Durham v. State

• Citation: 571 S.W.2d 673
• Decision Date: 01 August 1978
• Docket Number: No. 39228,39228
• Parties: John Hillary DURHAM, Movant-Appellant, v. STATE of Missouri, Respondent. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 673

571 S.W.2d 673

John Hillary DURHAM, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 39228.

Missouri Court of Appeals, St. Louis District, Division Three.

Aug. 1, 1978.

Motion for Rehearing and/or Transfer Denied Sept. 15, 1978.

Application to Transfer Denied Nov. 6, 1978.

Kevin O'Keefe, St. Louis, for movant-appellant.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Katherine Marie Krause, John M. Morris III, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., John Gillespie, Asst. Circuit Atty., St. Louis, for respondent.

WEIER, Judge.

Movant appeals from the denial of his Rule 27.26 motion to set aside a 1965 conviction and 35 year sentence for statutory rape. The grounds for relief asserted in movant's first amended motion and carried forward in his brief on appeal center around the allegedly illegal and unconstitutional use at movant's trial of the record of seven previous convictions for which movant had received pardons from the Governor of Missouri in 1963. These pardoned convictions were used to invoke the provisions of the Habitual Criminal Act, § 556.280 RSMo. 1959, as amended Laws 1959, S.B. No. 117, § 1, ¹ and to impeach the credibility of movant when he took the stand to testify in his own defense. We affirm.

In October 1939 movant pleaded guilty to four counts of robbery in the first degree and two counts of using a motor vehicle to escape the scene of a robbery. He was sentenced to twelve years imprisonment on each count, the sentences to run concurrently. In 1956 movant pleaded guilty to one count of manslaughter. His sentence on this charge was two years. Movant was pardoned for these seven felony convictions by the Governor of Missouri on October 8, 1963. The pardon in pertinent part, states:

"That, by virtue of authority in me vested by law, and for good and sufficient reasons appearing, I, JOHN M. DALTON, Governor of the State of Missouri, do hereby pardon, release, discharge and forever set free JOHN HILARY DURHAM . . . and I do hereby restore to him all the rights of citizenship and entitle the said JOHN HILARY DURHAM to all the rights, privileges and immunities which by law attach to and result from the operation of these presents . . ."

On cross-examination at the 27.26 hearing movant testified about the basis for his application for the pardon as follows: "The main reason I applied was I had been in prison, and I was working at, you know, it's a state law that prisoners cannot have liquor and the Liquor Control told my employer that they would not issue him a liquor license until he fired me, and my employer didn't want to fire me so he told me I should try to do something about it." Movant said the reason he gave the governor why he should be pardoned was "(b) ecause I felt I have a right to make and earn my living. Here a man's going to lose his liquor license because he wanted to employ me, and I thought it was wrong, and that's the main reason I felt the Governor would understand that."

In December 1965 movant was convicted of statutory rape of an eleven year old girl. The indictment, filed January 23, 1964, listed the seven pardoned convictions to bring the charge under the Habitual Criminal Act, § 556.280 RSMo. 1959, as amended Laws 1959, S.B. No. 117, § 1. Movant testified at that trial. He denied committing the crime and said he was elsewhere when the crime occurred. On cross-examination the prosecutor used the seven pardoned convictions to impeach his credibility. Defense attorney's objection on the ground that movant's pardon precluded the use of the former convictions for impeachment was overruled. The prosecutor also brought out the fact that movant had served time in federal prisons for a conviction of perjury. On redirect examination movant admitted he was guilty of the six offenses to which he had pleaded guilty in 1939 but he said he was not guilty of the manslaughter charge. He wasn't allowed to discuss the federal charge. Movant put on evidence that he had been pardoned for the seven Missouri convictions. One of the instructions given the jury at the close of all the evidence stated: "The Court instructs the jury that any testimony in this case relative to any prior conviction of the defendant is admissible for the purpose of affecting the credibility of this defendant as a witness and the weight to be given to his testimony, and then only if you find it does affect the credibility and weight of such testimony, and is to be considered by you for no other purpose." Both sides referred to the convictions as well as the pardon in closing argument. The jury found movant guilty. Movant's motion for new trial raised the issue of using pardoned convictions to invoke the Habitual Criminal Act but it did not mention the issue of impeachment on the basis of the pardoned convictions. The trial court sentenced movant, under the provisions of the Habitual Criminal Act, § 556.280 RSMo. 1959, as amended Laws 1959, S.B. No. 117, § 1, to 35 years imprisonment. This was affirmed on appeal, State v. Durham, 418 S.W.2d 23, 26-27(2-5) (Mo.1967). The Missouri Supreme Court in that opinion ruled that use of the pardoned convictions to invoke the provisions of the Habitual Criminal Act was constitutional and proper. The issue of impeachment by showing the pardoned convictions was not raised.

Movant later filed a Rule 27.26 motion which was denied by the trial court. On appeal the supreme court remanded the case for further proceedings. Durham v. State, 473 S.W.2d 397 (Mo.1971). After remand the trial court again denied the motion and this action was affirmed by this court. Durham v. State, 538 S.W.2d 881 (Mo.App.1975). Movant next filed a petition for a writ of habeas corpus in the federal district court. The district court's denial of his petition was affirmed on appeal. Durham v. Wyrick, 545 F.2d 41 (8th Cir. 1976). Several months before the Eighth Circuit Court of Appeals' decision was handed down movant filed this Rule 27.26 motion. As stated in this last opinion, movant had been paroled in 1974 but his parole was revoked in January 1976.

Then in Guastello v. Department of Liquor Control, 536 S.W.2d 21 (Mo.1976), the Missouri Supreme Court held that the Supervisor of Liquor Control for the State of Missouri could not deny a person a liquor license on the grounds that the applicant had been convicted of violating a law relating to intoxicating liquor if the applicant had received a gubernatorial pardon for all such convictions. The court adopted the view that a pardon obliterated the fact of conviction but the guilt remained. Near the end of the opinion, Guastello, supra at 25, the court discussed three related cases as follows:

"It is suggested that some comment should be made as to the effect of today's decision on the holdings in State v. Asher, 246 S.W. 911 (Mo.1922); State ex rel. Stewart v. Blair, 356 Mo. 790, 203 S.W.2d 716 (banc 1947); and State v. Durham, 418 S.W.2d 23 (Mo.1967). They stand for the proposition that if a defendant is pardoned after conviction, he remains subject to the Habitual Criminal Act if he later commits a criminal offense. It would seem apparent that if a defendant is pardoned after conviction and, as decided today, that conviction is thereby obliterated, such 'obliterated conviction' could not be used as the basis for subjecting defendant to the Habitual Criminal Act if he later committed a criminal offense. Accordingly, from this time forward, the holdings in Asher, Blair And Durham, to the extent they conflict with this opinion, should no longer be followed."

The trial court here concluded that the ruling in Guastello was to be applied prospectively only. Movant contends this conclusion is clearly erroneous, Rule 27.26(j), and that Guastello should apply retroactively so that movant should be retried and, if found guilty, have punishment fixed by the jury. If Guastello should have retroactive effect, then the use of movant's pardoned convictions to invoke the Habitual Criminal Act would be improper and movant would be entitled to a new trial on all issues. See, State v. Harris, 547 S.W.2d 473, 476(3) (Mo. banc 1977).

Movant and the State agree in their briefs that the Missouri Supreme Court in Guastello did not decide the specific issue of retroactivity as it relates to the Habitual Criminal Act. An analysis of the phrases used in that opinion would not seem to be dispositive of the question. This is especially true when the phrasing there used is contrasted with the wording of some other Supreme Court cases which have overruled previous decisions and have indicated that the ruling would be prospective only. ² Nevertheless it could very well be that prospective application was intended. The words "from this day forward," Guastello, supra at 25, would not preclude such an interpretation.

Movant argues that when we analyze the issue of whether the pronouncement in Guastello should be given retroactive effect, we must use the criteria utilized by the United States Supreme Court in such decisions as Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Tehan v. United States, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966); and Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). The main criteria used in those cases is stated in Johnson v. New Jersey, supra at 384 U.S. 272, 86 S.Ct. 1777, as follows: "We must look to the purpose of our new standards . . ., the reliance which may have been placed upon prior decisions on the subject, and the effect on the administration of justice of a retroactive application . . ." See also, Daniel v. Louisiana, 420 U.S. 31, 32, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975). The U. S. Supreme Court has also considered as a factor whether the new rule affected "the very integrity of the fact-finding process" and averted "the clear danger of convicting the innocent." Johnson v. New Jersey, supra at 384 U.S. 727-28, 86 S.Ct. 1778. See, ...