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Polk v. State

Court of Appeals of Missouri, Western District, First Division

November 14, 2017

HENRY POLK, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of Clay County The Honorable Larry D. Harman, Judge

          Before Gary D. Witt, P.J., and Alok Ahuja and Edward R. Ardini, Jr., JJ.

          Alok Ahuja, Judge

         Following 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.

         Factual Background[1]

         In 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.

         Around midnight, Polk asked his wife[2] 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.

         Later 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.

         On 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.

         When 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.

         By May 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.

         Polk was charged with first-degree murder (§ 565.020)[3] 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.[4]

         Nolte's 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.

         Polk's 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.

         On 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.

         Polk 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).

         Polk 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.

         Polk appeals.

         Standard of Review

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 2017).

         Discussion

         Polk 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 Polk's wife.

         I.

         In his 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.

         As a general rule,

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 unreliable.

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 ...


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