MARLO HODGES v. STATE OF MISSOURI (2026)

Marlo Hodges (“Movant”) appeals the denial, following an evidentiary hearing, of his Rule 29.15 motion for postconviction relief.¹ In his first two points, Movant alleges trial counsel was ineffective for failing to seek dismissal based on pre-indictment delay, and for removing the time of day from an alibi instruction. In his third point, Movant alleges the State failed to disclose impeachment evidence concerning Leonard Rogers's (“Victim”) expectation of probation in exchange for his testimony.² We affirm.

Facts and Procedural Background

On May 23, 2011, a masked man entered Victim's home, struck him repeatedly with a pistol, and took money from him. Victim, who had known Movant for approximately one year through drug transactions, identified Movant as the assailant. An eyewitness saw a man enter and leave the home and recorded the license plate of his vehicle, which was registered to Movant's mother. A ski mask recovered from the home contained a mixture of DNA from at least three individuals, and Movant could not be excluded as a contributor.

Movant's defense was that he was working at his barber shop throughout the day and into the evening when the offenses occurred. At the instruction conference, the State requested removal of the reference to 3:00 p.m. from Movant's proposed alibi instruction because the verdict directors did not specify a time of day. Trial counsel agreed, and the alibi instruction submitted to the jury identified the date without specifying a time.

Victim testified at Movant's trial, in exchange for plea agreements in his own cases.³ The jury found Movant guilty of first-degree burglary, first-degree robbery, and two counts of armed criminal action. The court imposed concurrent sentences totaling thirty years’ imprisonment, and this Court affirmed Movant's convictions on direct appeal.⁴

Movant filed a Rule 29.15 motion, which appointed counsel amended. As relevant here, Movant alleged trial counsel was ineffective for failing to seek dismissal based on pre-indictment delay and agreeing to remove the time of day from the alibi instruction. He also alleged the State withheld impeachment evidence concerning Victim's understanding that he would receive probation in exchange for testifying against Movant. Following an evidentiary hearing, the motion court denied relief.

Standard of Review

Our review of the denial of a Rule 29.15 motion is limited to determining whether the motion court's findings and conclusions are clearly erroneous. Rule 29.15(k). We presume the motion court's findings are correct. Flaherty v. State, 694 S.W.3d 413, 416 (Mo. banc 2024). A judgment is clearly erroneous when review of the entire record leaves us with a definite and firm impression that a mistake has been made. Id.

Movant bears the burden of proving his claims for relief by a preponderance of the evidence. Rule 29.15(i). To establish ineffective assistance of counsel, Movant must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel's performance is deficient if it falls below an objective standard of reasonableness, and we strongly presume counsel's conduct fell within the wide range of reasonable professional assistance. Id. at 688–89. To establish prejudice, Movant must demonstrate a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 694. A reasonable probability is one sufficient to undermine confidence in the outcome. Id. If Movant fails to establish either deficient performance or prejudice, we need not address the other prong. Id. at 697.

Discussion

In his first point, Movant alleges trial counsel was ineffective for failing to seek dismissal of the charges based on pre-indictment delay. He argues the delay prejudiced his defense because, before the State filed charges, a fire at his barber shop destroyed surveillance equipment and appointment books that could have supported his alibi before the State filed charges.

Dismissal for pre-indictment delay requires proof both that the delay prejudiced the defendant and that the prosecution intended the delay to gain a tactical advantage over him. State v. Griffin, 848 S.W.2d 464, 467 (Mo. banc 1993). Proof of prejudice alone is insufficient; the reasons for the delay must also be considered. State v. Robinson, 696 S.W.2d 826, 830 (Mo.App. 1985).

The motion court found no evidence that the State intentionally delayed filing charges to gain a tactical advantage over Movant. Movant identifies no evidence establishing such an intent. Instead, he argues in his reply brief that his claim concerns ineffective assistance of counsel rather than a due-process violation and that the substantial prejudice caused by the delay created a reasonable probability that a motion to dismiss would have been granted.

That distinction does not relieve Movant of establishing a basis for the relief counsel allegedly should have sought. To demonstrate prejudice from counsel's failure to seek dismissal, Movant must establish a reasonable probability that filing the motion would have changed the result of the proceeding. Strickland, 466 U.S. at 694. Even assuming the loss of the surveillance equipment and appointment books prejudiced his defense, Movant still was required to establish that the State intentionally delayed filing charges to gain a tactical advantage. Griffin, 848 S.W.2d at 467. Without evidence of that required element, Movant has not demonstrated a reasonable probability that a motion to dismiss would have been granted. He therefore failed to establish prejudice from counsel's failure to file the motion, and we need not address whether counsel's performance was deficient. Strickland, 466 U.S. at 697.

Point I is denied.

In his second point, Movant alleges trial counsel was ineffective for agreeing to remove the reference to 3:00 p.m. from Instruction No. 17, the alibi instruction. He argues the time was critical to his defense and that the jury's lengthy deliberations demonstrate a reasonable probability of a different outcome had the time remained in the instruction.

MAI-CR 3d 308.06 directs that the alibi instruction identify the date and time as submitted in the verdict-directing instruction. When an applicable MAI-CR instruction exists, Rule 28.02(c) requires its use. Here, the burglary and robbery verdict directors identified the date of the offenses but did not specify a time of day. At the instruction conference, the State requested removal of the reference to 3:00 p.m. from the proposed alibi instruction so it would mirror the verdict directors. Trial counsel acknowledged that MAI required the date and time to correspond to those submitted in the verdict directors and agreed to remove the time.

Counsel's agreement also was consistent with the defense presented at trial. At the evidentiary hearing, counsel testified that the defense theory placed Movant at the barber shop throughout the day and into the evening, encompassing the time of the offenses. Movant likewise testified that he arrived at the shop that morning and remained until late that evening. The motion court credited counsel's explanation and found his agreement to remove the time consistent with the conduct of a reasonably competent attorney under similar circumstances. Movant has not demonstrated that this finding was clearly erroneous.

Nor has Movant established prejudice. Instruction No. 17 expressly placed on the State the burden of proving beyond a reasonable doubt that Movant was present “at the time and place the offense is alleged to have been committed.” Removing the specific time did not prevent the jury from considering Movant's evidence that he was at the barber shop when the offenses occurred. The length of deliberations and the jury's reported difficulty reaching a verdict alone do not establish that including 3:00 p.m. would have created a reasonable probability of a different result. Movant therefore has not demonstrated prejudice under Strickland, 466 U.S. at 694.

Point II is denied.

In his third point, Movant alleges the State violated his right to due process by failing to disclose impeachment evidence concerning Victim's expectation that he would receive probation in exchange for testifying against Movant. Specifically, Movant contends undisclosed, off-the-record discussions concerning Victim's pending charges caused Victim to believe his cooperation would allow him to avoid imprisonment.

Before an alleged disclosure violation can be cognizable in a post-conviction proceeding, “it must both attain constitutional significance (i.e., meet the requirements of Brady [v. Maryland, 373 U.S. 83 (1963)]) and be of such a nature that it could not have been raised before the [post-conviction] motion.” Teter v. State, 720 S.W.3d 1, 9 (Mo.App. 2025) (italics omitted); Frazier v. State, 431 S.W.3d 486, 492-93 (Mo.App. 2014). “Under [Brady], due process is violated where the prosecutor suppresses evidence favorable to the defendant that is material to either guilt or punishment.” Barton v. State, 432 S.W.3d 741, 761 (Mo. banc 2014).

At the evidentiary hearing, Victim testified that he thought he would receive probation if he testified against Movant. He also testified, however, that no prosecutor told him he would receive probation and acknowledged that the State requested imprisonment at his sentencing. Victim's plea agreements provided for concurrent ten-year sentences, with the State opposing probation. His plea counsel testified that the written agreements embodied his negotiations with the State and that he never believed the State would deviate from its position opposing probation. The prosecutor who handled Victim's testimony at Movant's trial likewise testified that no additional agreements or alterations were made to those plea agreements.

Movant relies on references to off-the-record discussions in Victim's sentencing transcript as evidence of an undisclosed understanding concerning probation. When questioned about those discussions, Victim's plea counsel recalled informing the sentencing court that Victim was a witness, had received threats, and faced concerns for his safety. The sentencing transcript reveals the court granted probation to Victim on its own volition because of those issues, despite the State's opposition. The sentencing court ultimately granted probation despite the State's request that Victim serve the agreed ten-year sentences.

The motion court found that the evidence did not establish the alleged undisclosed understanding that Victim would receive probation for his testimony. Although Victim's testimony reflected his personal expectation of probation, it did not compel a finding that this expectation resulted from an undisclosed agreement or representation by the State. The testimony concerning the plea negotiations supported the motion court's finding that the State consistently opposed probation and made no additional agreement. Nor did the references to off-the-record discussions require a finding that such an understanding existed before Movant's trial.

Movant failed to establish that the State suppressed the alleged evidence, or that the alleged evidence existed at all. He has therefore failed to establish a Brady violation. His claim does not attain the constitutional significance necessary to raise a cognizable claim under Rule 29.15, thus, we need not decide whether the claim could have been raised earlier. Teter, 720 S.W.3d at 9. Point III is denied.

Conclusion

The motion court did not clearly err in denying relief on Movant's amended motion for postconviction relief. The judgment is affirmed.

FOOTNOTES

1.   Rule references are to Missouri Court Rules (2025).

2.   See sections 569.160, 569.020, and 571.015 RSMo (2000).

3.   Victim was awaiting sentencing on his own drug-related cases. In exchange for his testimony, Victim reached plea agreements with the prosecutor's office which provided for concurrent ten-year sentences, with the State opposing probation. Victim testified against Movant pursuant to those agreements and the sentencing court subsequently granted Victim probation despite the State's opposition.

4.   State v. Hodges, 529 S.W.3d 28 (Mo.App. 2017).

BECKY J. WEST, C.J. – OPINION AUTHOR

MATTHEW P. HAMNER, J. – CONCURS BRYAN E. NICKELL, J. – CONCURS