Babcock v. State

• Decision Date: 11 September 1972
• Docket Number: No. 56487,No. 1,56487,1
• Citation: Babcock v. State, 485 S.W.2d 85 (Mo. 1972)
• Parties: Jack Warren BABCOCK, Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 85

485 S.W.2d 85

Jack Warren BABCOCK, Appellant, v.STATE of Missouri, Respondent.

No. 56487.

Supreme Court of Missouri, Division No. 1.

Sept. 11, 1972.

Rehearing Denied Oct. 9, 1972.

Larry R. Marshall, Columbia, for appellant.

John C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, for respondent.

HIGGINS, Commissioner.

Appeal from denial, after evidentiary hearing, of motion under Rule 27.26, V.A.M.R., to vacate and set aside judgment of conviction of murder, second degree.

On December 7, 1947, Jack Warren Babcock and four others, William Wiley, Herman Alva Robinson, Arthur Schofield, and Alfred Bradley, arrived by automobile in Randolph County, Missouri, for the purpose of robbing several persons thought to be engaged in a dice game at a service station on U.S. Highway 63, a mile and a half south of Moberly.Bradley remained in the automobile, Robinson and Schofield went to the front door, movant went to one side door, and Wiley went to the other.All four were armed.Schofield and Robinson broke the front door and a shot, apparently fired by Schofield, killed Roy Eubanks.After the shot was fired, movant and Wiley also entered the station and assisted in taking money and valuables from the game's participants.

On April 1, 1948, movant was arrested in Kansas City and taken to Moberly.He had no attorney at that time.

On April 7, 1948, transcript of magistrate court proceedings affecting Wiley, Schofield, and Robinson was filed in the Circuit Court of Randolph County.

On July 15, 1948, information was filed charging movant, Wiley, and Robinson with murder, first degree.On the same date nolle prosequi was entered as to Robinson and he was endorsed as a state's witness.

On July 30, 1948, movant and Wiley, represented by their attorney, john Carmody, waived formal arraignment and pleaded not guilty.Their trial was set for September 21, 1948.

On September 7, 1948, the case was reset by agreement for trial on October 6, 1948.On September 28, the defense disqualified the judge and the Honorable W. M. Dinwiddie of an adjoining circuit was assigned to the case.On October 6, 1948, the defense secured a change of venue from the inhabitants of Randolph County, Judge Dinwiddie awarded venue to Boone County, and movant and Wiley were lodged in the Boone County jail from which they escaped.They were later rearrested in Van Buren, Arkansas.Upon their return, they were separated--Wiley being jailed on the first floor and movant on the second.

Early in November, 1948, Wiley and one Hamilton were frustrated in a second escape attempt and Judge Dinwiddie, after a hearing, ordered movant and Wiley to the Missouri State Penitentiary for pretrial safekeeping.Movant stated he was kept in solitary confinement on death row and described conditions of his confinement as very poor.He acknowledged that he received no threats or mistreatment while in the penitentiary awaiting trial.

On November 29, 1948, defense counsel obtained another continuance, this time on the inability of Schofield to testify and until his sanity could be determined, and because Bradley was not available.The case was reset for trial December 8, 1948.

On December 8, 1948, the case came on for trial with movant, Wiley, and their lawyer, Mr. Carmody, present.Various motions were considered and a jury empaneled.Movant and Wiley then discharged Mr. Carmody, saying he'couldn't get motions through,' and was 'laughed out of court.'Movant and Wiley were returned to prison.Movant wrote to three attorneys without response.The case was reset for trial January 19, 1949.

On January 3, 1949, a movant and Wiley were returned to court where they were met by Wiley's brother and sister-in-law, and Wiley's new attorneys, Mr. Joseph N. Miniace and Mr. Harry E. Whitney.When movant was taken to the courtroom, Judge Dinwiddie ascertained that he did not have counsel and appointed Mr. Miniace and Mr. Whitney to represent him also.

Movant then conferred with his lawyers for fifteen to twenty minutes before lunch.He heard them tell Wiley they knew nothing of the case until they were retained the previous night.The lawyers conferred with Wiley for about two hours before movant entered the conference room.

Movant and Wiley were returned to jail for lunch.They discussed the case and were 'hoping for a break.'

After lunch, movant and Wiley were returned to court for further conference.Mr. Whitney advised that the state would reduce the charge to murder, second degree.Movant felt he would get twenty-five years' imprisonment and be released from solitary confinement.Mr. Whitney stated an opinion that the judge would not give the maximum on a guilty plea.

Movant acknowledged that the attorneys did not urge either defendant to plead guilty, and that he and Wiley decided to plead guilty.Movant pleaded guilty because he wanted out of solitary confinement, because it was a good deal, and because he felt he had a promise of a twenty to twenty-five year sentence.

Movant's criticism of his attorneys was that they did not advise of the nature of the charge, or what would happen if he did not plead guilty.He was not asked any questions about his background, record, family, or the facts of the crime.He acknowledged that his attorneys recited the facts of the crime accurately when the guilty plea was entered.He also acknowledged discussing matters with his lawyers that afternoon and that he did, in some manner, communicate his desire to plead guilty to his attorneys.Movant knew the range of punishment, and his excuse for raising no previous objection to the punishment was that he was 'dumbfounded.'

Movant's attorneys were lawyers of considerable experience, particularly in criminal cases.Their recollections at the hearings in October and December, 1968, of matters which transpired twenty years earlier, were understandably reserved.It was their custom to advise clients of their rights and to discuss the facts surrounding the charge.They never urged an accused to plead guilty, inasmuch as that decision was up to the client.The lawyers took one deposition in connection with the case on behalf of codefendant Wiley and had extensive discussions with him about the crime.They talked to movant both in the morning and afternoon about the facts of the offense.They doubted they inquired about movant's background and they did not investigate Schofield's mental condition.¹

The information was amended to charge murder, second degree, and movant, represented by Mr. Miniace and Mr. Whitney, withdrew his not guilty plea and pleaded guilty to the charge of murder, second degree.He was thus convicted, his punishment was fixed at life imprisonment, and he is currently imprisoned as a result.

Proceedings at the time the guilty plea was entered included a detailed statement by the prosecuting attorney of the facts of the offense, the existence of other charges that could be filed, and a request that punishment be fixed at life imprisonment.Counsel then recited the facts in similar detail as he understood them, emphasized that movant did not fire the fatal shot, made a request for mitigation, that sentence be deferred until all participants could be brought to trial, and that the court consider a sentence of twenty years.

The court then passed judgment and the prosecuting attorneys indicated they would not be filing any further charges in view of the sentence imposed on the guilty plea.

Appellant presents three contentions:

I.That the court erred in its finding of effective assistance of counsel because:

A.Counsel failed: to conduct independent investigation, consult with defendant concerning constitutional rights, and present a defense that since the principal in the murder was insane, he as an aider or abettor could not be guilty;

B.Counsel failed to correct misstatements in the prosecuting attorney's recital of facts;

C.Counsel failed to consult with defendant prior to the day his plea was entered;

D.Counsel was also hired by Wiley and therefore had a conflict of interest with representation of movant.

II.That the court erred in finding defendant's plea was voluntary because he did not understand the nature of the crime, its punishment and the law and defenses, particularly that of his principal's insanity, available to him.

III.That the court erred in finding that the insanity of Arthur Schofield was not available as a defense to defendant.

The court's findings and conclusions in denial of relief to movant are presumed correct and are to be affirmed unless clearly erroneous.Rule 27.26, supra;Crosswhite v. State, Mo., 426 S.W.2d 67.

With respect to the specific contention made under III, and with respect to it as an incident of I and II, suffice to say that one who conspires with or aids or abets another in commission of...