Ct. 383 , 116 L.Ed.2d 334 (1991) (failure of motion counsel to timely file a Rule 29.15 motion resulted in no prejudice since the outcome would have b…
  • State v. Higdon, 844 S.W.2d 99 (Mo. Ct. App. 1992).published
    See Pollard v. State, 807 S.W.2d 498, 502 (Mo. banc), cert. denied, — U.S. -, 112 S.Ct. 383 , 116 L.Ed.2d 334 (1991).
  • State v. Garrett, 829 S.W.2d 622 (Mo. Ct. App. 1992).published
    See Pollard v. State, 807 S.W.2d 498, 502 [7] (Mo. banc 1991).
  • State v. Jackson, 822 S.W.2d 952 (Mo. Ct. App. 1992).published
    See Pollard v. State, 807 S.W.2d 498, 502 [7] (Mo. banc 1991).
  • State v. Owsley, 959 S.W.2d 789 (Mo. 1997).published
    His abandonment claim is nothing more than a claim of ineffective assistance of post-conviction counsel, which is “categorically unre-viewable.” State v. Hunter, 840 S.W.2d 850, 871 (Mo. banc 1992); see also Pollard v. State, 807 S.W.2d 49…
  • Tate v. State, 863 S.W.2d 1 (Mo. Ct. App. 1993).published
    Even so, the relief requested by Defendant “is warranted only if the record indicates that [he] had a justiciable claim which counsel failed to present to the motion court.” Davis v. State, 804 S.W.2d 31, 34 [5] (Mo.App.1990); See also, Po…
  • Charles K. Moore v. State of Missouri, 458 S.W.3d 822 (Mo. 2015).published
At page 498 Inquiry into counsel's abandonment of duties11 citing cases807 S.W.2d 498 (1991) Roosevelt POLLARD, Jr., Appellant, v. STATE of Missouri, Respondent. No. 72887. Supreme Court of Missouri, En Banc. April 9, 1991.…opening of page *498 (no citing court says what it cites this page for)
  • Waggoner v. State, 552 S.W.3d 601 (Mo. Ct. App. 2018).published 2 cites
    Luleff held that, where "there is no record of any activity by counsel on movant's behalf, the motion court shall make inquiry, sua sponte , regarding the performances of both movant and counsel." 807 S.W.2d at 498.
  • Ross v. State, 527 S.W.3d 116 (Mo. Ct. App. 2017).published
    In addition, we note that the “abandonment” inquiry requires the court to determine whether the failure to file a timely amended motion is “the result of movant’s action or inaction,” Luleff, 807 S.W.2d at 498, or instead whether “movant i…
  • Walter Barton v. State of Missouri, 486 S.W.3d 332 (Mo. 2016).published
    In Luleff the record reflected that mov-ant’s post-conviction appointed counsel took no action whatsoever on movant’s behalf. 807 S.W.2d at 498.
  • Carroll v. State, 131 S.W.3d 907 (Mo. Ct. App. 2004).published 2 cites
    If the motion does not assert sufficient facts or include all claims known to the movant, counsel shall file an amended motion that sufficiently alleges the additional facts and claims.” In Luleff , the Supreme Court of Missouri held that…
  • Edwards v. State, 954 S.W.2d 403 (Mo. Ct. App. 1997).published 2 cites
    As instructed by Lulejf, the motion court went on to consider the merits of Mr. Edwards’ pro se motion. 807 S.W.2d at 498.
  • Adams v. State, 842 S.W.2d 882 (Mo. Ct. App. 1992).published 2 cites
    The principle that a postconviction proceeding cannot be used to challenge the effectiveness of postconviction counsel has been reaffirmed by the Supreme Court of Missouri since Rules 24.035 and 29.15 replaced Rule 27.26. 3 Pollard v. Stat…
  • Trehan v. State, 835 S.W.2d 427 (Mo. Ct. App. 1992).published
    In Luleff , however, the supreme court held that if the record does not indicate whether appointed counsel made the determinations required by Rule 29.15(e) [and 24.035(e)], the motion court shall inquire, sua sponte, into the performances…
  • Crawford v. State, 834 S.W.2d 749 (Mo. 1992).published 2 cites
    This Court held that there was no showing that appointed counsel had “acted to ascertain whether sufficient facts [were] asserted in the pro se motion and whether the movant included all grounds known to him.” 807 S.W.2d at 498.
  • Frederick v. State, 818 S.W.2d 677 (Mo. Ct. App. 1991).published
    Luleff v. State, 807 S.W.2d at 498.
  • State v. Jimerson, 820 S.W.2d 500 (Mo. Ct. App. 1991).published
    State, 807 S.W.2d at 498.
Show 1 more citing case
  • Vincent U. Williams v. State of Missouri, 494 S.W.3d 638 (Mo. Ct. App. 2016).published
    See Luleff, 807 S.W.2d at 498; Crenshaw v. State, 266 S.W.3d 257, 259 (Mo.banc 2008) (holding that where a mov-ant has been abandoned by post-conviction counsel, “the proper remedy is to put the movant in the place where the movant would h…
At page 501 Motion must allege facts, not just conclusions6 citing cases778, 779 (Mo.App.1990) and cases there cited. The first objection to this entire point is that it was not properly initiated in the trial court. A motion under…opening of page *501 (no citing court says what it cites this page for)
  • Miller v. State, 386 S.W.3d 225 (Mo. Ct. App. 2012).published 2 cites
    Id. (“In addition to proving his substantive claims, the movant must show he filed his motion within the time limits provided in the Rules.”). ‘“A post-conviction motion is considered filed when deposited with the circuit court clerk.’” Gr…
  • Talley v. State, 399 S.W.3d 872 (Mo. Ct. App. 2013).published
    Pollard v. State, 807 S.W.2d 498, 501 (Mo. banc 1991).
  • Dorris v. State, 360 S.W.3d 260 (Mo. 2012).published
    Pollard v. State, 807 S.W.2d 498, 501 (Mo. banc 1991).
  • State v. Lumpkin, 850 S.W.2d 388 (Mo. Ct. App. 1993).published
    Pollard v. State, 807 S.W.2d 498, 501 (Mo. banc 1991), cert. denied, — U.S. -, 112 S.Ct. 383 , 116 L.Ed.2d 334 (1991).
  • State v. Meyers, 832 S.W.2d 318 (Mo. Ct. App. 1992).published
    Pollard v. State, 807 S.W.2d 498, 501 (Mo. banc 1991).
  • Roosevelt Pollard v. Paul Delo, 28 F.3d 887 (8th Cir. 1994).published
    See Pollard v. State, 807 S.W.2d 498, 501 (Mo.1991) (en banc).
Quoted next to this citation, but not language from this opinion
“If counsel’s apparent inattention results from movant’s negligence or intentional failure to act, movant is entitled to no relief other than that which may be afforded upon the pro se motion.”quoted beside the cite; not in this opinion · 5 citing cases listed
Retrieving the full opinion text from the archive…
Roosevelt POLLARD, Jr., Appellant,
v.
STATE of Missouri, Respondent
72887.
Supreme Court of Missouri.
Apr 9, 1991.
Published opinion
807 S.W.2d 498
1991 Mo. LEXIS 36
1991 WL 51113
Nancy A. McKerrow, Columbia, for appellant., William L. Webster, Atty. Gen., Robert P. Sass, Asst. Atty. Gen., Jefferson City, for respondent.
Wasserstrom, Blackmar, Robertson, Rendlen, Higgins, Covington, Holstein, Billings.
Cited by 49 opinions  |  Published
4 passages pin-cited by 6 cases
Pinpoint authority: #8,571 of 633,719
Citer courts: Missouri Court of Appeals (4) · Supreme Court of Missouri (3)

Lead Opinion

WASSERSTROM, Senior Judge.

This Court affirmed Appellant Roosevelt Pollard’s conviction of capital murder and sentence of death in State v. Pollard, 735 S.W.2d 345 (Mo. banc 1988), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 682 (1988). Pollard now appeals the lower court’s denial of his Rule 29.15 motion. Affirmed.

On January 29, 1988, Pollard properly filed a pro se motion for post-conviction relief in the Circuit Court of Cole County. Public Defender Donald L. Catlett was appointed to represent Pollard on February 2, 1988. Catlett requested, and was granted, an additional 30 days to file an amended motion. No amended motion was forthcoming, however. On March 3, 1988, the Director of the State Public Defender System assigned Pollard’s case to Cyril Hendricks and requested Hendricks to immediately enter his appearance with the circuit court. Hendricks filed an “Entry of Appearance and Motion to Appoint Counsel” on April 22, 1988; he filed an amended motion for post-conviction relief on May 11, 1988.

The amended motion was not filed within the time limit of Rule 29.15(f) and therefore was not entitled to consideration. That was of no moment, however, because the amended motion for present purposes was virtually identical to the pro se motion, which did remain for consideration. Sloan v. State, 779 S.W.2d 580, 581-82 (Mo. banc 1989).

The State’s motions to dismiss both Rule 29.15 motions for failure to state sufficient facts, rather than conclusions, were overruled. The motion court held an evidentia-ry hearing, after which it made findings of fact and conclusions of law denying relief. Pollard then appealed to the Missouri Court of Appeals, Western District, which transferred the case to this Court, pursuant to this Court’s order effective July 1, 1988.

I.

For his first point on appeal, Pollard contends that trial counsel was ineffective for failing to investigate and present mitigating evidence during the penalty phase of the trial. In support, he complains in the argument portion of his brief that the psychiatrist who testified at the trial should have been called at the penalty phase for further testimony and that additional follow-up tests should have been made; that family members or others should have been called to explain problems in Pollard’s family background; that additional details should have been put in evidence concerning the Illinois murder upon which the prosecution had relied as an aggravating circumstance; that an instruction should have been requested on Pollard’s age as a mitigating circumstance; that the jury should have been informed that Pollard had two children; and that trial counsel made a weak and inaccurate closing argument. As a matter of grace, we overlook Pollard’s failure to include these latter complaints as part of his Points Relied On. See Tyler v. State, 787 S.W.2d[*501] 778, 779 (Mo.App.1990) and cases there cited.

The first objection to this entire point is that it was not properly initiated in the trial court. A motion under Rule 29.15 must allege facts — not simply conclusions — showing a basis for relief in order to entitle the movant to any evidentiary hearing. State v. Taylor, 779 S.W.2d 636, 644 (Mo.App.1989), quoting Boggs v. State, 742 S.W.2d 591, 594 (Mo.App.1987). See also State v. Moore, 435 S.W.2d 8, 16 (Mo. banc 1968). Pollard’s motion did not allege facts. His motion, insofar as pertinent, stated only:

I received ineffective assistance of counsel, in violation of the Sixth and Fourteenth Amendments of the United States Constitution and Article I, Section 18(a) of the Missouri Constitution, in that counsel failed to adequately investigate evidence to present at the penalty stage of trial in mitigation of the death penalty and in that counsel failed to present any evidence at the penalty stage....
******
Attorneys James Elliott and Peter Sterling failed to adequately investigate possible evidence to put on at the penalty stage at my trial and did not put on any evidence. Witnesses will include myself, James Elliott, Maries County Courthouse, Vienna, Mo., and Peter Sterling, 401 N. Rolla, Suite 1, Rolla, Missouri.

As the State properly argues, those recitals wholly fail to say what mitigating facts would have been disclosed by further investigation or show in what way such facts would probably have produced a different result.

Pollard seeks to excuse the insufficiency of the motion by saying that the objection has become moot because the trial court granted a hearing. Assuming without deciding the overall validity of that excuse, it can have no possible effect except to the extent that evidence offered by Pollard at the Rule 29.15 hearing supplied the missing specificity in the motion. Of the various particular complaints argued by Pollard on this appeal, only two were even touched upon by his evidence at the hearing. The evidence which he did offer related almost entirely to other points which he has abandoned on this appeal.

One of the only two complaints here pressed which were even mentioned in the trial court related to counsel not calling members of Pollard’s family to testify. No effort was made to detail the matters to which they would have testified. Trial counsel explained that the relatives were not called because of Pollard’s instructions to the contrary. Pollard concedes in his brief and reply brief that counsel generally cannot be accused of ineffectiveness because they yield to such instructions from the client. His argument on this score narrows to the claims that counsel knew or should have known that Pollard was mentally incompetent and “doped up” at the time of trial and that “other witnesses and evidence” should have been introduced as to family background. These claims fail because no evidence or argument was offered at the motion hearing in substantiation.

The only other complaint argued on this appeal which was mentioned at the motion hearing related to the matter of Pollard’s age. His age was mentioned in passing during the questioning of Elliott who had been trial counsel. At best, the matter is of little significance. During the course of closing argument, trial counsel did tell the jury that Pollard was 20 years old at the time of the killing and that the jury was entitled to consider that relative age. There is no reasonable probability that the result would have been different if this factor had been presented to the jury by instruction rather than via argument.

Pollard argues that he cannot be faulted for failing to introduce evidence at the hearing in support of his complaints urged on this appeal, for the reason that the evidence on which he now relies (including psychological and psychiatric reports and trial testimony) was part of the trial transcript of which the hearing court took judicial notice. A similar argument was rejected in Williams v. State, 736 S.W.2d[*502] 509, 510 (Mo.App.1987), where the appellate court held that it would not create the heavy burden on the trial court of sifting through the entire record to locate the relevant evidence. That burden would be especially intolerable, and indeed unthinkable, where as here the movant did not give the trial court any notice of his particular complaints by a properly specific motion.

Notwithstanding the foregoing, as a matter of grace, we have reviewed all complaints made by Pollard under his first point and find them without merit.

Pollard has failed to demonstrate that the trial court’s findings and conclusions are clearly erroneous. His first point is therefore denied.

II.

For his second point on appeal, Pollard claims he is entitled to relief because of ineffective assistance of Rule 29.15 motion counsel. It has by now become well settled that such a claim is not cognizable under Rule 29.15. State v. Sweet, 796 S.W.2d 607 (Mo. banc 1990); Sloan v. State, 779 S.W.2d 580 (Mo. banc 1989), cert. denied, — U.S. —, 110 S.Ct. 1537, 108 L.Ed.2d 776 (1990); Lingar v. State, 766 S.W.2d 640 (Mo. banc 1989), cert. denied, — U.S. —, 110 S.Ct. 258, 107 L.Ed.2d 207 (1989). We decline Pollard’s invitation to reconsider that rule.

Pollard’s second point is denied.

The judgment is affirmed.

BLACKMAR, C.J., and ROBERTSON, RENDLEN, HIGGINS, COVINGTON and HOLSTEIN, JJ., concur. BILLINGS, J., not sitting.

Rehearing

OPINION ON MOTION FOR REHEARING

PER CURIAM.

In his motion for rehearing, Pollard calls attention to the opinions of this Court in Sanders v. State, 807 S.W.2d 493, and Luleff v. State, 807 S.W.2d 495, both handed down concurrently with the opinion herein. Neither of those opinions conflicts with opinion in this case.

In Luleff, as the opinion states: “The record reflects absence of any activity whatsoever by appointed counsel on mov-ant’s behalf at any time during the pro-ceedings_ There is no amended motion.” By the way of contrast, appointed counsel in this case did file an amended motion. Moreover, appointed counsel proceeded to a hearing at which he produced witnesses and cross-examined the State’s witness. It cannot be said that here, as was true in Luleff, appointed counsel abandoned Pollard.

In Sanders, relief was granted on the postconviction motion because appointed counsel had failed to file his amended motion within the time prescribed by Rule 29.15(f). In the present case, appointed counsel also failed to file an amended motion within the specified time limit, but that failure resulted in no prejudice. So far as concerns points argued on this appeal (by counsel different from the one who appeared before the motion court), the belated amended motion did not differ from the pro se motion. Therefore even if the amended motion had been filed on time, that would not have affected the result.

What Pollard’s new counsel on appeal really argues in Point II is that counsel before the motion court did not do everything which might have been done, and the brief on appeal asks a remand for the purpose of another and expanded hearing. To acquiesce in that request would go far beyond the narrow compass of Sanders and Luleff, and as stated in Sanders “would defeat the clear provision of subsection (k).”