Bibbs v. State, 34818

• Decision Date: 30 October 1973
• Docket Number: No. 34818,34818
• Citation: Bibbs v. State, 504 S.W.2d 319 (Mo. App. 1973)
• Parties: John Albert BIBBS, Movant, Appellant, v. STATE of Missouri, Respondent. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 319

504 S.W.2d 319

John Albert BIBBS, Movant, Appellant, v.STATE of Missouri, Respondent.

No. 34818.

Missouri Court of Appeals, St. Louis District, Division One.

Oct. 30, 1973.

Motion for Rehearing or Transfer Denied Dec. 7, 1973.

Application to Transfer Denied Feb. 11, 1974.

Bryan, Cave, McPheeters & McRoberts, Francis X. Duda, Lewis C. Green, St. Louis, for appellant.

John C. Danforth, Atty. Gen., Jefferson City, J. Brendan Ryan, Circuit Atty., Thomas C. Muldoon, Asst. Circuit Atty. St. Louis, for respondent.

WEIER, Judge.

John Albert Bibbs was convicted of the offense of assault with intent to kill with malice aforethought.§ 559.180.¹A jury determined that he was builty of the offense charged, and under the Second Offenders Act(§ 556.280), his punishment was fixed for a term of 25 years.This conviction was affirmed.State v. Bibbs, 461 S.W.2d 755(Mo.1970).Defendant now contends in this proceeding under Rule 27.26 that he was deprived of his right to a fair trial under the sixth and fourteenth amendments to the United States Constitution for three reasons.First, he was shackled in the presence of the jury during the first day of trial.Second, he was denied effective assistance of counsel.Third, he was denied a hearing and a ruling by the trial court on the question of his competency to stand trial.After an evidentiary hearing in the trial court, these issues were decided against movant.He now appeals.We discuss the contentions of error in numerical sequence as presented.

The first contention of error is based upon the rule in Missouri, which had been well established since State v. Kring, 64 Mo. 591(1877), that there must be some reason, based on the conduct of the prisoner to permit the court to allow a prisoner to be brought before a jury with his hands chained.This rule is based upon the obvious prejudice that must be conceived in the minds of the jurors when viewing an accused in that condition, '* * * as being in the opinion of the judge a dangerous man, and one not to be trusted, even under the surveillance of officers.'64 Mo. at 593.On the other hand, however, the trial court is charged with maintaining an orderly procedure in the courtroom, and the judge may properly exercise his discretion in determining the restraints necessary to maintain order.State v. McGinnis, 441 S.W.2d 715, 717(1)(Mo.1969).To support such action on the part of the court, there must be some 'good reason' arising during the trial (State v. Rice, 347 Mo. 812, 149 S.W.2d 347, 348(1, 2)(1941)) or 'exceptional circumstances'(State v. Boone, 355 Mo. 550, 196 S.W.2d 794, 796(3)(1946)).

Here, defendant's conduct which constituted 'good reason' or 'exceptional circumstances' occurred during an evidentiary hearing concerning movant's request that his attorney be removed.When the court announced that it was not going to remove the attorney and appoint another one, defendant got up and announced in loud voice that he was not going to trial with his lawyer.He thereupon started moving in the direction of the bench which was also the direction of the door to the courtroom.In addition, the judge who presided at the hearing testified the defendant had refused to come out of his cell to the courtroom.The bailiff was instructed to bring him out forcibly, which he did.When defendant was brought into the courtroom, he was handcuffed.Prior to the charge on which he was being tried, defendant had been convicted of a homicide involving violence.He was being tried for another violent crime, a charge of assault with intent to kill.In light of these circumstances, we see no abuse of the court's discretion in ordering the man to remain in handcuffs during the first day of the trial.

Movant's contention that he was denied effective assistance of counsel is grounded upon three specific omissions of his lawyer.First, he complains that his counsel failed to object to the decision of the court to shackle the movant in the presence of the jury.As previously indicated, the movant was being prosecuted for an assault with intent to kill.The evidence disclosed that while driving a stolen car he had suddenly stopped in front of a police automobile, fired shots at the occupant of the police vehicle, and then sped away.He had previously been convicted of three felonies.After the episode before the court during the evidentiary hearing as to replacement of counsel, it may well have occurred to plaintiff's counsel that it would be wiser for his client to be handcuffed than to have another commotion in the courtroom in front of the jury.This was a matter of trial strategy and we do not fault counsel by hindsight on decisions made in this area.Cheek v. State, 459 S.W.2d 278, 281(2)(Mo.1970).

We further note that counsel in his testimony in the hearing concerning this motion was apprehensive as to the action of his client, and had asked the court to provide two of the strongest bailiffs available and keep them behind his client at all times.In an atmosphere charged with rebellious behavior and in dealing with a man who had been known to translate emotional response into violent action, we believe counsel himself was entitled to as much protection as the judge, the officers of the court, and other persons attending the trial.

Movant's second specification of inadequacy alleges that counsel failed to adequately prepare his case or present exculpatory evidence.More specifically, the question is raised as to counsel's failure to rebut evidence concerning a stolen car which the movant was allegedly driving at the time that he committed the assault.This allegedly could have been rebutted by the alibi testimony of movant's mother who was in the courtroom at the time, and by testimony of his sister supporting this alibi.Movant's counsel, however, testified at the motion hearing that he discussed the mother's testimony with her during the course of the trial.He concluded that her testimony in regard to identification would harm his client; therefore, he did not put her on the stand.The sister did not show up at the appointed time during the course of the trial, and when she came in late after the case was closed, he requested the court to let him have more time to put on her testimony.However, even though the court refused, upon his discussion with the sister of the facts to which she would testify, counsel concluded that it was fortunate that she did not come into the courtroom earlier because her testimony would have been the same as that of the mother, and it would have adversely affected his client's case.Refraining from calling certain witnesses is a matter of trial strategy and does not constitute ineffective representation.State v. Wilkinson, 423 S.W.2d 693, 696--697(1)(Mo.1968).

Further objection is made to the failure of movant's counsel at the time of trial to call the attention of the psychiatrist to certain medical records concerning...