State alleged that on May 1, 2015, Alexander Kitt, Jermohnn
Gore, Clifford Krentkowski, and three other men initiated a
retaliatory drive-by shooting at a rival gang's territory
in Tacoma. Law enforcement officers concluded their gunfire
struck and killed Brandon Morris, who was unaffiliated with
the rival gang but happened to be in the area. Kitt, Gore,
and Krentkowski were jointly tried and convicted of murder in
the first degree and four counts of assault in the first
degree. In addition, Kitt and Gore were convicted of unlawful
possession of a firearm in the first degree, and Gore was
convicted of intimidating a witness for threats he made
before the trial.
published portion of this opinion, we reverse
Krentkowski's conviction because his trial counsel had an
actual conflict of interest that affected the representation,
and the trial court erred by not allowing him to withdraw. In
the unpublished portion of this opinion, we affirm the
majority of Kitt's and Gore's convictions, but remand
for the trial court to dismiss their murder in the second
degree convictions with prejudice, conduct a
Miller hearing for Gore, and strike specific
legal financial obligations (LFOs) for Kitt and Gore.
Gore, and Krentkowski were all members of the Hilltop Crips
weeks before May 1, LeShaun Alexander, a member of the
Knoccout Crips street gang, shot at some members of the
Hilltop Crips, including Krentkowski. On the morning of May
1, Alexander shot at Kitt in the Tacoma Hilltop area outside
the home of Trevion Tucker, another Hilltop Crips member.
minutes after the shooting, Gore called Tucker's house
and said he intended to go look for the shooters. A group
gathered in a white Cadillac Escalade, driven by fellow
Hilltop Crips member Lance Milton-Ausley. The group included
Milton-Ausley, Kitt, Gore, Krentkowski, and Tucker.
brought a backpack that contained two handguns. He kept one
and gave the other to Gore. Kitt said he wanted to shoot
Alexander. Krentkowski had an AK-47 semiautomatic assault
rifle. The group planned to shoot at a convenience store,
known as the "red store," in Knoccout territory
where Knoccout members were known to gather. They planned to
park somewhere near the store, get out, and shoot at it. They
also planned to take pictures of themselves in Knoccout
territory and post them on social media as a sign of
disrespect to the rival gang.
group approached the red store, they noticed Alexander's
car parked nearby. Milton-Ausley drove into the alley beside
the red store. Alexander and several other Knoccout members
were in a group near the store.
as they pulled into the alley, Gore and Kitt began shooting
in the direction of the store. Each of them fired one of
Kitt's handguns. During the shooting, Milton-Ausley drove
slowly down the alley. He accelerated away when the shooting
subsided. Krentkowski had the assault rifle on his lap but
did not shoot. Tucker testified that no one was aiming and
none of them saw anyone get shot; they were "just
shooting at the store." 14 Report of Proceedings (RP) at
same day, Morris and four companions were walking in the
alley behind the red store. A bullet fired from the Escalade
struck Morris in the head and he died several days later.
Another bullet struck a backpack worn by one of Morris's
companions, but it did not injure him. None of the Knoccout
members near the store was injured.
time of the shooting, Kitt was 23 years old, Gore was 16
years old, and Krentkowski was 17 years old.
State charged Kitt, Gore, and Krentkowski each with one count
of murder in the first degree and one count of murder in the
second degree for the death of Morris. It also charged each
of them with four counts of assault in the first degree, one
for each of Morris's companions. It charged Kitt and Gore
with unlawful possession of a firearm in the first degree and
Gore with intimidating a witness. The case proceeded to a
Conflict of Interest
start of trial, Walter Peale, Krentkowski's lawyer,
informed the court about a conflict of interest. He stated
that he had represented Alexander in an unrelated case, in
which the court had granted Peale's motion to withdraw
based on his representation of Krentkowski. Peale argued that
Krentkowski should be advised about the conflict by an
independent counsel before the case could proceed.
State argued that there was no actual conflict because
Alexander was not involved in the case other than that his
"name may come up." 1 RP at 10. It explained that
it would not be calling Alexander as a witness, but that the
facts involved back-and-forth shootings between the Hilltop
Crips and the Knoccout Crips and that Alexander was a
"principal on the Knoccoutz side." 1 RP at 10.
court ruled that no conflict existed that required
withdrawal. It stated that, "[i]f they're totally
unrelated matters, the representation of either Mr.
Krentkowski or Mr. Alexander is not directly adverse to the
other client." 1 RP at 31. The court recognized that a
conflict would exist if there was "a significant risk
that the representation of one or more clients will be
materially limited by a lawyer's responsibility to
another client, a former client or a third person or by a
personal interest of the lawyer," but stated that it
would "be surprised that a criminal defense attorney
would have such a conflict" and that, even in that case,
the rule allowed representation "in certain
circumstances." 1 RP at 31-32. The court said Peale
could raise the issue again with additional citation to
days later, Peale brought a motion to delay jury selection so
that he could withdraw and Krentkowski could be appointed a
new attorney or represent himself. Peale's motion raised
his lack of preparation, his difficulties with the case, and
the conflict of interest. The court denied the motion and
stated that it had already ruled on Peale's motion to
withdraw and substitute counsel. The court engaged in a
colloquy with Krentkowski regarding self-representation.
After conferring with Peale, Krentkowski withdrew his request
to represent himself.
raised the conflict of interest issue again the following
day, after an independent counsel had reviewed the situation
and opined that Peale had a conflict. The court stated that
it had ruled on the issue and again denied Peale's motion
its opening statement, the State told the jury that the
evidence would show that Alexander had shot at Gore and
Krentkowski a few days before the red store shooting. Peale
then argued that the State had made Alexander a part of the
case, "creat[ing] a relationship that [was] entirely
different" from how the conflict had previously been
explained. 4 RP at 710. He argued that his client was alleged
to be the victim of his former client and that a central part
of the State's case placed his clients at odds with one
another, creating a "much greater risk of violating a
variety of rules of professional responsibility." 4 RP
at 711. Peale moved for a mistrial. The court denied
Peale's mistrial motion and again denied his motion to
witness testimony, Peale raised the issue of his alleged
conflict of interest two additional times. The first time,
during Milton-Ausley's testimony, he stated that the case
would require him to ask,
[W]hat was in the mind of Mr. Alexander? What was his
reputation? What was his character? What do I know about him
that would offer up an explanation in defense of Mr.
Krentkowski? And why am I not pursuing that? And the reason I
can't pursue it is because he's a former client.
8 RP at 1471. Peale argued that if evidence about Krentkowski
and Alexander's interactions came in, he would be unable
to respond due to his conflict of interest. The court delayed
ruling until Peale had a chance to interview Tucker about his
interviewing Tucker, Peale learned that Tucker intended to
testify that Alexander was armed and present at the red store
shooting and may have fired at Krentkowski. Peale suggested
that the court exclude evidence of Alexander's
involvement so he could continue representing Krentkowski
despite the conflict. He argued that, otherwise, Tucker's
testimony would "raise a considerable amount of
information about [his] former client that in defense of
[his] present client may be relevant to explore which [he
couldn't] explore," preventing him from presenting a
defense. 13 RP at 2372. The court denied Peale's motion.
conclusion of the trial, the jury returned guilty verdicts as
to each count against all three defendants and found that
each defendant was armed with a firearm during the commission
of each murder and assault offense. The defendants appeal.
contends that he received ineffective assistance of counsel
because the trial court denied his trial counsel's motion
to withdraw based on a conflict of interest. He argues that,
because an actual conflict of interest existed, we should
presume prejudice and reverse his conviction. We agree.
Sixth Amendment to the United States Constitution and article
I, section 22 of the Washington State Constitution guarantee
the right to effective assistance of counsel. Strickland
v. Washington, 466 U.S. 668, 685-86, 104 S.Ct. 2052, 80
L.Ed.2d. 674 (1984); State v. Grier, 171 Wn.2d 17,
32, 246 P.3d 1260 (2011).
review claims of ineffective assistance of counsel de novo.
State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916
(2009). To prevail on a claim of ineffective assistance of
counsel, the defendant must show both (1) that defense
counsel's representation was deficient, and (2) that the
deficient representation prejudiced the defendant.
Grier, 171 Wn.2d at 32-33; State v.
Linville, 191 Wn.2d 513, 524, 423 P.3d 842 (2018).
Representation is deficient if, after considering all the
circumstances, the performance falls "'below an
objective standard of reasonableness.'"
Grier, 171 Wn.2d at 33 (quoting Strickland,
446 U.S. at 688).
assistance of counsel includes a duty of loyalty and a duty
to avoid conflicts of interest. State v. McDonald,
143 Wn.2d 506, 511, 22 P.3d 791 (2001). To establish a Sixth
Amendment violation based on a conflict of interest, "a
defendant must demonstrate that an actual conflict of
interest adversely affected his lawyer's
performance." State v. Regan, 143 Wn.App. 419,
427, 177 P.3d 783 (2008). This requires the defendant to show
"both that his attorney had a conflict of interest and
that the conflict adversely affected counsel's
performance." State v. Reeder, 181 Wn.App. 897,
909, 330 P.3d 786 (2014). If the defendant meets this
two-part test, prejudice is presumed. Reeder, 181
Wn.App. at 909.
that the conflict adversely affected his lawyer's
performance, the defendant must show that the conflict either
"'cause[d] some lapse in representation contrary to
the defendant's interests, '" or
"'likely' affected particular aspects of
counsel's advocacy on behalf of the defendant."
Regan, 143 Wn.App. at 428 (quoting State v.
Robinson, 79 Wn.App. 386, 395, 902 P.2d 652 (1995) and
United States v. Miskinis, 966 F.2d 1263, 1268 (9th
Cir. 1992)). "[T]he possibility of a conflict
[is] not enough to warrant reversal of a conviction."
State v. Dhaliwal, 150 Wn.2d 559, 573, 79 P.3d 432
review a trial court's decision on a motion to substitute
counsel for an abuse of discretion. Reeder, 181
Wn.App. at 908. However, whether the circumstances
demonstrate a conflict under ethical rules is a question of
law we review de novo. Regan, 143 Wn.App. at 428.
actual conflict of interest exists when a defense attorney
owes duties to a party whose interests are adverse to those
of the defendant." State v. White, 80 Wn.App.
406, 411-12, 907 P.2d 310 (1995). The matters alleged to be
in conflict must be "substantially related."
State v. MacDonald, 122 Wn.App. 804, 813, 95 P.3d
1.7(a) provides that a concurrent conflict of interest exists
if "the representation of one client will be directly
adverse to another client" or "there is a
significant risk that the representation of one or more
clients will be materially limited by the lawyer's
responsibilities to another client, a former client or a
third person or by a personal interest of the lawyer."
RPC 1.9(c) prohibits a lawyer who has formerly represented a
client from "us[ing] information relating to the
representation to the disadvantage of the former client"
except as the ethical rules would permit or require.
determine whether an actual conflict exists, the trial court
should perform a three-prong factual inquiry:
"First, the court reconstructs the scope of the facts
involved in the former representation and projects the scope
of the facts that will be involved in the second
representation. Second, the court assumes that the lawyer
obtained confidential client information about all facts
within the scope of the former representation. Third, the
court then determines whether any factual matter in the
former representation is so similar to any material factual
matter in the latter representation that a lawyer would
consider it useful in advancing the interests of the client
in the latter representation."
MacDonald, 122 Wn.App. at 813 (quoting State v.
Hunsaker, 74 Wn.App. 38, 44, 873 P.2d 540 (1994)).
White, the defendant's lawyer had been appointed
to represent a codefendant earlier in the case. 80 Wn.App. at
408-09. He reviewed the first client's file and police
reports and recommended to the first client's relative
that the first client should consider a guilty plea, but he
never met with the first client. White, 80 Wn.App.
at 408-09. Eleven days after his appointment, the lawyer was
replaced. White, 80 Wn.App. at 409. Two weeks later,
the court appointed the lawyer to represent White.
White, 80 Wn.App. at 409. Neither party raised the
conflict issue until after trial, when the lawyer noted in an
affidavit that the police report from White's case had
"seemed familiar" but he had not realized he had
represented two codefendants until after it was brought to
his attention. White, 80 Wn.App. at 409.
concluded that the attorney had not "'actively'
represented conflicting interests" because he
"never directly communicated with [the
codefendant]" and was not "privy to any confidences
that could create an active conflict of interest." 80
Wn.App. at 412. There was "nothing in the record to
support White's allegation that Appointed Counsel's
allegiance to him was impaired." White, 80
Wn.App. at 412.
MacDonald, the trial court disqualified the
defendant's chosen defense lawyer because of a conflict
of interest. 122 Wn.App. at 812. The disqualified lawyer had
represented the victim's mother in an unrelated marital
dissolution case. MacDonald, 122 Wn.App. at 812.
Although the matters were completely unrelated, the court
assumed the lawyer had received confidential information
about the victim in the course of representing her mother.
MacDonald, 122 Wn.App. at 813-14. This information
"was relevant to [the victim's] credibility and,
potentially, her current rape accusation."
MacDonald, 122 Wn.App. at 814. Because the marital
dissolution action "would have necessitated receiving
information about" the victim, and her testimony was
"the sole evidence against" the defendant, a
conflict existed and the lawyer could not represent the
defendant. MacDonald, 122 Wn.App. at 814.
Dhaliwal, the defendant's lawyer had represented
several witnesses who testified at trial. 150 Wn.2d at 564.
The representation of the witnesses occurred both prior to
and during the defendant's case. Dhaliwal, 150
Wn.2d at 564-65. The trial court asked the lawyer about his
representation of the witnesses and the lawyer said there was
no conflict. Dhaliwal, 150 Wn.2d at 565. Dhaliwal
never objected and he said he wanted the lawyer to continue
representing him. Dhaliwal, 150 Wn.2d at 565. The
other representation involved a shareholder action which may
have been related to the motive for the murder at issue in
the case. Dhaliwal, 150 Wn.2d at 572.
focused on the lawyer's actual performance at trial and
concluded that Dhaliwal showed "the possibility that his
attorney was representing conflicting interests," but
"failed to establish an actual conflict because he ha[d]
not shown how [his lawyer's] concurrent representation of
the witnesses . . . affected [his] performance at
trial." 150 Wn.2d at 573. Dhaliwal did not show a
"strong possibility that a conflict of interest had an
effect on [his lawyer's] performance."
Dhaliwal, 150 Wn.2d at 574.
case, Peale repeatedly raised a conflict of interest based on
his representation of a rival gang member. Trial testimony
established that Alexander had shot at Kitt the morning of
the shooting and had shot at Krentkowski a few weeks prior.
Alexander was one of the intended targets of the red store
shooting. Peale said that the State's case raised a
considerable amount of information about Alexander that may
be relevant to his defense of Krentkowski, but that he could
not explore this information because of his ongoing duty to
accept Peale's representations that he learned
confidential information in his representation of Alexander
that he could not use to defend Krentkowski. Although Peale
no longer represented Alexander at the time of trial, RPC
1.9(c)(1) prohibited him from using any confidential
information he had obtained in his representation of
Krentkowski. Peale raised numerous issues that could have
been helpful to his defense of Krentkowski that he could not
explore due to his ongoing duty to Alexander, such as
Alexander's reputation and character and his relationship
to Krentkowski. He was unable to pursue a defense relying on
this information because Alexander was his former client.
case bears similarities to Dhaliwal, where the
attorney represented numerous witnesses in the case. However,
unlike in Dhaliwal, Peale raised the conflict
numerous times before the trial court, repeatedly claiming
that an actual conflict existed. Additionally, an independent
counsel spoke with Krentkowski and concluded that Peale had a
conflict of interest.
had an actual conflict of interest that affected his defense
of Krentkowski. He repeatedly informed the trial court of
this conflict and stated that the conflict would limit his
representation of Krentkowski throughout the trial. We
conclude that Krentkowski received ineffective assistance of
counsel. In so ruling, we are mindful that the lawyer made
numerous motions to withdraw due to the conflict, and the
court denied all of them. Although Krentkowski couches his
argument as ineffective assistance of counsel, the true error
is in the court's failure to grant the motions to
withdraw. We reverse Krentkowski's convictions.
majority of the panel having determined that only the
foregoing portion of this opinion will be printed in the
Washington Appellate Reports and that the remainder shall be
filed for public record pursuant to RCW 2.06.040, it is so
same juvenile detention facility housed Gore and Tucker
pending trial. A no-contact order prevented Gore from being
near Tucker's cell.
trial, Gore sent Tucker a note that said, "Please
don't snitch. Take your statement back or were [sic]
gonna kill your family." Clerk's Papers (CP) at 40.
The court admitted the note into evidence and the jury saw
it. Immediately after admitting the note, the court read a
limiting instruction to the jury that said,
[E]vidence of an alleged threat allegedly made by Defendant
Jermohnn Gore, . . . [is] being admitted for a limited
purpose. Any evidence related to this alleged threat may only
be considered by you as evidence against Jermohnn Gore and
may not be used as evidence against any other defendants,
including Alexander Kitt and Clifford Krentkowski.
12 RP at 2301. II. Joinder
State moved to join Kitt, Gore, Krentkowski, and two other
defendants' cases for trial. None of the defendants
objected to joinder. The court joined the cases.
start of trial, the State filed an amended information,
charging Gore with the additional crime of intimidating a
witness based on the note he sent to Tucker. Kitt moved for
severance in light of the witness intimidation charges
against Gore. He argued that the jury would interpret the
note's reference to "we" to mean all of the
defendants, not just Gore.
parties and the trial court addressed the motion as a
Bruton issue, concerning the admissibility of
out-of-court statements by non-testifying codefendants. The
State contended that Bruton did not apply and that,
to the extent the note prejudiced Kitt, it could be remedied
by a limiting instruction which the court ultimately gave.
court ruled that the note was not a "testimonial
statement" or "confession" by Gore that
implicated either of the other two defendants. It stated that
the issue could be dealt with "by use of a limiting
instruction that specifically limit[ed] the use of th[e] note
for the purpose of Mr. Gore's state of mind" and for
the intimidating a witness charge. 2 RP at 252.
conclusion of the witness intimidation evidence against Gore,
Kitt renewed his motion to sever and the court again denied
days after the shooting, Kitt had a scheduled appointment
with his probation officer. Kitt arrived at his appointment
in a Cadillac DeVille driven by Gore's father, Jermaine
Gore. Gore and another man also occupied the DeVille. The
police were waiting for Kitt at the appointment location and
police approached the DeVille, questioned its occupants, and
ultimately arrested all of them and impounded the
DeVille. The record is unclear as to whether police
performed a Terrystop of the vehicle or approached the
occupants for voluntary questioning. The record does not
clarify on what basis police approached the DeVille, nor
whether they had reasonable suspicion or probable cause of
any crime involving the DeVille. Three days after impounding
the DeVille, police acquired a search warrant for it based
largely on information obtained from questioning Gore. The
police searched the DeVille and found the guns used in the
moved to suppress the seized evidence and Gore and
Krentkowski joined his motion. Kitt argued that, because the
police did not have probable cause to arrest him on May 5,
the items seized from the DeVille in the execution of the
warrant must be suppressed. He argued that all evidence
seized from the DeVille was fruit of the original unlawful
court questioned the relationship between the allegedly
unlawful arrest of Kitt and the search of the DeVille and
stated they were "two totally different things." 2
RP at 274. Kitt responded that they were related because the
police were looking for him and seized the DeVille as part of
his arrest. Kitt claimed that his unlawful arrest led to the
seizure, the issuance of the warrant, and the search of the
court denied the suppression motion, but allowed Kitt to
provide additional authority and explain the connection
between Kitt's arrest and the evidence seized pursuant to
the warrant. The court declined to hold an evidentiary
hearing and ordered the State to prepare a written order
setting forth its reasons for doing so. Our record on appeal
contains no such order.
supplemental briefing before the trial court, Kitt did not
draw any connection between Kitt's allegedly unlawful
arrest and the issuance and execution of the warrant for the
DeVille. Rather, Kitt argued that no probable cause existed
for his arrest or for seizure of the DeVille and claimed
that, therefore, the evidence later seized pursuant to the
warrant must be suppressed. He argued all evidence seized
from the DeVille was fruit of the poisonous tree.
court again denied Kitt's motion, concluding that, even
if probable cause did not exist to arrest Kitt, there was no
causal relationship between his arrest and the execution of
the warrant to search the DeVille three days later. It
declined to order an evidentiary hearing and did not enter
any written order regarding this ruling.
defendants moved to exclude "other bad acts"
evidence under ER 404(b), including evidence of their gang
trial court utilized the four-part test for determining
admissibility of ER 404(b) evidence. It found that the gang
evidence had been established by a preponderance of the
evidence, was clearly relevant to prove a motive for the
shooting, and explained why the shooting happened. The court
found the evidence explained "why all of those
particular people were in that specific car at the time that
the shooting took place." 2 RP at 226. It concluded the
evidence was "clearly more probative than
prejudicial" and allowed its admission. 2 RP at 226.
Unlawful Firearm Possession Evidence
trial began, the court permitted the State to amend the
information to add one count of unlawful possession of a
firearm in the first degree and one count of intimidating a
witness against Gore. Gore asked which firearm he was alleged
to have possessed, and the State responded,
I think counsel is aware that there is evidence that a .40
caliber semiautomatic pistol and a 9mm semiautomatic pistol
were used in this event, and there's evidence that an
assault rifle was possessed by individuals in the car during
the course of this event, so it would be any one of those
2 RP at 264.
trial, the State presented evidence that two handguns and an
assault rifle were in the Escalade at the time of the
shooting. Kitt provided Gore one handgun and kept another for
himself, and they each fired out of the car as they drove
past the red store. Krentkowski had the assault rifle on his
lap, but he did not fire it. A witness testified that he had
seen Gore with the assault rifle in the past. Milton-Ausley
testified that, when he picked up Gore and Krentkowski, Gore
had a guitar bag containing the assault rifle.
State also presented evidence that, when it executed the
search warrant on the DeVille, it recovered a guitar case
containing a semiautomatic rifle and three handguns, two of
which were in a backpack. The rifle and the two handguns in
the backpack were identical to the types used in the
closing arguments, the State argued that the defendants
collectively "had their guns ready, two firearms in a
backpack, an AK-47 . . . in a guitar case." 18 RP at
3506. The State emphasized that Gore "had the AK-47. It
is not just, [o]h, Mr. Gore walks around town with an AK-47.
. . . It was in a car, in a Cadillac DeVille with his father
Jermaine, Sr. with two other firearms with a backpack a few
days after the incident. The AK was in there. The AK was
brought into the Cadillac Escalade that morning for a
purpose." 19 RP at 3661.
witness Amber Fetcher was in her home near the red store and
heard two gunshots near the time of the shooting. She looked
out her window and saw "a blue Corsica with a young
black male hanging out the passenger side window with a gun
in his hand" and then heard seven or eight more
gunshots. 17 RP at 3235. She said she did not see any other
vehicles or persons with weapons. She heard many gunshots,