Franklin v. State
| Decision Date | 08 June 1970 |
| Docket Number | No. 2,No. 54240,54240,2 |
| Citation | 455 S.W.2d 479 |
| Parties | James Lee FRANKLIN, Movant-Appellant, v. STATE of Missouri, Respondent |
| Court | Missouri Supreme Court |
David G. Lupo, St. Louis, for appellant.
John C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, for respondent.
On July 1, 1944, following a jury verdict of guilty and assessment of the death penalty, James Lee Franklin was sentenced to life imprisonment for the murder of a three year old girl. In this postconviction proceeding, provided by Rule 27.26, V.A.M.R., he sought to have the judgment and sentence vacated. After an evidentiary hearing, relief was denied and this appeal followed.
Movant, then twenty-one years of age, lived in the same general neighborhood in the city of St. Louis as did the small girl. Briefly, as shown by the evidence, he enticed her on May 3, 1943, to take a ride with him on a streetcar. After one transfer they arrived at Forest Park where he raped and murdered her. The death was caused by numerous stab wounds. After placing her body in a culvert or underpass, movant returned to his home. Approximately four hours later, he was arrested and orally confessed his guilt before several police officers and newspaper reporters. The confession was later reduced to writing. The alleged murder weapon, a pocket knife, was given to the police by movant's mother. On the following day, he was charged with murder in the first degree. Such other facts as may be relevant will be more meaningful if related while considering each of the specific issues raised in this proceeding.
It is first asserted that movant is entitled to a new trial because of the state's inability to provide a full transcript of the original trial. Argument is made that, absent a transcript, he was 'prejudiced and prevented from asserting an adequate case to sustain his burden in connection with his motion' and thus has been denied due process. It is then concluded that: 'The State must bear the burden for failure to provide these notes.' Movant's counsel is aware of the holding in Norvell v. Illinois, 373 U.S. 420, 83 S.Ct. 1366, 10 L.Ed.2d 456, but contends the instant case is factually distinguishable. In Norvell the defendant was indigent, but had counsel for his trial and presumably had services for purposes of an appeal which was not taken. In a later post-conviction proceeding, his request for a transcript was denied because the court reporter was deceased and other reporters could not transcribe his notes. The inability of the state to provide the transcript was found by the Supreme Court not to be a violation of either due process or equal protection. Nor was it, standing alone, grounds for setting aside the conviction. See Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891. In the instant case, movant was represented by self-employed counsel at his original trial and presumably could have perfected an appeal at that time. In this proceeding, approximately twenty-five years later, the reporter's stenographic notes could not be found. With court supervision, an exhaustive search to no avail was made through all stored reporter notes for the trial courts of the city. One of two of the reporters who had been used at trial aided in the search. It is argued that in Norvell the state could not have prevented the reporter's death, but here the state assumed the duty of retaining stenographic notes and negligently failed to do so. We do not believe the distinction submitted is so persuasive as to bar our application of the holding in Norvell. Absent some showing of state related interference with the preservation of the stenographic notes, the great lapse of time is a sufficient explanation for their loss. In particular, the facts as shown are not indicative of any invidious discrimination by the state. As we said in State v. Keeble, Mo., 427 S.W.2d 404, at 409: State v. Davis, Mo., 438 S.W.2d 232, 235. Although the record shows movant made requests to obtain a transcript and post-conviction review, some twelve to thirteen years after the trial in both state and federal courts, and which were all denied, an opposite conclusion could not be justified. In addition, present counsel in preparation for the proceeding under Rule 27.26 by diligent effort developed evidence on most issues now raised.
Second, it is argued that movant was denied the effective assistance of counsel in defense of the murder charge. This conclusion, in retrospect, is based on numerous alleged omissions of trial counsel. Each will be noted without extended comment as to whether or not they may be considered in this proceeding.
As the record shows, movant first appeared at arraignment while represented by the Director of the Public Defender Bureau. A motion was filed requesting appointment of psychiatrists for examination of movant. It alleged 'defendant (movant) * * * does not know the difference between right and wrong.' That he 'anticipates his plea to be Not Guilty by reason of Insanity; that the case is of such universal magnitude and importance in the public eye that the opinion of more than one psychiatrist would be necessary to establish said defense; that your movant (the attorney) is Director of the Public Defender Bureau, representing defendants who have no previous conviction of a felony and are indigent, hence the defendant in this cause has no funds wherewith to employ private experts. * * *' Such examinations were made and the report of each is available. Dr. Grogan reported: 'In my opinion the defendant understood well the nature of the act of which he is accused and was fully capable of distinguishing right from wrong as related to this particular act * * * defendant * * * is subject to such overwhelming emotional impulses that for the moment he becomes quite irresponsible for his actions.' Dr. Lee stated: Dr. Sassin concluded: Each of the three examinations was made during the month of June, 1943.
During the month of September, 1943, employed counsel entered his appearance and the public defender was allowed to withdraw. Apparently new counsel, being cognizant of the medical reports as indicated, had movant examined by a Dr. Lytton with the hope there would be some evidence to present in defense. The transcript of the present proceeding includes a copy of his findings. It is dated October 16, 1943, and consists of eight typewritten single spaced pages. Since the trial started two days later on October 18, it is not shown if this report was brought to the attention of the trial court prior to or even during trial. Nevertheless, we have examined the report of Dr. Lytton word by word and sentence by sentence and can not find any suggestion that movant did not have 'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding * * * as well as factual understanding of the proceedings against him.' Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824. In fact, those portions of the report, which fairly could be considered as directly relevant to the issue of 'competency to stand trial' indicate clearly that movant was. For instance: In summary Dr. Lytton stated, in part: 'There is no question about the fact that this patient knows the difference between right and wrong, but this does not mean that he is sane, because there are very few mentally ill patients who do not know the difference between right and wrong.' Some of the details found in the life long history of movant, as related by Dr. Lytton, will be set out with only a presumption defense counsel was aware of each of them. They include a history of epileptic attacks which have become less severe with time, several fights...
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