Durham v. State, 55610
| Decision Date | 13 December 1971 |
| Docket Number | No. 55610,No. 2,55610,2 |
| Citation | 473 S.W.2d 397 |
| Parties | John Hillary DURHAM, Movant-Appellant, v. STATE of Missouri, Respondent |
| Court | Missouri Supreme Court |
J. Lloyd Wion, Wion, Burke & Boll, Clayton, for appellant.
John C. Danforth, Atty. Gen., Charles A. Blackmar, Asst. Atty. Gen., Jefferson City, for respondent.
PRITCHARD, Commissioner.
Appellant was convicted of the commission of statutory rape and was sentenced to 35 years imprisonment. In this Rule 27.26, V.A.M.R., proceedings he seeks to set aside and vacate his sentence upon three grounds here asserted: That he was twice placed in jeopardy for the same offense; ineffective assistance of counsel in that counsel failed to request an examination by another physician of appellant's own choosing as to his mental competency; and that the court did not (sua sponte) receive a full evidentiary hearing at the trial to determine appellant's mental capacity.
The last two matters were ruled adversely to appellant in the court's finding of fact and conclusions of law. The first matter as to the claim of double jeopardy was not touched upon by the trial court.
Appellant filed a pro se motion in the trial court under Rule 27.26, perhaps imperfectly if not unclearly setting forth his claim of double jeopardy under the Fifth Amendment to the United States Constitution, and the Missouri Constitution, under his 'auxiliary' motion: 'In State Courts movant was tried four times * * *' (and) 'Movant states that each trial was against the Constitution of Missouri and the double jeopardy clause in the 5th Amendment to the Constitution of the United States all which denied him equal protection and due process of the law in the Constitution.'
There were three prior trials begun before the one for which appellant stood convicted. The first resulted in the jury being unable to agree, a mistrial was declared, and the jury discharged on May 15, 1964, according to the court's minutes. In the second, after opening statements of the parties and part of the state's evidence heard, a mistrial was declared and the jury discharged, but with no reason given by the court in its minutes of June 16, 1964. The third trial minutes recite '11--16--64 * * * Defendant present with counsel, examination of jurors on voir dire not completed, trial progresses.'
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...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 88......
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...counsel, mental incompetency, double jeopardy and other grounds. It was denied. The Supreme Court reversed and remanded. Durham v. State, 473 S.W.2d 397 (Mo.1971). After remand, the trial court again denied the motion and the denial was affirmed. Durham v. State, 538 S.W.2d 881 (Mo.App.1975......