Coney v. State

• Decision Date: 12 March 1973
• Docket Number: No. 55561,No. 1,55561,1
• Parties: Ellis CONEY, Jr., Movant-Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 501

491 S.W.2d 501

Ellis CONEY, Jr., Movant-Appellant, v. STATE of Missouri, Respondent.

No. 55561.

Supreme Court of Missouri, Division No. 1.

March 12, 1973.

Louis Gilden, St. Louis, for movant-appellant.

John C. Danforth, Atty. Gen., Charles A. Blackmar, Asst. Atty. Gen., Jefferson City, for respondent.

HOUSER, Commissioner.

In May, 1963 Ellis Coney, Jr., was convicted by a jury of first degree murder and sentenced to life imprisonment. In June, 1963 he pleaded guilty to charges of rape, and robbery in the first degree with a dangerous and deadly weapon. He was given life sentences on each of these pleas, the robbery sentence to run consecutively with the murder sentence and the rape sentence to run consecutively with the other two sentences. While serving the sentence for murder and in December, 1968 Coney filed a motion under Criminal Rule 27.26 to vacate and set aside the three judgments of conviction and sentences. The court appointed an attorney for Coney. A supplemental motion was filed. An evidentiary hearing was held. The circuit court overruled the motion to vacate. Coney has appealed, raising seven points in his appellate brief.

In the late evening of December 5, 1962 Mrs. Betty Foster, age 30, was found lying on a parking lot adjacent to her place of employment, with her skull crushed. She died on December 16, 1962 without regaining consciousness. There was medical evidence that she had been raped. About 5 p.m. on December 7, 1962 two city police officers went to the home of appellant, who at that time was 16 years and 5 months of age. After talking with appellant for five minutes in the presence of his mother, during which time they asked his name and age and said they wanted to talk to him about the assault on Mrs. Foster, the officers arrested appellant and took him to a police station. There he was interrogated by two plain-clothes officers in the polygraph room of the police laboratory. He was given a polygraph test, the result of which was not revealed to appellant. The interrogation commenced about 6 p.m. At first appellant denied participation in the assault. After an hour or more of questioning and after he was quizzed in particular about a pair of tweezers found in his trousers (tweezers which he later admitted came from Mrs. Foster's purse), appellant admitted that he took part in the assault, implicated a companion named Leon Grimm and discussed the details of the crime. He said he suggested the rape and robbery; that he and Grimm laid their plans; that with a knife he took from his mother's kitchen he punctured the right front tire of the automobile which he had previously seen Mrs. Foster park on the lot adjacent to his home; that they lay in wait until she came onto the parking lot to get her car; that as she bent over to look at the flat tire he struck her over the head with a baseball bat brought along for the purpose, knocking her unconscious; that he and Grimm dragged her body to his adjacent back yard; that he and Grimm pulled her dress up to her waist, tore off her underclothing and both had intercourse with her; that appellant took her purse, necklace and removed a ring from her finger, and concealed the ring in an opening in the wall of his home. There is no evidence that appellant was advised of his constitutional rights prior to the making of these first disclosures. Appellant denied that he was advised of his right to have a lawyer, or that a lawyer would be supplied for him, or his right to remain silent, or that there was a juvenile officer available to him. He testified that when the officers told him they wanted him to take a polygraph test he asked what they meant and learned that was a lie detector test; that he asked whether he had to take the test and that the officers said, 'Yes, that I had to take one * * * and then I took it.' He admitted that no physical force was used upon him at any time. After taking the polygraph test appellant was taken to a room where there was a television set. He watched a Red Skelton program. The officers asked if he was hungry. He said 'Yes.' They brought him a sandwich and a soda. Appellant acknowledged that he received regular meals while in custody. He testified that on one occasion during the interrogation an officer told him he saw a stain on his pants and asked if that was a blood stain; that he answered that he did not see it; that the officer told him that if he didn't tell the truth 'he was going to do something bad to me. He didn't say what the bad was, but he said it.'

After the making of these first disclosures one of the interrogating officers notified the office of the circuit attorney. Mr. Koster, an assistant in that office, went to homicide headquarters and had a conversation with appellant about 8 p.m. the same night. Mr. Koster informed appellant that he was from the circuit attorney's office and that it was his duty to prosecute crimes in the City of St. Louis. Appellant related to Mr. Koster what happened on December 5. Then Mr. Koster, Officer Jacobsmeyer, Corporal Brown, City Police Juvenile Officer Niemeyer and a photographer took appellant back to his home, where in the presence of his mother and the men appellant reached into a hole in the wall and retrieved Mrs. Foster's necklace and ring. A photograph was taken showing appellant removing these articles from their place of concealment. The officers took possession of the baseball bat and butcher knife pointed out by appellant as the bat used to strike Mrs. Foster and the knife used to puncture the tire. Appellant was returned to police headquarters for further questioning. There is nothing to indicate that either appellant or his mother asked that she be allowed to accompany him or that she was denied or discouraged from being with her son during the interrogations. At about 9 p.m. Deputy Juvenile Officer Murphy, attached to the Juvenile Court, went to headquarters and spent 25 or 30 minutes there. He talked with appellant about 5 minutes. He asked appellant how he was treated after he was apprehended and 'observed his condition.' Appellant indicated that he was not mistreated in any way and that he was not objecting to the way he had been treated. The juvenile officer did not advise appellant of his right to have a lawyer and to remain silent. He discussed with the other officers whether appellant should stay at police headquarters or come over to the Children's Building. Appellant was not transferred to the Children's Building.

Upon returning to headquarters Mr. Koster resumed the talks. Appellant told Mr. Koster that he was sixteen years old. The talks continued for about half an hour and then discontinued for another half hour. A lady stenotypist was called to reduce the statements to writing. About 11 p.m. Mr. Koster resumed his conversations with appellant. Mr. Koster testified that before starting to record the questions and answers he told appellant that 'he had a right not to make a statement; that he did not have to make a statement, and that the subsequent statement, if he did make it, could be used against him.' The stenotypist testified that before taking the statement Mr. Koster advised appellant 'of his constitutional rights'; told him that he did not have to give a statement; repeated 'Do you understand that? And do you understand that this statement can be used in court against you?' and that appellant said yes, that he did. Appellant denies that he was told by the circuit attorney's office that he had a right to a lawyer, or that a lawyer would be supplied for him, or that he had a right to remain silent. Asking the questions and giving the answers took from 30 to 45 minutes. When questions were asked appellant responded promptly. According to Mr. Koster appellant was cooperative, and he spoke normally when he gave his answers. Nothing in the statement or in the evidence indicates that appellant was in any way reluctant to answer the questions. His answers in the written statement were responsive and intelligent. This procedure occurred in the presence of Officers Brown, Jacobsmeyer and Niemeyer. Juvenile Officer Niemeyer (not connected with the Juvenile Court but with the Juvenile Department of the city police) did not talk to appellant at his home and did not advise him of his rights, either there or at the police station. After appellant was returned to the police station from the trip to his home Officer Niemeyer 'had a few occasional words' with appellant--a 'casual, social conversation' with him--about his background, but other than that he did not remember what they talked about.

After the question and answer session with the stenotypist was concluded the questioning was discontinued. While the stenotypist was reducing her notes to typewritten form appellant went to sleep. The statement was a 15-page written record of the questions and answers. Mr. Koster testified that before asking appellant to sign it he went over the questions and answers with appellant one by one, reading them to appellant and giving him an opportunity to verify or correct the answers. Some corrections were made. After each page was reread and after appellant reanswered some of the questions the page was handed to appellant and he signed it, then Officers Brown and Jacobsmeyer initialed the page. Officer Niemeyer and part of the time Circuit Attorney Reardon were present, in addition to Mr. Koster and the above-named officers, when the questions and answers were read back to appellant. Appellant claims that he fell asleep; that he was awakened; that he was real drowsy; that his eyes wouldn't stay open; that the officers told him three or four times that he couldn't sleep until after he signed the papers; that he was not wide awake enough to hold the pencil; that one of the officers took his hand and guided it across the paper; that he did not know what he signed; that they did not say it was a confession; that the papers were not read to...