Johnson v. State, 56421

• Decision Date: 10 April 1972
• Docket Number: No. 56421,No. 2,56421,2
• Citation: 479 S.W.2d 416
• Parties: Austin V. JOHNSON, Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 416

479 S.W.2d 416

Austin V. JOHNSON, Appellant, v. STATE of Missouri, Respondent.

No. 56421.

Supreme Court of Missouri, Division No. 2.

April 10, 1972.

Motion for Rehearing or to Transfer to Court en Banc Denied

May 8, 1972.

Paul Brackman, Clayton, for appellant.

John C. Danforth, Atty. Gen., Stephen D. Hoyne, Asst. Atty. Gen., Jefferson City, for respondent.

STOCKARD, Commissioner.

Austin V. Johnson has appealed from the order of the Circuit Court of St. Louis County denying his three separate motions, consolidated for hearing, pursuant to Supreme Court Rule 27.26, V.A.M.R., to withdraw his plea of guilty entered on December 8, 1961, in each case to first degree murder, and to set aside the judgment and concurrent sentence in each case of life imprisonment.

Appellant was charged by indictment with the murder of his wife, Elizabeth Johnson, by stabbing her with a butcher knife. He was charged by information in two other cases with the murder of his father-in-law, Albert E. Bruce, and his mother-in-law, Beatrice Bruce, by shooting them with a shotgun. The three murders occurred within one half hour, but at two different locations.

Appellant testified in the hearing on his motions that immediately prior to September 15, 1961, he and his wife had been living in Webster Groves, Missouri. There had been some previous marital difficulties, but in August appellant had gone to Minnesota on vacation and his wife was to join him later. When he called her and she told him she was not going to Minnesota, he returned home and found that his wife had moved out of his house and had rented another house, and her parents were living with her. This situation caused appellant to have a nervous condition, and he consulted a doctor who prescribed two drugs, one called 'Doriden' and the other 'Dornwal,' identified by the prescribing doctor as a sleeping pill and a 'mild tranquilizer.' According to appellant, on September 15, 1961, he left his employment at noon with the intention of driving to Southeast Missouri to see his mother. He stopped at a service station, purchased a soft drink and mistakenly took one of the Doriden pills when he intended to take a Dornwal pill. When he discovered his mistake he took the Dornwal pill and drank the soft drink. He testified that after he left the service station he had no recollection of anything that occurred until he was driving on Highway 61 near Ste. Genevieve when he heard his name mentioned on the radio of his automobile. He drove on to his mother's place, and later when he saw a Highway Patrol automobile approach he ran away and walked to the home of an aunt who persuaded him to call the authorities.

The murder of appellant's wife occurred at her place of employment at approximately 1:30 o'clock in the afternoon of September 15. There were at least three eyewitnesses. Mr. and Mrs. Bruce were murdered approximately twenty-five minutes later at their home. The only eyewitness to these murders was appellant's 3 1/2-year-old daughter, but there was other evidence, circumstantial in nature, which implicated appellant.

In his motions pursuant to Rule 27.26, V.A.M.R., appellant presented twelve grounds on which he sought to set aside his pleas of guilty. After a hearing was had on that motion and the trial court entered its findings, appellant sought to amend his motion, and after being permitted to do so, a second hearing was held on the amendment before a different judge. We shall refer to the two motions and hearings as though there was but one.

In his brief appellant has reclassified some or all of his alleged grounds for relief into three points with subpoints under each.

Appellant first contends the trial court erred in overruling his motions as to each of the pleas of guilty because the court accepted his pleas of guilty without first determining whether the pleas were entered voluntarily and with an understanding of the nature of the charges and the possible penalties therefor. He asserts in the subpoints that this failure on the part of the court is evidenced by the following: (a) the court failed to advise appellant that a plea of guilty constituted a confession in open court and constituted a waiver of his constitutional right against self-incrimination; (b) it did not make inquiry with respect to whether appellant had been subject to coercion, threats, promises, agreement or other inducement which might have borne on his decision to plead guilty; (c) it failed to make inquiry as to whether appellant actually committed the offenses charged; (d) it did not inquire whether appellant understood he was entitled to a jury trial; (e) it did not advise appellant of his right to confront his accusers and to remain silent; and (f) it did not advise appellant he could receive a death sentence for each offense to which he entered a plea of guilty.

The transcript of the proceeding at the time the pleas of guilty were entered shows that appellant appeared before the court with his retained counsel, a lawyer experienced in criminal trials. Appellant personally anounced that he desired to change his plea of not guilty to guilty in the case in which he was charged with the murder of his wife. The court inquired of appellant whether he had had sufficient time to discuss his plea with his attorney and with a friend or relative, and appellant replied that he had and that he had reached his decision to enter pleas of guilty after those consultations. The court then asked appellant's counsel if he concurred in appellant's decision, and he replied that he did. The court then followed substantially the same procedure as to the other two charges of murder against appellant. Following this, the court asked for the facts of the offenses and they were related by the prosecuting attorney. In doing so he stated that appellant had murdered his wife with a knife and had shot and killed his father-in-law and his mother-in-law. During this explanation, appellant made no correction of the facts as related by the prosecuting attorney, and although his mother, stepfather, and the pastor of his mother's church were in the courtroom, no objection or correcting comment was made. At allocution appellant personally stated he had no legal reason why sentence and judgment should not be pronounced in each case.

The transcript discloses that the investigation made by the trial court before accepting the pleas of guilty was not as broad and inclusive as contemplated by Rule 25,04, V.A.M.R. But, after sentence the trial court may set aside the judgment of conviction and permit the withdrawal of a plea of guilty only 'to correct manifest injustice.' Rule 27.25, V.A.M.R. When seeking to withdraw a plea of guilty after sentence, the defendant has the burden to prove by a preponderance of the evidence the facts alleged in his motion which demonstrate that manifest injustice resulted from the acceptance of his plea of guilty. 'The issues before the trial court at the hearing on the motion, notwithstanding the failure of the record to show a determination prior to the acceptance of the plea as contemplated by Rule 25.04, are whether defendant's plea of guilty was in fact voluntarily made or whether it was made without an understanding of the nature of the charge. If neither of these circumstances is found to have existed no manifest injustice could have resulted from the acceptance of the plea.' State v. Mountjoy, Mo., 420 S.W.2d 316, 323.

In addition to the testimony previously set out, appellant testified that he saw and consulted with his attorney six or seven times over a period of four months, that he told him about taking the pills at the service station and about his lack of memory as to any occurrence until he heard his name on the radio. He further stated that his counsel did not discuss with him the evidence against him, or that the only eyewitness to the murders of his wife's parents was his 3 1/2-year-old daughter. He further stated that his counsel never discussed with him the possibility of a defense based on involuntary intoxication by use of drugs, but that he did tell him that if he went to trial there was a good possibility that he would receive the death penalty on at least one of the cases, but that the prosecuting attorney would recommend a life sentence on each if he entered a plea of guilty to all the charges. Appellant also testified that if he had been asked at the time of his plea of guilty if he had killed his wife or his father-in-law or mother-in-law, his answer would have been that he did not know whether he did or not.

Appellant's counsel was called by the State as a witness. He testified that he first saw and consulted with appellant about a week after the murders were committed, and that although appellant told him that he was taking medicine, he did not say anything about taking the medicine improperly. He also testified that appellant told him that after he left the service station he went to the office where his wife worked, and that appellant described to him the murders of his wife's parents, and gave various details such as the location of the bodies and which one died first. Appellant's counsel further testified that he told him that the State had evidence that he had purchased a butcher knife shortly before the murder of his wife, and when he asked appellant if he had done so appellant 'smiled and nodded yes.' His counsel also testified that he was aware of and discussed with appellant the State's evidence against him, and that he also discussed with him the evidence that appellant could present; that he told him there could be three separate trials and that the death penalty was possible; and if he was tried separately the sentences could be made to run consecutively, but that the prosecuting attorney had agreed to recommend three life sentences to run concurrently in the event appellant entered a plea of guilty to all three charges. Appellant's counsel also...