Simpson v. State

637 S.W.2d 728, 1982 Mo. App. LEXIS 3933
CourtMissouri Court of Appeals
DecidedJune 15, 1982
DocketNo. WD 32655
StatusPublished
Cited by3 cases

This text of 637 S.W.2d 728 (Simpson 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
Simpson v. State, 637 S.W.2d 728, 1982 Mo. App. LEXIS 3933 (Mo. Ct. App. 1982).

Opinion

KENNEDY, Judge.

Movant Matthew Simpson appeals from the trial court’s denial, after an evidentiary hearing, of his Rule 27.26 motion. The motion sought to withdraw his plea of guilty to the charge of felonious assault with intent to do great bodily harm without malice aforethought, § 559.190, RSMo 1969 (repealed January 1,1979), and have the judgment and sentence vacated. The court upon his guilty plea in the original case had suspended the imposition of sentence and had placed Simpson on probation for two years. Later, Simpson’s probation had been revoked and he had been given a sentence of four years’ imprisonment.

Simpson had been charged with assault with intent to do great bodily harm, § 559.-180, RSMo 1969 (repealed January 1, 1979). On the morning that the trial was to begin, the prosecutor offered to reduce the charge to the lesser included offense of assault without malice aforethought in exchange for a plea of guilty. Simpson pleaded guilty.

At the guilty plea hearing, Simpson stated that on the night the incident in question occurred, he had friends at his house. The infant son of one of his guests kept crying. In order to quiet the baby, Simpson picked up the baby and shook him. The baby’s back touched the metal hood of the fireplace, which caused the baby to suffer third-degree burns. Simpson alleged that he never intended to hurt the child.

In his Rule 27.26 motion, Simpson alleges that the trial court erred in failing to sustain his motion for relief for the reason that his plea was not knowingly and voluntarily made in that he did not know the nature of the charges against him. Movant relies on Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), for the proposition that his guilty plea should not have been accepted because he was not apprised of the elements of the crime to which he pleaded guilty. He claims that he did not know that intent was an essential element of the crime of assault without malice aforethought.

In order to satisfy due process, Henderson requires that the criminal defendant know the elements of the crime to which he is pleading. The defendant in Henderson was indicted for first-degree murder, but pled guilty to second-degree murder on his attorney’s advice. The record showed that the defendant was never apprised of the elements of first or second-degree murder, nor was he aware that intent was a requisite element. The defendant in Henderson possessed substantially below average intelligence.

Movant’s case is distinguishable from Henderson. A reading of the transcripts shows that Simpson had at least average intelligence. Further, two factors are to be noted which would have brought home to defendant the fact that intent was an element of the crime. First, Simpson acknowledged that his attorney explained to him the elements of assault with malice aforethought before the guilty plea proceeding. This explanation would necessarily have included a description of the intent element. Second, the prosecutor clearly stated that the state was reducing “the charge from Assault with Intent to do great Bodily Harm with Malice to Assault with Intent to do Great Bodily Harm without Malice” (our emphasis). In questioning Simpson at the guilty plea hearing his attorney also stated the original charge and the reduced charge. By hearing the charges read back to back, Simpson should have been aware that the only difference in the charge to which he was pleading was an absence of malice aforethought, and that intent was still required. He would have known what intent meant because of his attorney’s explanation of the elements of assault with malice aforethought.

The test for determining whether a plea was voluntarily and intelligently made “is not a particular ritual or whether each and every detail is explained to a defendant but whether in fact the plea is voluntarily and intelligently made”. Baker v. State, 524 S.W.2d 144, 147 (Mo.App.1975). See [730]*730also Flood v. State, 476 S.W.2d 529, 534 (Mo.1972); Giles v. State, 562 S.W.2d 106, 108 (Mo.App.1977). The trial court is not required to explain every element of the crime to which a person pleads guilty. Jones v. State, 581 S.W.2d 386, 388 (Mo.App.1979). It is sufficient if the movant, through his answers to questions, expresses an awareness of the nature and elements of the charge to which he pleads guilty. Giles v. State, 562 S.W.2d at 109.

At the Rule 27.26 evidentiary hearing, Simpson testified that he did not know that he had to intend to burn the child in order to be convicted of the crime of assault without malice aforethought. The following testimony from the guilty plea hearing shows, however, the court did discuss intent with Simpson and that Simpson understood the nature and elements of the charges against him:

THE COURT: Do you also understand, if the jury, from the testimony that the State would present, would infer you held the child against the fireplace in order to punish it for crying, that you intended it to be maybe not burned but at least caused a discomfort by being that close to the fireplace, that that’s what a jury could infer, if you went to trial?
THE DEFENDANT: Yes, I understand.
THE COURT: So you are not saying necessarily — you are not — you claim you didn’t intend to hurt the child, but the fact of the matter is that the State’s evidence would indicate that you did, and, therefore, you have — well might be convicted if you stood trial?
THE DEFENDANT: Yes, sir, to the mere fact the baby was burned.
THE COURT: That’s why you want to plead guilty, because you don’t want to take that chance, is that true?
THE DEFENDANT: That, along with the child was burnt, Your Honor.
THE COURT: Okay. Well, what is your position? Did you intend the child be burned when you held it up there?
THE DEFENDANT: No, sir, not under any circumstances.
QUESTION (by defense counsel): You understand, if we went to trial on this, not only would the court instruct on the issue of Assault with Intent to do Great Bodily Harm with Malice, the Court would also instruct on lesser included offenses?
ANSWER: Yes, sir....
QUESTION: And again, that option, you feel, since that — the baby’s back was burnt, the jury is more than likely going to find you guilty of a lesser included offense?
ANSWER: Yes.

Movant has consistently maintained that he did not intend to burn the infant. The protestation of innocence brings the case within the ambit of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). In Alford, the defendant pled guilty, but denied having committed the offense.

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Related

Meeks v. State
718 S.W.2d 656 (Missouri Court of Appeals, 1986)
Beaver v. State
702 S.W.2d 149 (Missouri Court of Appeals, 1985)
Moore v. State
667 S.W.2d 470 (Missouri Court of Appeals, 1984)

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Bluebook (online)
637 S.W.2d 728, 1982 Mo. App. LEXIS 3933, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simpson-v-state-moctapp-1982.