Dixon v. State, WD32480
| Decision Date | 13 October 1981 |
| Docket Number | No. WD32480,WD32480 |
| Parties | James Douglas DIXON, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
R. M. Gifford, Green City, for appellant.
John Ashcroft, Atty. Gen., Nancy J. Appelquist, Asst. Atty. Gen., Jefferson City, for respondent.
Before KENNEDY, P. J., and SHANGLER and WASSERSTROM, JJ.
James Douglas Dixon was indicted and convicted for sale of a controlled substance. On direct appeal, that conviction was affirmed. State v. Dixon, 546 S.W.2d 774 (Mo.App.1977). Then on November 24, 1978, he filed a motion under Rule 27.26. In the course of that proceeding he stated that he had been "released" from confinement, and because of that statement the trial court treated the application as one for coram nobis. As such, relief was denied.
Dixon then appealed from that denial. This court reversed and remanded the case for a clarifying finding as to whether the "release" was by way of parole or commutation of sentence. As this court pointed out at that time, if the release was under a parole, the proper procedure was under Rule 27.26; whereas if the release was under commutation of sentence, then the proper procedure was by way of coram nobis. Dixon v. State, 594 S.W.2d 360 (Mo.App.1980).
After remand, the parties stipulated that Dixon had been paroled on March 23, 1978, for a period which would expire on February 4, 1987. That stipulation was accepted by the court; and in January 1981, the trial court entered a new order overruling Dixon's motion to vacate and set aside sentence and judgment. From that order, Dixon again duly appealed.
The facts pertinent to the present appeal are as follows. Dixon and his then wife Debbie were charged by separate indictments with a joint sale of marijuana. Each of them employed separate attorneys. Debbie employed Mr. Robert Devoy, and she went to Devoy's office on several occasions to confer accompanied by Dixon. At that time, Mr. James P. Williams was associated with Devoy. Dixon and Debbie both testified that Williams was present at and participated in several of the conferences which they had with Devoy. According to them, Williams was up and about during the meetings. He would stand, sit, listen, inquire, comment, and leave the room only to reenter later. Dixon testified that he recalled one occasion upon which Williams took notes.
Williams testified that he did not remember participating in any of the meetings, but acknowledged it was possible. He probably walked in and out of Devoy's office while a meeting was in progress, but he could not recall participating in any way or even hearing any of the conversation which transpired between Debbie, Dixon and Devoy.
Dixon's trial commenced on October 24, 1975. By that time Debbie had pleaded guilty. Also, by that time Williams had become an Assistant Prosecuting Attorney, and he assumed some participation (although relatively minor) in the prosecution against Dixon.
That participation by Williams in the prosecution forms the basis of Dixon's sole point on this appeal. That point urges that the conviction should have been vacated "Because the Assistant Prosecuting Attorney's Active Participation in the Prosecution of Movant-Appellant Violated Movant-Appellant's Right to a Fair Trial in That the Assistant Prosecuting Attorney Secured Confidential Information From the Movant-Appellant Through Representation of a Codefendant, Which Information Concerned the Offense With Which Movant-Appellant Was Charged."
A sufficient answer to that point lies in the fact that under Rule 27.26(f), Dixon had the burden of proving the allegations of his motion, and he failed to prove that Williams did in fact obtain any confidential information as alleged. Although he was asked repeatedly to identify any piece of confidential information which came to Williams' attention in Devoy's office and which was used in the course of the prosecution, Dixon was unable to make any such specification. The purport of Williams' testimony was all to the effect that he did not become privy to any confidential information by reason of his association in Devoy's office.
With respect to this matter, the trial court found as follows:
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Hanson v. State
...evidence resulted in actual prejudice and caused his trial to be fundamentally unfair within the rules cited in Dixon v. State, 624 S.W.2d 860 (Mo.App.1981). Therefore, he concludes that error may be considered in this collateral Assuming, without deciding, the same to be the case, the poin......
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Driscoll v. State, 70717
...the existence of rare and exceptional circumstances which would entitle this issue to receive further consideration. Dixon v. State, 624 S.W.2d 860, 862-63 (Mo.App.1981); Rule 27.26(b)(3). The point is Driscoll next complains that he was denied effective assistance of counsel because his tr......
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Brown v. State
...otherwise and only in rare and exceptional circumstances.' " Bradford v. State, 694 S.W.2d 760, 761 (Mo.App.1985); Dixon v. State, 624 S.W.2d 860, 862-63 (Mo.App.1981). Our examination of the record discloses no rare or exceptional circumstances requiring consideration of this In connection......
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