Foster v. State
| Decision Date | 27 November 1973 |
| Docket Number | No. 34976,34976 |
| Citation | 502 S.W.2d 436 |
| Parties | Rico Leroy FOSTER, Movant, Appellant, v. STATE of Missouri, Respondent. . Louis District |
| Court | Missouri Court of Appeals |
Charles D. Kitchin, Public Defender, James C. Jones, III, Asst. Public Defender, St. Louis, for appellant.
John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, J. Brendan Ryan, Circuit Atty., Thomas J. Kavanaugh, Asst. Circuit Atty., St. Louis, for respondent.
Movant Rico Leroy Foster appeals from an order of the circuit court denying his motion to vacate judgment and sentence under Rule 27.26, V.A.M.R. Foster contends he was denied effective assistance of counsel because of failure to investigate his case.
Foster had been sentenced in 1965 to 20 years imprisonment on his plea of guilty to second-degree murder. At the evidentiary hearing on his motion Foster testified: His wife had a quarrel with Edwards, the victim. A few days later Foster was with a man named Ruffin when they were met by Edwards who ordered them into his car. When they arrived at a building on 20th Street, Edwards ordered them to enter an elevator and said he was going to kill them. Foster refused to get into the elevator and a fight ensued. Foster took a pistol away from Edwards but Edwards produced another gun and started firing at Foster, who then shot and killed Edwards. Foster was questioned by police officers, answering some questions but refusing to answer others. He told the police he shot Edwards in self defense, but was indicted on a charge of murder second-degree, to which he first pled not guilty.
Foster was first represented by the Public Defender. Two other attorneys were later appointed to represent Foster but were permitted to withdraw and ultimately Stuart Symington, Jr. was appointed to represent him.
Foster said there were several meetings in the judge's chambers before Mr. Symington was appointed. At these meetings Foster's prior convictions and the second-degree murder charge were discussed. According to Foster, the circuit attorney recommended fifty years and the judge recommended forty years if Foster decided not to stand trial. Between two of these meetings Mr. Symington talked with Foster and Foster gave him the names of persons who could aid in his defense. This conversation lasted approximately fifteen minutes.
The final meeting occurred on December 27, 1965 at which time the judge, the assistant circuit attorney, Mr. Symington and Foster were present. Mr. Symington told them he considered forty years too much time. The possibility of going to trial was discussed and finally Mr. Symington told Foster he would not advise going to trial but would try to get the time reduced. Twenty years was offered Foster by the judge in chambers and Foster agreed to accept it. Foster was ultimately taken into court, entered his plea of guilty and was sentenced to twenty years imprisonment. Foster stated at the evidentiary hearing that he did not consider his plea to be voluntary nor did he feel his defenses were adequately investigated. All this was Foster's version of what preceded his guilty plea.
Both the trial judge and the assistant circuit attorney testified they had never met with Foster in chambers without a defense attorney being present. They also denied encouraging Foster to plead guilty.
Mr. Symington testified he had met with Foster to discuss his case and kept notes of their conversations. Mr. Symington testified from his notes that he first asked Foster how he wanted to plead; Foster declared he did not want to stand trial. He then asked Foster several questions about his background and his case in an attempt to determine if Foster had a defense. There was a notation about a witness named Ruffin who Foster had said was in the City Workhouse on a concealed weapons charge. At the conclusion of the discussion Foster again said he did not want to stand trial. No attempt was made to locate Ruffin because Mr. Symington had read the coroner's report concerning Ruffin and felt he would not be favorable to Foster nor would it be in Foster's best interests for counsel to talk to Ruffin. Mr. Symington stated he told Foster he was willing to try the case before a jury if Foster wanted a trial. Foster never changed his mind about not wanting to stand trial, indicating he would change his plea to guilty if the sentence could be for twenty years instead of 40 or 50 years. Mr. Symington began negotiations and the circuit attorney finally recommended the twenty-year sentence.
After the evidentiary hearing the court specifically found Foster had not been denied effective...
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Williams v. State, 36257
...and '(t)here is no hard and fast rule applicable in every case.' Smith v. State, 518 S.W.2d 155, 157(2) (Mo.App.1974); Foster v. State, 502 S.W.2d 436, 438 (Mo.App.1973). Appellant condemns trial counsel's investigation as insufficient to permit proper presentation of available defenses, ci......
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Jackson v. State, 36576
...cases to investigate and contact potential witnesses requested by defendant. Jones v. State, 491 S.W.2d 233 (Mo.1973); Foster v. State, 502 S.W.2d 436 (Mo.App.1973). In the instant case however, counsel testified that he had contacted the witness. The issue thus becomes one of credibility t......
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Pickens v. State, 38024
... ... " Thomas v. State, 516 S.W.2d 761, 765(2) (Mo.App.1974). It is well established that counsel has a duty to investigate the case against his client, which duty includes contacting potential witnesses named by the defendant who might aid in his defense. Thomas v. State, supra; Foster v. State, 502 S.W.2d 436, 438(4-5) (Mo.App.1973). However, there is no clear rule on what constitutes sufficient case investigation; all that is required is investigation that is adequate under the circumstances of each particular case. Haynes v. State, supra; Thomas v. State, supra ... ...
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Smith v. State, 34988
...to exercise his professional judgment regarding leads suggested by the defendant.' 502 S.W.2d at 308. Also in point is Foster v. State, 502 S.W.2d 436, 438 (Mo.App.1973). In that case this court held that an attorney had a duty to investigate the case against his client. That duty includes ......