State v. Howard, 50408

• Decision Date: 09 November 1964
• Docket Number: No. 1,No. 50408,50408,1
• Citation: 383 S.W.2d 701
• Parties: STATE of Missouri, Respondent, v. Frank HOWARD, Appellant
• Court: Missouri Supreme Court

Page 701

383 S.W.2d 701

STATE of Missouri, Respondent, v. Frank HOWARD, Appellant.

No. 50408.

Supreme Court of Missouri, Division No. 1.

Nov. 9, 1964.

Thomas F. Eagleton, Atty. Gen., Eugene G. Bushmann, Asst. Atty. Gen., Jefferson City, for respondent.

Tenney, Dahma & Mathewson, E. H. Tenney, Jr., St. Louis, for appellant.

HYDE, Presiding Judge.

Appeal from order overruling motion under Rule 27.26, V.A.M.R. to vacate judgment and sentence of life imprisonment for forceable rape, previously affirmed by this court on appeal. State v. Howard, Mo., 360 S.W.2d 718. The order, made without hearing evidence, was 'motion to vacate and set aside sentence and judgment filed, considered and denied.' Counsel thereafter appointed for defendant, for this appeal, has briefed and argued the case here.

One of defendant's principal contentions is that his confession received in evidence at the trial was involuntary and coerced. It appears from the transcript in defendant's appeal from his conviction (a copy being part of the trial court files, Rule 82.12) that this statement was in question and answer form. The questions were asked by the First Assistant Circuit Attorney of the City of St. Louis in the Circuit Attorney's office in the presence of the Circuit Attorney, two detectives and the stenographer who took the statement. In answer to questions asked defendant said he had not been promised anything or threatened in any manner and realized that the statement he gave could be used in court against him. It also appears that, after the jury was selected and before any evidence in the case was heard, the court held a full hearing out of the presence of the jury and heard the testimony of defendant and two detectives, who had questioned him before he made the statement. Defendant testified at this preliminary hearing that an officer had struck him on the head with a large book, after his arrest, during questioning before he made the statement admitted in evidence. The State's evidence was that this was not true and that there was no coercion. After hearing this evidence, the court ruled that the statement was voluntary. After this statement was admitted, defendant testified before the jury, claimed the statement was involuntary and said he was struck on the head with the book the night before he made the statement (about 20 hours before) but admitted he was asked the questions in the statement about its voluntariness. The officer defendant said struck him with a book testified at the trial and denied that he ever struck defendant. Officers also testified concerning verbal admissions made by defendant before he made the written confession. The jury was instructed they could consider voluntary statements but were told 'if you find such statement or statements were not voluntarily made, but were procured by coercion or threats or through fear, then you should disregard them altogether.'

Thus the transcript on defendant's appeal from his conviction, on file in this court and on file in the circuit court, clearly shows a full and fair hearing on the voluntariness of his confession, out of the presence of the jury, and a finding by the court that it was voluntary before it was permitted to go to the jury. It further shows that the jury later heard testimony of defendant and others about it and were authorized by their instructions to disregard it if they found it was not voluntary. Therefore, we hold that this issue had been judicially determined and it was not questioned in the motion for new trial or on appeal; so on motion to vacate on the the same claim the court properly could find from its own files and records in the case that defendant was entitled to no relief on this claim. See Hodges v. United States, 108 U.S.App.D.C. 375, 282 F.2d 858. On this issue, Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, is cited because defendant did not have counsel and was not advised of right to counsel before his statement was made. However, we will not expand that ruling beyond the facts of that case where Escobedo had a lawyer employed who was trying to see him and was not permitted by the police to do so. In fact, Escobedo was told by the police 'that his lawyer didn't want to see' him.' Moreover, it was a case of direct review on appeal.

Defendant seeks to raise again the claim of error decided on his appeal that the jurors were permitted individually to see and read his written statement but we adhere to our ruling (360 S.W.2d l. c. 721) that this 'was a matter resting within the sound discretion of the trial court.' Defendant also claims his sentence was unlawful because the court refused to poll the jury as to whether they had read articles in St. Louis newspapers or heard anything on television concerning the trial, saying this was an abuse of discretion, citing State v. McGee, 336 Mo. 1082, 83 S.W.2d 98, and State v. Laspy, Mo.Sup., 323 S.W.2d 713, in neither of which was any abuse of discretion found. The transcript shows the jury was selected and sworn without objection, see Latham v. Crouse, USCA 10th, 320 F.2d 120. It also shows that during the trial defendant's counsel showed the court a newspaper published after the trial began referring to defendant as a former convict and to his identification by the State's...