State supreme court to decide if lower court violated man’s right to counsel in felony case

The state’s highest court heard arguments on Feb. 11 to determine whether a Franklin County court violated a man’s right to counsel in a felony assault case.  

In 2020, David Thompson was charged with third-degree domestic assault and a misdemeanor of violating a protection order.  

Thompson and his attorney argue the circuit court violated his right to counsel when it conducted a preliminary hearing while Thompson was unrepresented. The state argues that Thompson waived his right to counsel when he failed to obtain an attorney for 19 months despite repeated continuances in the case for him to do so.  

The Missouri Association of Criminal Defense Lawyers and the National Association of Criminal Defense Lawyers submitted a friend of the court brief and argued a preliminary hearing is a vital stage of the prosecution process, entitling the defendant to counsel. 

Thompson also argued the court erred in refusing his proposed “included-offense instruction” and in overruling his objection to a corrective instruction given to the jury after it returned inconsistent verdicts.  

“There is nothing in the record to suggest that Appellant waived his right to have counsel at the preliminary hearing and there is nothing in the record to suggest that the Associate Circuit Judge advised Appellant of the willingness of the court to appoint counsel to represent him if he is unable to employ counsel,” according to Thompson’s brief.  

In July of 2022, a month after the preliminary hearing was held, a public defender entered an appearance for Thompson “pursuant to Chapter 600, RSMO,” proving Thompson was considered indigent, according to his brief.  

Just over a week later, however, a privately obtained attorney entered an appearance on Thompson’s behalf. This same day the new attorney filed a motion to dismiss the action claiming the judge erred in conducting the hearing because Thompson was unrepresented at the time, violating his right to counsel.  

The court denied the motion to dismiss and the case proceeded to trial. Thompson’s attorney submitted amended jury instructions which the court ultimately rejected.  

The jury returned a verdict finding Thompson guilty of domestic assault in the fourth degree, not guilty to count I as laid out in the jury instructions and guilty of count II — violating a protection order, according to these instructions.  

Before the sentencing took place, the court acknowledged the inconsistencies with the verdict and the trial court explained it planned to read a corrective instruction to the jury, according to Thompson’s brief.  

The judge asked Thompson’s attorney if he had any objection to this, and he raised one arguing that because the jury found Thompson not guilty as to count I, the court should only proceed to sentencing with count II. The court overruled the objection and after receiving corrective instruction, the jury returned a guilty verdict for count I.  

Thompson filed a motion for a new trial and was denied. The appeal followed.  

The questions before the Missouri Supreme Court include: “is a preliminary hearing a critical stage of a criminal prosecution requiring the assistance of counsel as a protection for the rights of the defendant? If that is true, that takes us into the second question,” Matthew Mueller of MGM Law, Thompson’s attorney, argued before the court. “Was the total absence of counsel at the preliminary hearing in this case a reversable error?” 

Mueller pointed to the Coleman v. Alabama decision by the U.S. Supreme Court as well as the Missouri Supreme Court‘s opinions in State v. Terry, State v. Dailey and State v. Donnell to substantiate his argument that the preliminary hearing is a critical stage of criminal prosecution and therefore Thompson’s constitutional rights were violated by continuing the hearing without counsel.  

The state, represented in oral arguments by Kristen Johnson of the Attorney General’s Office said Thompson received five continuances over the 19 months the preliminary hearing was delayed to obtain counsel. He failed to do so and failed to appear in court four times, she said. 

“I think the only conclusion that can be drawn from that record is that this defendant was able to obtain counsel and never did so,” Johnson said. 

The case is State of Missouri v. David Thompson, Case No. SC100790.