State v. Thompson: Dilatory Failure to Obtain Counsel Forfeits Right-to-Counsel Claim at Preliminary Hearing; Trial Courts May Cure Inconsistent Verdicts Before Jury Discharge

Introduction

In State v. Thompson (Supreme Court of Missouri, April 15, 2025), the Court affirmed convictions arising from an incident in which David M. Thompson struck his ex-boyfriend (the “Victim”) with a vehicle in Washington, Missouri, while the Victim had a protective order against Thompson. The state charged Thompson with (1) felony third-degree domestic assault and (2) misdemeanor violating an order of protection.

Three issues drove the appeal:

1. Whether Thompson’s lack of counsel at a preliminary hearing violated the Sixth Amendment and the Missouri Constitution—particularly on the theory that a Missouri preliminary hearing is a “critical stage.”
2. Whether the circuit court erred by submitting a particular lesser-included offense instruction (fourth-degree domestic assault), rather than the defense’s proposed version.
3. Whether the circuit court erred by sending the jury back to deliberate with a corrective instruction after the jury returned inconsistent verdict forms on Count I.

Summary of the Opinion

The Court affirmed the judgment. It held:

• Thompson’s right-to-counsel claim failed because he repeatedly sought counsel but then delayed for approximately 18 months, failing to diligently retain counsel or to assert indigency and invoke the public defender process. The Court therefore declined to reach whether the preliminary hearing is a “critical stage,” holding instead that Thompson “gave up whatever right to counsel he had” by failing to exercise it.
• Thompson waived appellate review of the lesser-included offense instruction issue because counsel affirmatively agreed to Instruction No. 7 and stated he had “no objection.” In any event, the Court explained the circuit court correctly rejected Thompson’s proposed lesser-included instruction that merely duplicated the third-degree domestic assault elements; an “included offense” instruction must have a rational basis for acquittal on the greater and conviction on the lesser.
• The circuit court acted within its authority in addressing inconsistent verdicts before the jury was discharged, using a corrective instruction to clarify the jury’s intent.

Analysis

1) Right to Counsel at the Preliminary Hearing

Precedents Cited

• State v. Sisco: Cited for the standard of review—constitutional questions are reviewed de novo. This framed the Court’s posture: it was not deferring to the circuit court on the constitutional issue.
• State v. Cooper: Used to supply a presumption of regularity “absent a record to the contrary.” Because the record was “sparse,” the Court relied on Cooper to presume the associate circuit division properly advised Thompson of his right to counsel—especially where the docket indicated he was informed of “legal rights” and continuances were entered “for counsel.”
• State v. Woolery: Provided the governing framework for appointment of counsel in Missouri under Rule 31.02(a) and the “well-settled process” for indigency determinations. Woolery supplied the key doctrinal step: courts appoint counsel only after indigency is determined through the public defender process (including an affidavit and application).
• State v. Ehnes: The Court invoked Ehnes for the principle that a defendant cannot “purposefully refuse to hire an attorney and then cry foul when his trial commences without one.” Although Thompson’s complaint concerned a preliminary hearing, Ehnes supported the broader idea that the right to counsel cannot be weaponized for delay.
• United States v. McMann: Quoted for the “cat and mouse” warning—courts should not allow an accused to manipulate the process so the judge appears to arbitrarily deprive counsel while the defendant is actually engaging in “ruse or stratagem.”
• Fitzpatrick v. Wainwright: Cited to support the proposition that intentional delay and manipulation implies a greater understanding of the proceedings and thus undermines claims premised on lack of awareness.
• State v. Wilson: Cited as the Missouri case incorporating the McMann/Fitzpatrick anti-manipulation rationale, reinforcing that conscious attempts to delay by refusing to obtain counsel should not be tolerated.

Legal Reasoning

The Court’s central move was to avoid deciding whether a preliminary hearing is a “critical stage” in Missouri. Instead, it treated the case as one about non-exercise (and resulting loss) of the right, not the scope of the right at a preliminary hearing.

The Court emphasized multiple facts:

• Thompson had approximately 18 months between complaint and preliminary hearing and appeared in court multiple times.
• The associate circuit division repeatedly continued proceedings explicitly “for counsel.”
• Thompson missed hearings repeatedly, had warrants issued (and one served), yet still did not retain counsel.
• Thompson never informed the court he could not afford counsel and never pursued the public defender process before the preliminary hearing—undercutting his appellate claim of indigency.
• Shortly after bind-over, both a public defender and private counsel entered appearances, reinforcing the inference that Thompson knew how to secure counsel and could have done so earlier.

This culminated in a practical rule: unless a defendant asserts indigency and triggers the public-defender/indigency determination process, the right to counsel operates as a right to a reasonable opportunity to obtain counsel; when a defendant fails to make diligent use of repeated opportunities, he cannot later claim a constitutional violation based on proceeding without counsel.

Procedurally, the opinion also uses Rule 22.09(a) (“within a reasonable time”) as a backdrop: the Court acknowledged the delay exceeded any “reasonable time” but attributed the delay to Thompson’s own failures. That attribution mattered because it reframed the case from “state-held hearing without counsel” to “defendant-caused delay culminating in a hearing the court was obliged to hold.”

Impact

The decision strengthens trial-court discretion to proceed with preliminary hearings when defendants repeatedly delay obtaining counsel and do not claim indigency. It also signals that the Supreme Court of Missouri may continue to avoid (or narrow) broad “critical stage” litigation when the record supports a finding of knowing, voluntary, and deliberate non-exercise of the right.

Practically, defendants and counsel should treat the opinion as a warning: repeated continuances “for counsel,” coupled with no indigency filing and no diligence, can defeat later right-to-counsel claims—even where the defendant verbally requests counsel.

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2) Lesser-Included Offense Instruction (Fourth-Degree Domestic Assault)

Precedents Cited

• State v. Clay: Used for the “invited error” doctrine—jointly proffering or agreeing to an erroneous instruction waives appellate review of that instructional claim.
• State v. Mayes: Reinforced the maxim that a defendant cannot take advantage of “self-invited error.”
• State v. Bolden: Provided the key waiver statement: when a defendant requests submission of the instruction, appellate review is waived; and plain error review will not be used to impose a sua sponte duty on the trial court to correct invited error.
• State v. Moseley: Supported the statutory “rational basis” constraint: if the “lesser” instruction duplicates the greater offense’s elements such that the same facts establish both, there is no rational basis to acquit on the greater and convict on the lesser.
• State v. Burkhalter: Used to explain allocation of authority: where the same facts could establish two offenses, charging choice belongs to the prosecutor, not the fact-finder via an “included offense” that is not meaningfully lesser in its submitted elements.

Legal Reasoning

The Court gave two independent reasons to deny relief.

1. Waiver/Invited error under Rule 28.03 and case law. During the instruction conference, defense counsel twice said he had “no objection” and that the defense agreed with the submitted “lesser.” Under State v. Clay and State v. Bolden, that affirmative agreement foreclosed appellate review.
2. No entitlement to a duplicative lesser-included instruction under § 556.046. Thompson argued that because § 556.046 defines an included offense as established by proof of “the same or less than all the facts” required for the charged offense, he could submit a fourth-degree instruction tracking the third-degree instruction word-for-word. The Court rejected that by invoking § 556.046.2’s separate requirement: the court need not instruct on an included offense unless there is a “rational basis” to acquit of the charged offense and convict of the included offense. A duplicative-elements “lesser” cannot satisfy that rational-basis requirement.

Importantly, the Court explained why Instruction No. 7 (recklessly caused physical injury) created a genuine lesser pathway supported by evidence: third-degree domestic assault (as submitted) required an attempt to cause physical injury, whereas fourth-degree domestic assault can be committed by recklessly causing harm—allowing a rational juror to reject attempt yet find recklessness.

Impact

The opinion tightens practice around “lesser-included” submissions:

• Defendants cannot use § 556.046.1’s “same or less facts” language to force submission of a “lesser” that is, as instructed, element-for-element identical to the greater; § 556.046.2’s rational-basis requirement is a real constraint.
• Instruction conferences must be made record-clear: when a court gives a different instruction than the one tendered, preserving error requires a distinct objection to the instruction given and a distinct objection (with grounds) to the failure to give the tendered version, consistent with Rule 28.03.
• The waiver holdings encourage disciplined trial advocacy: saying “no objection” can be dispositive on appeal, even where counsel attempts to “note for the record” that an alternative was previously filed.

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3) Corrective Instruction After Inconsistent Verdicts

Precedents Cited

• State v. Hamby: Cited for the standard of review—whether a jury was instructed properly is reviewed de novo, and reversal requires that the error misled the jury and prejudiced the defendant.
• State v. Zetina-Torres: Reinforced that the error must be so prejudicial it deprives the defendant of a fair trial.
• State v. Peters: The controlling authority. Peters states that a verdict is not binding until accepted by the court and the jury is discharged, and it encourages trial judges to salvage improper verdicts by calling mistakes to the jury’s attention and allowing correction, so long as this occurs before discharge.

Legal Reasoning

After the jury initially returned both a not-guilty verdict form and a guilty (lesser-included) verdict form for Count I, the circuit court initially “accepted” the verdicts in open court but then discovered the inconsistency during a recess—before the jury was discharged. The court then gave a corrective instruction (Instruction No. 16) directing the jury to deliberate and specify which verdict reflected its true intent.

Thompson argued the not-guilty form should have ended the matter. The Supreme Court rejected this, reasoning that the trial court had authority—indeed, was encouraged—to clarify and cure the defect before discharge. Under State v. Peters, Thompson was not entitled to “the top of the pile” merely because the jury also signed a not-guilty form; the dispositive question was the jury’s actual intent, which the court could seek to clarify while the jury remained empaneled.

Impact

The opinion reaffirms Missouri trial courts’ practical toolkit for dealing with inconsistent verdict forms: if the jury has not been discharged, the court can withdraw acceptance, provide a clarifying instruction, and require further deliberation to produce a single, unambiguous verdict. This reduces the incentive for litigants to “bank” on clerical or form confusion where juror intent can still be reliably ascertained.

Complex Concepts Simplified

• “Critical stage”: A point in a criminal case where the Constitution requires counsel because the defendant’s rights may be substantially affected. The Court did not decide whether a Missouri preliminary hearing is such a stage; it decided Thompson lost any claim by failing to act diligently.
• Preliminary hearing: A proceeding (often in associate circuit court) to determine probable cause to “bind over” a felony complaint to circuit court. It is not the trial; it is a screening step.
• Indigency and appointed counsel (Rule 31.02(a)): Missouri courts appoint counsel only after an indigency determination—typically initiated by a defendant’s application and affidavit and the public defender’s review (as discussed in State v. Woolery).
• Invited error / waiver (Rule 28.03): If a party agrees to an instruction or says “no objection,” the party generally cannot complain about that instruction on appeal. Missouri treats this as a waiver of appellate review (illustrated by State v. Bolden and State v. Clay).
• Lesser-included offense & “rational basis” (§ 556.046.2): A jury may consider a lesser offense only when it makes sense (based on evidence and elements) that the jury could acquit on the greater and convict on the lesser. A “lesser” instruction that duplicates the greater’s elements defeats that logic.
• Inconsistent verdicts; corrective instruction: When verdict forms conflict, the court may direct the jury to clarify, so long as the jury has not been discharged. Under State v. Peters, the court should try to “salvage” the verdict by allowing correction pre-discharge.

Conclusion

State v. Thompson is a practice-forward decision that (1) rejects right-to-counsel claims premised on proceedings held after a defendant’s prolonged, strategic, or negligent failure to obtain counsel—especially where indigency is never raised through Missouri’s established process; (2) reinforces strict preservation and waiver rules for jury instructions, particularly the consequences of stating “no objection”; (3) confirms the authority of trial courts to cure inconsistent verdicts before jury discharge to obtain an unambiguous expression of juror intent. Collectively, the opinion discourages procedural gamesmanship and emphasizes orderly trial administration anchored in Missouri’s rules and statutes.