Court of Appeals of Missouri, Western District, First Division
from the Circuit Court of Clay County The Honorable Larry D.
Gary D. Witt, P.J., and Alok Ahuja and Edward R. Ardini, Jr.,
a jury trial, Henry Lee Polk Jr. was convicted in the Circuit
Court of Clay County of murder in the first degree, armed
criminal action, robbery in the second degree, and domestic
assault in the second degree. After we affirmed his
convictions on direct appeal, Polk filed a motion for
postconviction relief under Supreme Court Rule 29.15.
Polk's motion argued that his trial counsel was
ineffective in multiple respects, and that he was accordingly
entitled to a new trial. The circuit court denied relief
following an evidentiary hearing. Polk appeals. We affirm.
October 2003, Stephen Nolte and his wife moved out of their
residence at 5519 North Troost in Kansas City, and into a new
home. The Troost residence needed renovations before being
advertised for sale. On the evening of March 7, 2004, Nolte
was working at the Troost residence. At 9:45 p.m., he told
his wife that he would return to their new home shortly.
midnight, Polk asked his wife to drop him off at the Troost
residence so he could speak to Nolte about collecting money
that Nolte allegedly owed to Polk. Polk's wife dropped
him off in front of the Troost residence and then returned
home. At approximately 1:15 a.m., Polk phoned his wife and
told her that he and Nolte were going into Kansas to buy
beer. Within half an hour, Polk phoned his wife again, and
asked her to pick him up in Kansas. On the way home, Polk
again asked his wife to drop him off at the Troost residence
so that he could talk with Nolte. After dropping Polk off at
the Troost residence, his wife returned home. An hour later,
Polk phoned his wife and asked for another ride home. Shortly
after returning home, Polk once again asked his wife to drive
him to the Troost residence so he could get Nolte's truck
and sell some of the tools that Nolte kept in the bed of the
truck. When Polk's wife suggested that Nolte would
probably call the police, Polk responded that Nolte
"wouldn't be saying anything to anybody." When
the couple arrived back at the Troost residence, Polk put on
a pair of gloves, entered Nolte's truck, and told his
wife to follow him into Kansas, where he removed the license
plates from the truck and abandoned it.
in the morning of March 8, 2004, Nolte was found dead in the
Troost residence. He had a gaping sharp force injury to his
neck, consistent with a knife attack; additional injuries
around his neck consistent with strangulation; and defensive
wounds, scrapes, bruises, abrasions, and contusions on his
body. The linings of each of Nolte's jeans pockets were
pulled out and were stained with blood. Nolte's truck
keys and cell phone were missing. Crime scene investigators
collected evidence from the Troost residence, including a
human hair found in the lining of Nolte's right pants
pocket, and cat hairs found in his left pocket.
March 10, 2004, two days after Nolte was murdered, Polk asked
his wife to drive him to the location where they had left
Nolte's truck. Polk told his wife that he "had some
things that he needed to get rid of." When they arrived
at the truck, Polk placed a bag of clothing in the middle of
the road and set it on fire.
the police interviewed Polk, he admitted that he had seen
Nolte on the night of the murder. Polk claimed that he and
Nolte had gone into Kansas, where Nolte abandoned him, and
that Polk's wife then came to pick him up. Polk stated
that he and his wife went directly home and went to sleep.
When an investigator asked Polk about cell phone records
showing multiple calls between Polk and his wife after 3:00
a.m. on the morning of March 8, Polk replied that they had
called each other from opposite ends of their trailer home.
2004, Polk and his wife were no longer living together. In
October 2004, Polk showed up at his wife's residence and
told her that she "knew too much and wouldn't be
going to work that day or probably any other day." Polk
tried to force his wife into his car, but she resisted. He
finally gave up and grabbed her keys, purse, and wallet. A
few days later, a state trooper spotted Polk, who was subject
to an outstanding arrest warrant for murder. Polk attempted
to flee but was apprehended.
was charged with first-degree murder (§
565.020) and armed criminal action (§ 571.015)
for causing Nolte's death. Polk was charged in a separate
case with robbery in the second degree (§ 569.030) and
domestic assault in the second degree (§ 565.073) for
the October 2004 incident involving his wife. The trial court
sustained the State's motion and consolidated the two
cases for all purposes, including for trial.
wife told the police that, shortly before he died, Nolte had
planned on firing a person who worked with him, Aaron Larson,
and also planned to evict Larson from property that the
Noltes owned. Nolte's wife told police that Nolte
"'informed her that he thought Aaron [Larson] would
become angry and if something bad happened to him, to let the
police know about Aaron.'" Although Larson was the
police's initial suspect in Nolte's murder, police
eliminated him as a suspect after his girlfriend provided him
with an alibi.
trial counsel Anthony Cardarella intended to present evidence
concerning Larson, and concerning the police's dismissal
of Larson as a suspect, as a significant component of
Polk's defense. On the first day of trial, however, the
State filed a Motion in Limine to prohibit Polk from
referring to Larson as a suspect in Nolte's murder. The
next day, after hearing argument on the motion, the trial
court sustained the State's Motion in Limine.
The court held that the defense could not lay an adequate
foundation for the introduction of evidence identifying
Larson as an alternate perpetrator, because Polk lacked
evidence directly connecting Larson to Nolte's murder.
Trial counsel did take various actions to present a defense
at trial following the circuit court's grant of the
State's Motion in Limine, which we describe in
greater detail in § I of the Discussion which follows.
Cardarella did not, however, make an opening statement,
cross-examine any of the State's witnesses, present any
evidence on Polk's behalf, or make a closing argument.
August 12, 2009, the jury returned a verdict finding Polk
guilty on each of the charges against him. The circuit court
sentenced Polk to life imprisonment without the possibility
of parole for first-degree murder; 100 years'
imprisonment for armed criminal action; fifteen years'
imprisonment for second-degree robbery; and five years'
imprisonment for domestic assault in the second degree. The
circuit court ordered that the sentences run consecutively.
appealed. Attorney Cardarella, who represented Polk at trial,
also represented him on appeal. On appeal, Polk argued that
the circuit court abused its discretion by excluding evidence
concerning Aaron Larson's potential responsibility for
Nolte's murder. Polk also argued that the circuit court
had denied him his right to confront the witnesses again him
when it permitted a DNA analyst to testify to the results of
testing performed by an absent laboratory technician. We
rejected Polk's arguments, and affirmed his convictions
and sentences in a per curiam order accompanied by
an unpublished memorandum. State v. Polk, No.
WD71598, 366 S.W.3d 542 (Mo. App. W.D. Sept. 13, 2011).
filed a pro se motion for postconviction relief
under Supreme Court Rule 29.15, and his appointed counsel
later filed an amended motion on his behalf. Polk's
amended motion contained twenty-three separate allegations of
ineffective assistance of counsel. Following an evidentiary
hearing at which Polk and Cardarella testified, the circuit
court denied postconviction relief.
This Court reviews the denial of post-conviction relief to
determine whether the motion court's findings of fact and
conclusions of law are clearly erroneous. Rule 29.15(k).
"A judgment is clearly erroneous when, in light of the
entire record, the court is left with the definite and firm
impression that a mistake has been made." Swallow v.
State, 398 S.W.3d 1, 3 (Mo. banc 2013).
Watson v. State, 520 S.W.3d 423, 428 (Mo. banc
raises six Points on appeal. He first argues that trial
counsel Anthony Cardarella completely failed to subject the
State's case to meaningful adversarial testing at trial.
Polk argues that counsel's ineffective representation
entitles Polk to a new trial without any showing of the
specific ways in which counsel's deficient performance
prejudiced Polk. In his second Point, Polk argues in the
alternative that he established that Cardarella's
deficient performance at trial prejudiced him, because there
is a reasonable probability of a different outcome if
Cardarella had been more active. In his third Point, Polk
argues that trial counsel had a conflict of interest,
entitling Polk to a new trial without a showing of prejudice,
because Polk had complained before trial about
Cardarella's performance to Cardarella's supervisor
and to bar disciplinary authorities, creating a hostile
relationship between Polk and Cardarella. In his fourth
Point, Polk argues that Cardarella was ineffective for
failing to lay an adequate foundation for the admission of
evidence concerning Aaron Larson's possible
responsibility for Nolte's murder. In his fifth Point,
Polk argues that Cardarella was ineffective for failing to
object to the admission of evidence from a State expert
concerning the DNA match between cat hairs found in
Nolte's pocket, and hairs collected from cats in
Polk's home. Finally, in Point VI, Polk argues that
Cardarella was ineffective for failing to cross-examine
first Point on appeal, Polk contends that he is entitled to a
reversal of his conviction because his trial counsel failed
to present any defense at trial. Polk argues that his
attorney's inaction resulted in a constructive denial of
counsel, which constituted structural error entitling him to
a new trial without a specific showing of prejudice.
A convicted defendant's claim that counsel's
assistance was so defective as to require reversal of a
conviction or death sentence has two components. First, the
defendant must show that counsel's performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the
"counsel" guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing
that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Unless a defendant makes both showings, it cannot be said
that the conviction or death sentence resulted from a
breakdown in the adversary process that renders the result
Strickland v. Washington, 466 U.S. 668, 687 (1984);
see also, e.g., Lee v. UnitedStates, 137 S.Ct. 1958, 1964 (2017); Lafler v.
Cooper, 566 ...