George D. McLeary, III v. State of Missouri

492 S.W.3d 185, 2016 Mo. App. LEXIS 582
CourtMissouri Court of Appeals
DecidedJune 7, 2016
DocketED103282
StatusPublished

This text of 492 S.W.3d 185 (George D. McLeary, III v. State of Missouri) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
George D. McLeary, III v. State of Missouri, 492 S.W.3d 185, 2016 Mo. App. LEXIS 582 (Mo. Ct. App. 2016).

Opinion

OPINION

James M. Dowd, Judge

George D. McLeary, III, was convicted by a jury of one count of attempt to manufacture a controlled substance (methamphetamine) and was sentenced to fifteen years in prison. McLeary appealed the conviction contending that the trial court erred by allowing the State to cross-examine the sole defense witness, his girlfriend Mary Mehrle, about the details of her prior shoplifting violation in which she had purportedly stolen pseudoephedrine, an ingredient used in the manufacture of methamphetamine. McLearjfs conviction was affirmed on direct appeal. State v. McCleary, 423 S.W.3d 888 (Mo.App.E.D. 2014). 1

McLeary now appeals the denial without an evidentiary hearing of his Rule 29.15 2 motion for post-conviction relief. In his sole point on appeal, McLeary claims he received ineffective assistance of counsel because his trial attorney failed to object to Mehrle’s above-described testimony. Finding no clear error, we affirm.

Standard of Review

Appellate review of the denial of a Rule 29.15 motion is limited to a determination of whether the motion court’s findings, conclusions, and-judgment are clearly erroneous. Anderson v. State, 196 S.W.3d 28, 33 (Mo.banc 2006). 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. Id. We presume that the motion court’s findings are correct. Id.

Discussion

A. The motion court did not clearly err in denying McLeary’s claim of ineffective assistance of trial counsel.

During cross-examination, Mehrle testified that prior to this case she had never been involved in a situation like this case where she was stopped and interrogated by the police. The trial court ruled that this testimony “opened the door” to questioning Mehrle about her previous shoplifting violation which the State asserted involved the theft of pseudoephed-rine. McLeary asserts that Mehrle’s theft *187 involved Suphedrine P.E., not pseu-doephedrine, and that Suphedrine P.E. does not contain pseudoephedrine, nor, according to McLeary, is Suphedrine P.E. used to make methamphetamine.

Here, McLeary contends that trial counsel was ineffective by failing' to object to the State’s mischaracterization that pseu-doephedrine was found on Mehrle during this previous shoplifting incident. McLeary contends that the incorrect reference to pseudoephedrine allowed the jury to infer that McLeary and Mehrle were involved in the manufacture of methamphetamine based on Mehrle’s prior possession of pseudoephedrine.

On his direct appeal, this Court found that because McLeary failed to object to this evidence at trial, McLeary failed to preserve the issue for review but nevertheless this Court exercised its discretion and reviewed the matter for plain error. Id. We found that while the alleged error’ facially established grounds to believe that a manifest injustice or miscarriage of justice may have occurred, the particular circumstances of the case demonstrated that no manifest justice or miscarriage of justice had actually occurred. Id. at 896-97. Specifically, we concluded that “[bjecause of the overwhelming evidence of the defendant’s guilt and the fact that the reference to pseudoephedrine was not overemphasized, .we find the error alleged did not have a decisive effect on the jury’s determination and no reasonable probability existed] [that], the verdict would have been different but for the alleged error.” Id. at 898.

Based on this ruling, the motion court found that McLeary was precluded from re-litigating this claim under the guise that it constituted the ineffective assistance of counsel and further that. McLeary could not show prejudice. Though we disagree that McLeary is precluded from raising this issue here, we find that McLeary cannot show that he was prejudiced, and therefore, we affirm. ■

To prove, ineffective ¡assistance of trial counsel, the movant must prove the. following two-prong' .test from Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), by a preponderance. of the evidence: ■ 1) that counsel’s performance did not conform to the degree of skill and diligence of a reasonably competent attorney; and 2) that as a result thereof, the movant was prejudiced. Zink v. State, 278 S.W.3d 170, 175 (Mo.banc 2009).- The movant must overcome a strong presumption .that counsel’s performance was reasonable and effective to meet the- first prong. Id. at 176. to satisfy, the second-prong, the movant must show that there was a reasonable probability that, but for counsel’s alleged errors, the outcome would have been different. Id. If either, the performance or the prejudice prong is not met, then we need not consider the, other and the claim of ineffective assistance must fail. State v. Simmons, 955 S.W.2d 729, 746 (Mo.banc 1997).

The standards of review we apply on direct appeal and on a post-conviction motion alleging ineffective assistance of counsel are different. Deck v. State, 68 S.W.3d 418,428 (Mo.banc 2002). On direct appeal, the issue is whether the trial court erred in its ruling’at trial. Id. at 427. We review preserved error for prejudice, not mere "error, and-will reverse only if the error is so prejudicial that it deprived the defendant of-a fair trial, Id. On the other hand, when a party fails to preserve an allegation of error on- direct appeal, then the trial court cannot normally be accused of error in'its rulings, much less prejudicial error. Id. But in order to serve the need for accuracy in the outcome of a trial, we have the discretion to review for plain error if a manifest injustice or miscarriage of justice would otherwise result.. Id. at 427t28; Rule 30.20. The standard of re *188 view in both contexts presupposes that the trial was a fan.- proceeding. Id. at 428.

By contrast, when a post-conviction motion alleging ineffective assistance of counsel is filed, the defendant asserts that he was deprived of his right to effective assistance of counsel and thus did not receive a fair trial. Id. Despite the difference in the two standards, a claim of error that fails plain error review on direct appeal will most likely fail in a post-conviction proceeding alleging ineffective assistance of counsel, but there are a small number of cases in which the application of the two standards of review will produce different results. Id. This case is not one of them.

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Related

Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
Zink v. State
278 S.W.3d 170 (Supreme Court of Missouri, 2009)
Anderson v. State
196 S.W.3d 28 (Supreme Court of Missouri, 2006)
Deck v. State
68 S.W.3d 418 (Supreme Court of Missouri, 2002)
State v. Simmons
955 S.W.2d 729 (Supreme Court of Missouri, 1997)
State v. McCleary
423 S.W.3d 888 (Missouri Court of Appeals, 2014)

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Bluebook (online)
492 S.W.3d 185, 2016 Mo. App. LEXIS 582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/george-d-mcleary-iii-v-state-of-missouri-moctapp-2016.