540 S.W.3d 451
Mo. Ct. App.2018Background
- McKee and two companions traveled to Kansas City to obtain about a half-pound of marijuana; during the return trip a trooper stopped the car for a license-plate light violation.
- Trooper observed marijuana in plain view and on McKee; after arrest McKee gave a written statement admitting involvement in obtaining and handling marijuana and said he hid some baggies in the glove box.
- Five baggies of marijuana were recovered (two in glove box totaling >54g each, two on Smith, one small bag on floor <1g); a capsule tested as methylone; McKee was acquitted of the methylone charge but convicted of possession of >35 grams of marijuana and sentenced as a prior and persistent offender to 15 years.
- McKee filed a Rule 29.15 post-conviction motion alleging ineffective assistance of trial and appellate counsel on multiple grounds; an evidentiary hearing was held and the motion court denied relief.
- On appeal McKee raised six points asserting trial counsel failed to object to alleged hearsay, failed to present or disclose mental-health evidence at trial/sentencing, and failed to secure a clearer response to a jury question; appellate counsel was alleged ineffective for not raising some issues on direct appeal.
- The motion court found overwhelming evidence of guilt (including McKee's admissions), that the jury-response and issues raised were non-meritorious or harmless, and denied post-conviction relief; the court of appeals affirmed.
Issues
| Issue | McKee's Argument | State's Argument | Held |
|---|---|---|---|
| Admission of trooper's reference to Smith's statement (alleged hearsay) | Trial counsel ineffective for not objecting; appellate counsel ineffective for not seeking plain-error review | Statement was cumulative (all three occupants denied ownership), trooper immediately rejected any promise, and evidence of guilt was overwhelming | No Strickland prejudice; exclusion would not have changed outcome; appellate counsel not ineffective |
| Failure to present mental-health evidence at sentencing | Trial counsel ineffective for not informing court of extensive mental-illness history which might have reduced sentence | Sentencing court was aware (included in assessment report) and sentence was based on criminal history and major role in offense | No prejudice—motion court familiar with mental-health record; claim denied |
| Failure to present mental-health evidence at trial | Trial counsel ineffective for not offering evidence that behavior could be explained by illness rather than consciousness of guilt | Defendant's own admissions and physical evidence established knowledge/possession regardless of behavior | No reasonable probability of different result; claim denied |
| Jury question response specificity | Trial counsel ineffective for not asking for a more specific answer when jury asked whether a not-guilty decision must be unanimous; appellate counsel ineffective for not raising it | Court's generic referral to Instruction No. 11 was legally correct and standard practice; more specificity unnecessary | Response was proper and neutral; counsel not ineffective for failing to object or appeal |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishing two-prong test for ineffective assistance of counsel)
- Tisius v. State, 519 S.W.3d 413 (Mo. banc 2017) (standard of review and Strickland application in post-conviction context)
- McIntosh v. State, 413 S.W.3d 320 (Mo. banc 2013) (Strickland prejudice framework)
- McNeal v. State, 500 S.W.3d 841 (Mo. banc 2016) (movant bears burden to prove both Strickland prongs)
- Taylor v. State, 382 S.W.3d 78 (Mo. banc 2012) (overwhelming evidence of guilt defeats Strickland prejudice)
- Morse v. State, 462 S.W.3d 907 (Mo. App. E.D. 2015) (appellate counsel not ineffective for failing to raise non-meritorious claims)