Newman v. State

636 S.W.2d 384, 1982 Mo. App. LEXIS 3916
Missouri Court of Appeals·Decided June 17, 1982·No. No. 12184·Published

Opinion

PER CURIAM.

In this postconviction proceeding under Rule 27.26, Mo.R.Crim.P. (11th ed. 1980), petitioner Junior Eugene Newman sought to withdraw a plea of guilty to second-degree murder entered August 14,1979, in the Circuit Court of Jasper County. The trial court heard evidence, considered the record made when the plea was accepted, and found that “the [petitioner] was motivated by a misunderstanding of the law concerning the admissibility of ... polygraph evidence; that this misunderstanding was a major factor in his decision to enter a plea of guilty, and [was] of sufficient importance to render the plea involuntary.” Petitioner was permitted to withdraw his plea; the sentence imposed upon the plea was vacated. The State appeals. The meritorious question presented is whether the petitioner had effective assistance of counsel prior to the entry of the plea of guilty.

Petitioner was originally charged with capital murder, as defined and denounced by § 565.001, RSMo 1978, in connection with the death of Burnal Ray Brown on October 16, 1978. Petitioner’s brother Jack was tried and found guilty of first-degree murder in causing Brown’s death in the [385] perpetration of a robbery. Jack’s punishment was assessed at imprisonment for life and his conviction was affirmed by our Supreme Court. State v. Newman, 605 S.W.2d 781 (Mo.1980). The case report— and presumably the transcript — show that Junior was present when Brown was killed, but does not indicate complicity on his part.

After Jack was tried, Junior and his counsel planned to proceed to trial. Junior decided a polygraph test would demonstrate his innocence. Being advised by his counsel that the result of a polygraph test was admissible only if the parties stipulated it might be received in evidence, Junior and his counsel entered into a stipulation with the State that the result might be received in evidence upon his trial. The test indicated deception on Junior’s part. Thereafter, counsel advised Junior to enter into a plea bargain and plead guilty. He did so, and received a 25-year sentence.

One of the several attorneys who represented Junior, Mr. Norman Rouse, was asked if he had advised his client against submitting to a polygraph test. Mr. Rouse told the petitioner “I thought he probably shouldn’t take it.” Nevertheless petitioner “was adamant” because he “felt that he was telling the truth and that the lie detector test would clarify him — would clarify it.” This attorney was further asked: “Did you advise Junior Newman of the Law of the State of Missouri at the time? A. Yes. Q. And what was your advice to him? A. It was my opinion at that time that the lie detector test could be admitted if it was stipulated to by both parties.” After the test was administered, Mr. Rouse did considerable research “as to challenging, even after stipulation, a polygraph test.” He concluded there was only a “small possibility” that his objections would be sustained.

Another attorney who represented Junior, Mr. Mike Garrity, was asked if in his opinion the advice he gave Junior concerning the admissibility of the results of a polygraph test was in essence the best advice available; he was permitted to answer “yes” without objection. Mr. Garrity also testified that the State’s plea bargain offers became more lenient after the polygraph test was administered.

This court ordered supplementation of the record in order to examine the transcript made when the plea of guilty was received. At the time this plea of guilty was received, the duty of a trial court was prescribed by an order of our Supreme Court dated February 22, 1972, and that court had suggested a procedure to be followed. Flood v. State, 476 S.W.2d 529, 535-536 (Mo.1972) (Donnelly, J., concurring); Bench Book for Missouri Trial Judges, §§ 17.11, 17.12 (1974). Our inspection of this transcript indicates that when the trial court inquired about a factual basis for the plea, the State indicated it intended to rely upon the polygraph test, but the transcript also shows that having satisfied the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the trial court went into great detail to determine whether the plea was voluntary. The following questions are illustrative:

“Q. Is there anything in the explanation of your rights on the questions asked by this Court that you do not understand?
A. No, sir.
Q. Is there anything that you wish to have explained to you, Mr. Newman?
A. No, Your Honor.
Q. Do you feel that you have gotten all the information that you need through your attorneys and through this proceeding here?
A. I do, Your Honor.”
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“Q. And again I don’t want to belabor the point, Mr. Newman, but you have discussed this plea with your attorneys, have you not—
A. Yes.
Q. —fully? Do you feel that you have had sufficient time to discuss your case before you came in here today?
A. Yes.
Q. At this point, is there any desire on your part to talk to your lawyers any further before we proceed?
A. No, Your Honor.”
* * * * * *

[386] In our view, the transcript demonstrates the plea was knowingly and voluntarily made, unless counsel was remiss in failing to anticipate our Supreme Court’s ruling in State v. Biddle, 599 S.W.2d 182 (Mo.banc 1980), wherein that court held that the results of polygraph examinations are inadmissible as evidence in a criminal trial notwithstanding stipulations because the results of such examinations are scientifically unreliable.

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Newman v. State, 636 S.W.2d 384, 1982 Mo. App. LEXIS 3916 (Mo. Ct. App. 1982).

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Related

Boykin v. Alabama
395 U.S. 238 (Supreme Court, 1969)
United States v. Joseph Armand Oliver
525 F.2d 731 (Eighth Circuit, 1976)
Lawrence Alfano v. United States
555 F.2d 1128 (Second Circuit, 1977)
Edward Fields v. Donald Wyrick
682 F.2d 154 (Eighth Circuit, 1982)
State v. Newman
605 S.W.2d 781 (Supreme Court of Missouri, 1980)
State v. Ghan
558 S.W.2d 304 (Missouri Court of Appeals, 1977)
State v. Faught
546 S.W.2d 515 (Missouri Court of Appeals, 1977)
State v. Biddle
599 S.W.2d 182 (Supreme Court of Missouri, 1980)
Benson v. State
611 S.W.2d 538 (Missouri Court of Appeals, 1980)
State v. Fields
538 S.W.2d 348 (Missouri Court of Appeals, 1976)
Flood v. State
476 S.W.2d 529 (Supreme Court of Missouri, 1972)
Rice v. State
585 S.W.2d 488 (Supreme Court of Missouri, 1979)
State v. Fields
434 S.W.2d 507 (Supreme Court of Missouri, 1968)
Larrabee v. State
616 S.W.2d 542 (Missouri Court of Appeals, 1981)