Jones v. State
| Decision Date | 12 March 1973 |
| Docket Number | No. 1,No. 57134,57134,1 |
| Parties | Henry JONES, Jr., Movant-Appellant, v. STATE of Missouri, Respondent |
| Court | Missouri Supreme Court |
Courtney Shands, Jr., St. Louis, for movant-appellant.
John C. Danforth Atty. Gen., Preston Dean, Assist. Atty. Gen., Jefferson City, for respondent.
WELBORN, Commissioner.
Appeal, filed prior to January 1, 1972, from denial fo relief in proceeding under Rule 27.26, V.A.M.R., from 20-year sentence on jury verdict of guilty of robbery in the first degree by means of a dangerous and deadly weapon. The judgment was previously affirmed on direct appeal. State v. Jones, Mo.Sup., 456 S.W.2d 7.
The conviction arose from what the state's evidence showed was a holdup at a pool hall in St. Louis on March 31, 1969. The victim of the robbery, Julius Terrell, testified that defendant Henry Jones, Jr., entered the pool hall in which there were numerous other patrons, sought a game of pool and Terrell obliged him. At the conclusion of the game, on which there was no gambling and on which Terrell 'ran out,' Jones pulled a gun from his pocket and ordered Terrell to put all of his money on the table. Terrell did so. Jones picked it up and left the pool hall. Terrell and another patron followed Jones from the pool hall, encountered a police officer whose aid they obtained and Jones was arrested shortly, a block from the pool hall.
Jones testified that he entered the pool hall because he had seen dice shooting going on; that he entered the game and won some $57 from Terrell; that he and Terrell argued over defendant's 'point' on one roll, and Terrell came at him with a pool stick and he took out his pistol and told Terrell to drop the pool stick. Terrell did so and Jones left the pool hall and shortly thereafter was arrested.
The issue raised on this appeal relates to a claimed inadequate assistance of counsel. Jones was represented by court-appointed counsel. In the course of the trial, Jones objected that his defense counsel was inrequest and sought his withdrawal. The request was denied. At the conclusion of the presentation of evidence, defense counsel informed the court that defendant had continually complained that he had been 'framed,' was not obtaining a fair trial and was not adequately represented by counsel. Counsel informed the court that the defendant had given him the names and addresses of no witnesses, had suggested no defense other than his taking the stand and telling the story which he told. Counsel said that he had repeatedly asked Jones if he had witnesses to support his story, but Jones had none.
No claim of inadequate representation by counsel was presented by defendant's motion for new trial.
In this proceeding, the claim of inadequate representation is based primarily upon the failure of counsel to make adequate investigation in preparation for trial. Trial counsel testified that he spent some 30 hours in preparing for trial. He talked with Jones four times. Jones asked him to contact his mother for help in obtaining witnesses. Counsel talked to Jones' mother six or eight times. She gave him the names of one or two persons whom he talked to, but they had no information of value. He tried to interview all of the state's witnesses listed on the indictment. He did not go to the pool hall to look for witnesses and he did not check the police records of the state's witnesses.
Jones testified that on at least four occasions he asked his trial counsel to go to the pool room to verify that he and Terrell had been gambling. He said that he specifically asked counsel to talk to the proprietor to whom Jones said he had pawned his watch to obtain money to gamble. At the 27.26 hearing, evidence was adduced on behalf of Jones that police records showed seven arrests of Terrell between 1955 and 1971, on gambling or suspicion of gambling, but there was no record of conviction as a result of any such arreste.
This case was heard and determined in the trial court prior to the determination by the court en banc of McQueen v. State, Mo., 475 S.W.2d 111. McQueen recognizes that defense counsel has a duty to investigate the case against his client. Under McQueen, on counsel's default in that regard, the defendant, when collaterally attacking the conviction, has the burden of showing that such default deprived him of a fair trial. This burden requires the defendant to demonstrate 'that on retrial there will be evidence which is substantial and which was not available at the previous trial because of failure of his counsel to properly investigate.' 475 S.W.2d 118.
The trial court's finding in this case that defense couns...
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