Brown v. State, 561 S.W.3d 421 (2018)

Sept. 11, 2018 · Missouri Court of Appeals, Southern District, Division Two · No. SD 35061
561 S.W.3d 421

Joshua Tyler BROWN, Appellant,
v.
STATE of Missouri, Respondent.

No. SD 35061

Missouri Court of Appeals, Southern District, Division Two.

Filed: September 11, 2018
Rehearing Denied October 5, 2018
Application for Transfer Denied December 18, 2018

Appellant's attorney: William J. Fleischaker, Joplin.

Respondent's attorneys: Joshua D. Hawley, Atty. Gen., & Nathan J. Aquino, Asst. Atty. Gen.

(Before Francis, P.J., Scott, J., and Sheffield, J.)

PER CURIAM.

Joshua Tyler Brown appeals from the denial, after an evidentiary hearing, of his Rule 29.151 motion to set aside his conviction for first-degree endangering the welfare of a child. His sole point asserts that the motion court clearly erred in denying his post-conviction motion, contending that trial counsel was ineffective due to a conflict of interest in that he represented both Brown and Brown's co-defendant at the time of Brown's trial. We affirm.

*423Facts and Procedural Background

Brown was charged by amended information with the class C felony of first-degree endangering the welfare of a child2 for causing injury to the face, head, buttocks, and body of a two-year old ("Victim"). Similarly charged was Victim's mother ("Co-defendant").3

Trial counsel ("Counsel") discussed the risks and advantages of concurrently representing *424both Brown and Co-defendant with each independently. They each signed a written waiver of the potential conflict of interest in order for Counsel to represent them both. Brown and Co-defendant consistently indicated to Counsel that Victim's injuries were accidental, arising primarily from Co-defendant falling and dropping Victim, and then accidentally burning Victim on the heating pad.

Trial counsel considered the possible defense for Brown to blame Co-defendant entirely, but Counsel found no evidence to support that theory, nor did Brown want to pursue that theory because he said it had been an accident. Further, Counsel recognized that Brown had made a statement that he had been responsible for Victim's injuries, and thought it would be poor trial strategy for Brown to contradict himself and then blame Co-defendant. Counsel actively involved Brown in the selection of trial strategy and evidence. Counsel also investigated numerous witnesses who had seen Brown and Victim near the time Victim was alleged to have sustained her injuries, and ultimately adduced testimony from some of those witnesses at trial.

At Brown's jury trial, and consistent with the parties' common defense, Brown's trial theory was accident; i.e. , Victim was injured accidentally after Co-defendant dropped Victim and then placed her on a heating pad.

In support of this defense, Co-defendant voluntarily waived her Fifth Amendment right and testified as a witness for Brown. She stated that she slipped on stairs exiting Brown's house while holding Victim. She said that she placed Victim on a heating pad set on high, alternating it with cold materials every 15 minutes from 3 p.m. until 8 p.m. She testified she never saw Brown place Victim on the heating pad and never saw Brown cause any of Victim's injuries.

Brown testified in his own defense and was consistent with Co-defendant's testimony. The jury found Brown guilty as charged.

Brown filed a notice of appeal, voluntarily dismissed it, and timely filed a Rule 29.15 PCR motion alleging that Counsel was ineffective because of a conflict of interest arising out of Counsel's dual representation of Brown and Co-defendant. The motion court denied relief after an evidentiary hearing, finding inter alia that Brown failed to show a conflict of interest that adversely affected Counsel's representation of Brown, and that both Brown and Co-defendant asserted a common defense and signed written waivers. This appeal followed.

Discussion

Brown's sole point charges that the motion court erred in denying relief because Counsel's concurrent representation of Brown and Co-defendant created an actual conflict of interest that detrimentally affected his representation of Brown.4

We need not parse DePriest , our supreme court's 2017 conflict-of-interest PCR case, or consider other reasons to *425affirm because Brown, on appeal, ignores repeated motion-court findings that Brown and Co-defendant were asserting a common defense such that this case is governed by

the "common defense" cases in which the courts have held that where defendant knew from the outset that counsel would represent all defendants, and where a common defense was asserted by all defendants, then no conflict of interest exists. See, e.g., Odom v. State, 783 S.W.2d 486, 488 (Mo. App. [W.D.] 1990) (no conflict where common defense asserted); Hopson v. State, 728 S.W.2d 276, 278 (Mo. App. [W.D.] 1987) (no conflict of interest where co-defendants' accounts of the circumstances were in substantial agreement); Smith v. State, 716 S.W.2d 467, 469 (Mo. App. [E.D.] 1986) (same).

State v. Kretzer , 898 S.W.2d 639, 645 (Mo. App. W.D. 1995). "Where, as in this case, a movant totally ignores the specific findings of the motion court, we have no choice, based upon their presumptive correctness, other than to find that they are not clearly erroneous." Dismang v. State , 207 S.W.3d 663, 670 (Mo. App. [S.D.] 2006). We cannot act as Brown's advocate by supplying arguments for why the motion court may be wrong or the above-cited cases distinguishable. See Mercer v. State , 547 S.W.3d 575, 578 (Mo. App. S.D. 2018). We affirm the judgment.5

CONCURRING OPINION

WILLIAM W. FRANCIS, JR., Judge

I concur with the Court's opinion here, but write separately to underscore the hazards that may surface when trial counsel proceeds with concurrent representation of co-defendants. While it is certainly permissible for counsel to embark upon concurrent representation, so long as the ethical requirements are satisfied, the perils of that representation may surface following an adverse result.

Furthermore, Brown has failed to demonstrate how trial counsel failed to meet the ethical requirements for concurrent representation and has not demonstrated how counsel's performance was compromised as a result of the concurrent representation. Most, if not all, of the evidentiary criticisms Brown raises in his appeal were satisfied by other evidence or strategies.

Finally, the assertion of a common defense alone may not be enough to meet the requirements set forth in DePriest v. State , 510 S.W.3d 331 (Mo. banc 2017). However, that issue is left for a future case.