Garton v. State

• Decision Date: 11 May 1970
• Docket Number: Nos. 49570,No. 2,54850,s. 49570,2
• Parties: Charles William GARTON, Movant-Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 522

454 S.W.2d 522

Charles William GARTON, Movant-Appellant, v. STATE of Missouri, Respondent.

Nos. 49570, 54850.

Supreme Court of Missouri, Division No. 2.

May 11, 1970.

Motion for Rehearing or to Transfer to Court En Banc Denied

June 8, 1970.

L. Glen Zahnd, Savannah, for movant-appellant.

John C. Danforth, Atty. Gen., Peter H. Ruger, Asst. Atty. Gen., Jefferson City, for respondent.

BARRETT, Commissioner.

On September 1, 1961, about 9:15, Charles Garton and Joe Andrews, with Jack Streater driving the 'get-away car,' entered the Farley State Bank and at gunpoint held up and robbed the bank of $13,613.00. Garton and Andrews were separately charged with the robbery and after Andrews' trial and conviction on February 6, 1962, and after a change of venue from Platte County, Garton was tried in Andrew County in April 1962, found guilty by a jury and because he admittedly had a record of one or more prior felony convictions (one being an attempt to kill a prison guard during the 1951 riot or 'attempted prison break' in the Colorado State Penitentiary which, according to Garton, was held to be 'null and void'), the court sentenced him to life imprisonment. That conviction was appealed upon a full transcript furnished by the state and since he was not represented by counsel this court in 1963 examined all the assignments of error in his motion for a new trial, including a complete examination of the facts and circumstances, and found that the charge and jury verdict were indeed supported by the evidence. And after further examination of numerous complaints many of which are again asserted here, the court found no prejudicial error and affirmed the conviction, State v. Garton (Mo.), 371 S.W.2d 283. The daylight robbery in the village of Farley (population 120 in 1960) is also described in detail in State v. Andrews (Mo.), 371 S.W.2d 324. In 1964 Garton instituted a 27.26, V.A.M.R., proceeding in which he attacked his 1962 conviction and the judgment in that case was affirmed, State v. Garton (Mo.), 396 S.W.2d 581. And in April 1967 the United States District Court for the Western District of Missouri entertained his habeas corpus proceeding, Garton v. Swenson, 266 F.Supp. 726. In the meanwhile, after petitions to remove his then counsel, after application for bail and after numerous other communications, this court en banc, in response to what was deemed to be the spirit of Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 and the district court's opinion in 266 F.Supp. 726, set aside this court's judgment in the original appeal, 371 S.W.2d 324, as well as its judgment in the 27.26 appeal, 396 S.W.2d 581. Permission was granted to file an amended 27.26 petition and another lawyer (Mr. L. Glen Zahnd of Savannah) was appointed (and Garton now testifies under oath that he is entirely satisfied with Mr. Zahnd's services). A full and complete hearing was ordered and held, this time before Honorable J. Morgan Donelson, judge of the third judicial circuit, rather than before the regular circuit judge of either Platte or Andrew Counties. And as the record recites, 'after a full and complete evidentiary hearing,' Judge Donelson in an exhaustive, seriatim finding of fact on every issue and conclusions of law and finally in a comprehensive judgment found all the issues against Garton and he has appealed the 27.26 judgment. And, as indicated, he is represented by diligent, zealous court-appointed counsel and he has been furnished a free transcript of all the proceedings. The appeal in the 27.26 proceeding has been consolidated with the appeal of his original conviction, the two-volume transcript of the robbery trial is before the court and his indefatigable counsel has briefed and argued seven principal assignments of error, some with as many as eight subpoints, some concerned with his original trial and conviction and some with his post-conviction hearing--all of which have been duly considered by this court, including a page by page reading and analysis of all three volumes of record and a matching of the record and evidence with Judge Donelson's finding of fact and conclusions of law. And before considering the assignments of error it may be said that insofar as required, this court finds the facts to be as Judge Donelson so painstakingly found them. And, it should be added, in his trial for armed robbery Garton received every possible courtesy from a polite, careful, thoughtful circuit judge and his findings are likewise supported in every detail by the transcript of the record.

It may be that in this view, both judgments being supported by the record, the two appeals could be disposed of summarily. Nevertheless it is proposed, at least by demonstration, to consider the appellant's eight points in the consolidated causes in some detail. At the outset it should be noted that it is now established, even tacitly conceded, that the state's evidence in 1962 and again in 1969 supports beyond any reasonable doubt the jury finding that on September 1, 1961, Garton and Andrews, with Streater as driver, at gunpoint held up and robbed the Farley State Bank. The consequence of this all but indisputable fact is that in no event could Garton ever be found innocent or exonerated and discharged as he apparently believes. The details of the bank robbery need not be repeated here--they are carefully set forth in the original Garton and Andrews cases, 371 S.W.2d 283 and 324. As indicated, in the 27.26 hearing he was given every opportunity to attack all prior proceedings but he did not, for reasons best known to him, take candid advantage of the offer. To give but a single, brief illustration: In his original trial he testified solely upon the applicability of the second offender act and admitted one felony conviction--all that was required under the act (RSMo 1959, §§ 556.280, 556.290, V.A.M.S.). In this proceeding, after expressing dissatisfaction with his then counsel, including a distinguished professor of criminal law, (appointed by a federal judge) because of their handling of what he calls 'the habitual criminal hearing,' when asked in this post-conviction hearing as to his prior felony record made this response: 'My stand on that. I stand behind the Fifth Amendment on that.'

The alleged infringements of state and federal due process relate to four matters: one, the alleged use of perjured testimony and the known suppression of evidence beneficial to Garton; two, alleged bias and prejudice and therefore the disqualification of the trial judge and the prosecuting attorney; three, the eight-pronged attack on his hired counsel to whom he now attributes 'incompetent defense' and ineffectiveness, and, fourth, the unconstitutionality of the statute governing the number of challenges of jurors in jurisdictions other than in cities of over 100,000 population. These and the three assignments of error directed to his original trial are all matters which he claims entitle him to a new trial but, as stated, in no event to a discharge.

The fourth but simplest claim is that due process (the Fifth, Sixth and Fourteenth Amendments are invoked) was denied in that RSMo 1959, § 546.180, V.A.M.S., is unconstitutional. This statute provides for a greater number of juror challenges in criminal trials in cities of over 100,000 population than, as appellant says, 'in smaller cities.' This claim could be considered in several aspects but it is sufficient here to say that except for minor changes, as to numbers and populations, these and their related statutes have been on the books since 1825 and the essence of the present statute has not changed since 1919, RSMo 1919, § 4017. In 1879 the provisions were set forth in two sections, 1900 and 1902, RSMo 1879. And in 1886 the Supreme Court of the United States found 'nothing in the legislation of Missouri which is repugnant to that amendment,' (the Fourteenth). Hayes v. Missouri, 120 U.S. 68, 7 S.Ct. 350, 30 L.Ed. 578. After amendment in 1925 the statute was again attacked and the court answered: 'The very question (constitutionality because of the difference in the number of challenges) first raised here was decided by this court in State v. Hayes, 88 Mo. 344.' State v. Eaton, 316 Mo., 995, 292 S.W. 70, 74. There is not present in this appeal a single circumstance or reason that would impel the court to invalidate the statute.

A second and dual assertion of violation of due process is that the trial judge was biased and prejudiced in that he was a depositor in the Farley State Bank and that the prosecuting attorney was an 'interested party' and therefore the information was void, that he was counsel for the bank, a depositor and a personal friend and political ally of the executive vice-president of the bank. Needless to say, the State of Missouri since territorial days has disapproved of 'interested or prejudiced' judges (RSMo 1959, § 545.660, V.A.M.S.), and this court when judicial prejudice appears has prohibited a circuit judge from proceeding who upon application refuses to disqualify. State ex rel. McAllister v. Slate, 278 Mo. 570, 214 S.W. 85. And so it is with an 'interested' prosecuting attorney, as when his automobile was involved in a collision and he was the prosecuting witness upon a charge of driving while intoxicated. 'On account of his personal interest in the matter, he was disqualified to act as prosecuting attorney, or to prefer a charge based on the alleged criminal conduct of the defendant.' State v. Jones, 306 Mo. 437, 445, 268 S.W. 83, 85.

The difficulty with the appellant's broad and sweeping assertion is that it is without substantial foundation or factual basis. And this is true and dispositive of two or more of his assertions of ineffective counsel, that is his charge that competent counsel would have investigated the background of the judge and the basis of his bias and would have moved to quash the information because the prosecuting attorney 'was an...