State v. Tate, ED 106093
| Decision Date | 23 April 2019 |
| Docket Number | No. ED 106093,ED 106093 |
| Citation | 572 S.W.3d 575 |
| Parties | STATE of Missouri, Respondent, v. Brandon TATE, Appellant. |
| Court | Missouri Court of Appeals |
James C. Egan, 1000 West Nifong Blvd., Building 7, Suite 100, Columbia, MO 65203, for appellant.
Garrick F. D. Aplin, P.O. Box 899, Jefferson City, MO 65102, for respondent.
Brandon Tate ("Tate") appeals from the trial court’s judgment, entered after a jury found him guilty of one count of first-degree murder, two counts of armed criminal action, and one count of unlawful use of a weapon. In his sole point on appeal, Tate alleges that the trial court plainly erred in failing to sua sponte disqualify trial counsel due to an apparent conflict of interest. Because Tate’s argument is not cognizable on direct appeal, we deny Tate’s appeal and affirm the judgment of the trial court.
Tate was tried in September of 2017 for crimes allegedly committed by him in August of 2015. Evidence was adduced at trial that Tate was driving a black vehicle with Michelle Jefferson ("Jefferson") riding as the passenger.1 Jefferson had been smoking marijuana and drinking. As Dennell Jones ("Jones"), Quincy Pirtle ("Pirtle"), and Victim were walking down the street, Tate drove past them. Victim identified Tate to Jones. Tate circled the block and accelerated towards the three men. Tate exclaimed "What’s up now, b* * * * a* * n* * * * *." Tate shot at Jones, Pirtle, and Victim through his driver’s side window. Victim died as a result. Jones and Jefferson both testified regarding the shooting and Tate’s involvement. Pirtle was unable to identify the shooter. Tate’s phone records suggested that Tate was not where his alibi placed him at the time of the shooting, but instead was near the scene of the shooting.
Leavie Morris ("Morris") was called to testify on behalf of the State at trial. Morris testified about Tate’s possible motive for shooting Victim. Morris was Victim’s half-brother and was familiar with Tate. When asked about his prior criminal history, Morris testified that trial counsel, whose first name is Jolene, had represented him in two prior cases:
Trial counsel did not object to these statements.
Morris then testified about an incident involving Tate that occurred about one week before the shooting. Morris and Victim were at a gas station when Tate approached Morris. Tate said his sister told him that Morris had hit her. Tate punched Morris, and then spoke with Victim about the incident. Trial counsel did not cross-examine Morris, who denied hitting Tate’s sister but acknowledged that he "grabbed her by the throat and by the dreads." Tate corroborated Morris’s testimony during his interview with police.
The State offered Morris’s testimony as evidence that Tate knew Victim and there was some friction between Tate and Victim. Tate admitted the incident between him and Morris, but argued the incident did not support a motive for the shooting. Tate emphasized that the incident occurred one week prior to the shooting, was between Morris and Tate as opposed to Victim and Tate, and left no residual hostilities between Tate and either Morris or Victim. At trial, Tate highlighted Pirtle’s testimony that the shooter was in a black truck, not a car, and argued this testimony was proof that Victim was killed by someone other than Tate.
The trial court submitted the case to the jury for deliberation. The jury found Tate guilty of one count of murder in the first degree, two counts of armed criminal action, and one count of unlawful use of a weapon. The jury recommended a sentence of life without parole for the first-degree murder conviction. The sentencing court sentenced Tate to concurrent terms of life in prison for the first-degree murder conviction, ten years in prison for the first armed-criminal-action conviction, ten years in prison for the second armed-criminal-action conviction, and ten years in prison for the unlawful-use-of-a-weapon conviction. Tate now appeals.
In his sole point on appeal, Tate contends that the trial court plainly erred in failing to sua sponte disqualify trial counsel after it became apparent to the trial court that trial counsel previously represented Morris, the State’s motive witness.
Tate did not raise any objection at trial after learning that trial counsel previously represented Morris in two criminal matters. Because Tate did not object to his counsel’s continued representation upon learning of his counsel’s potential conflict of interest, we may only review this issue for plain error. State v. Perry, 548 S.W.3d 292, 300 (Mo. banc 2018) ; Rule 30.20.2 We review for plain error under a two-step process. State v. Tillitt, 552 S.W.3d 571, 578 (Mo. App. W.D. 2018). We first analyze whether substantial grounds exist for believing the trial court committed a plain error. State v. Barnaby, 91 S.W.3d 221, 224-25 (Mo. App. W.D. 2002). A plain error is an error that is evident, obvious, and clear. State v. Taylor, 466 S.W.3d 521, 533 (Mo. banc 2015) ; Collings v. State, 543 S.W.3d 1, 14 (Mo. banc 2018). We then ascertain whether such "evident, obvious, and clear" error has indeed produced a "manifest injustice or a miscarriage of justice" that will ensue if the error is left uncorrected. Collings, 543 S.W.3d at 14.
Tate maintains that the trial court was required to sua sponte disqualify trial counsel from her continued representation of Tate after Morris testified that trial counsel previously had represented Morris in two criminal proceedings. Tate avers that trial counsel’s conduct constituted improper successive representation and that the trial court’s error in refusing to sua sponte disqualify trial counsel created an appearance of impropriety before the jury.
Successive representation "occurs when [counsel] represents a defendant and has previously represented co-defendants or trial witnesses[.]" State v. Nettles, 481 S.W.3d 62, 67 (Mo. App. E.D. 2015). "The most common example of an actual conflict of interest arising from successive representation ‘occurs where [counsel’s] former client serves as a government witness against the [counsel’s] current client at trial.’ " Id. (quoting Moss v. United States, 323 F.3d 445, 460 (6th Cir. 2003) ). Here, trial counsel’s former client, Morris, testified against Tate as a State witness. Because trial counsel’s responsibilities of confidentiality to Morris as a former client presented a potential risk of materially limiting trial counsel’s representation of Tate, trial counsel’s successive representation of Morris and Tate gave rise to the possibility of a conflict of interest. Id.; see also Mo. R. Prof 1 Conduct 4-1.6, .7, .9. The record suggests only that trial counsel represented Morris in 2009, eight years prior to Morris’s testimony. The record lacks any further information regarding the duration of trial counsel’s representation, the nature of the representation, the connection, if any, between Morris’s convictions and Tate’s case, or any potential effect trial counsel’s successive representation may have had on Tate’s trial. While successive representation creates a possibility that trial counsel had an actual conflict of interest in representing Tate at the time of trial, "the mere possibility of conflict is insufficient to impugn a criminal conviction." Hickey v. State, 328 S.W.3d 225, 231 (Mo. App. E.D. 2010) (citing Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) ).
Despite our concerns that trial counsel’s prior representation of Morris could potentially impact her representation of Tate in the matter before us, Missouri authority dictates that Tate’s claim is not cognizable as asserted. See Nettles, 481 S.W.3d at 67 ; State v. Whitley, 408 S.W.3d 305, 310 (Mo. App. E.D. 2013).
Tate acknowledges that Missouri case law expressly holds that a claim of ineffective assistance due to successive representation is not cognizable on direct appeal. See Nettles, 481 S.W.3d at 68 ; Whitley, 408 S.W.3d at 310 (). However, Tate invites this court to re-examine this authority. Specifically, Tate reasons that once the trial court learned of the potential conflict through the evidence adduced at trial, it had an affirmative duty to inquire whether the successive representation by trial counsel of Morris and Tate presented a current and actual conflict. The trial court’s failure to inquire forms the basis of Tate’s allegation of trial-court error. The defendant in Nettles raised the same unsuccessful legal argument.
We reject Tate’s invitation. The U.S. Supreme Court has clearly stated, "nothing in our precedents suggests that the Sixth Amendment requires state courts themselves to initiate inquiries into the propriety of multiple representation in every case." Cuyler, 446 U.S. at 346, 100 S.Ct. 1708. To the contrary, trial courts, generally are entitled to rely upon counsel to "avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial." Id. Absent special circumstances, "trial courts may assume either that multiple representation entails no conflict or that the...
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