In the Missouri Court of Appeals Eastern District DIVISION FOUR
HENRY FRAZIER, ) No. ED99517 ) Appellant, ) Appeal from the Circuit Court of ) the City of St. Louis vs. ) ) Honorable David C. Mason STATE OF MISSOURI, ) ) Respondent. ) Filed: March 11, 2014
Introduction
Henry Frazier (Movant) appeals the judgment of the Circuit Court of the City of St. Louis
denying his Rule 29.15 motion for post-conviction relief following an evidentiary hearing.
Movant claims that the motion court erred in denying his claims that: (1) trial counsel and
appellate counsel were ineffective because they failed to withdraw due to a conflict of interest;
(2) the prosecutor committed a Brady 1 violation; and (3) trial counsel failed to investigate and
impeach the victim. We affirm.
Factual and Procedural Background
On the night of September 23, 2007, Movant, Jeffrey Wilson, and “Tony G.” approached
Tracy Dennis while he was sitting on a park bench. Movant punched Mr. Dennis, and Movant,
Mr. Wilson, and Tony G. “started boxing” Mr. Dennis. Mr. Wilson eventually threw Mr. Dennis
to the ground and held him. As Mr. Dennis fought Mr. Wilson, Mr. Dennis felt something cut
1 Brady v. Maryland, 373 U.S. 83 (1963). his back and saw Movant holding a box cutter. Movant slashed Mr. Dennis’ face with the box
cutter, and ran away with Mr. Wilson and Tony G. Approximately a month later, Mr. Dennis
observed Movant and Mr. Wilson. Mr. Dennis approached Officer Anthony Ewing and
identified Movant as the man who cut him. Officer Ewing placed Movant under arrest.
The State charged Movant with assault in the first degree and armed criminal action. At
trial, the State presented the testimony of Mr. Dennis and Officers David Batteast, Anthony
Ewing, Christopher Seger, and Jocelyn Mercier from the St. Louis Metropolitan Police
Department. Mr. Dennis testified that Movant and two other men approached him from behind
and punched him. He testified that when he was on the ground, Movant held the box cutter over
him and stabbed him with it.
Movant presented the testimony of his wife Joanna Frazier. Movant also testified in his
own defense. Movant testified that he, Mr. Wilson, and Tony G. were sitting on a bench near
Mr. Dennis and his two friends when Mr. Dennis got “loud and obnoxious” and “all in
[Movant’s] face.” Movant hit Mr. Dennis and the six men started fighting. Mr. Dennis’ friends
pulled Movant away from the fight and Tony G. cut Mr. Dennis several times with the box
cutter.
The jury found Movant guilty of assault in the first degree and armed criminal action.
The trial court sentenced Movant as a persistent offender to concurrent terms of twenty years for
assault in the first degree and ten years for armed criminal action. This court affirmed Movant’s
conviction and sentence in State v. Frazier, 326 S.W.3d 506 (Mo.App.E.D. 2010).
Movant filed a Rule 29.15 motion for post-conviction relief, which counsel later
amended. In his motion, Movant alleged, among other things, that: (1) trial and appellate
counsel were ineffective in failing to withdraw from representing Movant because counsel had
2 an actual conflict of interest in that different lawyers from the Missouri State Public Defender
System (MSPD) represented both Movant and Mr. Dennis at the same time on unrelated charges;
(2) the State violated Brady when it failed to disclose to Movant Mr. Dennis’ prior convictions
and pending cases; and (3) trial counsel were ineffective in failing to investigate and impeach
Mr. Dennis with his prior convictions and pending cases.
The motion court held an evidentiary hearing on Movant’s motion at which trial
counsel, 2 appellate counsel, Mr. Dennis’ trial counsel, and Mr. Dennis’ appellate counsel
testified. Movant also introduced evidence of Mr. Dennis’: (1) three convictions for driving
while suspended (DWS) that occurred on April 5, 1999, October 19, 2000, and August 5, 2001;
and (2) two criminal cases that were pending at the time of Movant’s trial. 3
The motion court denied Movant’s Rule 29.15 motion following the evidentiary hearing,
on the grounds that Movant failed to: (1) demonstrate prejudice with respect to his conflict of
interest claim; (2) raise the Brady violation in his direct appeal; and (3) demonstrate prejudice
with respect to his claim that counsel failed to investigate and impeach Mr. Dennis. Movant
appeals.
Standard of Review
Our review of a denial of a motion for post-conviction relief is limited to determining
whether the trial court’s findings of fact and conclusions of law are clearly erroneous. Rule
29.15(k). Findings and conclusions are erroneous if, after reviewing the entire record, we are left
with the definite impression that a mistake has been made. Zink v. State, 278 S.W.3d 170, 175
2 Original trial counsel entered his appearance on January 10, 2008. Replacement trial counsel entered her appearance on November 11, 2008. Both trial counsel testified at the hearing. 3 In one case, Mr. Dennis was convicted of two counts of misdemeanor assault of a law enforcement officer. Mr. Dennis was acquitted in his second case.
3 (Mo. banc 2009). In making this determination, we presume that the motion court’s findings are
correct. Id.
Discussion
1. Conflict of interest
In his first point, Movant alleges that the motion court erred in denying his claim that trial
and appellate counsel operated under a conflict of interest. Specifically, Movant asserts that: (1)
MSPD lawyers concurrently represented him and the victim, Mr. Dennis; and (2) MSPD
appellate lawyers concurrently represented him and Mr. Dennis. Movant argues that the
MSPD’s “dual representation of both [Movant] and [Mr. Dennis] constitutes a concurrent
conflict of interest” and is presumptively prejudicial. Alternatively, Movant argues that he
demonstrated prejudice because “his attorneys’ performance was directly and substantially
affected by the conflict.” The State counters that the motion court did not err because Movant
failed to: (1) prove an actual conflict of interest; and (2) demonstrate prejudice because Movant’s
counsel were unaware that the MSPD represented Mr. Dennis during the time that counsel
represented Movant.
Movant contends that the MSPD’s concurrent representation of Movant and Mr. Dennis
constitutes a conflict of interest, and therefore, Movant is not required to demonstrate prejudice
to warrant relief. To support his contention, Movant relies on State ex rel. Horn v. Ray, 325
S.W.3d 500 (Mo.App.E.D. 2010) and Okeani v. Superior Court, 178 Ariz. 180 (Ariz.Ct.App.
1993) (cited with approval in Horn, 325 S.W.3d at 506). In Horn, the State petitioned the court
for a writ of prohibition to disqualify counsel from simultaneously representing the defendant
and the victim in an assault case. Id. at 503-04. We concluded that, “[u]nder the Missouri
Supreme Court Rules of Professional Conduct, counsel’s dual representation of both the
4 defendant and his alleged victim… in the State’s prosecution of the defendant for the crime
allegedly committed against the victim constitutes a concurrent conflict of interest, to which a
client cannot consent” because “the interests of the defendant and the victim are necessarily
adverse.” Id. at 503, 506.
Movant asserts that the holding in Horn extends specifically to his case based on the
Okeani case. In Okeani, an Arizona appellate court granted extraordinary relief to a public
defender from the denial of his motion to withdraw from representing the defendant. 178 Ariz.
at 182. The court concluded that a conflict of interest existed due to the public defender’s
concurrent representation of the defendant and his victim in an unrelated matter. Id. at 181.
Contrary to Movant’s assertion, Movant’s case is entirely distinguishable from Horn and
Okeani. Here, Movant claims a conflict of interest in a post-conviction motion while in Horn
and Okeani, the issue was raised before trial. 4 In his brief, Movant acknowledges that different
standards apply to conflict of interest claims raised before trial and after trial, stating that a
reviewing court presumes prejudice only where the trial court refuses to allow a lawyer to
withdraw due to a conflict of interest. He further states that “[i]n un-objected to situations, the
reviewing court considers (1) whether an actual conflict of interest exists and (2) whether
counsel’s performance was adversely affected.” Because Movant advised the trial court of the
alleged conflict of interest following his trial and conviction, we presume prejudice “only if the
movant proves that counsel actively represented conflicting interests and that an actual conflict
4 Movant also cites Holloway v. Arkansas, 435 U.S. 475 (1978), and Wood v. Georgia, 450 U.S. 261 (1981), to support his assertion “that under the facts and circumstances of his case, no demonstrable prejudice is required for reversal.” Those cases are also distinguishable. In Holloway, the defendant raised the conflict of interest issue before trial and the Court held that when a trial court improperly requires joint representation of co-defendants by an attorney over a timely objection, prejudice is presumed. 435 U.S. at 489. In Wood v. Georgia, the Court remanded the case for the court to determine whether an “actual conflict of interest existed.” 450 U.S. at 273.
5 adversely affected counsel’s performance.” Hickey v. State, 328 S.W.3d 225, 228 (Mo.App.E.D.
2010).
In conflict of interest claims raised in a post-conviction motion, “the mere existence of a
possible conflict of interest does not automatically preclude effective representation.” Conger v.
State, 398 S.W.3d 915, 919 (Mo.App.E.D. 2013). “A conflict of interest such as to deny the
movant effective assistance of counsel must be shown by evidence.” Hickey, 328 S.W.3d at 228.
“In order to evidence a conflict of interest, something must have been done by counsel or
something must have been forgone by counsel and lost to the movant that was detrimental to the
movant’s interests and advantageous to another.” Id. at 229. Although Movant alleges that “his
attorneys’ performance was directly and substantially affected by the conflict,” he fails to
identify facts supporting his assertion.
The record reveals the following as to the MSPD’s concurrent representation of Movant
and Mr. Dennis: MSPD trial lawyers concurrently represented Movant and Mr. Dennis. Mr.
Dennis’ cases were unrelated to Movant’s prosecution. While representing Movant, trial counsel
signed a continuance memorandum for Mr. Dennis’ cases, resetting his trial from December 12,
2008 to January 15, 2009. 5 Movant was convicted on January 20, 2009 following a jury trial,
and subsequently, Mr. Dennis was convicted on one of his cases. During Movant’s appeal,
MSPD appellate lawyers concurrently represented Movant and Mr. Dennis.
At the hearing on Movant’s post-conviction motion, trial and appellate counsel testified
that they were unaware that the MSPD concurrently represented Movant and Mr. Dennis. Trial
counsel testified that they did not speak with Mr. Dennis’ counsel about Movant’s case and the
MSPD’s representation of Mr. Dennis did not affect their handling of Movant’s case. The trial
5 Mr. Dennis’ case was again reset for trial on January 15, 2009 and February 26, 2009.
6 counsel who signed Mr. Dennis’ request for a continuance did not remember signing but
recognized her signature on the document. 6 Appellate counsel testified that she was unaware
that another MSPD lawyer from the same appellate “team” concurrently represented Mr. Dennis.
Appellate counsel testified that she did not speak to Mr. Dennis’ appellate counsel about either
Movant’s or Mr. Dennis’ case.
Movant has failed to establish evidence of “something done,” or “forgone” by counsel
and lost to him, that was detrimental to Movant and advantageous to Mr. Dennis. Neither trial
nor appellate counsel were aware of the MSPD’s concurrent representation of Movant and Mr.
Dennis, Movant’s case and Mr. Dennis’ cases did not involve related offenses, and there is no
evidence that the State offered Mr. Dennis a favorable plea bargain, which might evidence an
actual conflict of interest. See Hickey, 328 S.W.3d at 230. This court has rejected a per se rule
finding a conflict of interest exists where an attorney represents both the defendant and a
prosecution witness in the case against the defendant because such a rule “would fail to
acknowledge that to establish an actual conflict, counsel must have done something or failed to
do something that was then lost to the movant, and that was detrimental to the movant’s interests
and advantageous to another’s interests.” Id. Accordingly, because Movant failed to identify
evidence to support a finding that an actual conflict of interest existed, the motion court did not
err in denying Movant’s claim. Point denied.
2. Brady violation
In his second point, Movant asserts that the motion court clearly erred in denying his
claim that the State: (1) violated principles articulated in Brady when it failed to disclose to
Movant’s counsel Mr. Dennis’ pending criminal cases and prior convictions; and (2) failed to
6 Mr. Dennis’ trial counsel testified that replacement trial counsel likely signed Mr. Dennis’ continuance memorandum because she was covering the docket for the MSPD office that day.
7 correct the record when Mr. Dennis stated that he had a “clean record” in his deposition and
“didn’t do crime” at trial. Movant alleges that the State’s misconduct prejudiced him, preventing
him from effectively impeaching Mr. Dennis, the State’s only eye-witness. The State contends
that Movant’s claim should have been raised on direct appeal and was not a “rare and
exceptional circumstance.” The State also contends that Movant was not prejudiced because he
thoroughly impeached Mr. Dennis during cross-examination and argued Mr. Dennis’ lack of
credibility during closing argument.
As an initial matter, we address the State’s contention that Movant’s claim is not
cognizable under Rule 29.15 because the claim should have been raised on direct appeal.
Generally, a Rule 29.15 motion is not a substitute for a direct appeal. State v. Tolliver, 839
S.W.2d 296, 298 (Mo. banc 1992). Claims of trial error will only be considered in a post-
conviction proceeding “where fundamental fairness requires, and then, only in rare and
exceptional circumstances.” Tisius v. State, 183 S.W.3d 207, 212 (Mo. banc 2006). A
nondisclosure claim where a movant was unaware of the State’s nondisclosure at the time of
appeal and unable to include evidence in the record on appeal is a rare and exceptional
circumstance and cognizable in a Rule 29.15 motion. Buck v. State, 70 S.W.3d 440, 446
(Mo.App.E.D. 2000). In such a circumstance, a movant “cannot be faulted for failing to raise the
nondisclosure of evidence that he did not know about” and a “Rule 29.15 motion represents his
only opportunity to correct the prosecution’s nondisclosure.” Id. at 445-46.
The record supports the motion court’s finding that Movant “knew that Mr. Dennis had
the harassing and misdemeanor assault priors at the time of trial” and therefore should have
raised the State’s nondisclosure of those priors on direct appeal. At trial, trial counsel cross-
examined Mr. Dennis about his criminal history and Mr. Dennis admitted pleading guilty to
8 harassment in 2000. Trial counsel asked if he “remember[ed] pleading guilty to other crimes
other than harassment.” The State asked to approach the bench, and the following conversation
occurred at the sidebar:
[Trial counsel:] … I thought the State said [Mr. Dennis] had a second [conviction], but I was not provided with that information. [Prosecutor:] I believe this is the only conviction that he has. He said he has pled guilty to traffic violations. I think that’s what he was talking about. [Court:] So there is no second? [Prosecutor:] No.
The State recalled Mr. Dennis the following day to clarify his criminal record. Mr. Dennis
testified that in addition to his harassment conviction in 2000, he pleaded guilty to misdemeanor
assault of a law enforcement officer in the third degree in 2002. Because Movant was aware of
Mr. Dennis’ prior harassment and assault convictions at the time of appeal, Movant should have
raised his Brady claim as it related to those charges on direct appeal.
However, the record does not support the motion court’s finding with regard to Mr.
Dennis’ three prior DWS convictions and two pending cases. At the evidentiary hearing, trial
counsel testified that the State failed to provide a list of Mr. Dennis’ prior convictions and
pending criminal cases. Trial counsel also testified that she was unaware of Mr. Dennis’
criminal record, and had she known about Mr. Dennis’ prior convictions and pending criminal
cases, her trial strategy and preparation would have been different. Because Movant was
unaware of the State’s nondisclosure of Mr. Dennis’ three misdemeanor DWS convictions and
two pending criminal cases, his claim relating to those nondisclosures constitutes a rare and
exceptional circumstance that is cognizable in his post-conviction relief motion. Id. at 445-46.
To prevail on a post-conviction relief claim based on a Brady violation, a movant must
show that: (1) the evidence at issue is favorable to him, either because it is exculpatory or
because it is impeaching; (2) the evidence was suppressed by the State, either willfully or
9 inadvertently; and (3) he was prejudiced. State v. Moore, 411 S.W.3d 848, 854 (Mo.App.E.D.
2013). The State disputes neither that Mr. Dennis’ prior convictions and pending cases
constitute impeachment evidence nor that it failed to disclose the impeachment evidence to
Movant. 7 Accordingly, we only address whether Movant was prejudiced by the State’s
nondisclosure of Mr. Dennis’ three misdemeanor DWS convictions and two pending cases.
A movant is prejudiced by the State’s nondisclosure of impeachment evidence if the
evidence is material. See State v. Reed, 334 S.W.3d 619, 626 (Mo.App.E.D. 2011) (“Prejudice
in [the] context [of a Brady violation] is interchangeable with materiality.”). Evidence is
material if “there is a reasonable probability that its disclosure to the defense would have caused
a different result in the proceeding.” Id. If “the favorable evidence could reasonably be taken to
put the whole case in such a different light as to undermine confidence in the verdict then the
materiality standard is established.” State v. Engel, 304 S.W.3d 120, 128 (Mo.banc 2010). “The
question is not whether the defendant would more likely than not have received a different
verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence.” Id.
Movant contends that he was prejudiced because he would have used Mr. Dennis’ prior
convictions and pending criminal cases to impeach him as an “unreliable, biased perjurer.”
However, our review of the record reveals that Movant impeached Mr. Dennis with his prior
7 In its brief, the State asserts that under Rule 25.03, it was not required to provide Movant with Mr. Dennis’ prior misdemeanor convictions and pending cases. Although the State may not have violated its duty to disclose under Missouri discovery rules, the scope of its duties differ under Brady. Moore, 411 S.W.3d at 853. Brady requires the State “to disclose evidence in its possession that is favorable to the accused and material to guilt or punishment.” State v. Goodwin, 43 S.W.3d 805, 812 (Mo.banc 2001). “Moreover, the State must disclose, even without request, exculpatory evidence, including evidence that may be used to impeach a government witness.” Moore, 411 S.W.3d at 854 (internal quotation omitted). “Suppression of such evidence equates to a constitutional violation.” Id.
10 convictions and argued his credibility during closing. During trial counsel’s cross-examination
of Mr. Dennis, Mr. Dennis testified, “I don’t think I have any convictions. I believe I pled guilty
to a few things.” Mr. Dennis admitted pleading guilty to harassment in 2000, and trial counsel
asked Mr. Dennis if he remembered being asked during his deposition if he had any convictions.
Trial counsel asked Mr. Dennis if he could tell the court to what other crimes he had pleaded
guilty, and Mr. Dennis responded, “I don’t know, but you can if you have the records. I don’t
know. I don’t do crime.”
During her closing argument, trial counsel argued that Mr. Dennis was “not a believable
witness” based on his “backpedaling” with regard to his criminal record. She asserted that Mr.
Dennis “wanted [the jury] to believe he didn’t have any convictions” and “each time he took the
stand[,] he explained away every inconsistency.” She also highlighted that Mr. Dennis
“wouldn’t even tell [the jury] about the assault of a law enforcement officer. He can’t be
believable because he couldn’t be honest with the jurors.” Based on the record, we conclude that
even if counsel had impeached Mr. Dennis with his three prior DWS convictions and two
pending cases, the evidence would not have placed the whole case in such a different light as to
undermine confidence in the verdict. See Hickey, 328 S.W.3d at 230. Accordingly, the trial
court did not clearly err in denying Movant’s claim based on its finding that Movant was not
prejudiced. Point denied.
3. Failure to investigate and impeach
In his third and final point, Movant alleges that the motion court clearly erred in denying
his claim that trial counsel were ineffective in failing to investigate and impeach Mr. Dennis with
his prior convictions and pending cases. Movant contends that had trial counsel searched Mr.
Dennis’ name in Case.net, they would have known about Mr. Dennis’ three misdemeanor DWS
11 convictions and two pending cases and could have used them to impeach Mr. Dennis as a
witness. Movant asserts that had trial counsel impeached Mr. Dennis, there is a reasonable
likelihood that the verdict would have been different. The State counters that the motion court
did not err in denying Movant’s claim because Movant was not prejudiced.
To prevail on a claim of ineffective assistance of counsel, a movant must show by a
preponderance of the evidence that: (1) counsel failed to exercise the customary skill and
diligence of a reasonably competent attorney under similar circumstances; and (2) counsel’s
deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). To succeed on a claim of ineffective assistance for failure to investigate, a movant is
“required to: (i) specifically describe the information his attorney failed to discover, (ii) establish
that a reasonable investigation by trial counsel would have resulted in the discovery of such
information, and (iii) prove that the information would have aided or improved his position at
trial.” Cornelious v. State, 351 S.W.3d 36, 46 (Mo.App.W.D. 2011) (internal quotations
omitted).
To prevail on a claim of ineffective assistance of counsel for failure to impeach a witness,
a movant must demonstrate that “the impeachment would have provided [him] a defense or
would have changed the outcome of the trial[.]” State v. Phillips, 940 S.W.2d 512, 524
(Mo.banc 1997). “It is not enough that some misstep of counsel had some conceivable effect on
the outcome of the case.” State v. Gray, 887 S.W.2d 369, 381 (Mo.banc 1994). “The particular
failure must be so significant as to demonstrate a reasonable probability that but for counsel’s
unprofessional errors, the result would have been different.” Id.
The motion court did not clearly err in denying Movant’s claim that counsel was
ineffective for failing to investigate and impeach Mr. Dennis because Movant did not
12 demonstrate that had trial counsel impeached Mr. Dennis with his prior convictions and pending
cases, there is a reasonable probability that the outcome of the trial would have been different.
As previously discussed, trial counsel cross-examined Mr. Dennis about his prior convictions for
harassment and assault of a law enforcement officer and challenged his credibility by
impeaching him with his deposition statements and by stating in closing argument that he was
“not believable.” We conclude that trial counsel impeached Mr. Dennis with two of his prior
convictions and that impeaching Mr. Dennis with his other prior convictions and pending cases
would not have changed the outcome of the trial. See Hickey, 328 S.W.3d at 230 (concluding
that “trial counsel, having effectively impeached the witness with felony convictions involving
dishonesty, would not have provided more effective representation by adducing evidence that the
witness also had convictions for misdemeanor driving while intoxicated and misdemeanor
driving while license revoked.”). Point denied.
Conclusion
The judgment of the motion court is affirmed.
Patricia L. Cohen, Judge
Lisa S. Van Amburg, P.J., and Gary M. Gaertner, Jr., J., concur.