Beeman v. State, 56961

• Decision Date: 10 December 1973
• Docket Number: No. 2,No. 56961,56961,2
• Citation: 502 S.W.2d 254
• Parties: Richard Owen BEEMAN, Movant-Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 254

502 S.W.2d 254

Richard Owen BEEMAN, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 56961.

Supreme Court of Missouri, Division No. 2.

Dec. 10, 1973.

David A. Yarger, Woolsey & Yarger, Versailles, for movant-appellant.

John C. Danforth, Atty. Gen., Daniel P. Card, II, Asst. Atty. Gen., Jefferson City, for respondent.

HOUSER, Commissioner.

Richard Owen Beeman entered a plea of guilty to a charge of first degree murder on December 13, 1961 and was sentenced to life imprisonment. On June 8, 1968 appellant filed a motion to vacate judgment and set aside sentence under Rule 27.26, V.A.M.R. Following an evidentiary hearing the motion was overruled on April 7, 1971. An appeal to this Court was taken from this order on April 15, 1971.

Appellant's first point is that prosecution of appellant by information rather than by indictment denies him equal protection to the law under the Fifth Amendment to the Constitution of the United States, which provides that no person shall be held to answer for a capital or otherwise infamous crime 'unless on a presentment or indictment of a Grand Jury * * *.' Appellant cites no cases in support of this point. In State v. Waller, 382 S.W.2d 668, 671(4) (Mo.1964). this Court held that the Fifth Amendment 'has no application to state procedure in this regard,' citing Hurtado v. California,110 U.S. 516, 534, 4 S.Ct. 111, 28 L.Ed. 232 (1884), and State v. Cooper,344 S.W.2d 72, 74(1--3) (Mo.1961). The provision of Mo.Const. Art. I, § 17, V.A.M.S., authorizing persons to be prosecuted for felony by indictment or information, which specifically states that these are concurrent remedies, 'is not violative of the due process and equal protection of the laws clauses of the Federal Constitution, Amend. 14.' State v. Cooper, supra, 344 S.W.2d l.c. 75(3), citing State v. Jones, 168 Mo. 398, 68 S.W. 566, 567 (Mo.1902); Lyle v. Eidson, 182 F.2d 344, 345 (8th Cir. 1950), and Hurtado v. California, supra. Cooper was followed in State v. Martin, 395 S.W.2d 97 (Mo.1965). Martin was cited in State v. Coleman, 460 S.W.2d 719, 727 (Mo.1970), in which this Court, sitting en banc, disallowed the point, saying, 'We have repeatedly held that the Fifth Amendment, in the respect under consideration, is a limitation on the powers of the government of the United States and not upon the governments of the several states. * * *'

Appellant's second point is that his plea of guilty was induced by fear of an unconstitutional punishment, to wit, the death penalty, amounting to coercion so as to render the plea involuntary, and he was thereby deprived of due process and equal protection of the laws. 'It is now well settled that a plea of guilty is not invalid merely because it is entered to avoid the possibility of a death penalty. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747. And that is so, even though defendant is unwilling to admit participation in the crime. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162.' Skaggs v. State, 476 S.W.2d 524, 528(6) (Mo.1972). See also Evans v. State, 477 S.W.2d 94, 97(5) (Mo.1972); Bradley v. State, 476 S.W.2d 499 (Mo.1972); Watson v. State, 475 S.W.2d 8 (Mo.1972); State v. Townsend, 462 S.W.2d 754, 756(1) (Mo.1971); Moore v. State, 461 S.W.2d 881, 886(3) (Mo.1971). 'The dilemma confronting a person charged with first degree murder (whether to plead guilty in the expectation that he would receive a life sentence or stand trial and risk possible imposition of the death penalty) 'does not amount to coercion of the sort which means that his plea of guilty is coerced and subject to collateral attack.' Fleck v. State, Mo.Sup., 443 S.W.2d 100, 103, and cases cited.' Richardson v. State, 470 S.W.2d 479, 484(7) (Mo.1971). The fear of the death penalty 'does not necessarily demonstrate that the plea of guilty was not the product of a free and rational choice * * *.' North Carolina v. Alford, supra, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). It is only one of several factors to be considered. Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). From this record the circuit court's finding that the plea of guilty was entered 'voluntarily with a full understanding of the charge, of his rights and of the range of punishment' is not clearly erroneous. Without reciting and recounting what transpired at the hearing at which the plea of guilty was entered, and without reviewing the testimony at the 27.26 hearing, suffice it to say that at the 1961 hearing there was full compliance with the requirement of Rule 25.04 that the court not accept a plea of guilty without first determining that the plea is made voluntarily with understanding of the nature of the charge, and at the 27.26 hearing the appellant failed to sustain his burden of showing by a preponderance of the evidence that manifest injustice resulted from acceptance of his plea of guilty.

Appellant's third point is that his plea of guilty was induced by inadequacy of representation by court-appointed counsel 'thereby resulting in said plea being involuntary and depriving appellant of due process and equal protection of the laws.' Specifically, the complaints against counsel are that although appellant requested a change of venue counsel failed to obtain a change, and that codefendant Blood requested a severance but that counsel stated this was not possible, and no severance was taken.

As to the change of venue: Counsel made an oral application for a change of vanue, which was denied by the judge, who suggested that counsel make a formal application. Counsel was acquainted with the local situation, being a resident of Miller County, where the murder occurred. Counsel read the local newspaper and the Jefferson City newspaper accounts of the events which led up to the filing of charges against appellant and Blood. The news accounts were factual. There were no newspaper articles calling for lynching. The news reporting broadcast on the radio about the crime was factual. There were no mobs or violent groups of people bent on doing harm to the suspects. Counsel attempted to get the affidavits of prejudice required for a change of venue. He talked to several acquaintances to determine whether any of them would sign an affidavit but was 'unable, conscientiously, to obtain any affidavits of prejudice against these men.' Counsel advised defendants that in his personal judgment they were as well off having a trial in Miller County as elsewhere and not to worry about a change of venue. The circuit court made the following finding on the matter of change of venue: 'If prejudice existed in Miller County as alleged by them, which this Court does not find as a fact, still the movants were not prejudiced thereby, since they were assessed the minimum...