Riley v. State

475 S.W.2d 63, 1972 Mo. LEXIS 1113

• Court: Supreme Court of Missouri
• Decided: January 10, 1972
• Docket: No. 56406
• Status: Published

Opinions

HOUSER, Commissioner.

Jack Leroy Riley appeals from an order denying a Criminal Rule 27.26, V.A.M.R. motion to vacate a 99-year sentence and judgment of conviction of robbery in the first degree by means of a dangerous and deadly weapon.

Appellant’s first point: “The trial court was clearly in error in ruling that appellant did not sustain his burden of establishing his grounds for relief due to ineffective assistance of counsel in violation of his rights secured by the sixth and fourteenth amendments by a preponderance of the evidence, for the evidence patently shows that appellant’s court appointed counsel considered himself incompetent, failed to effectively cross examine any witnesses, failed to prepare and conduct any defense, and failed to protect appellant’s constitutional rights.”

The merits of the question of effective assistance of counsel were raised, fully explored and decided adversely to appellant on the original appeal. State v. Riley, Mo.Sup., 394 S.W.2d 360, 361-363. Appellant’s first point in his motion for new trial in that case raised the question of the experience and qualifications of appointed counsel and alleged that he did not have the experience in the trial of criminal cases and procedural knowledge necessary to conduct the defense. Appellant’s first point in his brief on the original appeal was that “the trial court erred in refusing to permit defendant to discharge his court-appointed attorney,” a point in part based upon the contention that the attorney was inexperienced in criminal law and not competent or qualified to conduct the defense. The State joined issue in its brief, contending that “The record of the trial demonstrates that appellant was adequately represented by a qualified and well-prepared attorney.” Donnelly, J., analyzed the evidence touching on the question of the effectiveness of counsel in the trial of the case and concluded: “There is nothing in the record to show that defendant was harmed by [the court-appointed attorney’s]' efforts or that his representation was ineffective. On the contrary, we have reviewed carefully the entire record in the trial court and conclude that [the court-appointed attorney] performed capably and diligently and that defendant had a fair trial.” 394 S.W.2d l.c. 363. We decline to review the question a second time. “* * * [A] motion under Rule 27.26 ordinarily cannot be used as a substitute for a second appeal. Rule 27.26(b) (3); White v. State, Mo., 430 S.W.2d 144, 146[2].” Caffey v. State, Mo.Sup., 441 S.W.2d 681, 682[2], quoted in Morton v. State, Mo.Sup., 468 S.W.2d 638, 639[1]. See also Evans v. State, Mo.Sup., 465 S.W.2d 500; State v. Brown, Mo.Sup., 461 S.W.2d 743; Keeny v. State, Mo.Sup., 461 S.W.2d 731; Malone v. State, Mo.Sup., 461 S.W.2d 727; Gailes v. State, Mo.Sup., 454 S.W.2d 561, and numerous other holdings to the same effect collected in 9B Mo.Dig. Criminal Law, ^ No. 998(13).

Appellant’s second point: “The trial court was clearly in error in ruling that appellant did not sustain his burden of establishing his grounds for relief due to his being denied due process of law as a result of the use of photographs of the petitioner at the trial.”

In presenting this point appellant seeks to raise nothing more than an alleged trial error in the admission of evidence; a point available to him and which could have been but was not raised on the original appeal and which is foreign to the objects and purposes of a proceeding under Criminal Rule 27.26. The latter rule may not be used as a vehicle or substitute for a direct appeal involving mere trial errors. See the cases cited under the first point, and Covington v. State, Mo.Sup., 467 S.W.2d 929 (in which, as here, the alleged trial error was the improper admission of certain evidence). Appellant vainly attempts to raise the evidential question to one of constitutional status by claiming that the ruling admitting the photographs violated his Fifth Amendment rights. While the privilege against self-incrimination is a bar against compelling communications or testimony it “offers no protection against compulsion to submit to fingerprinting, photographing or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.” (Our italics.) Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908, in which the court stated that “compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate” the privilege. 384 U.S. l.c. 764, 86 S.Ct. l.c. 1832.

For these reasons there is nothing for review on this appeal. The judgment therefore is affirmed.

WELBORN and HIGGINS, CC, concur.

PER CURIAM:

The foregoing opinion by HOUSER, C., is adopted as the opinion of the Court.

HOLMAN, P. J., and BARDGETT, J., concur; SEILER, J., concurs in separate concurring opinion filed.