Green v. State, 54537
| Decision Date | 09 March 1970 |
| Docket Number | No. 2,No. 54537,54537,2 |
| Parties | Fred Earl GREEN, Movant-Appellant, v. STATE of Missouri, Respondent |
| Court | Missouri Supreme Court |
Lawrence J. Lee, St. Louis, appointed attorney for appellant.
John C. Danforth, Atty. Gen., Thomas L. Patten, Asst. Atty. Gen., Jefferson City, for respondent.
BARRETT, Commissioner.
An indictment charged that on November 2, 1961, Fred Earl Green assaulted and attempted to rape Arnett, a child 12 or 13 years old. A jury found him guilty and since he had prior felony convictions the court fixed his punishment at 15 years' imprisonment. It is not necessary to a disposition of this appeal to recite the evidence adduced by the state, it is sufficient to say that about one o'clock in the afternoon on the fourth floor of the Pruitt apartment complex Green was all but caught in the act of attempting to rape Arnett. When caught in the 'washroom' Green ran from the building and was finally caught and subdued by Arnette's uncle who held him until the police arrived.
In 1964 Green instituted a pro se proceeding in this court denominated 'a petition for a writ of mandamus' the purpose of which was to compel the court in which he was tried to furnish him copies of 'the trial court records' relating to his original trial in April 1962. This motion was denied. In September 1964 Green instituted a 27.26 proceeding in which he sought on numerous grounds to vacate his 1962 conviction. In October the court appointed Mr. John E. Bardgett to represent Green in the 27.26 proceeding. Apparently as result of Mr. Bardgett's efforts a complete transcript, two volumes of 454 pages, was prepared and lodged in this court in that proceeding, a fact which, apparently, Green has forgotten. The trial court in that proceeding denied Green's petition without a hearing. That determination was appealed to this court, briefs were filed by counsel for both Green and the state, Mr. Bardgett's excellent and extensive brief was addressed to the simple proposition that the summary denial of the motion to vacate without a hearing was a violation of due process. On September 14, 1967, after the cause had been orally argued, this court of its own motion set aside the submission and remanded the cause for a full evidentiary hearing on the issues of law and fact raised in Green's 27.26 motion. State v. Stidham, Mo., 415 S.W.2d 297. Upon Mr. Bardgett's becoming a judge of the Circuit Court of St. Louis County, Senator Lawrence J. Lee was appointed as Green's counsel and he conducted this 27.26 hearing before Judge Waldo C. Mayfield, the judge who presided at Green's original trial in April 1962. At the conclusion of that hearing Judge Mayfield found the issues against Green and Senator Lee has perfected his appeal to this court.
Upon the hearing of the 27.26 motion there were three witnesses, the petitioner, Green, his 1962 trial lawyer, Mr. Wayne Millsap and Judge Mayfield's court reporter who prepared and on July 22, 1966, delivered to Mr. Bardgett the two-volume record of Green's trial. At the conclusion of the testimony Judge Mayfield made a full and complete finding of fact, one by one he took up every allegation in the appellant's original motion to vacate, many of which are not properly open questions in any post-conviction remedy in any jurisdiction, and upon the evidence adduced found the fact and issue against the appellant. It is not necessary to set forth those issues, it is sufficient to say that not only has the transcript in this proceeding been considered but the transcript upon his original trial has been examined, and Judge Mayfield's findings are supported in very detail and, as Rule 27.26, V.A.M.R. contemplates, foreclose for all time reopening or reconsideration of any of those matters. As to the only question involved upon this appeal, ineffective assistance of counsel and therefore infringement of constitutional rights in that counsel did not file a motion for new trial or a notice of appeal, Judge Mayfield found that Mr. Millsap was competent in every respect and did everything possible to defend Green and to preserve his right to a fair trial.
And again, as the transcript of the original trial reveals, that finding is supported. The appellant had but a single witness, his mother who corroborated his claim that he was in the Pruitt area to see his sister. The trial lasted through the days of April 16, 17, 18 and 19 and against all but overwhelming testimony Mr. Millsap put the best face possible on the incriminating circumstances. In testifying in this proceeding Green's complaint of Mr. Millsap was that he was not sufficiently experienced in the trial of criminal cases, he said, 'he probably had done what he could, but he just didn't know how to present the facts to the Court.' He complained...
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