DocketNumber: No. ED 105434
Citation Numbers: 556 S.W.3d 89
Judges: Gaertner
Filed Date: 5/29/2018
Status: Precedential
Modified Date: 1/21/2022
Introduction
Travis Nunley (Movant) appeals from the motion court's judgment denying his motion under Rule 29.15
Factual and Procedural Background
A jury convicted Movant of one count of second-degree felony murder, one count of first-degree robbery, and two associated counts of armed criminal action. This *91Court adopts our previous summary of the facts from the direct appeal, as follows. In the evening of January 14, 2012, Movant, together with Willis Smith-Nunley (Smith-Nunley), his brother and co-defendant at trial, and Wanekii Weems (Weems), a co-conspirator, went to 4317 Swan, in St. Louis, Missouri, with the purpose of either buying heroin at a discounted price or robbing the dealer, Jerry Massey. Movant was armed with a handgun and Smith-Nunley had a sawed-off shotgun. Movant and Weems went inside the house to buy discounted heroin, without success. Weems left to get Movant's car, a Monte Carlo, while Smith-Nunley approached the house, firing a shot at the front door. Inside the house, Movant drew his weapon and started shooting. Smith-Nunley and Movant shot and injured at least two people in the house, including Courtney Couch (Couch) and Jerald Massey (Victim), who died of a shotgun wound to his abdomen. Smith-Nunley robbed Rafael Allred (Allred) of fifty codeine pills.
At trial, several witnesses testified. Weems testified as to how Movant and Smith-Nunley planned the robbery and how the robbery occurred. Devin Jackson (Jackson) testified that Movant had hired him to babysit some of the group's children on that evening and had driven him to Weems' house in the Monte Carlo. Jackson identified the guns Movant and Smith-Nunley were carrying. Couch and Allred testified as to the robbery and identified Movant and Smith-Nunley as the shooters.
After the jury's convictions, the trial court sentenced Movant as a prior and persistent offender to consecutive terms of life in prison on the felony murder and robbery charges and to two consecutive terms of twenty-two years on each ACA charge. This Court affirmed Movant's convictions and sentences on appeal. State v. Nunley,
Movant filed a Rule 29.15 motion, which was later amended by counsel.
At an evidentiary hearing on the motion, Robert Taaffe testified to the following. He represented Movant throughout his trial, and initially, he had represented both Movant and Smith-Nunley. Before his initial representation of both brothers, he *92spoke with both and confirmed that the brothers had consistent defenses and that Smith-Nunley did not plan to testify against Movant or visa versa. When he reviewed the facts of the case, he did not see any evidence that was not admissible against both defendants. However, as it became apparent that the evidence against Movant was much worse than against Smith-Nunley, Robert Taaffe decided it would be better to have two attorneys present for the brothers, and he asked his wife, who worked at the same law firm and was familiar with the case, to step in to represent Smith-Nunley.
Robert Taaffe agreed he did not conduct legal research into waivable versus non-waivable conflicts, but he testified that he did not have any personal interests that were adverse to Movant's defense and that he did not act in any way that was detrimental to Movant and advantageous to Smith-Nunley. Robert Taaffe stated that if the brothers' defenses had been inconsistent, he would not have represented both. Moreover, he stated they executed a written waiver of the conflict at trial, after jury selection but before taking evidence.
As well, Jolene Taaffe testified that she was primary counsel for Smith-Nunley. She began to represent Smith-Nunley a couple weeks before trial. Prior to her representation, her husband Robert Taaffe represented both Movant and Smith-Nunley, and in her capacity as an associate in the firm, she had discussed the case with her husband and seen the legal file. The evidence against Smith-Nunley was much weaker than against Movant, and, as such, she had discussed with Smith-Nunley testifying against his brother, but Smith-Nunley would not consider it. The theory of defense for both cases was that Movant and Smith-Nunley were not guilty and that the witnesses were not credible. Having them present a unified front, both claiming to be innocent, was helpful to their joint theory of defense. Upon examination by the motion court, Jolene Taaffe testified that Movant and Smith-Nunley both stated they had no problem with or objection to their representation by Jolene Taaffe and Robert Taaffe.
Movant did not testify. Smith-Nunley testified that he was aware the State was offering him a deal for twenty-five years, but he was not aware that the deal would require him to testify against his brother. Smith-Nunley stated he would never have testified against his brother.
Regarding Movant's alibi, Danielle Jones (Jones) testified that she was dating Smith-Nunley at the time of the murder and robbery, and that on the evening of January 14, 2012 Movant, Smith-Nunley, Jones, and Angela Yarbrough (Yarbrough)-who was Movant's wife-were at home all evening having a fish fry and playing cards. Jones agreed she did not tell the police this at the time, but she stated she had discussed the alibi with Robert Taaffe. Jones also stated that she was not aware Yarbrough had made a statement to the police that on the evening of January 14, 2012, Movant had taken their Monte Carlo and gone out, and that Yarbrough had not seen him all night. Robert Taaffe testified he had investigated an alibi defense for Movant but decided not to pursue it because he "didn't buy it," especially in light of both Movant's and Jones' failure to report the alibi to the police.
The motion court denied Movant's request for relief under Rule 29.15. This appeal follows.
Standard of Review
Appellate review of the denial of a post-conviction motion is limited to a determination of whether the findings and conclusions of the motion court are clearly *93erroneous. Rule 29.15(k). The motion court's findings of fact and conclusions of law are clearly erroneous only if the reviewing court, having examined the entire record, is left with the definite and firm impression that a mistake has been made. Forrest v. State,
For relief based on claims of ineffective assistance of counsel, Movant must show by a preponderance of the evidence both that his counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances, and that his counsel's deficient performance prejudiced him. Anderson v. State,
Discussion
Point I
In his first point on appeal, Movant contends the motion court erred in denying post-convict ion relief after an evidentiary hearing because his trial counsel Robert Taaffe was ineffective in that he had an actual conflict of interest with regard to the pending offer from the State for one brother to testify against the other. We disagree, with reservations.
To show ineffective assistance of counsel from a conflict of interest, a movant who raised no objection at trial must demonstrate that an actual conflict of interest existed that adversely affected counsel's performance. Helmig v. State,
Movant argues, however, that because he received ineffective assistance of counsel during the pre-trial plea negotiation stage, this Court should not apply the general something-done-or-forgone-that-was-detrimental standard, see, e.g., Helmig,
Notably, the DePriest court held that where a conflict occurs at the plea negotiations stage, the standard to prove an actual conflict of interest is not the same as the general standard after a trial: namely, that there must be evidence of something done by counsel in the trial or forgone by counsel and lost to the defendant, which was detrimental to the interests of the defendant and advantageous to another with antagonistic interests.
Movant asserts that Robert Taaffe had an actual conflict of interest, in that, due to the Taaffe firm's concurrent representation of both Movant and Smith-Nunley, Robert Taaffe failed to advise Movant of the advantages of testifying against his brother pursuant to a plea offer by the State. Unlike in DePriest, here there was an evidentiary hearing on Movant's claim, at which Robert Taaffe testified and Movant did not testify. Upon reviewing the record, we conclude Movant cannot meet his burden on appeal to show Robert Taaffe actively represented conflicting interests in the Taaffe firm's representation of both Movant and Smith-Nunley. See Cuyler,
Movant has not asserted the State ever offered him a plea deal, let alone shown there was a reasonable probability he would have accepted the plea offer if Robert Taaffe had provided effective assistance by advising him to testify against his brother. See Jackson v. State,
Even if it were Movant who received the offer, there is no evidence or suggestion in the record that Movant would have accepted the plea offer if the State had offered him one. Again, in the absence of testimony by Movant at the evidentiary hearing, the motion court was left solely with the testimony of Robert Taaffe that he discussed testifying against his brother with Movant, but Movant declared he would not. Even under the standard set forth in DePriest, the record here does not demonstrate an actual conflict of interest that adversely affected the adequacy of Robert Taaffe's representation. See DePriest,
While Movant would have this Court find the mere fact that the husband and wife team of Robert and Jolene Taaffe represented the two co-defendants here necessarily created an actual conflict of interest, the law does not support Movant's argument. This Court agrees that the situation here is rife with the potential for conflict and this Court strongly discourages the same attorney or the same law firm from ever representing co-defendants in criminal courts. However, where there is no actual conflict that adversely affects the adequacy of the representation, the practice is not currently prohibited in Missouri. See Mo. R. Prof. Conduct 4-1.7(b)(1) ("a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client").
Moreover, because the facts of this case do not show an actual conflict, prior caselaw addressing situations of actual conflicts that cannot be waived are not relevant here. See, e.g., State ex rel. Kinder v. McShane,
After reviewing the record, we do not have a definite and firm impression the motion court erred in denying Movant's amended motion for post-conviction relief, and thus the findings and conclusions of the motion court are not clearly erroneous. See Rule 29.15(k).
Point denied.
Point II
In Movant's second point on appeal, he argues the trial court erred in denying post-conviction relief because his trial counsel was ineffective for failing to call his alibi witness, causing prejudice. We disagree.
To prevail on a claim for ineffective assistance of counsel for failing to call a witness, a movant must show that: (1) trial counsel knew or should have known of the existence of the witness; (2) the witness could be located through reasonable investigation; (3) the witness would testify; and (4) the witness' testimony would have produced a viable defense. Williams v. State,
Here, Jones testified at the post-conviction evidentiary hearing that she would have testified at trial that she, Movant, Smith-Nunley, and Yarbrough were all at home the evening of January 14, 2012 when the crime was being committed. She agreed, however, that she never reported this alibi to the police and that she was unaware of Yarbrough's contradictory statement to the police that she was not with Movant on the evening he was accused of committing the robbery and murder. Robert Taaffe testified that he did not call Jones as an alibi witness because he did not believe the alibi, in part because neither she nor Movant ever presented their alibi to the police.
On these facts, Movant failed to establish Robert Taaffe's trial strategy in not presenting Jones' testimony was unreasonable. Robert Taaffe stated he did not believe Jones' alibi testimony, and this Court will not find trial counsel ineffective for failing to adduce evidence he or she suspects to be fabricated. See State v. Hamilton,
Point denied.
Conclusion
The judgment of the motion court is affirmed.
Robert M. Clayton III, J., concurs.
Angela T. Quigless, J., concurs.
All rule references are to Mo. R. Crim. P. (2015), unless otherwise indicated.
Movant filed a premature motion for post-conviction relief on July 3, 2014, and the motion court appointed counsel on October 21, 2014. This Court issued the mandate in Movant's direct appeal on December 18, 2015. On March 17, 2016, appointed counsel filed an untimely amended motion. At an evidentiary hearing on Movant's request for post-conviction relief, the motion court determined that the late filing was due to abandonment by appointed counsel and not Movant, and thus the motion court treated the amended motion as timely. See Moore v. State,
Movant declares the record is not clear to whom the State offered the plea deal.
We note, however, that contrary to Movant's assertions on appeal, DePriest v. State,
This Court suggests that application of this rule in the criminal context be reexamined in light of the problems that do arise or would potentially arise in concurrent representation.