Howard v. State
| Decision Date | 01 May 1973 |
| Docket Number | No. 35044,35044 |
| Citation | 495 S.W.2d 120 |
| Parties | Frank HOWARD, Movant-Appellant, v. STATE of Missouri, Respondent. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
Kenneth M. Weinstock, St. Louis, for movant-appellant.
John C. Danforth, Atty. Gen., Jefferson City, John Chancellor, Asst. Atty. Gen., St. Louis, for respondent.
This appeal from a judgment of the Circuit Court of the City of St. Louis denying appellant's motion to set aside and vacate his conviction was filed under the authority of Rule 27.26, V.A.M.R. After an evidentiary hearing the trial court entered a judgment after reciting its findings of fact and conclusions of law. Although appellant raised 26 grounds for his motion, on appeal he relies on only four. These are:
1. Evidence used against him was the fruit of an unlawful search and seizure;
2. Confessions secured 'by protracted and repeated questioning of an ignorant and untutored person in whose mind the power of an officer is greatly magnified of all claims and demands between
3. Ineffective assistance of counsel in the defense of his case;
4. The State failed to furnish appellant with a copy of the trial transcript for the perfection of an appeal at the State's expense since the prisoner was unable to pay for the transcript.
While the aforementioned'Points Relied On' presented to this court in appellant's brief, with the possible exception of Point #4, do not comply with Rule 84.05(d) because they set out only abstract statements of law without showing how they are related to any action or ruling by the court, we shall, nonetheless, undertake consideration of them for the purposes of disposing of this appeal.
Appellant has been to the well on five previous occasions seeking to have his conviction set aside and vacated; each time he has not quaffed of the dulcet waters of freedom. On October 19, 1961, appellant was convicted by a jury of the crime of forcible rape of a female over the age of sixteen years in violation of Section 559.260 RSMo 1969, V.A.M.S. The trial court had conducted a hearing on the issue of the applicability of the Second Offender Act, Section 556.280 RSMo 1969, out of the prsence of the jury, and upon the determination that it was applicable, upon receipt of the jury verdict and denial of the motion for new trial, sentenced appellant to fifty years in the custody of the Missouri Department of Corrections. Trial counsel filed a timely notice of appeal. The evidentiary facts are set out in that appeal, State v. Howard, 360 S.W.2d 718 (Mo., 1962), and it would serve no purpose to reiterate them here. After filing his notice of appeal, trial counsel withdrew from the fray and did not file a brief in the Supreme Court, nor did he appear to argue. The Supreme Court, as it was required to do, reviewed the record and the charges of trial error preserved in the motion for new trial filed with the trial court. Rule 27.20 and Rule 28.02. The conviction was affirmed.
Appellant then filed a 27.26 motion in the trial court seeking the vacation of the judgment; this motion was denied by the trial court and the action of the trial court was affirmed on appeal. State v. Howard, 383 S.W.2d 701 (Mo., 1964). A writ of habeas corpus filed in the United States District Court attacking appellant's incarceration was his next attempt to overthrow the conviction, but once again his efforts proved fruitless. Howard v. Swenson, 293 F.Supp. 18 (E.D.Mo., 1967). An appeal was then taken to the Eighth Circuit Court of appeals from the denial of the writ of habeas corpus in the District Court to no avail. Howard v. Swenson, 404 F.2d 469 (1968). However, following the disposition of his appeal in the Eighth Circuit Court of Appeals, the judgment of the Supreme Court of Missouri affirming his conviction was set aside for the reason that appellant had not had representation by counsel at that time. State v. Schaffer, 383 S.W.2d 698, 700(Mo., 1964). Counsel was appointed to present the appeal, and after briefs were filed in the Supreme Court of the State of Missouri and the case argued, the conviction of October 19, 1961, was once again affirmed. State v. Howard, 449 S.W.2d 662 (Mo., 1970). Appellant's next sojourn into the halls of justice was the filing of the motion now presented to us for review.
Prior to setting sail into appellant's troubled waters, there are certain fundamental rules of review applicable to motions filed pursuant to Rule 27.26 which we feel constrained to point out. A motion filed under Rule 27.26 is an independent civil action and the procedure before the trial court and on appeal is governed by the Rules of Civil Procedure insofar as applicable. Rule 27.26(a). The prisoner has the burden of establishing his grounds for relief by a preponderance of the evidence. Rule 27.26(f). Appellate review of an order overruling a motion filed under Rule 27.26 is limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.26(j), State v. Lang, 491 S.W.2d 12, 14(1) (Mo.App., 1973).
Appellant was present in person and by counsel at the evidentiary hearing afforded him subsequent to the filing of his motion to vacate. The same judge who presided at the trial in October, 1961, also presided at the evidentiary hearing despite the allegations made at a prior proceeding that said judge was prejudiced against the appellant. When he was afforded the opportunity to object to the same judge presiding at the evidentiary hearing, appellant said he had no objection. The only witness giving testimony at the evidentiary hearing was the appellant. The court file and transcript of the record of the trial were judicially noticed and at the conclusion of the evidentiary hearing the parties were given an opportunity to furnish the court with briefs. After the briefs were filed, the Court took the matter under submission and subsequently entered findings of fact and conclusions of law on all issues presented in the motion, and then entered judgment denying the motion. Rule 27.26(i).
Appellant's contention that the evidence, a piece f tape and a gun holster, used against him at the trial on the charge of Rape, was illegally seized without a search...
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Johnson v. State, 42493
...and to the party seeking relief and could not have become known to him through reasonable diligence. Cook, supra, 311. Howard v. State, 495 S.W.2d 120 (Mo.App.1973). The errors of fact must bear upon the validity of the proceeding and "be such as to affect the power and the right of the cou......