 

In the Missouri Court of Appeals
Eastern District

DIVISION FOUR
DANIEL K. MCKAY, ) No. EDl03847
)
Appellarrt, ) Appeal from the Circuit Court
) of St. Clrarles County
vs. )
) Honorable Nancy L. Schneider
STATE OF MISSOURI, )
) o
Respondent. ) FILED: Atigust 23, 2016
Ilrtroductiorr

Daniel McKay ("McKay") appeals the motion court’s denial of his Rule 29.15‘ motion
for post-conviction relief without an evidentiary hearing following his conviction on two counts
of selling a controlled substance and one count of possession of a concealed flrearm. McKay
claims that his trial counsel was ineffective for not filing a motion to suppress a stateinent that
l\/lcKay made to police officers after his arrest. Because the facts alleged in McKay’s motion--
even if true-do not demonstrate that trial counsel’s strategic decisions regarding McKay’s
statement were unreasonable, McKay has failed to allege facts warranting relief on his claim for

ineffective assistance of counsel. The motion court did not clearly err in denying McKay’s

’ All rule references are to Mo. R. Crixn. P. (2015).

motion for post-conviction relief without an evidentiary lieariiig. The motion court’s judgment is

af frrmed.

Factual and Procedural History

following a jury trial, McKay was convicted of two counts of selling a controlled
substance and one count of unlawful possession of a flrearm. On direct appeal, this Court

outlined the facts of the underlying crime:

Viewed in the light most favorable to the verdict, the following evidence was
adduced at trial. In May 2010, a confidential informant (CI) informed Detective
Eric Feagans (Det. Feagans) that [l\/IcKay] was selling heroin. The CI set up a
May 25, 201 0, heroin buy between [McKay] and Det. Feagans in the parking lot
of Gingham’s Restaurant. The buy went as planned and Det. Feagans purchased
a gram and a half of heroin from [McKay] for $300.00. The CI set up another
buy for May 26, 2010, on which Det. Feagans met [McKay] in a Taco Bell
parking lot and purchased two grams of heroin from him for $400.00. [McKay]
was then stopped after leaving the scene of this transaction, arrested, and on May
27, 2010, charged by complaint filed by the St. Charles prosecuting attorney with
two counts of sale cfa controlled substance and unlawful possession of a tirearm.

State v. McKay, 41 l S.W.3d 295, 297 (Mo. App. E.D. 2013).

McKay’s current appeal focuses on the events occurring immediately after his arrest.
Deputy Daniel Disterlialtpt (“Deptlty Disterhatlpt") arrested McKay, and Lieuteiiarit Michael
Marshall ("Lt. Marsliall") came upon the scene soon thereafter.

At trial, the State called Lt. Marshall as a witness. Wlieii asked what happened as he
arrived on the scene, Lt. Marsliall testified:

The suspect was already out of the car, the rnarked unit had stopped him, had
asked the suspect to get out of the car. And l approached to talk to them, got to
the officer that made the stop at that tinie[;] while taiking with the oft`tcer, the
suspect stated I am not going to find my malley on hiln. (Eiiipliasis added.)

Lt. l\/Iarsliall eniphasized that he had not asked McKay any questions before McKay’s

statenieitt. 'l`he State did not call Deputy Disterhatlpt in its case~in-cliief.

After the State rested its case, McKay called Deputy Disterhatlpt as a defense witness.

Deputy Disterhaupt acknowledged that he was the officer who arrested McKay. Deputy

Disterliailpt also testified regarding McKay’s statement to police. Deputy Disterhaupt testified

that three or four detectives approached McKay after the arrest. This exchange followed:

F>©P>@?>f.@?>@.>@

Did you observe [officers] asking any questions of my client?

I did. it was just briefly. I didn’t hear everything that was said because l
was just within earshot. l wasn’t lianging onto the whole incident.

Okay. What were they asking my client‘?

They talked about where the rest of the drugs \vere. Where their money
was, stuff like that.

The buy money, is that what they are talking about?

Yes, he actually had some money on liiin at the tinie. I told Lieutenant
l\/larshall about it.

Now, in response to those questions, did you hear my client say anyfthing?
Yes. He said he didn’t have their money. He said he didn’t have any
drugs.

Okay. And just to clarify, he said that after he was asked where these
items were?

Correct.

After the arrest, police did not find the “buy rnoney" that Det. Feagans had used to

purchase the drugs. During closing argument, the prosecutor used Lt. Marsliall’s version of

McKay’s staterneiit to suggest to the jury that McKay had disposed of the money before his

arrest:

And the money certainly may have been dumped in the parking lot too. What
does he say when Lieutenant Mike Marshall tvalks up? You ain’t going to find
your money. He knows that money is not going to be found. Wliy did he make
that stateinent unless he’s hid it or dumped this inoney, that money. (Einphasis

added.)

McKay’s trial counsel rebutted the State’s argument by emphasizing Deputy

Disterhatipt’s account of McKay’s stateinerit:

Tliere is a lot of talk about my client making this, you know, supposedly
spontaneous statenieiit, you are not going to find your money on me. Well, that’s
what Lieutenant Marshall says, my client just blurted that out when he walked up
to him. But you heard from Deputy Disterhaupt, the first deputy there to deal
with my client, the first law enforcement who dealt with him, and he says,

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detectives were asking 1ny client questions, hey, where is the rnoney? Wliere are
the drugs? They wanted to know where in the hell it was. My client simply says,
you are not going to find your money on me. He doesn’t have it. He never had it.

The jury convicted McKay on each count, and the trial court sentenced him to a total of
t\vetity years in prison.z McKay’s appointed counsel filed an amended motion for post~
conviction reiief, alleging McKay was denied effective assistance of counsel because trial
counsel did not seek to suppress McKay’s staternent to police. The amended motion alleged that
McKay would have prevailed on a motion to suppress because McKay was not Mirandized3
before making any statement to police while in custody, and that there was a reasonable
probability the trial court would have excluded the statement. McKay alleged that the jury
treated his statement as evidence that he had in fact received the money front law enforcement in
exchange for lteroin.

The motion court denied McKay’s amended motion without an evidentiary hearing. The
motion court denied the motion for three reasons: (l) a motion to suppress would have been
denied because McKay’s statement was spontaneous and not in response to questioning bylaw
enforcement; (2) trial counsel made the strategic decision not to seek suppression of the
statenieiit and instead to call Deputy Disterliaupt to testify that he heard law enforcement officers
questioning McKay before he made the incriminating statement; and (3) even if a motion to
suppress had been granted, the ruling would have been overturned at trial after the court heard

testiinony. This appeal foilows.

2 On direct appeal, we reversed in part and reinanded for the limited purpose of conducting an evidentiary hearing
on whether McKay’s constitutional speedy-trial right was violated State v. McKay, 411 S.\V.?»d 295, 306 (Mo_
App. E.D. 2013). The trial court held an evidentiary liearing on reinand, finding that McKay’s right to a speedy trial
was not violated, and we affirmed on a second direct appeal in an itnpublislied inemorandurii opinion. State v.
McKay, 460 S.W.$d 480 (Mo. App. E.D. 2015).

3 Miraiida v. Arizona, 384 U.S. 436 (1966).

Point on Appeal

McKay’s sole point on appeal alleges that his trial counsel was ineffective for failing to
file a motion to suppress McKay’s statement to police denying having money on his person after
his arrest.

Standard of Review

In reviewing the denial of a Rule 29. 15 motion, we presume that the motion court’s
findings were correct. Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009). Given this
deference, a "motion court’s judgment \vill be overturned only when either its findings of facts or
its conclusions of law are clearly erroneous." lmd:; Rule 29.15(1<). We will only find clear error
when we are left with a "defiliite and firm impression" that the motion court made a mistake
L, 278 S.W.Bd at 175.

Here, the motion court not only denied McKay’s motion, but also denied l\/IcKay an
evidentiary hearing on the claims raised in the motion. To clemonstrate clear error in the denial
ofan evidentiary liearing, a movant must shows (1) that his motion alleged facts, not conclusions,
warranting relief; (2) that the facts alleged were not conclusively refuted by the files and records
in the case; and (3) that the movant suffered prejudice Bauniruk v. State, 364 S.W.3d 518, 525
(l\/lo. banc 2012) (citing State v. Driver, 912 S.W.Zd 52, 55 (Mo. banc 1995)).

Discussion

To prevail on a claim of ineffective assistance of counsel, the movant must show by a
preponderance of the evidence that (l) his attorney failed to exercise the customary skill and
diligence that a reasonably competent attorney would perform tinder similar circumstances and
(2) he was prejudiced thereby. Sanders v. State, 738 S.W.Zd 856, 857 (Mo. banc 1987) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). To satisfy the performance prong of the

Strickland test, the movant must overcome the strong presumption that any challenged action

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was sound trial strategy. L, 278 S.W.3d at 176 (ernphasis added). To overcome this
presumption, the movant must show "specific acts or omissions of counsel that, in light of all the
circumstances, fell outside the wide range of professional competent assistance." lpd”. The
prejudice prong is satisfied only if the movant demonstrates that, "absent the claimed errors,
there is a reasonable probability that the outcome would have been different." §

"A decision made by counsel based on reasonable triat strategy is virtually
tlnchalleiigeable; rarely will a strategic decision of counsel be declared so unsound as to
constitute ineffective assistance of counsel." Tuckei' v. State, 468 S.W.3d 468, 473 (Mo. App.
E.D. 2015). We determine the reasonableness of a particular decision at the time trial counsel
made the decision, taking into account the circumstances of the case. I;l.

The record shows that trial counsel sought to use McKay’s statement affirmatively as
exculpatory evidence, i.e., as evidence that McKay did not have the officers’ buy money and that
McKay did not have any drugs. Trial counsel called Deputy Disterliaupt as a defense witness to
testify about the statement made by McKay to Lt. Marsiiall. At closing argument, trial counsel
pursued his contention that McKay’s stateinent was evidence of his innocence supporting
McKay’s claim that he never possessed either the purported drugs or buy money. The trial court
found trial counsel’s decision to call Deputy Disterliailpt as a witness and use McKay’s statement
as exculpatory evidence to be "ciearly trial strategy."

McKay avers in his amended motion that because he made the statement at issue during a
custodial interrogation, trial counsel should have filed a rnotion to suppress that statement as a
violation of his Miralida rights. McKay posits that because his counsel might have prevailed on
the motion to suppress, defense counsel was required to file that inotion. While it is possible that

the trial court may have ruled favorably for McKay on a motion to suppress, McKay does not

assert in his amended motion why trial counsel’s strategy to use McKay’s statement as evidence

of McKay’s innocence was an unreasonable strategy to assert McKay’s innocence of the charges.

Trial counsel argued to the jury that l\/IcKay was truthful about telling the officers he did not
have any drugs or 1noney. Tliejury verdict confirms that trial counsel’s strategy was not
successful. But, whether this strategy was the best course of defense to have used is not the -
question for our review. We are limited to reviewing the facts and determining if the strategy
employed by counsel was so unreasonable as to support a claim for ineffective assistance of
counsel. By not seeking to suppress McKay’s statenielit, trial counsel created an opportunity to
use the statement as potential exculpatory evidence. McKay’s motion does not suggest why
counsel’s strategic decision was “so unsound as to constitute ineffective assistance of counsel."
TLker, 468 S.W.3d at 473.

Even accepting the facts alleged in McKay’s amended motion as true, we reject McKay’s
argument that such facts warrant relief because the facts do not rebut the strong presumption that
trial counsel exercised reasonable trial strategy with regard to using McKay’s statenieiit.
Because the facts alleged in McKay’s aniended motion do not warrant relief, the trial court did
not clearly err in denying the motion without an evidentiary hearing. Point denied.

Conclusion

The judgment of the motion court is affn'med.

KdiRT S. ODENWALD, judge

J ames M. Dowd, P.J., concurs.
Gary M. Gaertrier, Jr., J., concurs.

