Conn v. State

769 S.W.2d 822, 1989 Mo. App. LEXIS 594, 1989 WL 42506
CourtMissouri Court of Appeals
DecidedMay 1, 1989
DocketNo. 15994
StatusPublished
Cited by6 cases

This text of 769 S.W.2d 822 (Conn v. State) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Conn v. State, 769 S.W.2d 822, 1989 Mo. App. LEXIS 594, 1989 WL 42506 (Mo. Ct. App. 1989).

Opinion

CROW, Presiding Judge.

Ronnie Lee Conn (“movant”) appeals from an order denying his motion under Rule 27.26, Missouri Rules of Criminal Procedure (18th ed. 1987),1 to vacate his conviction of two counts of first degree murder, § 565.003, RSMo 1978,2 and concurrent sentences of life imprisonment. The conviction and sentences resulted from pleas of guilty entered June 5, 1986.

Relief was denied in the 27.26 proceeding after the circuit court, henceforth referred to as “the motion court,” conducted a hearing at which movant and the State presented evidence.

To grasp the import of movant’s complaints in this appeal it is necessary to know the circumstances under which his pleas of guilty were entered. Movant was originally charged by indictment with two counts of capital murder, § 565.001, RSMo 1978 (since repealed), for which the only authorized punishment on each count was either death or imprisonment during one’s natural life without eligibility for probation or parole until he had served a minimum of 50 years of his sentence. § 565.008.1, RSMo 1978 (since repealed). Trial began on those charges Monday, June 2, 1986, with the prosecuting attorney announcing the State was seeking the death penalty. Three days were consumed in voir dire, culminating in the selection of a “death qualified jury.”

The next morning movant appeared in the trial court with his attorneys, Public Defender Patrick Deaton and Assistant Public Defender Elise Branyan, and presented a written plea agreement stating that the following promises had been made to movant in exchange for his proposed pleas of guilty: “A sentence of life imprisonment on each of two counts of first degree murder in robbery in violation of § 565.003 RSMo, concurrent_ No probation. ...” The agreement was signed by movant, attorney Deaton and the prosecutor.

The prosecutor, with movant’s consent, filed a two-count information in substitution of the indictment. The first count of the information charged movant with first degree murder in that he killed Viola M. Blades by striking her on or about June 16, 1984, such killing being committed in the perpetration of the felony of robbery. The second count charged movant with first degree murder in that he killed Willard A. Blades by burning him on or about June 16, 1984, such killing being committed in the perpetration of the felony of robbery. After extensive questioning by the trial court movant entered a plea of guilty to each [824]*824count and received the sentences now under attack.

Movant commenced the instant proceeding by filing a pro se motion. Movant later filed a “Supplement Memorandum” to the motion, and at the outset of the evidentiary hearing in the motion court movant’s lawyer dictated into the record certain “additional grounds” for relief. In this opinion we consider only the grounds on which movant bases his lone assignment of error. It reads:

“The [motion] court clearly erred in denying [movant’s] postconviction motion to vacate [movant’s] guilty plea and remand this case for trial because [movant] was denied his right to effective assistance of counsel ... in that [movant] professed his innocence of the crime of murder during two years of pretrial imprisonment, his motion and testimony show his confusion as to the elements of the plea agreement he signed, and his plea of guilty was recited because his attorneys assured him of a death sentence and therefore such plea was coerced and involuntary.”

Three witnesses testified at the eviden-tiary hearing in the motion court: movant, attorney Deaton and attorney Branyan. The two attorneys testified at the behest of the State.

Attorney Deaton recounted that during the period when movant’s case was pending in the trial court his (Deaton’s) research indicated that in a death penalty trial the presentation of a not guilty defense increased the chance that if the accused were found guilty he would be sentenced to death. Deaton explained, “I discussed ... with [movant] ... that if a person either takes the stand or by presentation of a defense in effect denies to the jury, that he [committed] the murders, the experience of other attorneys has been that it’s more than likely that a jury will give a death sentence in that kind of case for the reason that the accused was not remorseful and the jury may even feel that the accused or at least his defense was lying to the jury.” Deaton added, “I advised [movant] of that in talking with him about preparation of his defense so that he was fully aware of the risks.”

Attorney Branyan testified, “Just a few days before trial there had been some plea negotiations and the final offer had been a plea to first degree murder with two concurrent life sentences.” Movant, who had been jailed some 23 months awaiting trial, rejected the offer.

Movant testified that one of the witnesses he had told his attorneys to contact in preparation for trial was Ben Henderson. Deaton testified he had talked to Henderson, a prison inmate, prior to trial, and had arranged for Henderson to be brought from the Department of Corrections to the county jail to be available as a witness for movant at trial.

Deaton recounted that after the jury selection had been completed on the third day of trial the prosecutor informed him that if Henderson testified, he was going to say that while he (Henderson) was in jail mov-ant had admitted to him that he (movant) had killed the Bladeses. Deaton testified he immediately interviewed Henderson, who “confirmed what the Prosecutor had told me.” That is, said Deaton, Henderson would testify that movant admitted killing the Bladeses.

Deaton promptly informed movant about Deaton’s conversation with Henderson, and reminded movant about the plea bargain tendered by the State. Deaton then went to his office and, along with Branyan, began preparing for the next day in court.

Movant, during cross-examination in the motion court, conceded he knew at the end of the third day of his trial that a jury had been selected from “a death qualified panel,” and that the prosecutor was seeking the death penalty. Movant also acknowledged he had known all along that it would be the jurors’ decision as to whether he would die, and that it was a possibility he would die if the jury sentenced him to death. Movant admitted Deaton told him, [825]*825at the end of the third day of trial, that Henderson, if called to testify, would relate conversations with movant in which mov-ant admitted participating in the deaths of the Bladeses. Movant also recalled Deaton saying that Henderson would testify that movant had tried to get Henderson to lie about what movant had told Henderson.

Movant testified that about eight o’clock on the evening of the third day of trial (some four hours after Deaton had informed movant as to what Henderson’s testimony would be), movant requested the jailers to phone his attorneys and inform them he wanted to plead guilty.

Upon receiving the call Deaton and Bra-nyan went to the jail and conferred with movant. We henceforth refer to that meeting as “the Wednesday night conference.” Asked what they discussed, Deaton replied:

“I talked with [movant] again about what the evidence was.... I advised him to take the state’s offer and told him how that would happen, you know, what would go on in court if he wanted to do that.
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Bluebook (online)
769 S.W.2d 822, 1989 Mo. App. LEXIS 594, 1989 WL 42506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conn-v-state-moctapp-1989.