Brown v. State
| Citation | 512 S.W.2d 404 |
| Decision Date | 10 July 1974 |
| Docket Number | No. 9464,9464 |
| Parties | Willie B. BROWN, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Court of Appeal of Missouri (US) |
John B. Newberry, Springfield, for movant-appellant.
John C. Danforth, Atty. Gen., Robert Presson, Asst. Atty. Gen., Jefferson City, for respondent.
Willie B. Brown, presently serving a 30-year sentence for first degree robbery, brought this Rule 27.26, V.A.M.R., proceeding to vacate judgment and sentence alleging his waiver of trial by jury was involuntary and he was denied effective assistance of counsel. Following an evidentiary hearing the trial court denied relief. We affirm.
Appellant and another were charged with the strong-arm robbery of an 85-year-old widow at her neighborhood grocery store in Springfield. The elderly proprietor was brutally assaulted during the course of the crime.
Appellant waived his right to a preliminary hearing and on the following day was appointed counsel by Circuit Judge Douglas W. Greene. Thereafter, appellant waived formal arraignment, entered a plea of not guilty, waived trial by jury and was convicted in his trial before the court. No motion for new trial was filed and no appeal taken.
In his motion the appellant stated he was deprived of his right to trial by jury and that he did not waive this right at any time. He charged his attorney with failing to file a motion for new trial and failing to appeal. By amendment the appellant added ten additional allegations directed towards his trial attorney. The amendments all dealt with the attorney's failure to object to leading questions and inadmissible evidence.
At the evidentiary hearing both appellant and his former attorney testified. A transcript of the trial proceedings, a letter from appellant directed to Judge Greene, and a statement given by appellant to the authorities before the trial completed the evidence. In its required findings, conclusions and judgment the lower court held appellant had failed in his burden of proving his grounds for relief and denied appellant's motion.
The record reflects that when appellant and his attorney appeared for arraignment the following occurred:
THE DEFENDANT (Looking at (attorney)): What he means . . .?
As did the trial court, we find no merit in appellant's contention that he did not constitutionally waive his right to trial by jury. Appellant testified he did not recall Judge Greene asking him if he wanted a jury. In addition to the record that was made on appellant's waiver of a jury trial his former attorney testified concerning the matter. The attorney explained that in the course of his investigation and discussions with the appellant he had pointed out that there was nothing to be gained by appellant's pleading guilty to the charge and that if a not guilty plea was entered then the appellant had the alternatives of a trial by jury or a trial by the court. The attorney stated that the decision to waive the jury trial was made by the appellant.
We would also observe that when appellant's case was called for trial, approximately a month subsequent to his arraignment and plea, the court opened the proceedings by stating that the appellant had waived trial by jury and had consented to trial by the court. Since the appellant had a trial by jury in Stoddard County in October of 1964 he was not wholly unfamiliar with his right to a trial by jury, and in view of Judge Greene's interrogation and explanation on this issue, we hold that appellant's waiver of trial by jury was not constitutionally infirm. Young v. State, 473 S.W.2d 390 (Mo.1971). This, in our opinion, also disposes of appellant's contention that he did not know he was being tried but that he thought the proceeding was 'a hearing that people would identify me, you know.' Appellant's credibility was for the trial court.
Appellant's second point involves the common allegation of ineffective assistance of counsel. As we have previously observed (Agee v. State, 512 S.W.2d 401 (Mo.App.1974)), nearly all post-conviction motions allege deprivation of the constitutional guarantee of effective assistance of counsel. Here, the appellant claims his trial attorney was ineffective because no motion for new trial was filed, no appeal was taken, and various objections were not made during the course of the trial. In reverse order we will consider appel...
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