 

In the Missottri Comt ot Appeals
Eastertt District

DIVISION THREE
GEORGE D. MCLEARY, III, ) No. ED103282
)
Appellaiit, ) Appeal from the Ci1'cuit Court of
) Montgoiiiery County, Missouri
vs. ) l4AA-CC00008
)
STATE OF MISSOURI, ) Honoral)le Wesley C. Dalton
)
Responclent. ) Fifed: June 7, 2016

OPINI()N

George D. Mcl,eary, III, was convicted by ajury of one count of attempt to manufacture
a controlled substance (methainphetaniiiie) 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 pseudoepliedriiie, an ingredient used in
the manufacture of inetharriplretamiiie. McLeary’s conviction was affirmed on direct appeal.
Stcu‘e v. McLeczzy, 423 S.W.Bd 888 (Mo.App.E.D. 2014).‘

McLeary now appeals the denial without an evidentiary lieariiig of his Rule 29.152

motion for post-conviction relief. In his sole point on appeal, McLeary claims he received

1 Additional tinderlyiiig facts of this case are set out in this Court’s prior opinion.
2 All references to rules are to the Missouri Supreme Court Rules (2015) unless otherwise
indicated

ineffective assistance of counsel because his trial attorney failed to object to Melirle’s above-
described testimony. Finding no clear error, we affirm.
Standard of Revie\v

Appellate review of the denial of a Rule 29.15 motion is limited to a determination of
whether the motion court’s f`lndings, conclusions, and judgment are clearly erroneous Arrderson
v. Stafe, 196 S.W.Bd 28, 33 (Mo.banc 2006). Fiiidings 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 cou1't’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.

Duritig cross-examination, Melirle 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 Meln'le about her previous
shoplifting violation which the State asserted involved the theft of pseudoephedrine. McLeary
asserts that Melirle’s theft involved Suphedrine P.E., not pseudoephedrine, and that Suphedrine
P.E. does not contain pseudoepliedriile, nor, according to l\/lcLeary, is Suphedrine P.E. used to
make inethatnphetaiiiine.

Here, McLeary contends that trial counsel was ineffective by failing to object to the
State’s mischaracterizatioii that pseudoephedritte 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 Mehrie were involved in the manufacture of

inethani hetainine based on Mehrle’s rior ossession of seudoe hed1'ine.
P P P

On his direct appeal, this Court found that because Mcl,eary 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 rniscarriage of justice had actually occurred. Id. at 896-9'7. Specifically, we
concluded that "[b]ecatlse of the overwhelming evidence of the defendant’s guilt and the fact that
the reference to pseudoephedrine was not overeinphasized, we find the error alleged did not have
a decisive effect on the jury’s determination and no reasonable probability exist[ed] [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 rnovarit must prove the following
two-prong test from Strick!rrztd v. Washingfor:, 466 U.S. 668, 687 (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. Stafe, 278 S.W.3d 170, 175 (Mo.banc 2009). 'I`he 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. lf

either the performance o1' the prejudice prong is not met, then we need not consider the other and
the claim of ineffective assistance must fail. Sfaie v. Sr`))nnori.s', 955 S.W.Zd 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. Srafe, 68 S.W.Bd 418, 428
(Mo.banc 2002). On direct appeal, the issue is whether the trial court erred in its ruling at trial.
Ici'. 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. ld. 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
inanifest injustice or iniscarriage of justice would otherwise result. Id. at 427-28; Rule 30.20.
The standard of review in both contexts presupposes that the trial was a fair p1'oceeding. ld. 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 counsei 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 irumbel‘ of cases in which the
application of the two standards of review will produce different results. Icz'. This case is not one
of them. The application of the standard of review to McLeary’s post-conviction motion

produces the same result, and McLea1'y’s claim fails.

ln denying McLeary’s motion, the motion court found that l\/lcLeary could not prove the
prejudice prong of his ineffective assistance of counsel claim. We agree. ln order to satisfy the
prejudice prong, McLeary had to show that there was a reasonable probability that, but for
counsel’s alleged errors, i.e., failing to object to the State’s cross-examination of l\/Iehrle
regarding her previous slioplifting incident, the outcome would have been different. But as this
court found in McLeary’s direct appeal, no reasonable probability exists that the outcome would
have been different. Mcl.eary, 423 S.W.$d at 898.

The evidence against McLeary was overwhelming. McLeary and his girlfriend were seen
by the police going front store to store purchasing supplies coinmonly used in the nianufacture of
inethainplietainine, such as lighter fluid, plastic tubing, and cold packs. When the police stopped
McLeary and his girlfriend the police found a piece of paper with them containing a list of items
typically used to inake methamphetamine and McLeary was thereafter arrested. McLeary told
the police that he had just been released from prison for convictions relating to the inanufacture
of inetlianiphetainiiie and since he needed inoney he agreed to purchase the items on the list for
someone in return for payinent. However, at trial, Mehrle testified that they purchased the items
in order to barbeque, to replace a hose on an aquariuin, and to treat knee pain.

Further, as we found in our opinion from McLeary’s direct appeal, the reference to
pseudoephedrine, as one of the items Mehrle had previously shoplifted, was not overempliasized.
After the trial court ruled that Mehrle opened the door to questioning about her prior shoplifting
violation, the State asked Mehrle if she remembered being detained for stealing items, including
pseudoephedriiie. McLeary’s trial counsel did not object to this question when it was asked, but
after Mehrle finished testifying, McLeary’s counsel told the court outside the presence of the

jury that he did not hear the State’s reference to pseudoephedrine at the time and, even if he had,

he niay not have objected because he would not have wanted to call any more attention to the
reference than the jury liad already heard. The State then agreed that it would not make any
reference to pseudoepliedriiie in its closing argument Trial counsel’s failure to object to this one
question, even if error, does not create a reasonable probability that the outcome would have
been different given the overwhelming evidence against McLeary. Tlius, the motion court did
not clearly err. Point denied.
Conclusion

For the reasons stated above, we a irm.

  

Robert M. Clayton lll, P.J. and
Lawreiice E. Mooney, J., concur.

