Huffman v. State, 54416

• Citation: 451 S.W.2d 21
• Decision Date: 09 March 1970
• Docket Number: No. 1,No. 54416,54416,1
• Parties: Jimmy W. HUFFMAN, Movant-Appellant, v. STATE of Missouri, Respondent
• Court: United States State Supreme Court of Missouri

Page 21

451 S.W.2d 21

Jimmy W. HUFFMAN, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 54416.

Supreme Court of Missouri, Division No. 1.

March 9, 1970.

Patrick O. Freeman, Jr., Thayer, for appellant.

John C. Danforth, Atty. Gen., Michael L. Boicourt, Asst. Atty. Gen., Jefferson City, for respondent.

HOUSER, Commissioner.

Appeal from order denying motion by Jimmy W. Huffman under Criminal Rule 27.26, V.A.M.R., to vacate and set aside sentence and judgment of life imprisonment and withdraw plea of guilty.

On October 8, 1946 appellant, then 16 years old, pleaded guilty to murder in the first degree and was sentenced to life imprisonment. In September, 1966 appellant, while serving his term in the penitentiary, filed this motion in the Circuit Court of Howell County, from which the venue was changed to Shannon County. Twice amended, this motion came on for hearing on numerous grounds stated in separate paragraphs lettered (a) through (q). A full evidentiary hearing was conducted. Appellant introduced the justice of the peace and circuit court records, testified personally, and adduced the testimony of his stepfather. Witnesses for the State were heard in the person of the sentencing judge, now retired; one of appellant's two court-appointed lawyers, and the former prosecuting attorney. The court took the case under advisement and after thorough consideration filed extensive findings of fact and conclusions of law on the several points raised by movant and entered an order and judgment denying the relief prayed for and remanding appellant to the custody of the department of corrections. From this order and judgment appellant, allowed to appeal as a pauper, and ably represented by counsel, has taken this appeal.

Appellant assigns error in refusing to exclude witnesses from the courtroom during the trial of the motion. Appellant's counsel did not invoke the exclusionary rule prior to the commencement of the hearing. The first witness was the circuit clerk, called to identify official records in the case. After the clerk had been asked and had answered 14 questions and had produced 25 documents, which were identified and marked as exhibits, appellant's counsel asked the court to invoke the rule on the witnesses. While the clerk was testifying the former circuit judge, a highway patrol trooper, the incumbent magistrate, Mr. Robert Hyder, who served as one of appellant's lawyers in 1946, and the then prosecuting attorney had entered the courtroom. The judge stated that the rule not having been requested at the time the hearing commenced he did not feel that he should ask the witnesses to leave the courtroom thereafter and denied the request. In so ruling the court did not err. Appellant had no right to the enforcement of the rule excluding witnesses from the courtroom. Its application is a matter resting within the sound discretion of the trial judge. State v. Crider, Mo.Sup., 419 S.W.2d 13, 14(5). The witnesses who were allowed to remain in the courtroom were officers or former officers of the law. The circuit judge conducting the hearing presumably knew whether or not these witnesses were persons whose testimony would likely be influenced by their hearing that of others. State v. Tummons, Mo.Sup., 34 S.W.2d 122, 124(4). (The only testimony they could have heard was that of the circuit clerk, appellant and his stepfather.) Neither the testimony these witnesses gave nor anything revealed by this record indicates that any of them had any special interest in the case adverse to that of appellant or that any one of them was prejudiced against him. State v. Hamilton, 340 Mo. 768, 102 S.W.2d 642, 648(20). No abuse of discretion was shown.

Next, appellant asserts that the court erred in its ruling because there was no transcript of the proceedings of October 6, 1946 available to appellant. Appellant claims that it was not only the statutory duty of the court reporter to take the evidence, under § 13340, RSMo 1939, now § 485.050, V.A.M.S., but also because the judge specifically ordered the court reporter to report the proceedings on that occasion; that appellant made five unsuccessful attempts after October 6, 1946, to obtain such a transcript, the first as early as March, 1953; that he sought the same as an indigent person and therefore was entitled to one free of charge; that he was free of fault and it was not due to his lack of diligence that the notes were lost or the transcript was not available; that he is entitled to such a transcript under the cases of Scharff v. Holschbach, 220 Mo.App. 1139, 296 S.W. 469; State v. McCarver, 113 Mo. 602, 20 S.W. 1058, and State v. Keeble, Mo.Sup., 427 S.W.2d 404; that the transcript would aid in disclosing the truth as to what happened at the hearing of this case in which 'the legal proceedings from the first arrest up to the sentence are highly questionable and are rightly under attack.'

The court did not err. The cited cases do not compel such a conclusion. The question is whether the proceedings of October 6, 1946 were irregular, illegal or demonstrate prejudice entitling appellant to the vacation of the sentence then imposed. The burden of proof on the issue rests upon appellant. We cannot presume that the transcript, produced, would demonstrate irregularity, illegality or prejudice. On the contrary, we presume that the actions of a circuit court are regular and legal. A finding that a convict was prejudiced in the proceedings leading to his conviction will not be made in the absence of evidence establishing prejudice. Although the nonavailability of a transcript and its apparent loss or disappearance is deplorable, its absence is not fatal to the validity of the conviction. The deficiency of the record does not necessarily require, upon application, that a plea of guilty be set aside. State v. Mountjoy, Mo.Sup., 420 S.W.2d 316, 323. The burden is on the defendant at the hearing on his motion to demonstrate, notwithstanding the deficiency of the record, that his plea of guilty was in fact involuntary or was made without an understanding of the nature of the charge, and that manifest injustice therefore resulted from the trial court accepting the plea. Mooney v. State, Mo.Sup., 433 S.W.2d 542, 544. The loss of or disappearance of a transcript is a fact of life with which those whose contentions rest upon such transcripts must contend, the same as the situation which confronts a party who rests his case upon the knowledge of a witness who is dead and whose testimony therefore is no longer available. State v. Keeble, supra, 427 S.W.2d l.c. 409(10).

Appellant's third assignment of error is that the plea of guilty was predicated upon a coerced written confession obtained from appellant in the State of Louisiana 'which was held over appellant's head in the State of Missouri.' At the time this crime was committed appellant was 15 years old. He had a 7th grade education. On his behalf there was testimony that he was arrested in Louisiana; that the highway patrol officers broke into the home, threatened to shoot anyone who 'stepped out of turn' and that he was subjected to 5 or 6 hours of questioning at headquarters, during which he was slapped from the rear on the side of his face, causing him to fall and cut his chin on the corner of a desk; that officers wrote out a confession; that after being 'slapped around quite a bit' he signed something. He did not know whether what he signed was a confession or not. It was never read to him and he did not read it. He testified that he was frightened, confused, had no attorney and no friends; that his stepfather was permitted to bring him clothes at the jail but was prohibited from talking with the boy. He was returned to West Plains, Missouri on July 12, 1946. He had no visitors at the jail. His first contact with an attorney was about a month later. An attorney named George Schubert talked to him about getting the court to try him in juvenile division. Such a motion was filed September 12, 1946. Mr. Robert Hyder, now Chief Counsel for the State Highway Department, was appointed attorney for appellant after the preliminary hearing, which was conducted on July 16, 1946. Appellant testified that local newspaper publicity was unfriendly; that the public sentiment...