Jones v. State

• Decision Date: 13 October 1969
• Docket Number: 54037,Nos. 54036,No. 2,s. 54036,2
• Citation: 445 S.W.2d 311
• Parties: Jerry JONES, Appellant, v. STATE of Missouri, Respondent. STATE of Missouri, Respondent, v. Jerry JONES, Appellant
• Court: Missouri Supreme Court

Page 311

445 S.W.2d 311

Jerry JONES, Appellant, v. STATE of Missouri, Respondent.

STATE of Missouri, Respondent, v. Jerry JONES, Appellant.

Nos. 54036, 54037.

Supreme Court of Missouri, Division No. 2.

Oct. 13, 1969.

J. Arnot Hill, Lem T. Jones, Jr., Kansas City, Russell S. Jones, St. Louis, for appellant.

John C. Danforth, Atty. Gen., Gene E. Voigts, Asst. Atty. Gen. Jefferson City, for respondent.

MORGAN, Judge.

Defendant appeals from the judgment imposing a life sentence for first degree robbery, and also from the judgment entered, after an evidentiary hearing, in the post-conviction proceeding under Supreme Court Rule 27.26, V.A.M.R. The two appeals, upon request of the parties, have been consolidated.

A single chronological recitation of the history of this case will provide a basis for consideration of both appeals.

Defendant was charged, as a second offender, with being one of four men who committed armed robbery on December 11, 1950, at the P & G Market, 2417 Troost Avenue, Kansas City, Missouri. Sections 560.120, 560.135 and 556.280, RSMo 1959, V.A.M.S. The habitual criminal charge was based on a prior conviction for armed robbery in California. After trial to a jury, defendant's punishment, on June 26, 1951, was assessed at confinement for life. The state's case was based on the testimony of three eyewitnesses and defendant's written confession. No appeal was taken. Defendant received an institutional parole in 1959, which was soon revoked. On October 7, 1964, defendant filed his pro se motion to vacate the sentence and judgment under the provisions of Rule 27.26. This motion was overruled by the trial court without an evidentiary hearing. An appeal was taken from this order, and this court, on June 19, 1967, set aside the submission and remanded the cause for further action consistent with the procedure outlined in State v. Stidham, Mo., 415 S.W.2d 297. With the aid of counsel, an amended motion under Rule 27.26 was filed. It attacked the original judgment on the following grounds: (1) The trial court, after the preliminary hearing outside the presence of the jury, failed to make of record a sufficient finding as to whether or not defendant's confession was voluntary; (2) An appeal was denied because the decision not to do so was 'made solely by defense counsel and not by movant (defendant)'; (3) Effective assistance of counsel was denied for the sole reason no appeal was perfected; (4) The issue as to the voluntariness of defendant's written confession was submitted to the jury in an erroneous instruction. The trial court entered findings of fact and conclusions of law, reference the first three grounds, in its judgment entered under Rule 27.26. It then vacated and set aside the original sentence and judgment, and resentenced defendant to confinement for his natural life. From the latter sentence, the direct appeal has been taken. It presents the one issue designated in point (4) pertaining to the instruction on voluntariness of the confession.

We consider first the appeal from the judgment entered in the post-conviction proceeding under Rule 27.26, and we would be remiss if we failed to mention that the findings of fact and conclusions of law entered by the trial court make it obvious they were made with full knowledge, understanding and appreciation of present day concepts of the rights of the accused. A transcript of the testimony given at the original trial, both at the preliminary hearing before the court and later before the jury, and the testimony at the 27.26 hearing were considered. The court found that after defendant had interposed an objection to the state's offer of the written confession, a hearing was held outside the presence and hearing of the jury. It then concluded: 'I hold that the hearing itself met the requirements of Jackson v. Denno, 378 U.S. 368, 12 L.Ed.2d 908, 84 S.Ct. 1774 (1964). It was the usual Missouri procedure held by our Supreme Court (State v. Washington, Mo., 399 S.W.2d 109, 114(12)) to be the same as the Massachusetts procedure described and impliedly approved in Jackson * * * A more formidable question is presented as to the form of the ruling: '* * * I am going to overrule the objection, and let the jury pass on the question of whether it was a voluntary confession or not. " The trial court concluded that the entry as made, overruling the objection, did not indicate the original trial judge had abrogated his duty to rule first on the issue of voluntariness. However, consideration was given to Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967) wherein it was held: 'Although the judge need not make formal findings of fact or write an opinion, his conclusion that the confession is voluntary must appear from the record with unmistakable clarity.' Based on Sims, the court found the original entry inadequate, and upon request of both defendant and the state conducted a new hearing on the question of voluntariness in the manner suggested in Jackson v. Denno, 378 U.S. at 395, 84 S.Ct. 1774.

After that hearing, it was determined that the arresting officers had fully advised defendant of his constitutional rights; that the confession had been given voluntarily; that defendant's testimony to the contrary was inconsistent and incredible; and that such conclusions were found 'to be true beyond a reasonable doubt.' More specifically, it found defendant's testimony to be: that he denied being an addict; that he signed on the promise he would get narcotics; that he was given narcotics and didn't recall the statement (although all other events of the afternoon were recalled); that he guessed he had signed; that he recognized his signature.

Such findings and conclusions by the trial court are presumed to be correct and are to be affirmed unless found to be clearly erroneous, State v. Mountjoy, Mo., 420 S.W.2d 316, and we are convinced that a mistake has been committed. Crosswhite v. State, Mo., 426 S.W.2d 67. Rule 27.26. (j). Although we are not to provide a de novo review, of necessity, to determine if the findings of the trial court are clearly erroneous or that the court has abused its discretion on the issue of credibility, we have reviewed the entire record covering all stages of this case. It shows two experienced trial judges have now ruled the confession to have been voluntary.

From the record, we find that three days after the alleged offense two officers sought to arrest defendant at the Tenth Street Hotel. He jumped from a second story window and fled as the officers shot at him. After a chase, he was arrested and taken to the robbery bureau for questioning. This department was on the second floor of the municipal building that had a jail on the eighth floor. The two officers who signed as witnesses to the statement testified they were present during the entire time the confession was made. They said defendant was coherent, not exceptionally nervous, and willing to voluntarily give a statement; that this was done after defendant had been fully advised of his constitutional rights; that no drugs were administered, offered or promised to defendant; that there was no reference to drugs; and, that they knew nothing of a doctor being called or of his giving morphine to defendant; that the statement was prepared and signed between 4:30 p.m. and 'a little after five.' A doctor testified that he was an interne at General Hospital and had been called on December 14, 1950 (the date of the confession), to the city jail; that (defendant) 'told me he was an addict and * * * that he needed some.' He described defendant as 'nervous and shaky * * *' but as being coherent. He could not recall the time of the 'shot' but testified '* * * it was before I went off at 6 o'clock--it was right before I went off.' Later he said it...