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State v. Tate

Court of Appeals of Missouri, Eastern District, Fourth Division

April 23, 2019

STATE OF MISSOURI, Respondent,
v.
BRANDON TATE, Appellant.

          Appeal from the Circuit Court of St. Louis County Honorable Brian H. May

          KURT S. ODENWALD JUDGE.

         Introduction

         Brandon Tate ("Tate") appeals from the trial court's judgment, entered after a jury found him guilty of one count of first-degree murder, two counts of armed criminal action, and one count of unlawful use of a weapon. In his sole point on appeal, Tate alleges that the trial court plainly erred in failing to sua sponte disqualify trial counsel due to an apparent conflict of interest. Because Tate's argument is not cognizable on direct appeal, we deny Tate's appeal and affirm the judgment of the trial court.

         Factual and Procedural History

         Tate was tried in September of 2017 for crimes allegedly committed by him in August of 2015. Evidence was adduced at trial that Tate was driving a black vehicle with Michelle Jefferson ("Jefferson") riding as the passenger.[1] Jefferson had been smoking marijuana and drinking. As Dennell Jones ("Jones"), Quincy Pirtle ("Pirtle"), and Victim were walking down the street, Tate drove past them. Victim identified Tate to Jones. Tate circled the block and accelerated towards the three men. Tate exclaimed "What's up now, b**** a** n*****" Tate shot at Jones, Pirtle, and Victim through his driver's side window. Victim died as a result. Jones and Jefferson both testified regarding the shooting and Tate's involvement. Pirtle was unable to identify the shooter. Tate's phone records suggested that Tate was not where his alibi placed him at the time of the shooting, but instead was near the scene of the shooting.

         Leavie Morris ("Morris") was called to testify on behalf of the State at trial. Morris testified about Tate's possible motive for shooting Victim. Morris was Victim's half-brother and was familiar with Tate. When asked about his prior criminal history, Morris testified that trial counsel, whose first name is Jolene, had represented him in two prior cases:

STATE: And [Morris], before we talk about the case I have to go over your past criminal history, okay, real quick. You pled guilty to felony distribution of a controlled substance back in 2009 in St. Louis County, is that right?
MORRIS: Yes, sir, and Jolene was my lawyer on that.
STATE: Okay. And back in 2009 you pled guilty to trafficking drugs, second degree, in St. Louis County, is that right?
MORRIS: Yes, sir. Jolene was my [counsel] on that, also.
STATE: All right. Back in 2016 you pled guilty to misdemeanor resisting arrest in St. Louis City, is that right?
MORRIS: Yes. Melinda Ward is my [counsel] on that.

         Trial counsel did not object ...


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