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McKee v. State

Court of Appeals of Missouri, Western District, Third Division

February 27, 2018

FREDDIE MCKEE, Appellant,
v.
STATE OF MISSOURI, Respondent.

         APPEAL FROM THE CIRCUIT COURT OF SALINE COUNTY, MISSOURI THE HONORABLE DENNIS A. ROLF, JUDGE

          Before Gary D. Witt, Presiding Judge, Lisa White Hardwick, Judge and Edward R. Ardini, Jr., Judge

          EDWARD R. ARDINI, JR., JUDGE.

         Freddie McKee ("McKee") appeals from the judgment of the motion court denying his Rule 29.15 motion for post-conviction relief following an evidentiary hearing. Finding no error, we affirm.

         Factual and Procedural Background[1]

         On April 3, 2012, McKee and his girlfriend, Jenna Scott ("Scott"), left Columbia and traveled to Jefferson City to see a mutual friend, Alejandria Omar Smith ("Smith"). After meeting Smith, McKee demanded Scott drive the group to Kansas City, telling her that "something bad would happen" unless she did so. Scott relented and the three set out for Kansas City with McKee in the front passenger seat giving directions while Smith sat in the back seat. They arrived at their destination and parked next to another vehicle. McKee left Scott's vehicle for about five minutes before returning and the three heading back to Columbia. During the return trip, McKee told Scott to watch her speed because he had noticed a police cruiser behind them.

         Scott's car was in fact being followed by a trooper with the Missouri State Highway Patrol who had noted that Scott's license plate lamp was out. Eventually, the trooper activated her emergency equipment and initiated a traffic stop of Scott's vehicle for an equipment failure violation. Scott testified that, upon being pulled over, McKee began moving around in the front passenger seat, pulling items out of his pockets and placing them in the glove box.[2] During this time, Smith was texting in the back seat. Scott did not see Smith transfer anything to McKee.

         The trooper approached the vehicle and asked Scott for her license and registration. Scott reached for the glove box to retrieve the requested information, but McKee started yelling and told her not to open it. The trooper testified that she saw a clear plastic bag containing a green leafy substance on the floor between the base of the front passenger seat and the front passenger door and what appeared to be shake (small pieces of marijuana leaves) on McKee's lap. The trooper also noted that McKee was rocking back and forth, gritting his teeth, and staring straight ahead.

         The trooper asked who the marijuana belonged to and McKee responded, "It's mine." She then ordered McKee to get out of the car. As McKee complied, a pink and purple capsule fell from his lap. When the trooper asked if the capsule also belonged to him, McKee denied it was his.

         While the first trooper continued dealing with McKee, a second trooper arrived and began questioning Smith. Smith was patted down and two large baggies were found on his person, which he admitted contained marijuana. Meanwhile, the first trooper searched the vehicle and found two additional large baggies of marijuana in the glove box. The two baggies from the glove box were similar in appearance to the baggies found on Smith's person. McKee denied that the marijuana in the glove box or found on Smith's person was his.

         McKee, Scott, and Smith were taken into custody. After being informed of his rights, McKee agreed to provide a written statement. He indicated that he and Smith had persuaded Scott to drive them to Kansas City and that their intent was to obtain a half pound of marijuana. He stated that he picked up the marijuana from the vehicle Scott parked next to in Kansas City and, upon returning to Scott's vehicle, handed all of the marijuana over to Smith. He further told police that when the trooper pulled Scott over, Smith threw two baggies of marijuana and the pink and purple capsule onto his lap. McKee stated he placed these two baggies in the glove box. He again admitted that the small bag of marijuana found on the floor between the front passenger seat and door belonged to him.

         McKee was charged with one count of the class C felony of possession of a controlled substance related to the pink and purple capsule, which was determined through laboratory analysis to be 3, 4-methylenedioxymethcathinone or methylone, and one count of the Class C felony of possession of more than 35 grams of marijuana. The case proceeded to trial where, in addition to the evidence above, the jury heard testimony from a lab supervisor with the Missouri State Highway Patrol crime lab. The crime lab supervisor testified that the green leafy substance contained in all five baggies found in Scott's vehicle or on Smith's person was marijuana. The content of the two baggies found in the glove box weighed 54.4 and 54.46 grams, respectively. The content of the two baggies found on Smith's person weighed 54.52 and 27.45 grams, respectively. The small bag found on the floor between the front passenger seat and vehicle door weighed less than 1 gram. McKee did not testify and presented no evidence.

         The jury found McKee not guilty of possessing a controlled substance related to the pink and purple capsule but guilty of possessing more than 35 grams of marijuana. The trial court, having earlier found McKee to be a prior and persistent offender, sentenced McKee to fifteen years imprisonment. McKee's conviction was affirmed by this Court on direct appeal. State v. McKee, 415 S.W.3d 135 (Mo. App. W.D. 2013).[3]

         McKee timely filed his pro se motion for post-conviction relief pursuant to Supreme Court Rule 29.15.[4] The motion court thereafter appointed the public defender to represent McKee. The public defender did not file an amended motion and instead filed a document entitled Counsel's Statement in Lieu of an Amended Motion Under Rule 29.15, which asserted that "there are no potentially meritorious claims known to counsel." The initially assigned public defender later withdrew from the case and a new public defender was assigned to represent McKee. His new counsel filed a motion to strike the previously filed statement in lieu of an amended motion. Following a hearing on the issue of abandonment, the motion court granted McKee's motion to strike and permitted the filing of an Amended Motion to Vacate, Set Aside, or Correct Judgment and Sentence and Request for an Evidentiary Hearing. An evidentiary hearing was later held on the amended motion, after which the motion court issued findings of fact and conclusions of law denying post-conviction relief. McKee now appeals.

         Discussion

         Our review of the denial of a motion for post-conviction relief is limited to determining whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Tisius v. State, 519 S.W.3d 413, 420 (Mo. banc 2017). "A motion court's findings and conclusions are clearly erroneous 'if, after reviewing the entire record, this Court is left with the definite and firm impression that a mistake has been made.'" Tisius, 519 S.W.3d at 420 (quoting Barton v. State, 486 S.W.3d 332, 336 (Mo. banc 2016)). "The motion court's findings ...


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