Potter v. State
| Decision Date | 15 December 1987 |
| Docket Number | No. 52936,52936 |
| Citation | 742 S.W.2d 231 |
| Parties | Michael Dale POTTER, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Nancy McKerrow, Asst. Public Defender, Columbia, for plaintiff-appellant.
William L. Webster, Atty. Gen., Karen A. King, Asst. Atty. Gen., Jefferson City, for defendant-respondent.
Movant was convicted in the Circuit Court, St. Charles County of selling a controlled substance. This was his second offense and he was sentenced to fifteen years imprisonment. The court of appeals affirmed his conviction on direct appeal. A detailed discussion of the facts appear in State v. Potter, 711 S.W.2d 539 (Mo.App.1986). Movant subsequently filed a Rule 27.26 motion and an evidentiary hearing was held on the motion. The hearing court issued "Findings of Fact and Conclusions of Law" denying movant's petition for relief.
On appeal movant contends that the hearing court erred by (1) failing to find pretrial counsel ineffective during the pretrial and plea negotiation stages of his case due to an alleged conflict of interest created when the attorney assumed representation of both appellant and his codefendant; and (2) failing to find defense counsel ineffective for failing to properly preserve an objection to an instruction given to the jury. We affirm.
Our review in this case is limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.26(j). The trial court's findings and conclusions are clearly erroneous only if a review of the entire record leaves the court with a definite and firm impression that a mistake has been made. Stokes v. State, 688 S.W.2d 19, 21 (Mo.App.1985).
Since both of movant's points allege ineffective assistance of counsel, the guidelines enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and Seales v. State, 580 S.W.2d 733 (Mo. banc 1979) must govern our decision. In order for a convicted defendant to succeed on a claim of ineffective assistance of counsel entitling him to a reversal he must show that counsel's performance fell below the standard of reasonable effectiveness. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In assessing the performance of counsel the courts recognize the wide latitude given to counsel in making tactical decisions and must be highly deferential. Further, the movant must overcome the strong presumption that his attorney's conduct fell within the wide range of reasonableness, and that the actions of the attorney are considered sound trial strategy. Id. at 689, 104 S.Ct. at 2065. Second, the movant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. Stokes, 688 S.W.2d at 23.
Shortly after their arrest Michael and Robert Potter retained attorney Ronald Boggs to represent them. Both defendants told Boggs that Robert alone had executed the sale. Boggs then engaged in plea negotiations with the state on behalf of both defendants. Robert agreed but Michael refused to plead guilty to the charges. Informations were filed which charged each of the brothers with "acting in concert with another" in the commission of the offense. While representing both Potters, Boggs entered a plea of guilty on behalf of Robert and a plea of not guilty on behalf of Michael. After representing Robert at the guilty plea, Boggs left Missouri.
Robert, represented at the sentencing by a second attorney, received a suspended imposition of sentence and was placed on probation. Michael retained yet another attorney to represent him at trial. Mindful of the version of events related by the brothers, that attorney discussed with Michael the potential danger of calling Robert as a defense witness. Despite the danger, Robert was called at trial.
Representation of multiple defendants is not a per se violation of constitutional guaranties of effective assistance of counsel. Holloway v. Arkansas, 435 U.S. 475, 482, 98 S.Ct. 1173, 1178, 55 L.Ed.2d 426 (1978). In order to succeed on an ineffective assistance of counsel claim founded on an alleged conflict of interest due to joint representation the movant must show that an actual conflict of interest adversely affected his lawyer's performance. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980); Potter, 711 S.W.2d at 541.
Assuming arguendo that an actual conflict existed, movant fails to show how Boggs' joint representation had an adverse effect on his case. Both defendants had related the same version of events to Boggs, namely, that Michael had no part in the...
To continue reading
Request your trial
-
State v. Dulany
...person committed the acts the disjunctive use is proper since the jury could find that either person committed the act. Potter v. State, 742 S.W.2d 231, 233 (Mo.App.1987). The purpose of the disjunctive instruction is to give the jury the opportunity to consider evidence that is Defendant a......
-
Luckett v. State
...affected his lawyer's performance. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980); Potter v. State, 742 S.W.2d 231, 232 (Mo.App.1987). The burden of proof is on movant to show actual, not speculative, conflict of interest. Smith v. State, 716 S.W.2d 467, ......
-
State v. Minson, 56668
...since the jury could find that either person committed the act. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989); Potter v. State, 742 S.W.2d 231, 233 (Mo.App.1987). The purpose of the disjunctive is to give the jury the opportunity to consider evidence that is unclear. Dulany, 781 S.W.2d......
-
Davis v. State, 53756
...the court takes cognizance of the wide latitude which is to be accorded counsel in making tactical decisions. Potter v. State, 742 S.W.2d 231, 232 (Mo.App., E.D.1987). As well, a strong presumption exists that counsel made all significant decisions in the exercise of his reasonable professi......