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September 7, 1993



Before Berrey, P.j., Breckenridge, J. and Hanna, J.

The opinion of the court was delivered by: Breckenridge

Richard C. Walden (Walden) appeals from his conviction for receiving stolen property valued at more than $150, § 570.080, RSMo 1986, *fn1 for which he was sentenced, as a prior and persistent offender, to eight years imprisonment. He also appeals the motion court's denial of his Rule 29.15 motion for post-conviction relief. Walden raises three points on appeal arguing that: 1) the motion court erred in denying his Rule 29.15 motion because he was denied effective assistance of counsel due to a conflict of interest; 2) the trial court erred in allowing the introduction of hearsay evidence regarding Walden's knowledge as to whether certain property was stolen; and 3) the trial court erred in submitting Instruction 4 to the jury, defining "proof beyond a reasonable doubt" as "proof that leaves you firmly convinced of the defendant's guilt," because such definition violates the due process clause.

The conviction and the judgment on the post-conviction motion are affirmed.

On February 3, 1991, the home of Rudy Dyer of St. Louis, Missouri, was burglarized. Among the items taken were a Rolex watch engraved with the victim's name and date of birth worth approximately $1,250, a Masonic double-eagle ring valued at $150-$200, a two-carat emerald worth about $2,000-$2,500, and a .45 nickel-plated World War II commemorative pistol with an inscription reading "World War II Commemorative. Pacific Theater of Operations."

On February 11, 1991, Brian Piester, a detective in the property unit of the Columbia, Missouri Police Department, received information regarding suspicious jewelry sales made by Walden and Patrick Kelly in Columbia, Missouri. Shortly thereafter, Walden was arrested by Piester and Detective Thomas Dresner. At the time of his arrest, he had on his person the Rolex watch and the Masonic double-eagle ring, later identified as belonging to Dyer. The driver's license of Kelly was found in the pocket of the jean jacket Walden was wearing when he was arrested. Pursuant to Walden's consent, Piester searched Walden's car and discovered the two-carat emerald belonging to Dyer.

Walden was handcuffed and taken to the police station to be interviewed. Walden told the officers that he met Kelly while undergoing drug rehabilitation treatment at a hospital in Fulton, Missouri. Walden indicated that Kelly had given him the Rolex and other property in return for Walden driving Kelly around Columbia to jewelry stores. Walden informed the officers that Kelly told him the property had been taken during a burglary in St. Louis approximately two weeks prior to the events at issue. The officers also learned from Walden that Kelly could be found at the home of Walden's son, Craig Walden.

Piester and another detective went to Craig Walden's home. After knocking on the door, Piester heard shuffling noises and, about a minute later, Craig Walden opened the door. Kelly was standing behind him. Piester talked with Craig Walden and received permission to search the house. Craig Walden testified that he had not invited Kelly or his father to stay at his home but that he had returned from staying with his grandparents for a few days to find that they had been staying in his house. Craig Walden told Piester that, when the police arrived, Kelly had been showing him guns and jewelry, some of which Kelly and Walden had hidden throughout the house before Craig Walden came home. Piester testified that Craig Walden told the officers that Kelly had asked him for assistance in selling the items which Kelly said were from a burglary in Chicago. Piester also testified that Craig Walden stated that Walden had been present during the conversation regarding the origin of the items. During the search of his home, Craig Walden helped the officers find the .45 caliber commemorative pistol stolen from the Dyer residence, along with other weapons and jewelry. The officers arrested Kelly at Craig Walden's home.

On August 7, 1991, Walden was found guilty by a jury of receiving stolen property valued at more than $150 pursuant to § 570.080. He was sentenced, as a prior and persistent offender, to eight years imprisonment. Walden filed a pro se Rule 29.15 post-conviction motion on February 4, 1992. An amended motion for post-conviction relief was filed on April 6, 1992. After an evidentiary hearing was held, the motion court denied Walden's post-conviction motion. Walden appeals both from his conviction and from the denial of his motion for post-conviction relief.

In Point I, Walden argues that the motion court erred in denying his Rule 29.15 motion for post-conviction relief because he received ineffective assistance of counsel. Walden asserts that his original attorney, assistant public defender Michael Anderson, represented his co-defendant, Kelly, at Kelly's preliminary hearing which created an actual conflict of interest. Walden further argues that this conflict of interest was imputed to his trial attorney Andrew Hernandez, who was the district public defender and Anderson's supervisor. Walden claims he was adversely affected by the conflict of interest because Hernandez did not subpoena for trial his former client, Kelly, and his failure to do so prevented Walden from presenting exculpatory evidence.

In reviewing the denial of a Rule 29.15 motion, this court is limited to a consideration of whether the findings and Conclusions of the trial court are clearly erroneous. State v. Ervin, 835 S.W.2d 905, 928 (Mo. banc 1992), cert. denied, 122 L. Ed. 2d 746, 113 S. Ct. 1368 (1993). After a review of the entire record, the motion court's findings and Conclusions will only be found to be clearly erroneous if this court is left with the definite and firm impression that a mistake has been made. Id.

A movant bears a heavy burden in establishing a claim for ineffective assistance of counsel and must overcome the court's presumption that counsel is competent. Amrine v. State , 785 S.W.2d 531, 534 (Mo. banc 1990), cert. denied, 498 U.S. 881, 112 L. Ed. 2d 181, 111 S. Ct. 227 (1990). A movant must satisfy the following two-part test to prove a denial of the right to effective assistance of counsel on conflict of interest grounds: 1) counsel actively represented conflicting interests; and 2) the actual conflict of interest adversely affected counsel's representation of movant. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Amrine , 785 S.W.2d at 535. To establish an actual conflict of interest, movant must show that counsel did something or failed to so something which was detrimental to movant's interests and advantageous to the person whose interests conflict with movant's interests. Yoakum v. State , 849 S.W.2d 685, 689 (Mo. App. 1993). Prejudice is presumed only if the movant establishes both prongs of the Strickland test. Amrine , 785 S.W.2d at 535.

It is unnecessary for this court to decide whether an actual conflict of interest existed because Walden has not proved that he was adversely affected by counsel's representation of Kelly, which is the second prong of the Strickland test. Walden argues that he was adversely affected because the conflict of interest caused Hernandez to not call Kelly as a witness even though Hernandez had information from another potential witness that Kelly could exculpate Walden. Walden also argues, in the alternative and inconsistently, that Hernandez should have called Kelly as a witness so that if his testimony was unfavorable to Walden, Walden could have impeached Kelly's testimony with evidence of prior inconsistent statements Kelly made to Robert Stapelton, an inmate in the Missouri Department of Corrections.

To demonstrate that defense counsel was ineffective for failing to call a witness to testify, the movant must prove that: 1) the decision not to call the witness was something other than reasonable trial strategy; 2) the witness could have been located through reasonable investigation and would have testified if called; and 3) the witness's testimony would have provided movant with a viable defense. State v. Buchanan , 836 S.W.2d 90, 93 (Mo. App. 1992). On appeal, counsel's decision not to call a witness is presumed to be a decision of trial strategy and will not support the overturning of a conviction on the basis of ...

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