Caffey v. State, 55535

• Decision Date: 14 June 1971
• Docket Number: No. 55535,No. 1,55535,1
• Citation: 467 S.W.2d 857
• Parties: Jack Virgil CAFFEY, Movant-Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 857

467 S.W.2d 857

Jack Virgil CAFFEY, Movant-Appellant, v.STATE of Missouri, Respondent.

No. 55535.

Supreme Court of Missouri, Division No. 1.

June 14, 1971.

Wm. Clark Kelly, Springfield, for appellant.

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

HOLMAN, Judge.

Movant(hereinafter referred to as defendant) has appealed from an order of the circuit court, made without an evidentiary hearing, overruling his motion to vacate filed pursuant to S.Ct. Rule 27.26, V.A.M.R.

At a trial by jury defendant was convicted of burglary, second degree, and stealing and was sentenced by the court to imprisonment for terms of four and two years, respectively, the sentences to run consecutively.He appealed and this court affirmed.State v. Caffey, 404 S.W.2d 171.Thereafter, defendant filed a motion to vacate which was overruled after an evidentiary hearing.That ruling was also affirmed on appeal.Caffey v. State, Mo., 441 S.W.2d 681.

The grounds alleged in defendant's second motion to vacate are: '(a) Denial of right of confrontation of witnesses in violation of 6th and 14th Amendments;(b) denial of right to prepare defense in secret in violation of due process and equal protection clauses of 14th Amendment;(c) denial of the right to a full and fair evidentiary hearing on the issue set out in (a) above at the previous hearing under Rule 27.26 in violation of due process and equal protection clauses of the 14th Amendment; and (d) denial of the assistance of counsel under the 6th and 14th Amendments in connection with the grounds set out in (c) above.'There are actually only two grounds, as (c) and (d) both relate to ground (a).

A portion of the factual statement on original appeal is quoted as follows:

'In the early morning hours of January 9, 1965, at about 12:30 a.m., the defendant was found crouched or hunkered down behind a desk in the cashier's office of the Teamsters Union Hall, Local 245, in Springfield, Missouri, by Carl Page and Bob Kirk, assistant business representative and organizer, respectively, of the Union.* * * Defendant is not a member of the local Union and had no authority to be in the building.One of them ordered the defendant to stand up with his hands above his head.While Page was using the telephone to call one of the officers of the Union, defendant attempted to escape.A scuffle ensued and he was subdued in the hallway by Page and Kirk.The police arrived within a few minutes and defendant was placed under arrest.He was searched and approximately $20 in currency and change, a pocket knife, a pair of gloves, and two hard-steel instruments later identified as capable of being used effectively as lockpicks were found on his person. * * *

'Detective Paul Jones of the Springfield Police Department testified that on Wednesday afternoon before the trial he took the two hard-steel instruments (found on defendant's person when arrested (and) identified, offered and received in evidence as state's exhibits A and B) out to Teamsters Hall and, along with others, watched a man from a local key service company take these instruments and with them unlock and then lock the north double doors of all Hall within a period of two minutes, all from outside the building.

'Leo Deulen, President of the local Teamsters Union, testified that he was present on Wednesday afternoon before trial day and, along with others, watched a man from a local key service company use these two instruments to unlock and lock the double doors on the north side of the Teamsters building.'State v. Caffey, Mo., 404 S.W.2d 171, l.c. 174.

Upon this appeal defendant contends that 'the trial court erred in refusing to appoint counsel to assist the appellant in presenting his motion to vacate in the trial court' and 'in dismissing appellant's motion to vacate without conducting an evidentiary hearing for the reason that the motion raised issues of fact.'At the outset of our consideration of these contentions it should be noted that the trial court is not required to hold a hearing on the motion if 'the files and records of the case conclusively show that the prisoner is entitled to no relief * * *.'Rule 27.26(e).Also, that said rule further provides that '(d) the sentencing court shall not entertain a second or successive motion for relief on behalf of the prisoner where the ground presented in the subsequent application was...