Baker v. State

584 S.W.2d 65

• Court: Supreme Court of Missouri
• Decided: May 31, 1979
• Docket: 60810
• Status: Published

Opinions

RENDLEN, Judge.

This is a post-conviction relief proceeding under Supreme Court Rule 27.26. After a jury found James Carl Baker guilty of first degree robbery by means of a dangerous and deadly weapon and of assault with intent to do great bodily harm with malice aforethought, the court imposed consecutive sentences of fifty years’ imprisonment for the robbery and forty years for the assault. That judgment was affirmed in State v. Baker, 548 S.W.2d 572 (Mo.App.1975).

In 1976 Baker, by his original and twice-amended motion, sought to vacate the sentence alleging (1) erroneous charges in the information, (2) improper failure of the State to provide certain discovery material, (3) ineffective assistance of trial counsel, and (4) erroneous imposition of consecutive sentences. The State responded with its motion to dismiss and the trial court, ruling that there was “no issue of fact or law to be determined,” sustained the State’s motion to dismiss in 1977, without appointment of counsel or evidentiary hearing. The Court of Appeals affirmed and the cause was thereafter transferred here.

I.

In November, 1978, two new requisites for Rule 27.26 proceedings were declared by this Court in Fields v. State, 572 S.W.2d 477 (Mo. banc 1978). First: That there be automatic appointment of counsel for indigent movants (now embodied in Rule 27.26(h), as amended December 14, 1978; see 34 J.Mo.Bar 550 [1978]). Second: The requirement, in exposition of Rule 27.-26(i), that findings of fact and conclusions of law be made on material issues presented by motions under the rule, irrespective of whether an evidentiary hearing is held. It left unchanged the requirement of Rule 27.-26 that the pleadings must state facts, not conclusions, which if true would entitle the movant to relief.

Examining the question of whether the rule changes announced in Fields might affect the proceedings at bar, it is clear they do not. The benefit of those procedural changes was granted to the movant in Fields because otherwise the principles announced would be only dictum, see Stovall v. Denno, 388 U.S. 293, 301, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and because “it is customary to grant relief to the litigant whose case brought about the change . . . Fields, 572 S.W.2d at 483. However, it was stated explicitly in Fields that the changes made by it were prospective only. Accordingly, this case, tried prior to Fields, is governed by all the standards declared in Smith v. State, 513 S.W.2d 407, 411 (Mo. banc 1974), cert. denied, 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975). Thus neither the failure to appoint counsel nor to make specific findings of fact or conclusions of law was erroneous and for reasons hereinafter discussed the action of the trial court dismissing the motion was not clearly erroneous except as to the question of consecutive sentences.

Baker next contends¹ his trial was rendered fundamentally unfair by the State’s failure to comply with his “motion for disclosure without court order” by failing to deliver a copy of Russell Baker’s guilty plea hearing transcript prior to trial and the State’s subsequent use of portions of that transcript to impeach Russell’s credibility.

At the time of James Baker’s trial, his brother Russell was in the state penitentiary; his presence at James’ trial was secured by means of a writ of habeas corpus ad testificandum. There can be no question that James Baker knew Russell had been convicted as a participant in the crime for which he, James, was then standing trial. Russell had pled guilty to charges arising from his participation in the April 13, 1974, robbery of the Keil Jewelry Store in Clinton, the incident giving rise to the charges against James. In Russell’s guilty plea hearing of July 3, 1974, he admitted under oath his participation in the robbery and implicated James as a co-participant. Under this Court’s order of February 22, 1972, reprinted as an appendix to Supreme Court Rule 25.04, see 1974 Missouri Rules of Court 185 (West), a transcript of such guilty plea hearing was required to be filed with the circuit clerk within thirty days after the proceedings.

Prior to James Baker’s trial, the defense filed a “motion for disclosure without court order” in which, among other things, the State was asked to supply “copies of all written or recorded statements and the substance of any and all oral statements made by the Defendant herein or by any Co-Defendant, . . .” The transcript of the criminal trial proceedings does not show any orders of court made on the subject nor does it reveal what, if anything, the State supplied defense counsel in response to the discovery request. There is no indication in the record that any statements from James Baker were ever taken by the State.

At movant’s trial, Russell testified that at the time of the robbery his brother James was in Kansas City, and that Russell’s partner in the crime was a man named Jerome Wiggman. On cross-examination, after laying the foundation, the prosecutor asked Russell the following question from the transcript pertaining to his guilty plea hearing:

“Q. Mr. Baker, isn’t it a fact that . that at that hearing where you entered your plea you were asked the following question:

‘Q. Mr. Baker, if I may just reiterate this, let me tell you what the prosecutor’s understanding of the situation is and you can tell me whether or not this is correct.

It is my understanding that on the 13th day of April, 1973, excuse me, 1974, in Henry County, that you and James Baker went into the Keil Jewelry Store in Clinton, Missouri; that you shot Mr. Kemper, as we have stated, because you felt he was stalling you or delaying you, you then went to the back of the store, took watches and rings from the store and left with him still in the back, is that your understanding?

‘A. Yes.’”

Assuming arguendo the State’s failure to deliver the transcript of Russell’s guilty plea hearing, we must bear in mind that post-conviction proceedings under Rule 27.-26 are designed to cure denials of fundamental rights. For reasons we now discuss, movant’s complaint, if worthy at all, involves nothing more than mere trial error. The transcript of Russell’s guilty plea was part of the circuit court’s records in St. Clair County, which adjoins Henry County (where the charges were filed) and Bates County (where the trial was moved on a change of venue). That record was equally available to the defense and the prosecution. For this reason alone movant has no valid argument that the State was required to deliver that record to him. Furthermore, independent of the transcript’s availability, the State had no constitutional duty to deliver Russell’s plea transcript to the defense. The applicable law is found in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972). Under those cases the prosecution must disclose any information requested by the defense if it is favorable to the defense and material to the guilt or punishment of the accused. Here the transcript of the brother’s guilty plea was not favorable to the defense as it showed movant participated in the crime. Whatever may have been the value of the transcript in the preparation of movant’s trial strategy, it was not favorable to the Brady sense and no denial of movant’s right to a fair trial occurred. See United States v. Randolph, 456 F.2d 132 (3d Cir.), cert. denied sub. nom. Waller v. United States, 408 U.S. 926, 92 S.Ct. 2507, 33 L.Ed.2d 337 (1972); People v. Chaney, 63 Ill.2d 216, 347 N.E.2d 138 (1976); State v. McLean, 1 Or.App. 147, 459 P.2d 559 (1969), aff’d., 255 Or. 464, 468 P.2d 521 (1970).

We need not address a possible Rule 25.32 violation by the prosecution’s alleged failure to provide the transcript of the brother’s guilty plea in this case. Absent infringement of movant’s right to fair trial, the matter may be deemed no more than trial error, not embraced by Rule 27.26.

III.

Appellant’s next contention of error contains several instances of alleged ineffective assistance of counsel. First, he alleges that counsel “failed to take a deposition from any of the State’s witnesses and more specifically, failed to consult with the witness, Russell Levi Baker, to determine what his prior testimony had been.” Mov-ant’s contention may not be dismissed merely for failure to name witnesses to be interviewed; rather, it must be determined whether the motion sufficiently states the breach of counsel’s duty to investigate before trial and the existence of substantial information not presented at trial because of counsel’s dereliction of duty. Jones v. State, 491 S.W.2d 233 (Mo.1973). The motion failed because it did not point out what substantial information helpful to the defense was missing from trial because of counsel’s alleged failure to investigate.² The claim as to additional witnesses, named later in the motion as Jack Reynolds, Tronky Theodoro, Ollie May Long and Donald O’Riley, whom counsel allegedly failed to interview, suffers the same deficiency.³ This claim too was properly denied.

Movant’s next allegation of ineffective assistance of counsel predicated error on counsel’s alleged failure to request a continuance until the attendance of certain alibi witnesses could be assured. Apparently these are the witnesses to whom reference was made in the discussion immediately above. Movant’s counsel presented five witnesses at the criminal trial, in addition to movant and his brother, whose testimony provided an alibi for movant. Once again, movant has made an assertion bare of any factual allegation to support his claim that counsel’s failure to request a continuance resulted in a substantial deprivation of his right to a fair trial. Sims v. State, 496 S.W.2d 815, 817 (Mo.1973).

Movant’s final instance of ineffective assistance of counsel points to counsel’s alleged failure to object to the State’s use of the plea hearing transcript to impeach movant’s brother (whom defendant had called as a witness) during cross-examination of the brother at the principal trial. Movant alleged that use of the transcript was subject to objection on the ground that the State had failed to comply with his request for its disclosure in pre-trial discovery. The transcript in question is that previously discussed in this opinion, where we determined that the State’s failure to “provide” the transcript did not render movant’s trial unfair, and thus it cannot be said that failure of defense counsel to object to that use constituted ineffective assistance of counsel. Furthermore, the trial record demonstrates that when the prosecutor attempted to read another portion of the guilty plea transcript, defense counsel successfully interposed an objection on grounds of materiality and relevance. We find this contention by movant conclusively refuted by the records of the case and it was properly denied. Rule 27.26(e).

IV.

Movant’s next contention is that the dual charges for which he was tried and convicted placed him twice in jeopardy for the same offense, because the assault was allegedly an essential element of the robbery. Movant did not raise this ground in his motion; counsel has raised it for the first time on appeal. Rule 27.26(j) ordinarily precludes our consideration of the matter. In the interests of judicial economy, however, we have reviewed the trial transcript and find that the circumstances of the crime fall foursquare within the holding of State v. Neal, 514 S.W.2d 544 (Mo. banc 1974). The contention fails.

V.

Movant’s final contention levels error at the trial court’s having imposed consecutive sentences in the criminal proceeding without any indication of record that imposition of consecutive sentences resulted from his exercise of discretion rather than compliance with the mandate of § 546.480, since declared unconstitutional in State v. Baker, 524 S.W.2d 122 (Mo. banc 1975). Under our holding there, when consecutive sentences have been imposed upon a defendant prior to the declaration of the unconstitutionality of § 546.480, it must be presumed that the consecutive sentences were imposed in compliance with the unconstitutional mandate of that section, and should, accordingly, be set aside and the case remanded for the limited purpose of resentencing by the trial court. At that time, the trial judge should spread on the record his exercise of discretion in determining whether to impose concurrent or consecutive sentences. Chambers v. State, 554 S.W.2d 112, 115 (Mo.App.1977); Gallup v. State, 542 S.W.2d 616, 617 (Mo.App.1976). As the trial court did not make such a record, the hearing court erred is not setting aside the consecutively running sentences and movant is entitled to limited relief on appeal.

The judgment below denying movant’s Rule 27.26 motion is affirmed on all grounds except the erroneous imposition of consecutively running sentences. The judgment is reversed and the cause remanded for the limited purpose of resentencing by the trial court in exercise of its discretion as to whether the sentences assessed by the jury should be ordered to run consecutively or concurrently.

MORGAN, C. J., BARDGETT, DONNELLY, SEILER and SIMEONE, JJ., and FINCH, Senior Judge, concur. WELLIVER, J., not participating because not a member of the Court when cause was submitted.

ORDER

DONNELLY, J., withdraws his concurrence and dissents in separate dissenting opinion filed.

1 . Baker’s motion and its subsequent amendments raise many other issues not preserved for appellate review; thus they are not considered here.

2 . The motion’s statement of facts in support of this claim includes a legal argument on the requirements for pressing this type of ineffectiveness assertion. Discussing McQueen v. Swenson, 498 F.2d 207, 220 (8th Cir. 1974), movant stated:

Once it is shown, as it has been in this petition, that defense counsel breached an essential duty, the sufficiency of a petitioner’s proof of prejudice turns on whether admissible evidence has been uncovered which a jury could reasonably weigh in assessing guilt or innocence.

Despite his recognition of the necessity of proving prejudice, movant failed to plead supportive facts or the existence of admissible evidence. We do not imply approval or disapproval of movant’s formulation as to prejudice, but certainly his failure to plead facts in his motion was not the result of ignorance.

3 . Before the jury was impaneled defense counsel, demonstrating competence not acknowledged by movant, recited for the record that they had attempted but failed to serve subpoenas on Jack Reynolds and Tronky Theodoro. Donald O’Riley’s response to service of the subpoena was to comment, “No way,” and to run out the door. Counsel did not mention anyone named Ollie May Long.