State v. Weeks, 11178.

• Decision Date: 09 September 1980
• Docket Number: No. 11178.,11178.
• Citation: 603 S.W.2d 657
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Earl Albert WEEKS, Defendant-Appellant.
• Court: Missouri Court of Appeals

603 S.W.2d 657

STATE of Missouri, Plaintiff-Respondent, v. Earl Albert WEEKS, Defendant-Appellant.

No. 11178.

Missouri Court of Appeals, Southern District, Division Four.

June 18, 1980.

Motion for Rehearing and for Transfer Denied July 11, 1980.

Application to Transfer Denied September 9, 1980.

John D. Ashcroft, Atty. Gen., Steven W. Garrett, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Michael Baker, Springfield, for defendant-appellant.

BILLINGS, Judge.

This is the second appeal of defendant's conviction for robbery-murder. In his first appeal, State v. Weeks, 546 S.W.2d 567 (Mo.App.1977), we reviewed the record for plain error because defendant's motion for new trial was not timely filed. Judgment was affirmed and thereafter, defendant filed a postconviction motion under Supreme Court Rule 27.26, contending, inter alia, ineffective assistance of counsel for failure to timely file the motion for new trial. The trial court granted defendant's motion as to the failure to file the motion for new trial, overruled the remaining grounds alleged,¹ set aside the sentence and judgment previously entered, and granted defendant leave to file a new motion for a new trial. The latter motion was overruled and defendant again sentenced to life imprisonment. We affirm.

One of defendant's points in this appeal questions the sufficiency of the evidence to support the verdict of the jury. Contrary to and in violation of Rule 84.04(d), V.A.M.R., the point does not advise us in what respect the state's evidence fell short. Nevertheless, we adopt the statement of facts as reported in State v. Weeks, supra, and hold the evidence was sufficient.

Defendant's principal point asserts he had ineffective assistance of counsel because one of his attorneys, Richard Franks of Springfield, Missouri, had a conflict of interest by reason of the fact Attorney Franks was also representing a codefendant, Ralph Parcel, while representing defendant. This contention by defendant, raised for the first time in defendant's abortive motion for new trial by his principal attorney, and assigned as error in his second motion for new trial, necessitates an inquiry as to defendant's attorneys and their roles at his trial.

Defendant was arrested at the request of Missouri authorities in Iowa and resisted extradition proceedings to this state. He first employed an Iowa attorney and then engaged the services of Attorney Lawrence Johnson and Associates of Champaign, Illinois. Attorney Johnson represented defendant at the extradition hearing and then entered his appearance for defendant in Greene County, Missouri, at defendant's preliminary hearing.

Ralph Parcel had also been charged in the murder of Mrs. Cukerbaum and because of his indigency, Attorney Franks had been appointed to represent him. At a joint preliminary hearing for defendant and Parcel, Attorney Johnson represented defendant and Attorney Franks represented Parcel. Teitsworth's testimony incriminated both defendant and Parcel. During the course of the preliminary hearing, Attorney Franks, with defendant's knowledge and consent, was employed by Attorney Johnson to serve as local counsel. Franks' duties were to consist of performing such work as directed by Attorney Johnson, handle some of the investigation, prepare and present anticipated motions, and to personally attend defendant's trial.

Defendant and Parcel were bound over to the Circuit Court of Greene County, Missouri, and jointly charged in an information. Various pretrial motions were filed and presented on behalf of both defendants by Attorney Franks, Attorney Hays (associate of Attorney Johnson), and jointly by both Attorney Franks and Attorney Johnson. At defendant's request, his trial was scheduled for an early date. Parcel's motions for a severance and a continuance were granted. Defendant and Parcel were, in the meantime, incarcerated in the Greene County jail.

At defendant's six-day trial, Attorney Johnson, his associate Hays, and Attorney Franks were present. Attorney Johnson, a former Illinois prosecutor and with extensive experience in defending criminal cases, was the lead counsel for defendant. He conducted the voir dire of the jury panel and made the opening statement for the defense. He cross-examined all of the state's witnesses and conducted the direct examination of defendant and all defense witnesses. He made the defense objections throughout the trial and presented the defense views and arguments to the court on matters of evidence and trial procedure, and argued the case to the jury.

Defendant's defense was that he was in Iowa at the time of the robbery-murder. He so testified as did his common-law wife, her father, three of her sisters, one of her brothers-in-law, and two or more friends of the defendant. Parcel was not subpoenaed or called as a witness by the defense.

Defendant's untimely motion for new trial, prepared and filed by Attorney Johnson, alleged Attorney Franks' representation of Parcel rendered Parcel "unavailable" as a witness for defendant at the latter's trial. In support of this allegation, Attorney Johnson called Parcel to testify at the hearing conducted on the motion. Because the charge was still pending against Parcel, the presiding judge, the Honorable Douglas W. Greene,² and Attorney Franks advised the prospective witness of his rights and Attorney Franks made a record that he was advising Parcel not to testify at the hearing and should exercise his right against self-incrimination. Nevertheless, Parcel testified and stated he had been willing to testify in behalf of defendant at the latter's trial; that he had communicated his willingness to both defendant and Attorney Franks and, that he, defendant and Teitsworth (principal state's witness) were not together at any time the weekend of the murder. On cross-examination he admitted his prior criminal felony record and when asked where he was the weekend in question he then invoked his Fifth Amendment right against self-incrimination. He also refused to answer a question whether he and Teitsworth committed the robbery of the Cukerbaum store, but denied he, defendant and Teitsworth committed the robber of the store.³

During the foregoing hearing, Attorney Franks testified there had been some general discussion with Attorney Johnson about the possibility of Parcel testifying at defendant's trial. He stated that if he had acquired knowledge Parcel was going to be called as a witness for the defendant, he would have advised Parcel not to testify "regardless of whether or not I was employed on this case." Attorney Franks denied any communication to him that defendant desired the testimony of Parcel at defendant's trial and stated there was no request by Attorney Johnson that Parcel be called as a witness in defendant's case.

The state's evidence, including the testimony of witnesses other than Teitsworth, showed defendant, Parcel and Teitsworth were together en route from Iowa to Springfield, in Springfield, and at Carl Kindred's house immediately after the murder. Teitsworth's testimony equally implicated Parcel and defendant in the actual commission of the crime. Attorney Lawrence Johnson's opening statement and jury argument suggested that Burton Dewitt,⁴ not defendant, was the third man on the trip from Iowa to Springfield and involved in the killing of Mrs. Cukerbaum.

Parcel was not physically nor legally unavailable as a witness for the defendant. He was in the nearby Greene County jail throughout defendant's trial. He was subject to being subpoenaed as a witness if such had been requested by defendant or his lead counsel, Attorney Johnson. The voluminous trial transcript makes it abundantly clear that Attorney Johnson was completely in charge of the defense of the case. Attorney Franks' dual representation and presence at defendant's trial was no bar to defendant or Attorney Johnson requesting a subpoena for Parcel if they wanted his testimony. There was no legal way Attorney Franks could have prevented Parcel from testifying if he had been called as a witness. There was no attorney-client relationship existing between Attorney Johnson and Parcel that would have interfered with this attorney's examination. If called as a witness, Parcel was free to waive his constitutional privilege against self-incrimination. His purported testimony would have been merely cumulative to that of defendant and his other alibi witnesses. His credibility as a witness for the defendant would have been seriously questioned by reason of his prior criminal record and the fact he was awaiting trial for the murder. His belated invocation of the Fifth Amendment would not have enhanced his credibility. And, in light of his subsequent recantation, one can only speculate what he might have done if called as a witness.

Orderly procedure mandates that any assignment of error made on motion for a new trial and on appeal must be based upon an objection made and reasons assigned in the trial court. State v. Brookshire, 353 S.W.2d 681 (Mo.1962), cert. denied 371 U.S. 67, 83 S.Ct. 155, 9 L.Ed.2d 119 (1962). Trial courts should have an opportunity to rule alleged trial errors when they occur. The foregoing rule is equally applicable to claimed violations of constitutional rights which first surface in a defendant's motion for a new trial. State v. Price, 422 S.W.2d 286 (Mo.1967).

Here, defendant or his principal attorney, Attorney Lawrence Johnson, made no objection to Attorney Franks continuing to represent Ralph Parcel until after the trial. Both were fully aware Attorney Franks was defending Parcel when the decision was made to employ this attorney as local counsel. Throughout a host of pretrial court proceedings and the six-day trial of defendant neither the defendant nor Attorney Johnson voiced any objection or made any suggestion to the experienced trial judge of any claimed conflict of interest by reason of Attorney Franks' dual...