Gerberding v. State

• Decision Date: 12 November 1968
• Docket Number: No. 53720,No. 2,53720,2
• Citation: 433 S.W.2d 820
• Parties: Wilburn Jerome GERBERDING, Movant-Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 820

433 S.W.2d 820

Wilburn Jerome GERBERDING, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 53720.

Supreme Court of Missouri, Division No. 2.

Nov. 12, 1968.

Robert G. Duncan, Lweis, E. Pierce, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.

Norman H. Anderson, Atty. Gen., O. Hampton Stevens, Asst. Atty. Gen., Jefferson City, for respondent.

FINCH, Presiding Judge.

This is an appeal from the judgment of the trial court overruling, without an evidentiary hearing, movant's motion to vacate judgment and sentence under Supreme Court Rule 27.26, V.A.M.R. We reverse and remand for an evidentiary hearing.

Defendant originally was charged with robbery in the first degree with a dangerous and deadly weapon. He was prosecuted under the then applicable Second Offender Act (§§ 556.280 and 556.290, RSMo 1949), being charged in the indictment with three prior felony convictions, two in Illinois and one in Georgia.

The jury verdict in that case was as follows: 'We, the jury in the above entitled cause, find the defendant guilty of robbery in the first degree by means of a dangerous and deadly weapon. We further find the defendant has been formerly convicted of a felony and assess his punishment at imprisonment in the State Penitentiary for the remainder of his Natural Life.'

That conviction was affirmed on appeal. State v. Gerberding, Mo., 272 S.W.2d 230.

On February 9, 1968, movant filed his motion to vacate under Rule 27.26. It asserted ten grounds as a basis for the relief sought. The trial court overruled that motion on February 19, 1968. The order entered denied relief 'on the ground that 'the motion and the files and the records of the case conclusively show that the prisoner is entitled to no relief.''

On appeal, movant first briefs the proposition that the verdict in his original trial finding him guilty under the Second Offender Act was insufficient and not responsive to the charge. The instructions to the jury in movant's case had informed them as to what facts they must find with respect to any of the claimed prior convictions before the jury could assess maximum punishment for the offense on which movant was being prosecuted. Nevertheless, movant asserts that the facts found must be recited in the jury's verdict. Movant cites State v. Garrison, Mo., 305 S.W.2d 447, as so holding. If sustained, this contention would require that the prior judgment and sentence be vacated, without the necessity of an evidentiary hearing on the 27.26 motion, and the cause would be remanded for a new trial. Hence, we proceed first to consider this question.

An examination of the appeal transcript in the Garrison case discloses that the verdict therein read as follows: 'We, the jury, find the defendant William Marion Garrison guilty as charged in the information, and we further find that previous to the committing of said offense the said William Marion Garrison had been convicted of a felony, to-wit; forgery, under the laws of Missouri and imprisoned therefor in the State penitentiary and discharged in compliance with the said sentence, all as charged in the information, and we assess his punishment for the said offense of which he is now charged at imprisonment in the penitentiary for a term of ten (10) years.'

Actually, there was no attack on the sufficiency of the verdict in the Garrison case. The verdict was not mentioned in defendant's motion for new trial and the question of what a verdict finding the commission of a prior felony must contain was not in issue. It is true that in the course of the opinion the court said, 305 S.W.2d l.c. 451: 'Now, the jury must be convinced and find in its verdict that the defendant charged as an habitual criminal was in fact convicted, sentenced and discharged or pardoned upon compliance with the sentence prior to commission of the crime for which he is being tried before it is required to assess the added penalty fixed by the statute.'

Movant relies on the above quotation and contends that it amounts to a holding that a verdict which says 'we further find the defendant has been formerly convicted of a felony' is insufficient and not responsive to the charge. We disagree. Under the facts in that case as disclosed by the transcript on appeal, the language quoted merely says that the verdict containing a detailed recital of the facts found was a sufficient verdict. It is not a holding that a verdict to be valid must contain all of the specific recitals which that verdict contained.

There are other Missouri cases which uphold the sufficiency of the verdict returned against movant in his original trial. In State v. King, Mo., 380 S.W.2d 370, certiorari denied 379 U.S. 979, 85 S.Ct. 681, 13 L.Ed.2d 569 (decided subsequently to Garrison), Division One of this Court dealt expressly with the sufficiency of a similar verdict, which read: 'We the Jury in the above entitled cause, find the defendant guilty of Robbery in the first degree by means of a dangerous and deadly weapon, as charged. We further find the defendant has been formerly convicted of a felony and assess his punishment at imprisonment in the State Penitentiary for the remainder of his natural life.' The finding with respect to a prior conviction was identical to that in the verdict in the Gerberding case. King contended that the verdict was too vague and indefinite to constitute a finding of a prior felony conviction, sentencing thereon, imprisonment and discharge. This contention was overruled, the court holding, 380 S.W.2d l.c. 376, that 'the verdict was sufficient in form and substance to support the judgment entered in the case. See State v. Charles, Mo.Sup., 268 S.W.2d 830, 832(1); State v. Jonas, Mo.Sup., 260 S.W.2d 3, 6(6--7); State v. Hite, Mo.Sup., 298 S.W.2d 411, 413(6--7).'

In State v. Charles, cited in the King case, supra, the opinion referred to earlier cases which considered similar verdicts and then said, 268 S.W.2d l.c. 832: 'It was there held that specific findings as to the several prior convictions were proper but not required.' ¹

We overrule movant's contention that the original verdict was insufficient.

Movant's brief next asserts that the judgment and sentence should be vacated because evidence was received by the jury of a prior conviction in the State of Illinois which was void because of an asserted unconstitutional denial of counsel therein. To sustain this contention, movant cites and relies on Burgett v. State of Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319.

In Burgett the defendant was prosecuted for assault with malice aforethought with intent to murder. The indictment was returned under the Texas recidivist statute and alleged various prior convictions of Burgett. In Texas, as was the case in Missouri at the time movant herein was tried, evidence of such prior convictions was introduced before the jury and the jury then fixed the defendant's punishment. The State of Texas introduced in evidence two different records with respect to a prior Tennessee conviction alleged in the indictment. One record indicated that defendant had not been represented by counsel. The other omitted any reference to counsel but did not show a waiver of counsel. The Supreme Court of the United States held that these records raised a presumption that defendant had been denied his right to counsel in the Tennessee proceeding and therefore that such conviction was void. It then held, 389 U.S. l.c. 115, 88 S.Ct. l.c. 262, 19 L.Ed.2d l.c. 324, that 'To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense (see Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477, (16 L.Ed.2d 526)) is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right.' Actually, the trial court, after receiving records of prior convictions in evidence, instructed the jury to disregard such convictions, but nevertheless the Supreme Court of the United States held the admission of such records was prejudicially erroneous and reversed the case.

Movant's motion to vacate, in paragraph 8(g), made the following allegations with reference to this issue:

'Movant was denied due process of law under the Vth and XIVth Amendments to the United States Constitution and Sections 10 and 18(a) of Article I of the Missouri Constitution in that evidence of an alleged prior conviction of the defendant was admitted in evidence in the presence and hearing of the jury, when said conviction resulted from an unconstitutional denial of the right to be represented by couns...