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McCrady v. State

Court of Appeals of Missouri, Eastern District, Second Division

March 17, 2015

DEMARCO McCRADY, Movant/Appellant,
v.
STATE OF MISSOURI, Respondent

Page 444

Appeal from the City of St. Louis Circuit Court. Honorable Robin R. Vannoy.

FOR APPELLANT: Matthew W. Huckeby, Missouri Public Defender, St. Louis, Missouri.

FOR RESPONDENT: Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, Missouri.

Philip M. Hess, Judge. Sherri B. Sullivan, P.J. and Mary K. Hoff, J. concur.

OPINION

Philip M. Hess, Judge.

Page 445

Introduction

Demarco McCrady (Movant) appeals the denial of his Rule 29.15 motion for post-conviction relief following an evidentiary hearing. Movant claims the motion court clearly erred in denying his motion because his trial counsel was ineffective for (1) failing to make an objection based on an alleged violation of the Fifth Amendment privilege against self-incrimination; and (2) failing to request a lesser-included offense instruction for second-degree assault. We affirm.

Factual Background

Viewed in the light most favorable to the verdict, the evidence adduced at trial shows that on the evening of August 6, 2008, a group of teenagers (A.B., T.B., and M.W.) and a few younger children were walking along the sidewalk in their neighborhood. A friend, D.C., joined the group, riding along on a bicycle. Between 9 p.m. and 10 p.m., a car occupied by Movant and three others drove past the group. When the car was about eight yards away, Movant leaned out of the passenger side window with a gun and fired several shots towards the group. One of the bullets

Page 446

struck T.B. in her thigh. T.B.'s companions carried her to a friend's house and contacted police. Officers patrolling in the area located the suspect vehicle and attempted to stop it, but the car sped away. When the car finally came to a stop in a nearby alley, Movant exited the vehicle and began running. As Movant was fleeing the scene, one of the officers observed Movant grab a gun from underneath his shirt and throw it on the ground. Following a foot chase with police, Movant was apprehended and arrested.

The State charged Movant with unlawful use of a weapon, four counts of first-degree assault, five counts of armed criminal action, and one count of resisting arrest by fleeing. Following a jury trial, Movant was found guilty on all counts and sentenced to a total of twenty years' imprisonment, with all sentences to run concurrently. On direct appeal, this Court affirmed his convictions in State v. McCrady, 364 S.W.3d 709 (Mo. App. E.D. 2012). Movant subsequently filed a pro se Rule 29.15 motion for post-conviction relief. Appointed counsel filed an amended motion, alleging that trial counsel was ineffective for failing to object based on an alleged Fifth Amendment violation and failing to ...


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