Bonner v. State, 36317
| Decision Date | 16 March 1976 |
| Docket Number | No. 36317,36317 |
| Citation | 535 S.W.2d 289 |
| Parties | Horace W. BONNER, Jr., Plaintiff-Movant, v. STATE of Missouri, Defendant-Respondent. . Louis District |
| Court | Missouri Court of Appeals |
David Uthoff, St. Louis, for plaintiff-movant.
John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Nels C. Moss, Jr., Asst. Circuit Atty., St. Louis, for defendant-respondent.
Horace W. Bonner, Jr., movant, appeals from the judgment of the trial court denying relief upon a motion filed under Rules 27.26 and 27.25.
Movant, along with his brother, Charles Bonner and Kevin Dean, was charged with two counts of murder arising out of the beating deaths of two boys ages 4 and 6; one count for the rape of Stephanie Sims also referred to as Stephanie Munns, the mother of one of the boys; and another count of assault with intent to kill with malice, arising out of the shooting of Stephanie Sims. All of the acts were alleged to have occurred on December 19, 1972.
On October 9, 1973, the State reduced the charges on the first two counts to murder second degree and the defendant entered a plea of guilty to the four charges pending against him. Upon the recommendation of the Circuit Attorney movant was sentenced to terms of 35 years on each of the two charges of murder in the second degree and on the charge of assault with intent to kill with malice with each of the sentences to run concurrently. He was also sentenced to a term of 5 years on the charge of forcible rape to be served after the termination of the 35 year sentences. The co-defendants who had entered pleas of guilty earlier on the same day received the same sentences.
Some sixteen days after the sentencing the movant filed his 'Motion to Set Aside Judgment and Sentence Under Supreme Court Rule 27.26.'
Hon. Lackland Bloom, the judge who accepted the guilty pleas, was disqualified. A full evidentiary hearing was had before the Hon. Danied T. Tillman who made extensive findings of fact and conclusions of law and entered a judgment denying the motion. The hearing on this motion was held on the same date that the motions of the co-defendants were heard because the testimony of certain witnesses was common to all the motions. Our opinion herein is to be handed down simultaneously with those of the other defendants in the underlying case.
By the motion movant seeks to set aside the conviction and to withdraw his plea of guilty. This is thus a combined motion under rules 27.25 and 27.26. A judgment of conviction under Rule 27.25 may be set aside and the plea of guilty withdrawn only to correct manifest injustice and the burden is upon the movant to make such proof by a preponderance of the evidence. State v. Jackson, 514 S.W.2d 638, 64(1, 2) (Mo.App.1974).
Movant's Points Relied On give us very little in the way of cluses as to his contentions of error. The points do not indicate to us what findings are claimed to be erroneous nor why they are claimed to be erroneous. Rule 84.04(d).
We have, because of the heinousness of the crimes involved and the consequences of the convictions of such crimes upon the movant, reluctantly seined the briefs, including movant's pro se supplemental brief, his reply brief, and the voluminous transcript including memoranda of law, in search of movant's contentions. As a consequence we shall undertake to determine whether the court erred in holding that movant had not carried the burden of proving that his plea was not voluntarily made with an understanding of the nature of the charges against him because (1) he was under pressure on the day the plea was entered and as a result he 'took four nerve pills, an amount of cocaine, a dosage of heroin and an amount of alcohol;' (2) his plea was equivocal; (3) he was coerced into making the plea because the court threatened to impose four consecutive life sentences if the defendant did not enter a plea; (4) his choice of entering the plea as against trying the case was the result of ineffective assistance of counsel because counsel did not prepare a defense and failed to interview witnesses whose names were supplied by movant and did not proceed to get a change of venue because of pre-trial publicity and because he was advised that he would only serve 7 years of the sentences; (5) he was coerced to enter a plea of guilty because of adverse publicity by way of newspaper coverage and television appearances by the Circuit Attorney; and (6) he was promised by his attorney and thereby misled into believing that he would be paroled after 7 years of a 35 year sentence.
In movant's argument we also find a procedural question which we rule first.
It is movant's contention that this proceeding is governed by the Rules of Civil Procedure; that a responsive pleading is required to his motion; and since no responsive pleading was filed, the facts contained in his motion must be taken as admitted and his 27.26 motion should be sustained as a matter of law in accordance with his pro se 'Application for Judgment.'
Rule 27.26[a] does provide that Rules of Civil Procedure shall apply insofar as applicable. State v. Edmondson, 438 S.W.2d 237 (Mo.1969). However, the initial pleading required under Rule 27.26 is a motion. The pleadings required under the Rules of Civil Procedure are set out in Rule 55.01. 1 This rule does not require a party to file a responsive pleading to a motion. The rule specifies that no pleadings other than those listed in the rule 'shall be required except as ordered by the court.' A responsive pleading is not required under the Rules of Civil Procedure. The movant did not request and the trial court did not order the State to file a responsive pleading. Rule 27.26 does not require a responsive pleading. Movant's contention is without merit.
We next consider the contention that his plea was not made voluntarily because he was under the influence of drugs and alcohol. Movant testified that while in the jail and prior to going to court he was nervous and 'took about four nerve pills . . . and snorted some coke and heroin . . .'
The trial court found that movant was not under the influence of drugs or alcohol at the time defendant entered his plea of guilty. The court as the trier of the facts was the judge of the credibility of the witnesses and was not required to believe movant even if his evidence was uncontradicted upon a given issue. Quinn v. State, 515 S.W.2d 603 (Mo.App.1974).
In this case the finding of the court was supported by other witnesses. His trial attorney testified that Mr. Bonner seemed to be himself, his pupils did not appear to be dilated, he spoke coherently and his speech was not slurred. He was very bright and alert. The judge who took the plea testified that he would not have taken the plea of movant and his so-defendant if he had thought that they were not in complete control of their faculties. Although movant's mother was present with her son at the discussion with respect to the possibility of a plea and was also in the court-room when movant entered his plea no testimony was elicited from her, at the hearing on this motion with respect to his condition. Movant's co-defendant, Kevin Dean, testified that he saw Horace Bonner on the day he entered his plea but did not know whether Horace was 'high'.
When we consider the clarity with which movant relates his version of the occurrences of October 9, 1973 and the testimony of the witnesses set out above we cannot say that the finding of the trial court on this issue was clearly erroneous.
From movant's argument we ascertain that he next contends that his plea was equivocal because the 'Court merely informed Horace Bonner of what the charge in each of the four counts was, and then inquired as to whether a videotape statement was made by Horace Bonner at the time of his arrest.' Although this issue was not before the trial court we shall discuss this matter.
We cannot agree that the plea was equivocal. Movant advised Judge Tillman that he had some knowledge of criminal law. He had been through the criminal justice system on two prior occasions. While in prison on prior occasions he had assisted other prisoners with appeals and had filed a motion under Rule 27.26.
At the hearing on the plea of guilty the court advised him of the charges then pending against him. His retained counsel announced that after consultation with movant and members of his family and an explanation of the range of punishment, the defense position, and his constitutional rights, movant wished to plead guilty. Movant acknowledged that he was aware of the charges and that he had conferred with counsel of his choice who had explained his rights to him. The court then asked movant to listen to the Assistant Circuit Attorney's statement of facts. The Assistant Circuit Attorney then made a statement of the facts which he intended to prove. The following then occurred:
'QUESTIONS OF THE DEFENDANT BY THE COURT:
Q. All right, now, you've heard what the Assistant Circuit Attorney has had to say?
A. Yes, Sir.
Q. With respect to Count I you're charged along with Kevin Dean and your brother, Charles--
A. Yes.
Q. That is your brother?
A. Yes, Sir.
Q.--with murdering Leon Rush?
A. Correct.
Q. Specifically they charge that you, acting together with the other two, beat him with a cane until he died. Is that so?
A. Yes, Sir.
Q. In Count II you're charged with murdering Mario Sims and specifically you're charged with the other two (of) beating him with a cane until he died. Is that so?
A. Correct, Your Honor.
Q. In Count III you're charged with making an assault upon Stephanie Sims by throwing a knife at her and shooting at her with the intent to kill her. Is that so?
A. Correct, Your Honor.
Q. And in Count IV you're charged with raping Stephanie Sims, having sexual...
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...call upon the defendant to either affirm or withdraw his plea of guilty * * *.' State v. Tyler, supra at 474. See also Bonner v. State, 535 S.W.2d 289 (Mo.App.1976). The commentary relating to these standards reflects the A.B.A.'s disapprobation of a judge becoming involved with the actual ......
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