Fields v. State, 55849

• Decision Date: 14 June 1971
• Docket Number: No. 2,No. 55849,55849,2
• Citation: Fields v. State, 468 S.W.2d 31 (Mo. 1971)
• Parties: James Marvin FIELDS, Movant-Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 31

468 S.W.2d 31

James Marvin FIELDS, Movant-Appellant, v.STATE of Missouri, Respondent.

No. 55849.

Supreme Court of Missouri, Division No. 2.

June 14, 1971.

Motion for Rehearing or to Transfer to Court En Banc Denied

June 28, 1971.

Kenneth T. Walter, Springfield, for movant-appellant.

John C. Danforth, Atty. Gen., Charles A. Blackmar, Asst. Atty. Gen., Jefferson City, for respondent.

DONNELLY, Presiding Judge.

Appellant, James Marvin Fields, was convicted of burglary in the second degree and with stealing during the commission of the burglary in the Circuit Court of Greene County, Missouri, and his punishment was assessed at seven years for the burglary and five years for the stealing, the sentences to run consecutively.On direct appeal, his conviction was affirmed.State v. Filds, Mo.Aup., 442 S.W.2d 30.The facts were set forth in the Fieldscase, supra, and need not be repeated in this opinion.

On August 6, 1969, appellant filed in the Circuit Court of Greene County, Missouri, his motion to vacate sentence under S.Ct. Rule 27.26, V.A.M.R.An evidentiary hearing was held with appellant and counsel present.The motion to vacate was denied.This appeal followed.

Appellant first asserts an unlawful search and seizure claim even though no attorney.He withdrew the allegation that on constitutional grounds was made at trial to the evidence in question, no mention of the point was made in the motion for new trial, and the claim was rejected on direct appeal.

This Court has held that a claim of illegal search and seizure is not such a matter as may be raised in Missouri under S.Ct. Rule 27.26.State v. Caffey, Mo.Sup., 457 S.W.2d 657;State v. Holland, Mo.Sup., 412 S.W.2d 184.Appellant recognizes the Missouri position but cites Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227(1969), wherein the United States Supreme Court held that 'the claim of a federal rpisoner that he was convicted on evidence obtained in an unconstitutional search and seizure is cognizable in a post-conviction proceeding under 28 U.S.C. § 2255.'

The answer to appellant's contention is in State v. Fields, supra, 442 S.W.2d 30, 34:

'Appellant refers to Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227, decided March 24, 1969, and asserts that by reason of that case the contention of an unlawful search and seizure can be raised at any time without regard to state procedural requirements.

'In the Kaufman casethe defendant was convicted in federal court of the crime of armed robbery.His defense at trial was insanity, and the conviction was affirmed on appeal.The defendant then filed a post-conviction proceeding under 28 U.S.C. § 2255, and included a claim that the finding of sanity was based upon the improper admission of unlawfully seized evidence, an issue not assigned as error in appellant's appeal.The United States Supreme Court held that in those circumstances 'a claim of unconstitutional search and seizure is cognizable in a § 2255 proceeding.'The Kaufman case expresses the scope of a post-conviction review in the federal courts pursuant to § 2255, but we consider the rule set forth in Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408, to be controlling in this case.In the Henry case it was held that 'a litigant's procedural defaults in state proceedings do not prevent vindication of his federal rights unless the State's insistence on compliance with its procedural rule serves a legitimate state interest,' and that a state procedural requirement that there be a 'contemporaneous objection' to the introduction of illegally obtained evidence does serve a legitimate state interest.In State v. Harrington(435 S.W.2d 318), supra, we considered the purpose and reason for the procedural rule in this state that objections to the introduction of evidence claimed to have been obtained by an unlawful search and seizure be presented by a motion to suppress, with the one exception there noted, and concluded that 'The rule unquestionably serves a legitimate state interest.'We adhere to that view.'

We acknowledge the rejection of this position by the United States Court of Appeals for the Eighth Circuit on May 24, 1971.Frazier v. Roberts (Steed), 8 Cir., 441 F.2d 1224(opinion written on petition for rehearing).We regret the extent to which the problem presented may endanger 'the delicate federal-state relationship in the criminal law enforcement field.'However, we decline to consider appellant's unlawful search and seizure claim under the circumstances in this case.Our holding, of course, 'will not preclude inquiry into (appellant's) claim in a federal habeas corpus proceeding.'Frazier v. Roberts (Steed), supra, 441 F.2d 1224.

Appellant next asserts that he was denied effective assistance of counsel.The trial court made the following findings of fact and conclusions of law:

'The first question to be considered is the charge that the petitioner did not have effective representation from assigned counsel.At the outset of the hearing in this cause, on his Motion 27.26, the petitioner withdrew two points as to his allegations directed at Mr. David Holden, his attorney.He withdrew the allegation that Mr. Holden failed to obtain witnesses and make an investigation.He further withdrew his allegation that Mr....