State v. Kretzer, WD

• Decision Date: 21 March 1995
• Docket Number: No. WD,WD
• Citation: 898 S.W.2d 639
• Parties: STATE of Missouri, Respondent, v. Thomas KRETZER, Appellant. 47449.
• Court: Missouri Court of Appeals

Page 639

898 S.W.2d 639

STATE of Missouri, Respondent, v. Thomas KRETZER, Appellant.

No. WD 47449.

Missouri Court of Appeals Western District.

March 21, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 2, 1995.

Application to Transfer Denied June 20, 1995.

Gary E. Brotherton, Office of the State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Michelle A. Freund, Asst. Atty. Gen., Jefferson City, for respondent.

Before BRECKENRIDGE, P.J., and ELLIS and LAURA DENVIR STITH, JJ.

LAURA DENVIR STITH, Judge.

Defendant-appellant Thomas Allen Kretzer was found guilty by a jury of assault in the first degree, a class B felony, under § 565.050, RSMo 1986. He was sentenced by the trial judge, as a prior offender, to thirteen years imprisonment. He thereafter filed a post-conviction motion under Missouri Rule 29.15, alleging ineffective assistance of counsel. Following an evidentiary hearing, the motion court denied his motion for post-conviction relief. His appeal of both his underlying conviction and the denial of his post-conviction motion are consolidated in this court.

On direct appeal, Mr. Kretzer raises only a single issue: that he was denied due process because the trial judge failed to question him sua sponte about whether he waived any conflict of interest caused by the fact that his trial counsel was also representing his two co-defendants. He also raises only a single issue on appeal of denial of his post-conviction motion: that trial counsel was ineffective because he failed to subpoena Mike Holmes as a witness during the underlying trial, in that if Mr. Holmes had testified he would have provided evidence which may have resulted in acquittal of defendant. We affirm.

I. BACKGROUND AND PROCEDURAL FACTS

The evidence adduced at trial reveals the following: On May 23, 1992, defendant Thomas Kretzer, his brother John Kretzer, and his father Ernest Kretzer ¹ were present at the Corner Pocket Lounge in St. Joseph, Missouri. The victim, Paul Nash, and his friend, Mike Holmes, were also present at the bar. That evening a fight broke out in which defendant and his brother John fought with Mike Holmes inside the Corner Pocket Lounge. Mr. Nash tried to stop the fight.

Following the altercation, the owner of the bar asked everyone involved in the fight to leave the bar. Mr. Nash and Mr. Holmes were walking to their car parked across the street when they encountered defendant and his brother John. The two brothers followed Mr. Nash and Mr. Holmes. Defendant shoved Mr. Holmes in the back. Another fight then broke out between defendant and his brother John on the one side and Mr. Holmes on the other.

Defendant and his brother John kicked Mr. Holmes and struck him with a pool cue. Mr. Nash tried to break the fight up while Mr. Holmes escaped to his car. Defendant and his brother then began beating on Mr. Nash. Mr. Nash did not act physically aggressive toward defendant or his brother, but merely tried to protect himself.

Mr. Nash was knocked to the ground, where he lay unconscious in front of Mr. Holmes' car. Unaware that Mr. Nash was on the ground in front of his car, Mr. Holmes started the car and, in an attempt to escape from the Kretzers, drove over Mr. Nash, causing his death. ²

Defendant, his brother John and his father Ernest were not charged with Mr. Nash's death. Defendant and John were charged and tried for assault in the first degree, a class B felony under § 565.050, RSMo 1986, and their father was charged with aiding and abetting them in the assault. The three co-defendants were represented by the same trial attorney. Neither Thomas (the defendant herein), the other defendants (his brother John and his father Ernest), the prosecutor defense counsel or the trial judge raised any issue on the record during the course of the trial as to whether a conflict of interest was created by the fact that the same attorney was representing all three defendants.

Thomas testified in his own defense. He claimed that he had been involved in the fight in the bar and when it first was renewed outside, but that he was only fighting with Mr. Holmes, not with Mr. Nash. Moreover, he claimed that he had put down the pool cue and walked to his car at the north end of the bar and that the witnesses were in error in claiming that he had hit Mr. Nash. He acknowledged during his testimony that he had been previously convicted of a felony.

Defendant's brother John did not testify. John's wife Adelpha did testify, however. She said that after defendant's father Ernest returned from the bar, he said "he kicked his head, 'I kicked it like it like a ... football.' " Ernest also testified, and in his testimony denied that he had been involved in the fight or that he had said he had kicked anything like a football.

The jury was instructed to determine whether defendant or his brother were guilty of assault, and whether their father was guilty of aiding and abetting the assault. The jury was also instructed to assess punishment as to the father if he were found guilty. However, the jury was not instructed to assess any punishment against defendant or his brother if they were found guilty. This is because they were prior offenders and the court, not the jury, determines the sentence to be given to prior offenders. § 557.036(4), (5), RSMo 1994. In order to prevent jury confusion as to why it was to determine the punishment of only one of the three defendants, and at the request of defense counsel, the trial court orally informed the jury as follows:

THE COURT: Ladies and gentlemen, the Court is also going to inform you that in the instructions as I read them you may have noticed that punishment is only being submitted to you on one defendant; that is Ernest Kretzer. And the reason that is is because the law in Missouri requires that where there is evidence of prior offenses, and there has been in this case submitted and mentioned earlier, then punishment is not submitted to the jury on these defendants.

So just so you're not back there in the jury room wondering why the jury was instructed on punishment on one defendant and not the other two, the attorneys have agreed that I would inform you of that fact so that you would not be concerned about it.

The jury found defendant and his brother John each guilty of assault in the first degree, but acquitted their father Ernest. Defendant was sentenced by the court, as a prior offender, to thirteen years imprisonment. Only Thomas' conviction, not that of his brother, is before us on this appeal.

Defendant also appeals that aspect of denial of his Rule 29.15 motion claiming ineffective assistance of trial counsel for failure to subpoena Mike Holmes, the other person who was involved in the fight with defendant and his family. Mr. Holmes was listed as a witness for the state. He appeared in the courtroom the first two days of trial, but was not called as a witness. He failed to appear during the remainder of the trial. Defense counsel had not subpoenaed him.

Defendant contended at his Rule 29.15 hearing that Mr. Holmes would have testified that defendant was fighting with Mr. Holmes and not Mr. Nash and, thus, was not responsible for the assault on Mr. Nash. Defendant offered no testimony by Mr. Holmes, no affidavit, and no other evidence, to support his claim that Mr. Holmes' testimony would have been exculpatory, beneficial and non-cumulative. The motion court found that Mr. Holmes testimony would have been cumulative, that his role in the fight was presented by other witnesses, and that while defense counsel had been ineffective in failing to subpoena Mr. Holmes, no prejudice resulted. This appeal followed.

II. CONFLICT OF INTEREST ISSUES ON DIRECT APPEAL

A. The Trial Judge Does Not Have a Per Se Duty To Inquire about Waiver of a Potential Conflict of Interest

On direct appeal, defendant asserts that he is entitled to reversal and remand for a new trial because his counsel's concurrent representation of both him, his brother and his father constituted an actual conflict of interest which resulted in unfair prejudice to defendant in two ways: (1) it prevented counsel from effectively cross-examining defendant's father, and (2) it prevented counsel from objecting to the trial court's instruction to the jury that it would not be sentencing defendant because he was a prior offender.

Claims of ineffective assistance of counsel at trial cannot be raised on direct appeal. Rather, they must be raised by way of a post-conviction motion under Rule 29.15. State v. Drewel, 835 S.W.2d 494, 496 (Mo.App.1992). Thus, to the extent that defendant's claim is that the conflict of interest resulted in ineffective assistance of counsel, this claim is not cognizable on direct appeal. It was required to be brought, if at all, in defendant's Rule 29.15 motion. Id. As discussed below, defendant failed to raise this issue in his post-conviction motion.

No doubt aware of this rule, defendant does not complain on direct appeal that counsel was ineffective as a result of the conflict of interest. Rather, he claims that the trial court had a duty to sua sponte determine whether defendant was making a knowing and voluntary decision to waive the alleged conflict of interest which arose from the multiple representation. He alleges that the failure of the trial court to do so violated his right to due process, and thus constituted plain error. The state replies the trial court did not have a duty to make a record of waiver of the alleged conflict sua sponte, and, in any event, there was no conflict of interest because the co-defendants had a common defense.

The Eighth Circuit has established a requirement that in every federal case in which there is multiple representation the trial court must question the defendant on the record about whether there has been a knowing and intelligent waiver of any potential conflict of interest resulting from dual...