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McKay v. State

Court of Appeals of Missouri, Eastern District, Fourth Division

August 23, 2016

DANIEL K. MCKAY, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of St. Charles County Honorable Nancy L. Schneider.

          KURT S. ODENWALD, JUDGE.

         Introduction

         Daniel McKay ("McKay") appeals the motion court's denial of his Rule 29.15[1] 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 firearm. McKay claims that his trial counsel was ineffective for not filing a motion to suppress a statement that McKay 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 motion for post-conviction relief without an evidentiary hearing. The motion court's judgment is affirmed.

         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 firearm. 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 [McKay] was selling heroin, The CI set up a May 25, 2010, 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 of a controlled substance and unlawful possession of a firearm.
State v. McKay 411 S.W.3d 295

         McKay's current appeal focuses on the events occurring immediately after his arrest. Deputy Daniel Disterhaupt ("Deputy Disterhaupt") arrested McKay, and Lieutenant Michael Marshall ("Lt. Marshall") came upon the scene soon thereafter.

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

The suspect was already out of the car, the marked unit had stopped him, had asked the suspect to get out of the car. And I approached to talk to them, got to the officer that made the stop at that time[;] while talking with the officer, the suspect stated I am not going to find my money on him. (Emphasis added.)

         Lt. Marshall emphasized that he had not asked McKay any questions before McKay's statement. The State did not call Deputy Disterhaupt in its case-in-chief.

         After the State rested its case, McKay called Deputy Disterhaupt as a defense witness. Deputy Disterhaupt acknowledged that he was the officer who arrested McKay. Deputy Disterhaupt also testified regarding McKay's statement to police. Deputy Disterhaupt testified that ...


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