Mitchell v. State

447 S.W.2d 281, 1969 Mo. LEXIS 688
CourtSupreme Court of Missouri
DecidedNovember 10, 1969
Docket54090
StatusPublished
Cited by14 cases

This text of 447 S.W.2d 281 (Mitchell v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mitchell v. State, 447 S.W.2d 281, 1969 Mo. LEXIS 688 (Mo. 1969).

Opinions

HOLMAN, Judge.

On May 7, 1965, movant entered a plea of guilty to a charge of first degree robbery and was sentenced to imprisonment for 15 years. He filed a motion under S.Ct. Rule 27.26, V.A.M.R. on June 12, 1968, to vacate that judgment. After the court had held an evidentiary hearing and made extensive findings it overruled the motion. The movant has appealed from that order and judgment. He has been represented by appointed counsel at every stage of the various proceedings mentioned.

On March 8, 1965, someone broke into the home of Mrs. Mary Smith located in Springfield, Missouri, and took certain items of personal property. When Mrs. Smith came home this person grabbed her, tied an apron over her face, and then robbed her of some money and apparently raped her. When the police were called Mrs. Smith stated she could not identify her assailant but she apparently gave movant’s name to the police as a suspect. Shortly thereafter two detectives went to the residence where movant lived and told him to get his coat, that they were taking him to the police station for investigation. When movant went to the bedroom to get his coat the officers followed him and searched the same and in so doing found some items of jewelry in the sleeve of a coat hanging in the closet. These were later identified as items taken that day from Mrs. Smith’s home. The police had no warrant for arrest and no search warrant. Movant was taken to the police station. En route to the station he made a confession which he now says was the result of physical mistreatment and threats. The next morning two other police officers questioned movant and took a question- and-answer statement which movant signed after he had been given an opportunity to read it, and after it was read to him.

[282]*282Movant was 19 years old at the time and had attended 9½ years of school. After a charge was filed in the magistrate court Attorney Theodore Salveter was appointed to represent movant. Movant testified that he told Mr. Salveter about the rough treatment he received from police but that the attorney recommended that he plead guilty because of the confession. Movant did plead guilty and testified that he remembered the various things the judge asked him at that time and stated that he entered the plea of guilty because Mr. Salveter recommended that he do so; that no one made any promises to him in order to get him to plead guilty.

Mr. Salveter testified that he talked with movant six or seven times; that he checked with the prosecuting attorney who permitted him to read the statement in which movant admitted the robbery; that movant made no complaint to him about any threats or physical abuses connected with either the verbal or the written statement; that he was of the opinion that the statement would be admissible; that its contents were the same as the facts which movant related to him; that before entering the plea he filed a motion to obtain a mental examination of movant, which the judge sustained, but the doctor’s report indicated that movant was not insane and would not have been insane at the time of the occurrence; that movant never indicated that he would like to plead not guilty or have a trial but decided that a plea of guilty would be the best course to follow.

Various officers testified that there was no force used or promises made to obtain the confession from movant. The officers stated that they advised defendant of his constitutional rights, and the written statement recites that prior to questioning he had been informed that he had a right to call an attorney, a right not to make a statement, and that anything said could be used against him. The officers stated, however, that they did not advise him that if he could not employ an attorney one would be provided.

At the time the plea of guilty was entered the court questioned the defendant and defendant stated that his attorney had advised him as to the possible punishment; that he understood that he had the right to trial by jury if he wanted one; that after consulting with his attorney he wanted to plead guilty; that no one had made any promises to him or threatened him in any way in order to get him to plead guilty; that he was doing so of his own free will and accord. At that time the court read to the defendant the charge in question and defendant then personally entered a plea of guilty.

At this point it should be stated that in the motion filed, and at the hearing of that motion, it was the contention of movant that the evidence obtained in the search of his bedroom would have been suppressed on proper motion and would not have been admitted in the event of a trial, and that the confession was not voluntary and would have been excluded upon proper objection. He does not actually contend or testify that his plea of guilty was not voluntary in the usual sense of that word. His true contention is that if he had been advised and had known that the physical evidence could have been suppressed and that the confe'ssion was not admissible he, to use the words of his testimony, “believed he would have pleaded not guilty.”

At the conclusion of the hearing on the 27.26 motion the trial court made detailed findings. The court found that the items of personal property were seized after movant was in the custody of the two officers in the sense that they had made it known to him that he was not physically free to leave, and that the verbal statement given the evening of March 8, and the written statement taken the next morning, were voluntary and were taken after movant was advised of the rights to which he was entitled to be advised under the law at that time; that there were no threats, promises, or physical violence involved in obtaining those statements; that movant at no time told his attorney that he was not [283]*283guilty, and that his attorney concluded there was no chance to win the case because of the confession and because of the facts related to him by movant; that movant had been legally arrested, that the search and seizure were valid, and that the plea of guilty was voluntarily entered with a full understanding of the nature of the charge. The court further concluded that as a matter of law, based on the evidence, there was no infringement of any constitutional rights such as to render the judgment and sentence subject to collateral attack, and that movant had not sustained his burden of establishing a ground for relief under S.Ct. Rule 27.26 by the preponderance of the evidence.

At the outset of our consideration of this appeal it should be mentioned that the burden of proving the grounds for relief is upon the movant and that upon appeal our review is “limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous.” Rule 27.26(j).

The main point raised on this appeal is that “appellant’s plea was not voluntary and the court erred * * * in accepting the plea, and * * * in not setting said plea aside and ordering^ new trial.” In connection with our consideration of that contention we observe that the proper procedure to be followed by the trial court in accepting a plea of guilty, and also upon the hearing of a subsequent motion to vacate, is outlined in detail in the case of Drew v. State, Mo., 436 S.W.2d 727.

When the word “voluntary” is considered in accordance with its usual meaning there can scarcely be any doubt but that movant’s plea of guilty was voluntarily entered.

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Mitchell v. State
447 S.W.2d 281 (Supreme Court of Missouri, 1969)

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Bluebook (online)
447 S.W.2d 281, 1969 Mo. LEXIS 688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-v-state-mo-1969.