Floyd v. State

• Decision Date: 14 January 1975
• Docket Number: No. 35833,35833
• Citation: 518 S.W.2d 700
• Parties: Norman Cornelius, FLOYD, Movant-Appellant, v. STATE of Missouri, Respondent. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 700

518 S.W.2d 700

Norman Cornelius, FLOYD, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 35833.

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

Jan. 14, 1975.

Motion for Rehearing or Transfer to Supreme Court Denied

Feb. 7, 1975.

Application to Transfer Denied March 10, 1975.

Charles D. Kitchin, Public Defender, James C. Jones, Asst. Public Defender, St. Louis, for movant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Richard A. Heidenry, Asst. Circuit Atty., St. Louis, for respondent.

RENDLEN, Judge.

This appeal is from the trial court's denial of appellant's amended motions for post-conviction relief ¹ under Supreme Court Rule 27.26 ² by which appellant sought vacation of judgments rendered on guilty pleas and concurrent sentences of life imprisonment on separate charges of Murder Ifrst Degree and Forcible Rape, fifteen years for Burglary First Degree and Stealing and ten years for Burglary Second Degree. Sentences were imposed February 21, 1963, and in those proceedings appellant was represented by court-appointed counsel.

In 1965 appellant, without counsel, filed his first 27.26 motion and from an adverse ruling pursued appeal to the Missouri Supreme Court. See State v. Floyd, 403 S.W.2d 613 (Mo.1966). He there asserted: (1) the indictment was 'no good'; (2) a confession taken from him by police officers, prior to his guilty plea, was coerced, involuntary and violative of due process; (3) under the circumstances of the case, the 'punishment' assessed was greater than ought to have been inflicted. Affirming the trial court's action, the Supreme Court held, inter alia, that the voluntary plea of guilty to the charge of First Degree Murder made in the presence of counsel constituted 'a solemn confession of the truth of the charge to which it is entered'. State v. Floyd, supra at 616.

The current 27.26 motion was filed in 1973 and from the trial court's adverse ruling, Floyd brings this appeal.

Respondent questions appellant's right to raise issues similar to those presented in his prior 27.26 motion. Examining that contention, we note appellant's 1965 motion was without assistance of counsel, was limited to the charge of First Degree Murder and was ruled by the trial court without evidentiary hearing. State v. Floyd, supra at 615.

Rule 27.26 was amended effective September 1, 1967, to ensure movants certain rights not required under the former rule, including, in prescribed circumstances, appointment of counsel. See State v. Stidham, 415 S.W.2d 297, 298 (Mo. banc 1967). Similarly, in State v. Bosler, 432 S.W.2d 237, 239 (Mo.1968), the court, in a second appeal of that case, affirmed a First Degree Robbery conviction but noted that defendant's previous 27.26 motion, filed pro se in 1962, had proceeded without evidentiary hearing and the court ruled:

'That prior proceeding does not prevent defendant from now filing a motion under amended Rule 27.26. If that is done, and if such amended motion asserts facts which entitle the defendant to an evidentiary hearing in accordance with the provisions of the rule, then the trial court should grant an evidentiary hearing, . . .'

Here, appellant has filed his second motion raising numerous issues of fact entitling him to an evidentiary hearing. The trial court properly afforded appellant that hearing under amended Rule 27.26. His former motion, pursued under the old rule without benefit of counsel or evidentiary hearing, is no bar to this proceeding.

Appellant asserts two grounds for review. First, his confession to the police following the arrest was coerced, thus tainting his guilty pleas. Second, he was denied effective assistance of counsel because court-appointed counsel failed to investigate appellant's claim of alibi before recommending guilty pleas.

Our review is to determine whether the findings, conclusions and judgment of the trial court are clearly erroneous. Supreme Court Rule 27.26(j); Crosswhite v. State, 426 S.W.2d 67, 70 (Mo.1968). The trial court is in a better position than we to judge credibility of witnesses and may believe or disbelieve all or part of any witness's testimony. Walster v. State, 438 S.W.2d 1 (Mo.1969). Here movant has the burden of establishing his grounds for relief. Rule 27.26(f). State v. Rose, 440 S.W.2d 441, 443 (Mo.1969). Brown v. State, 495 S.W.2d 690, 693 (Mo.App.1973).

Considering appellant's first contention, we note there was substantial conflict in the testimony of various witnesses for respondent and that of appellant. Appellant claimed he was interrogated on November 6, 1962, (about one week following his arrest) without counsel, from early morning until evening without food and was threatened with physical abuse by one of the interrogating officers. He denied making statements appearing in the transcript of the confession and denied having read the transcript before signing it. He claimed the confession was not signed voluntarily because the police refused to allow him to see his mother and because he was deprived of food. No other witness was called by appellant and the trial court found appellant's 'testimony as to the alleged coercion and duress unworthy of belief'.

The police officers who conducted the interrogation testified the questioning began at 9:00 AM and continued until approximately 1:00 PM. at the latest. Appellant admitted he received a sandwich after the statement was given. One officer testified that although he had no particular recollection of the day in question, it was normal procedure to feed prisoners under interrogation at meal times. Appellant admitted he did not ask for food. On completion of the interrogation, the statement was taken by a stenographer and typed. The transcript of the confession bore the time 4:15 PM, written by appellant, together with his signature. A copy of the transcript was handed appellant and then read to him by the circuit attorney. Thereafter, appellant read the copy and signed each of the eleven pages, including a paragraph stating: 'I have read the foregoing ten pages and they are true and correct to the best of my knowledge and belief.' A correction made on page 9 of the transcript was initialed by appellant though he claimed never to have read the transcript. The interrogating officers denied the use of threats and appellant admitted that he was never struck. Appellant contended that during one point in the interrogation he and one of the officers exchanged curses; however, he admitted that the circuit attorney inquired if he had been threatened and he conceded he had not. The officers remembered his manner as willing, peaceful, cooperative and mild.

Appellant's argument assumes the established truth of his allegations. However the trial court was not bound to accept appellant's testimony as true, Watson v. State, 475 S.W.2d 8, 12 (Mo.1972), even had it been uncontradicted, Bradley v. State, 494 S.W.2d 45, 48 (Mo.1973). Here the state did present positive evidence to show that the confession was not the result of coercion, that the statement was made after only a few morning hours of police questioning, that appellant was not subjected to threats but was cooperative, and that he read, corrected and signed the statement, the entire procedure ending by late afternoon.

The trial court found the confession was voluntarily and intelligently given and on the record it cannot be said that finding was clearly erroneous. Crosswhite v. State, supra. We rule this issue against appellant.

Since the confession was voluntary, inquiry into its effect upon the guilty pleas becomes unnecessary. Shoemake v. State, 462 S.W.2d 772, 775--776 (Mo. banc 1971). To paraphrase the court in Shoemake; on the finding of a voluntary confession, the question of relevancy of the confession to the 'voluntariness' of the guilty plea drops out of the case.

When appellant entered his guilty pleas in February, 1963, more than three months following the confession, he affirmed to the court in the presence of counsel that the pleas were made voluntarily and of 'his own free will'.

If we assume for purpose of argument that the confession was obtained by coercion, the appellant's voluntary and understanding pleas of guilty would vitiate the effect of such a confession. Turley v. State, 439 S.W.2d 521, 525 (Mo.1969). Under similar facts the United States Supreme Court considered a petition for Habeas Corpus and ruled 'that a defendant who alleges that he pleaded guilty because of a prior coerced confession is not, without more, entitled to a hearing on his petition for habeas corpus.'...