STEPHAN L. GALBREATH,                    )
                                         )
                   Appellant,            )
                                         )
      vs.                                )     No. SD33975
                                         )
STATE OF MISSOURI,                       )     FILED: July 25, 2016
                                         )
                   Respondent.           )

            APPEAL FROM THE CIRCUIT COURT OF LACLEDE COUNTY

                        Honorable G. Stanley Moore, Judge

AFFIRMED

      Stephan Galbreath (“Movant”) appeals from his failed Rule 29.15 challenge to

the first-degree assault, burglary, and weapons convictions affirmed on direct appeal

in State v. Galbreath, 244 S.W.3d 239 (Mo.App. 2008), an opinion from which we

summarize below without further attribution.

                                   Background

      Movant, a notorious cocaine dealer, decided “to make an example” of Michael

Young for stiffing Movant on fronted drugs. Movant and an underling (Jones) found

and beat Young, then held him against his will while Young tried to raise pay-back
money. On the second day, Young called his ex-girlfriend (“Victim”), who agreed to

bring $400 for Young’s release and notified police, who surrounded the exchange

point and arrested Movant for kidnapping. Movant bonded out within days.

       Soon thereafter, Movant had his girlfriend drive him and another man to

Victim’s house at night. The other man, whose face was mostly covered, walked up to

the house, entered at gunpoint, and reported by cell phone that children were present.

The reply: “Kill them all.” He did not, but shot Victim in the head at close range and

ran back to the car, which sped away. Movant asked what had happened and was told:

“Two shots to the head, she’s dead.” Fortunately, however, Victim survived.

      Movant was soon apprehended and now faced additional first-degree assault,

burglary, and weapons charges which were tried first, separate from the kidnapping

charge, resulting in convictions and prison sentences for life plus 235 years.

      After losing his direct appeal, Movant timely filed a pro se PCR motion per Rule

29.15. Appointed counsel timely filed a statement in lieu of amended motion. See Rule

29.15(e). The docket sheet reflects no action for the next two and a half years. After

notice to appointed counsel and no response, the case was dismissed, then reinstated

months later.

      Nearly five years after Movant’s pro se motion, substitute counsel entered the

case. Just before the scheduled evidentiary hearing, which twice had been continued

at her request, Movant’s new counsel fax-filed a motion to find abandonment, to

reappoint counsel, and for leave to file an amended PCR motion (the “abandonment




                                           2
motion”). 1 Without a hearing, the court promptly sustained that motion, made an

abandonment finding, and allowed filing of the amended PCR motion.

      The next day, the court made further record of its foregoing actions before

starting the evidentiary hearing. The state voiced no objection and announced ready

for the hearing. Movant offered testimony on both his amended and pro se motions. 2

The court denied relief.

                                 State’s Assertions

      Initially, we reject the state’s lengthy assertions of motion court error in

sustaining the abandonment motion without a hearing and allowing the amended

PCR motion to be filed and heard. The state could have timely presented these to the

motion court. Instead, it acquiesced as noted above, which can be understood given

the delay of over five years, prior continuances obtained by Movant’s new counsel, and

the arrangements already made for witness testimony and Movant’s presence at the

hearing that day.

      At any rate:

          It is well recognized that a party should not be entitled on appeal to
          claim error on the part of the trial court when the party did not call
          attention to the error at trial and did not give the court the
          opportunity to rule on the question…. This requirement is intended
          to eliminate error by allowing the trial court to rule intelligently and
          to avoid the delay, expense, and hardship of an appeal and retrial.


1 Given our disposition, we need not address PCR “abandonment” jurisprudence
under Moore v. State, 458 S.W.3d 822 (Mo. banc 2015), and its progeny.
2 Substitute counsel attached and purported to incorporate Movant’s pro se claims

into the amended PCR motion. Rule 29.15(g) has been amended, effective January 1,
2017, to clarify that this procedure is forbidden. (“The amended motion shall not
incorporate by reference or attachment material contained in any previously filed
motion nor attach or incorporate the pro se motion.”)

                                           3
Brown v. Brown, 423 S.W.3d 784, 787-88 (Mo. banc 2014)(quotation marks

omitted). “‘An issue that was never presented to or decided by the trial court is not

preserved for appellate review.’” Id. at 788 (quoting State ex rel Nixon v. Am.

Tobacco Co., Inc., 34 S.W.3d 122, 129 (Mo. banc 2000)).

      To label the state’s posture in the motion court as waiver, acquiescence,

estoppel, invited error, or Rule 78.09 violation yields the same result: we will not now

address these complaints for the first time on appeal. See Schumer v. Lee, 404

S.W.3d 443, 453 (Mo.App. 2013), and authorities cited above.

                           Movant’s Claims on Appeal

      We take together Movant’s complaints that trial counsel was ineffective in not

trying to minimize testimony about Movant’s involvement in kidnapping (Point I) and

drug dealing (Point II). To his credit, Movant admits that

          the state would have been permitted to present some evidence
          related to the kidnapping as background for proof of the other
          charges filed against Mr. Galbreath. Evidence that [Victim] was the
          person who called the police to report Mr. Young’s alleged
          kidnapping arguably provided evidence of motive and intent, as
          [trial counsel] noted at the evidentiary hearing [transcript cites
          omitted],

and concedes similarly as to drug dealing. Yet Movant claims trial counsel still should

have tried to keep some of that evidence out, despite trial counsel explaining at the

evidentiary hearing his strategy in not doing so.

      In rejecting these claims below, the motion court noted that testimony

          that Galbreath was the supplier of the cocaine obtained by Michael
          Young, Young’s failure to pay for the cocaine, Young’s kidnapping at
          the hands of Jones and Galbreath in an attempt to collect the drug
          debt, Young’s phone call to [Victim] asking for money and [Victim’s]
          decision to report the matter to the police resulting in the arrest of

                                           4
          Jones and Galbreath establish defendant’s motive and is so
          intertwined with the evidence of the burglary and attempted murder
          that to exclude it would have deprived the jury of evidence needed to
          paint a complete and coherent picture of the crimes presented to
          them.

The court found that objections to such testimony “would have been without merit”

and “counsel is not ineffective for failure to make a nonmeritorious objection,” so

Movant had not shown that his trial counsel’s performance “failed to rise to a level of

a reasonable competent attorney.”

      These findings and conclusions are not clearly erroneous, which is our Rule

29.15(k) standard for appellate relief. See, e.g., State v. Miller, 372 S.W.3d 455,

473-74 (Mo. banc 2012)(supporting admissibility to show motive or to present

complete and coherent picture of events); Hairston v. State, 314 S.W.3d 356, 359

(Mo.App. 2010)(counsel not ineffective for failing to raise meritless objections);

Helmig v. State, 42 S.W.3d 658, 667, 668-79 (Mo.App. 2001)(considered strategic

decisions “virtually unchallengeable” via PCR; strategic reasons not to object). Points

denied. Judgment affirmed.



DANIEL E. SCOTT, J. – OPINION AUTHOR

NANCY STEFFEN RAHMEYER, J. – CONCURS

WILLIAM W. FRANCIS, JR., J. – CONCURS




                                          5
