# Presley v. State

> Missouri Court of Appeals · April 15, 1988 · 750 S.W.2d 602

URL: https://www.frixlaw.com/law-library/cases/9772852

## Case

- **Full name:** Kenneth PRESLEY, Movant-Respondent, v. STATE of Missouri, Appellant; Kenneth PRESLEY, Movant-Appellant, v. STATE of Missouri, Respondent
- **Court:** Missouri Court of Appeals
- **Decided:** April 15, 1988
- **Citations:** 750 S.W.2d 602; 1988 Mo. App. LEXIS 535; 1988 WL 33317
- **Precedential status:** Published
- **Opinion:** Dissent by Prewitt
- **Judges:** Crow, Flanigan, Greene, Hogan, Holstein, Maus, Prewitt
- **Cited by:** 31 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9772852

## Opinion text

PREWITT, Judge,
dissenting.
I respectfully dissent. The majority opinion does a thorough and admirable job of analyzing the authorities and the problems in a case such as this, but I disagree with the conclusion reached.
Certainly movant’s counsel erred. If a challenge for cause had been made it would have been error not to have excused venireman Cates. However, I believe movant has failed to meet the applicable burden for relief established in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).
I agree that as indicated in Strickland, 466 U.S. at 692 , 104 S.Ct. at 2067 , there are situations where prejudice from ineffective assistance of counsel can be “presumed”. Counsel’s error resulted in a juror serving who said he was a “little partial” against movant. That should not be enough for a presumption of prejudice entitling movant to a new trial where, as here, counsel was otherwise effective and in my view movant received a fair trial although, as is always the case, not a perfect one.
I would reverse because movant failed to satisfy the standard in Strickland for him to show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694 , 104 S.Ct. at 2068 . There is no basis to believe that the presence of juror Cates probably affected the outcome. On the evidence here it is highly unlikely that counsel’s error changed the result.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9772852. Public record. Not legal advice.