Eggers v. State, 52636

• Decision Date: 04 August 1987
• Docket Number: No. 52636,52636
• Citation: 734 S.W.2d 300
• Parties: William Henry EGGERS, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 300

734 S.W.2d 300

William Henry EGGERS, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent.

No. 52636.

Missouri Court of Appeals,

Eastern District,

Division Three.

Aug. 4, 1987.

Motion for Rehearing and/or Transfer Denied Oct. 13, 1987.

Mary E. Dockery, Asst. Public Defender, Clayton, for plaintiff-appellant.

William L. Webster, Atty. Gen., Jeffrey Philip Dix, Asst. Atty. Gen., Jefferson City, for defendant-respondent.

KAROHL, Judge.

Movant appeals denial of relief in a Rule 27.26 proceeding wherein movant sought relief from the conviction and sentence for the charge of capital murder, Section 565.001 RSMo 1978. We quote the single claim of error asserted by movant on appeal:

THE TRIAL COURT ERRED IN ENTERING ITS FACTS AND CONCLUSIONS OF LAW AND ORDER DISMISSING APPELLANT'S UNAMENDED PRO SE PETITION PURSUANT TO MISSOURI SUPREME COURT RULE 27.26 FOR THE FOLLOWING REASONS:

A) APPOINTED COUNSEL HAD FAILED TO AMEND APPELLANT'S PRO SE MOTION, AND

B) THE TRIAL COURT DID NOT ADDRESS THE ISSUE OF INEFFECTIVE ASSISTANCE OF COUNSEL APPELLANT RAISED WHEN HE ASSERTED IN HIS PRO SE PETITION THAT HIS "SIXTH AMENDMENT RIGHTS" HAD BEEN VIOLATED.

This court affirmed movant's conviction on direct appeal. State v. Eggers, 675 S.W.2d 923 (Mo.App.1984). Rehearing was denied and an application to transfer addressed to the Missouri Supreme Court was denied. In the direct appeal we found and held that the evidence was sufficient to support the charge, particularly that there was sufficient evidence to support the jury's finding of deliberation and premeditation. The facts in support of that conclusion are fully set forth in the opinion. We rejected defendant's claim of error based on the "Witherspoon Rule." Finally, we rejected defendant's claim that the trial court erred in refusing to accept defendant's request to excuse the jury from participating in the sentencing phase of the trial.

On June 6, 1985 movant filed a pro se motion under the Rule. We quote the grounds asserted for relief without changes in style, spelling or otherwise:

MOVANT'S CONTENTIONS

(A) It is the contention of you Movant and he alleges that his conviction and imprisonment is in violation of his Fifth, Sixth, and Fourteenth Amendment rights under the United States Constitution, and is contrary to the commands embodied in the Missouri Constitution, in that:

(1) Section 565.001 is unconstitutional, in that, said Section is vague and ambiguous, and does not fully apprise the accuse of the charge and essential elements prerequisite to charge him with Capital Murder, or any other degree of murder. That is to say, before any person can be charged with any degree of murder, the indictment or information must alleges, 'Malice aforethought', otherwise no murder charge is alleged, and as a matter of law, and in the absence of the malice aforethought allegation, the charge is no more than 'manslaughter'.

(B) At the trial of this cause the State did not prove beyond a reasonable doubt the essential elements contained in the within Information.

(C) The trial judge neglected and failed to fully/instruct the/jury of the essential elements of the charged crime; therefore, the jury could not find beyond a reasonable doubt that Movant was guilty of the crime charged, but were allowed to presume by a preponderance, or other standard, not including beyond a reasonable doubt, that Movant was guilty.

(D) The Missouri Court of Appeals, Eastern District, in Eggers v. State, clearly stated in its decision that the jury could 'presume' proof of the essential elements of said Capital Murder charge, thereby shifting the burden of proof, and lessessing the State's burden of/proof beyond a reasonable doubt.

(E) Contrary to Movant's constitutional rights he was not represented by counsel at each and every stage of the proceedings against him, nor was he personally present at each and every step of the proceedings held against him; in that, in the absence of counsel, and Movant, the court delivered and additional to the jury.

We read the motion to assert a violation of movant's Fifth, Sixth and Fourteenth Amendment rights ascribed in what was intended to be paragraphs (A)-(E). We also note that the motion filed pro se includes an analysis of the statutory crime of capital murder, a review of the evidence relating to premeditation, quotation from the trial transcript and a legal argument styled "the law and the argument." The argument includes legal citations to support the claims of denial of constitutional rights including citations relating to the constitutionality of the statute for capital murder. Some licensed attorneys could claim the motion as their own.

On June 18, 1985 the motion court appointed the special public defender to represent movant. On July 12, 1985 movant filed an amendment to the Rule 27.26 motion which asserted an additional ground for relief: that during the trial the trial judge and attorney for the state informed the venire panel and the jury that there would be a second phase of trial for the purpose of assessing punishment, if necessary. Appointed counsel did not file an amended motion.

On February 4, 1986 the court set the motion for hearing after determining that the presence of the defendant would not be necessary "because the present pleadings raise no issue of any contraverted fact." The matter was set for February 13, 1986. It was presented on that day.

On March 7, 1986 the motion court entered findings of fact, conclusions of law and a judgment overruling and denying relief which recites that the matter was considered after review of the motion, the trial transcript and file and after conferring with the attorneys. The findings include a comment that the court "dismisses the petition and denies petitioner's motion for an evidentiary hearing for the reason that petitioner raises no issues cognizable in a 27.26 motion." However, the court "ordered and adjudged that Movant's Motion to Vacate, Set Aside, or Correct Sentence Under Rule 27.26 is overruled and denied."

Findings of the motion court were directed to each paragraph of the motion. On paragraph 1 A the court found as a matter of law that constitutionality of a statute is not a proper subject matter for a 27.26 motion and need not be entertained. The allegations in paragraphs 1 B were found to be without merit because they alleged mere conclusions and because sufficiency of trial evidence is not subject to challenge under Rule 27.26. The motion court found the allegations in paragraphs 1 C "through 1 D" claim instructional error which is not within the purview of Rule 27.26.

Before addressing the merits of the appeal some preliminary observations are necessary. First, the motion court mentioned both dismissal and denial of relief. Movant's claim of error addresses only dismissal. The decision of the court may be unclear. We elect to review as if movant claimed error in dismissal or denial and will consider the merits.

Second, our determination is limited to whether the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.26(j).

Third, the subject matter of a Rule 27.26 proceeding is limited by the rule to a determination whether defendant's original trial was violative of any constitutional requirements or if the judgment was otherwise void. Fields v. State, 572 S.W.2d 477, 480 (Mo. banc 1978). "It is not the...