Holt v. State

• Decision Date: 12 November 1968
• Docket Number: No. 53559,No. 2,53559,2
• Citation: 433 S.W.2d 265
• Parties: Donald Dale HOLT, Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 265

433 S.W.2d 265

Donald Dale HOLT, Appellant, v. STATE of Missouri, Respondent.

No. 53559.

Supreme Court of Missouri, Division No. 2.

Nov. 12, 1968.

Henry W. Westbrooke, Jr., Springfield, for appellant.

Norman H. Anderson, Atty. Gen., Arnold Brannock, Asst. Atty. Gen., Jefferson City, for respondent.

STOCKARD, Commissioner.

Donald Dale Holt was convicted by a jury of the offense of possessing an 'apparatus, device or instrument for the unauthorized use of narcotic drugs,' and was sentenced to imprisonment for a term of five years. Upon appeal to this court the judgment was affirmed. State v. Holt, Mo., 415 S.W.2d 761. He has now appealed from the denial, after hearing, of his motion pursuant to Supreme Court Rule 27.26, V.A.M.R., to vacate that sentence and judgment.

Appellant's first point is that the trial court was 'clearly in error' in ruling that he 'did not sustain his burden of establishing his grounds for relief by a preponderance of the evidence, for the record is replete with evidence that appellant was deprived of his constitutional right to be represented by able and adequate trial counsel.' This point does not comply with the requirement of Civil Rule 83.05, V.A.M.R., that points relied on, in addition to stating briefly and concisely what actions and rulings of the court are claimed to be erroneous, shall also 'briefly and concisely state why it is contended the court was wrong in any action or ruling sought to be reviewed.' However, from the argument in appellant's brief we find that 'the base of appellant's complaint is the fact that court-appointed trial counsel failed to file a motion to suppress evidence obtained in a search and also failed to object to the admissibility of that evidence during trial.' He then asserts that failure to do so caused a waiver of his constitutional rights.

Court-appointed trial counsel was a highly respected member of the Greene County bar and a former assistant prosecuting attorney who had extensive experience in the trial of criminal cases. The evidence referred to constituted the apparatus, devices and instruments which appellant was charged with unlawfully possessing. Counsel did not file a written motion to suppress in advance of trial, but he did discuss the matter with the court in chambers. After an investigation of the facts by trial counsel, and in the exercise of his professional judgment as a lawyer experienced in the trial of criminal cases, he came to the conclusion that the various items had not been unlawfully seized by the police. For that reason, and because in the pretrial conference the trial court had indicated that its ruling would be to overrule a motion to suppress, counsel did not file a written motion. The judgment on the part of trial counsel was certainly not without support under the circumstances, and the fact that subsequently appointed counsel or appellant with the benefit of hindsight might have a different opinion does not establish lack of effective representation by trial counsel.

In State v. Worley, Mo., 371 S.W.2d 221, in a proceeding under Supreme Court Rule 27.26, the appellant asserted that the failure of his court-appointed trial counsel to file a motion to suppress evidence and his failure to object to the admission of evidence resulted in the denial of effective representation by counsel. In that case, as in the pending case, the trial counsel was a well-known and respected member of the bar. In the Worley case this court assumed, for the purpose of disposing of the contention, that trial counsel adopted what later appeared to be unwise strategy in some respects. We shall so assume in this case, but we make it plain that we do not find that to be a fact. In the Worley case this court commented as follows: 'This court 'has consistently followed the rule that 'negligence or want of skill of counsel affords no ground for the reversal of even a criminal case (State v. Dreher, 137 Mo. 11, 23, 38 S.W. 567, 569; State v. Selvaggi, 319 Mo. 40, 45, 2 S.W.2d 765, 767).' State v. Mason, 339 Mo. 874, 98 S.W.2d 574, 577.' State v. Childers, (Mo.) * * * 328 S.W.2d (43) 45. In cases under the federal statute (28 U.S.C.A. § 2255), which is similar to Rule 27.26, the courts have adopted the rule that 'Lack of effective assistance of counsel in the trial of a criminal case constitutes impingement upon a constitutional right of the accused and lays the judgment and sentence open to collateral attack by motion under the statute. But the constitutional right to the effective assistance of counsel does not vest in the accused the right to the services of an attorney who meets any specified aptitude test in point of professional skill. And common mistakes of judgment on the part of counsel, common mistakes of strategy, common mistakes of trial tactics, or common errors of policy in the course of a criminal case do not constitute grounds for collateral attack upon the judgment and sentence by motion under the statute. It is instances in which resulting from the substandard level of the services of the attorney the trial becomes mockery and farcical that the judgment is open to collateral attack on the ground that the accused was deprived of his constitutional right to effective assistance of counsel. Mitchell v. United States, 104 U.S.Ap.D.C. 57, 259 F.2d 787, certiorari denied, 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86; Black v. United States, 9 Cir., 269 F.2d 38, certiorari denied, 361 U.S. 938, 80 S.Ct. 379, 4 L.Ed.2d 357.' Frand v. United States, 10 Cir., 301 F.2d 102, 103 (1962).'

We do not consider State v. Burton, 99 N.J.Super. 52, 238 A.2d 498, cited and relied on by appellant to require affirmative relief in this case. There trial counsel did not move to suppress evidence, and on direct appeal the court remanded the case for a determination of whether the evidence should have been suppressed. If so, a new trial was ordered; if not, the judgment was affirmed. However, the court stated that it was 'not to be understood as holding that any failure of trial counsel (even where assigned) to make a pretrial motion to suppress can be overcome on appeal or post-conviction proceedings by a contention that the denfendant is not bound by counsel's election or exercise of judgment in the matter.' The ruling in the Burton case was 'limited' to the facts of that case, one of which was that there was 'no indication' that after adequate consideration of 'all the implications of the question, (counsel) advisedly concluded there was inadequate merit in such a motion.'

The burden was on appellant in the hearing on his motion to sustain his right to relief, which in this case required proof of ineffective representation by counsel at his trial. State v. Warren, Mo., 344 S.W.2d 85. This he did not do. In fairness to his trial counsel we should point out that such evidence as was produced at the hearing on the motion under Rule 27.26, even when considered with the facts brought out at the trial, see State v. Holt, Mo., 415 S.W.2d 761, establishes that trial counsel was correct in his determination that a motion to suppress was not warranted by the facts. However, we make it plain that the correctness of his judgment, reviewed with the benefit of hindsight, is not the basis for our denial of relief in this proceeding under Rule 27.26.

In his motion appellant alleges five other matters which he apparently believed constituted evidence of failure of effective representation. Apparently, in the exercise of his professional judgment, appellant's counsel on this appeal is of the opinion that they are without merit because, although they are set out in the brief, there is no attempt to demonstrate their merit. We have examined them, and they are in fact frivolous and totally lacking in merit.

Appellant's remaining point is that the trial court erred in concluding that his right of appeal was not jeopardized as a result of the trial court's records failing to show the timely filing of a motion for new trial.

Certain background facts are helpful. On the appeal from the judgment of conviction the record before this court affirmatively showed that the motion for new trial was not timely filed. For that reason this court refused to rule the merits of a contention therein made pertaining to a voluntary statement by witness Jackie McDaris. See State...