Flood v. State, 56269
| Decision Date | 10 January 1972 |
| Docket Number | No. 56269,No. 2,56269,2 |
| Citation | 476 S.W.2d 529 |
| Parties | Herman Joseph FLOOD, Jr., Movant-Appellant, v. STATE of Missouri, Respondent |
| Court | Missouri Supreme Court |
Kenneth H. Reid, Springfield, for movant-appellant.
John C. Danforth, Atty. Gen., Thomas H. Stahl, St. Asst. Atty. Gen., Jefferson City, for respondent.
This is an appeal from a judgment overruling a motion to vacate and set aside two sentences of imprisonment for life imposed in 1958 upon pleas of guilty in two cases of murder, first degree, and to permit the withdrawal of the pleas of guilty. Rules 27.26 and 27.25. 1
On February 17, 1958, following a preliminary examination at which he was represented by counsel, Herman Joseph Flood, Jr., (hereinafter movant or Flood) was charged in separate informations with the murders of Victor Spinetto and Virgil Usrey on December 15, 1957, in Greene county. On February 18, 1958, George J. Donegan and Sam M. Wear, attorneys of Springfield, were appointed by the circuit court to represent Flood. On April 11, 1958, Flood appeared with his attorneys before the Honorable Warren L. White, Circuit Judge, entered a plea of guilty to each charge, and, as indicated, was sentenced in each case to imprisonment for life. His motion to set aside the two judgments and permit him to withdraw the pleas of guilty was filed August 8, 1970.
The grounds alleged in his motion are, in substance: (1) that the trial judge failed to comply with the provisions of Rule 25.04 before accepting his pleas of guilty; and, (2) that his pleas were not voluntarily and intelligently entered because he did not know and understand that amendments to the federal constitutional guaranteed him (a) a privilege against compulsory self- incrimination; (b) a right to a trial by jury; and (c) a right to confront the witnesses against him.
The only records found of the proceedings had the day Flood entered the pleas of guilty are the clerk's docket sheet, the judge's docket sheet and the judgment in each case. These records show nothing more than (1) the appearances of the parties with counsel; (2) the pleas of guilty, (3) the findings of guilty, (4) allocution, and (5) the sentences. There is no record of what was said during these proceedings by either the trial judge, the prosecuting attorney, Flood or his counsel. Two of those present and directly participating in those proceedings are now dead: Judge White and Sam Wear. Three are living: Flood and one of his attorneys, George Donegan; and Lyndon Sturgis, prosecuting attorney at the time.
B. D. Miller, official court reporter for Judge White for 36 years and on the day of Flood's pleas, now retired, testified that he has no recollection of being in the courtroom at the time Flood appeared to plead, that he is 'pretty sure' he was not; that Judge White's practice or policy with reference to whether the court reporter was required to take notes of guilty plea proceedings was that if the defendant was not represented by counsel the reporter was required to and did take notes and keep a record, but that the reporter was not required to take notes and keep a record when the defendant was represented by counsel; that he has his shorthand notes of court proceedings for the month of April, 1958, and has searched but could not find notes of the proceedings in these two murder cases. He further testified that it was Judge White's practice in guilty plea cases to explain to a defendant his constitutional rights whether or not he was represented by counsel.
Movant, age 33 at the time of the hearing on his motion, testified on direct examination that he completed the tenth grade of high school; that it was and is his intention to abandon his claim that he did not have effective assistance of counsel at his arraignment, plea and sentencing as alleged in his original motion and that it is his intention to rely only on the grounds alleged in his amended motion; that Judge White did not ask him anything other than what his plea was; that Judge White did not explain to him or discuss with him the nature of the charges pending against him, his privilege against self-incrimination, the consequences of a plea of guilty, the extent of the punishment that could be imposed, his right to a trial by jury, or the right to confront and cross-examine the witnesses against him; nor did the judge ask him whether he knew or understood these matters, or whether he had conferred with his attorneys, or whether he had been coerced or forced to plead guilty. He testified on cross-examination that he has abandoned and is not asking for relief on the ground (alleged in his pro se motion but not alleged in his amended motion on which the matter went to trial) that his statement or confession given to the sheriff and other officers while in custody before his preliminary hearing was obtained by physical abuse and therefore, involuntary, or that the threat of its use at a trial coerced his pleas of guilty; that George Donegan was retained to represent him at the preliminary hearing and did so; that he talked with his attorney before the preliminary hearing; that he understood at the preliminary that he was charged with first degree murder in two cases for the killing of Victor Spinetto and Virgil Usrey; that Sheriff Hendrix, Chief Robards and the prosecuting attorney had told him, and he understood, that he could be sentenced to death for these murders. He further testified on cross-examination that he and his attorneys discussed the cases on several occasions before he appeared in court to plead guilty; that he supposes they went over the whole case with him; that he and his attorneys concluded that it would be best for him if he would enter a plea of guilty to both charges and that he '* * * figured that was the best way to avoid the death penalty'; that he understood that he was charged with felony-murder, killing these two men while robbing one of them; that he remembers that he entered a plea of guilty 'in his own voice' and remembers that the judge did not ask him whether he had been coerced, but that he does not remember whether or not his attorneys advised or discussed with him his constitutional privilege against compulsory self-incrimination, his right to a trial by jury, or his right to confront the witnesses against him, or any other constitutional rights; nor does he remember whether he knew or understood these or other rights at that time.
Sam Robards, chief of police of Springfield, testified that he assisted in the investigation of the murders of Spinetto and Usrey; that he was present when Flood gave a statement in which he described the circumstances of this event and how he had killed these men; that Sheriff Hendrix and the prosecuting attorney, Lyndon Sturgis, were also present; that Sheriff Hendrix informed Flood that he was charged with these two murders and that if guilty he could be sentenced to death; that Flood was not forced or abused or threatened with force or abuse, nor was he promised anything by anyone to persuade him to make a statement.
Lyndon Sturgis, prosecuting attorney of Greene county in 1958, testified that he was present when Flood pleaded guilty to these charges; that he cannot now recall the exact words of what was said by anyone at that time, but that he is sure that Judge White explained to Flood the charges against him; that at Judge White's request he related to the judge the facts pertaining to the two killings and that both Mr. Wear and Mr. Donegan made statements on behalf of Flood; that in 1958 the practice of the court was that any shorthand record of guilty proceedings need not be transcribed.
George J. Donegan testified that he represented Flood at his preliminary examination in magistrate court and, after an information had been filed in circuit court, he and Sam Wear were appointed to represent Flood in circuit court; that he discussed the case with Flood several times before the preliminary; that after the preliminary he and Mr. Wear discussed the case and advised with Flood on several occasions; that they had a copy of Flood's seventy-odd page confession made to Sheriff Hendrix and others and a copy of the transcript of the preliminary hearing and discussed these with Flood in detail; that by their investigations and discussions with Flood and people who had known him most of his life they reached the conclusion that he had no defense; that they explained to him and he understood the nature of the chages and what the state would have to prove to convict him; that they told him that if convicted his punishment would be not less than life imprisonment and that it could be the death penalty, but that their opinion was that it would not be more than life imprisonment; that they advised him and he understood (1) that he could plead guilty or not guilty and that if he pleaded not guilty the trial would be before a jury, that they would represent him at that trial, and that he could but that he would not be required to testify; (2) that he had the right to a trial by jury; (3) that he had the right to confront in court any witnesses against him and the right to cross-examine those witnesses; (4) that if he pleaded guilty this would be a conclusive admission that he did kill these two men from which the court could and would find him guilty and the judge would fix the punishment, but that if he pleaded not guilty the jury would determine whether or not he was guilty and, if it found him guilty, the jury would fix the punishment. He further testified that Flood's decision to plead guilty was his own. He further testified that he is unable now to remember exactly what was said by anyone on the occasion of the appearance in court of Flood, himself and Mr. Wear for the purpose of pleading in the two cases, but he does recall that Judge White read the information aloud, that pleas of...
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