Crosswhite v. State

Decision Date08 April 1968
Docket NumberNo. 2,No. 53108,53108,2
Citation426 S.W.2d 67
PartiesDelbert R. CROSSWHITE, Appellant, v. STATE of Missouri, Respondent
CourtMissouri Supreme Court

W. Clifton Banta, Charleston, for appellant.

Norman H. Anderson, Atty. Gen., L. James Gardner, Asst. Atty. Gen., Jefferson City, for respondent.

FINCH, Presiding Judge.

Defendant appeals from an order overruling his motion under Supreme Court Rule 27.26 (all references are to V.A.M.R.) to vacate a judgment and sentence dated July 23, 1937, which sentenced him to life imprisonment on a charge of first degree murder.

On December 11, 1966, defendant filed pro se his motion to vacate. In it he alleged with reference to his first degree murder conviction that (1) he agreed, without benefit of counsel, to waive a preliminary hearing but didn't go before the Justice of the Peace to waive the preliminary; (2) his circuit court appointed attorneys were incompetent and did not interview witnesses and simply urged defendant to enter a plea of guilty; (3) the jailer coerced defendant and promised him a parole if he would plead guilty; and (4) his plea of guilty was not entered of his own free will.

The Circuit Court appointed W. Clifton Banta of Charleston to represent defendant on his 27.26 motion, and he has done so in a very capable manner in both the Circuit Court and on appeal.

The trial court set the motion for an evidentiary hearing, which was held April 11, 1967, with defendant present. Record entries in the original prosecution, introduced at that time, disclose that on June 29, 1937, defendant was brought before Owen Cook, Justice of the Peace, at which time he waived his preliminary hearing. On July 12, 1937, defendant was brought before the Circuit Court, at which time he was without counsel. The court gave defendant until July 15, 1937, to obtain private counsel. On July 16, 1937, defendant was again brought before the Circuit Court and still had not employed counsel. He requested that counsel be appointed, and the record discloses that the court appointed W. H. Grissom and John Fletcher, both members of the Mississippi County Bar, to represent defendant. On July 21, 1937, defendant appeared with counsel in the Circuit Court and entered a plea of guilty, but sentencing was deferred. Then on July 23, 1937, defendant again appeared with counsel and was sentenced to life imprisonment.

The evidence on behalf of defendant (other than the record entries reviewed above) consisted principally of the testimony of defendant himself. It was as follows: He was brought to the jail on the night of June 25, 1937. On the next morning, James Haw, the Prosecuting Attorney, talked to him briefly. Then on the morning of June 29, Haw came to the jail and asked him if he wanted to waive a preliminary hearing. Haw did not explain what a preliminary hearing was and he knew nothing about it. Nevertheless, defendant told Haw he would waive a preliminary hearing, but he did not go to the office of the Justice of the Peace to actually waive the preliminary hearing. Defendant's brother Frank was permitted to see defendant at any time. He came to the jail to see him every day from about June 27 until July 23, and on some days he would see the defendant twice a day. He was trying to employ counsel and to get money for that purpose. On July 12, defendant first appeared in the Circuit Court before Judge Frank Kelly. He still did not have an attorney and he says that he asked for a continuance but it was not granted. The judge told the defendant that he would give him until July 15 to employ an attorney. Then on July 16 he again appeared in the Circuit Court and the judge asked whether he had an attorney and he advised that he did not. The judge then asked if the defendant wanted an attorney appointed. Defendant replied that it looked like that was the only way he would get one. The court then appointed William Grissom.

Defendant says that Grissom came and talked to him and his brother in the jury room that afternoon or evening and that Grissom stated that defendant had a bad case and if he did not hang, Grissom would be surprised. Grissom remarked that the only way he could help defendant was if he pleaded guilty. Defendant replied that he did not want to plead guilty, and Grissom remarked that it was his only hope. Grissom did not ask what occurred on the night of the alleged offense, but defendant gave him the names of several witnesses (five, he thought). When asked whether Grissom saw them, defendant said, 'There was nothing to show that he ever did.'

Defendant further testified that after this conference with Grissom, his brother Frank went to Judge Kelly and asked that Grissom be disqualified. The next day, John Fletcher showed up with Bill Grissom. He said that Grissom still did all the talking and that he still urged the defendant to plead guilty. Defendant then gave the names of witnesses to the two of them but neither seemed interested.

Defendant next saw Grissom on July 21 and Grissom still urged him to plead guilty and avoid being hung. He then gave in and they went before Judge Kelly. The judge asked him if he wanted to enter a plea of guilty, and he said yes, and the judge then indicated he would defer sentencing until August 5.

Defendant testified that the Prosecuting Attorney never talked to him about entering a plea of guilty, and that he was never threatened or abused or promised anything by the Prosecuting Attorney, by Sheriff Walter Beck, or by Judge Kelly. However, the jailer, who he said was a Mr. Lynn, talked to him and told him that he ought to plead guilty and that the defendant would only be in prison five or six years and the jailer then would get him out on parole.

Defendant also said that the range of punishment on first degree murder was not explained to him and that he didn't know what he was pleading guilty to. On cross-examination, in reciting the basis of his contention that his constitutional rights were violated, defendant stated: 'No, I wouldn't have pled guilty if I wasn't guilty. I wasn't guilty until I was proved guilty. It was under coercion; that is the only reason I pled guilty, was under coercion and threats and knowing I was fouled in every way, I had two inadequate attorneys, unqualified to handle criminal cases.'

Defendant's only other witness was his brother Frank. He told of seeing defendant frequently at the jail and of his attempts to obtain private counsel for the defendant. He was present when Judge Kelly appointed Mr. Grissom as counsel and he and his brother then talked with Mr. Grissom. He said that Grissom wanted defendant to plead guilty and defendant did not want to, and that personally he did not know what to tell defendant to do. Whereas defendant testified that Grissom did not inquire about that had happened and did not ask about witnesses, Frank Crosswhite testified that Mr. Grissom did ask the defendant about the case and about what had happened (but didn't go into detail), and that Grissom also asked about witnesses and defendant told him whom he wanted. Frank did not know whether Grissom ever talked to these witnesses.

Frank Crosswhite also testified that, so far as he knew, no one had coerced the defendant. On July 21 the defendant told him that he was going to plead guilty. Frank stated that prior to that the two of them had talked about it and decided that this was the best thing to do.

The State called James Haw, an attorney at Charleston, who was Prosecuting Attorney in 1937. He remembered going to the scene of the murder the evening of June 25, 1937, and that he saw the defendant the next morning in the Sheriff's office. He saw him at that time to arrange for him to be at the Coroner's hearing, although the defendant did not testify at the Coroner's hearing. Mr. Haw stated that subsequently he explained to defendant what a preliminary hearing is and what defendant could do, and that he could have witnesses brought in, but that the defendant waived a preliminary hearing. Mr. Haw said that the defendant was taken before Owen Cook, the Justice of the Peace, on June 29 to waive the preliminary hearing.

On July 16, when the defendant was in Circuit Court the second time and still did not have privately employed counsel, Judge Kelly asked the defendant if he wanted an attorney, and offered to appoint one if he could not hire one. As a result of the discussion, Judge Kelly did appoint both Mr. Grissom and Mr. Fletcher. This was done on July 16 and the men were not appointed on successive days, as defendant testified. Mr. Haw testified that both men were competent to try murder cases and to advise the defendant, and he mentioned that Mr. Grissom was forceful and knew his duty to his client and that no one ran over him.

Mr. Haw also testified that Judge Kelly told the defendant the range of punishment on a charge of murder in the first degree before he entered his plea of guilty, and that the defendant was fully advised of his rights by the court.

Another witness called by the State was Walter Beck, who was the Sheriff of Mississippi County in 1937. He did not remember many details about the case, but did testify that the defendant was not promised anything to plead guilty, that he was not abused in any way and that he was permitted visitors, including his brother, at any time. Mr. Beck testified that Vernon Brooks was the jailer at that time, not a Mr. Lynn.

The record discloses that Owen Cook, the Justice of the Peace, was deceased at the time of the trial, that both Judge Kelly and Mr. Grissom had been dead for several years, and that Mr. Fletcher, then eighty-three, was still living but in bad health.

On May 31, 1967, Judge Craig overruled the defendant's motion to vacate and made various findings. He found that the defendant was not denied a preliminary hearing, that the defendant was not mistreated, that the defendant was represented by two competent attorneys, that the defendant was...

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