State v. Ball

408 S.W.2d 17, 1966 Mo. LEXIS 630
CourtSupreme Court of Missouri
DecidedNovember 14, 1966
DocketNo. 51919
StatusPublished
Cited by8 cases

This text of 408 S.W.2d 17 (State v. Ball) 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
State v. Ball, 408 S.W.2d 17, 1966 Mo. LEXIS 630 (Mo. 1966).

Opinion

HYDE, Judge.

Defendant charged under the Plabitual Criminal Statute (Sec. 556.280) with burglary in the second degree (Sec. 560.070) and grand stealing in connection with the burglary (Sec. 560.110) was found guilty on both charges. (Statutory references are to RSMo and V.A.M.S.) Defendant was sentenced to ten years’ imprisonment for burglary and five years for grand stealing, to run consecutively, and has appealed from this judgment.

Defendant is represented on this appeal' by counsel appointed after sentence and judgment in the Circuit Court as authorized by Criminal Rule 29.01(c), V.A.M.R. His claims of error asserted here are (1) Failure to appoint new counsel after verdict and prior to filing of motion for new trial and sentencing; (2) Admitting testimony of Mrs. Diedre Anne Davis, at one time a co-defendant, claiming she was incompetent to testify alleging she was coerced to testify.

As to the first, after the trial defendant’s appointed counsel, Mr. C. J. Quimby, wrote him, as follows: “I did not prepare and file a Motion for New Trial because I can find no error in the proceedings. I could file what is called a shotgun motion, but it would be of no use because of Supreme Court rule of criminal procedure # 27.20 which requires such motion should be set forth with great detail and particularity in separate numbered paragraphs as specific grounds or causes, therefore their cases hold that simple statements in such a motion to the effect that verdict was against the evidence, against the weight of the evidence, against the law under the evidence are too general to preserve for anything for review by the Supreme Court, and I cannot give reason and facts to support such claims of error. For these reasons I do not consider it my duty, under my appointment as counsel to defend you in this case, to prepare and file a Motion for New Trial, but, in order to preserve any rights you may have and so that I may not be charged with neglect of my duty as appointed counsel, I have filed a Motion for Extension of Time, copy of which is herewith enclosed and I have [19]*19filed it with a copy of this letter as an exhibit in support of the motion, all within the original time limit, ten days from verdict.”

A motion for new trial, which we consider was timely filed, preserved for appellate review the two above-stated claims of error and no other claims are suggested. The record shows the following: “Thereafter, on December 18, 1965, hearing on defendant’s Motion for New Trial was had before the Honorable Sam C. Blair, Special Judge of the Circuit Court of Cole County, Missouri, with Mr. Byron L. Kinder, Prosecuting Attorney for Cole County, Jefferson City, Missouri, appearing for the State (plaintiff), and the defendant appears in person and by his attorney, C. J. Quimby, Attorney at Law, Jefferson City, Missouri, in open court, and said Motion for New Trial is presented to the Court; and the Court, having heard presentation of counsel, and having considered the same, overrules said motion.” Mr. Quimby was the court-appointed counsel who represented defendant at the trial. Although defendant did file a motion for appointment of other counsel after defendant received Mr. Quimby’s letter, no action was taken on this motion. As noted a motion for new trial was filed, not prepared by Mr. Quimby, but as shown by the above entry he did continue to represent defendant.

Whether defendant was prejudiced by the court’s failure to appoint other counsel, in our opinion, would depend upon whether there was any merit in the other claim of error made. We think this is true because if the court properly admitted the testimony of Mrs. Davis, defendant could not have been prejudiced by failure to appoint other counsel to present that contention after the trial. On any claim of neglect of counsel, there must be a showing that there was plain reversible error in the trial. State v. Maness, Mo., 408 S.W.2d 15, decided October 10, 1966, and cases therein cited. Our Canons of Ethics provide: Rule 4.05: “It is the right of the lawyer to undertake the defense of a person accused of crime, regardless of his personal opinion as to the guilt of the accused; otherwise innocent persons, victims only of suspicious circumstances, might be denied proper defense. Having undertaken such defense, the lawyer is bound by all fair and honorable means, to present every defense that the law of the land permits, to the end that no person may be deprived of life or liberty, but by due process of law.” Rule 4.04 requires that counsel “should always exert his best efforts in his (defendant’s) behalf.” Nevertheless, as stated in Rule 4.15: “In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense. But it is steadfastly to be borne in mind that the great trust of the lawyer is to be performed within and not without the bounds of the law. The office of attorney does not permit, much less does it demand of him for any client, violation of law or any manner of fraud or chicane. He must obey his own conscience and not that of his client.” Rule 4.22 further admonishes that the conduct of the lawyer before the court should be characterized by candor and fairness. Thus, while a prisoner, indigent or otherwise, is entitled to his lawyer’s best efforts, the lawyer is not required to surrender his integrity and self-respect and make claims known to be untenable or wholly false. We consider this to apply in criminal cases as well as all others and that a lawyer cannot be criticised for giving a client his honest views. Furthermore, we consider the trial counsel’s view as to the question raised on this appeal to be correct.

The cases cited in defendant’s brief all recognize the general rule stated in State v. White, Mo.Sup., 126 S.W.2d 234, 235: “[T]hat an accomplice is a competent witness, notwithstanding the fact he may have made by arrangement by which, if he [20]*20turns state’s evidence, he will not be prosecuted, if he has not agreed to' testify in a particular way; but that such fact goes only to his credibility.” We have had a statute, Sec. 546.280, now Criminal Rule 26.07, which provides: “When two or more persons shall be jointly indicted or prosecuted, the court may, at any time before the defendants have gone into their defense, direct any defendant to be discharged, that he may be a witness for the state.” This also is a recognition of the competency of the testimony of an accomplice. Any immunity or promises offered to an accomplice to testify to the truth “might affect his credibility but not his competency as a witness.” State v. Quinn, Mo.Sup., 142 S.W.2d 79, 81. Defendant’s brief recognizes “an accomplice to a crime is ordinarily competent to testify.” However, it is further stated in his brief: “If the witness went farther, and sought to convict a defendant, to testify untruthfully, or gave testimony of an uncreditable or contradictory nature which would support this showing, then a reviewing court should be inclined to consider the competency of the witness.” Defendant claims Mrs. Davis had agreed to testify in a particular way for the State, without regard for the truth, arguing that because she was seventeen years old, pregnant and had first invoked her privilege not to testify under the Fifth Amendment but then testified against defendant to escape punishment. Of course, as we held in State v. Eaton, Mo.Sup., 280 S.W.2d 63

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Bluebook (online)
408 S.W.2d 17, 1966 Mo. LEXIS 630, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ball-mo-1966.