Jones v. State, 56068.

• Decision Date: 11 October 1971
• Docket Number: No. 56068.,56068.
• Parties: Jerry Dean JONES, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

471 S.W.2d 223

Jerry Dean JONES, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 56068.

Supreme Court of Missouri, Division No. 1.

September 13, 1971.

Rehearing Denied October 11, 1971.

Edwin S. Baldwin, Thomas E. Wack, St. Louis, for movant-appellant.

John C. Danforth, Atty. Gen., John W. Cowden, Asst. Atty. Gen., Jefferson City, for respondent.

HOLMAN, Presiding Judge.

On July 8, 1968, movant (hereinafter referred to as defendant) entered a plea of guilty to a charge of second degree murder and was sentenced to imprisonment for a period of 20 years. See §§ 559.020 and 559.030.¹ Defendant thereafter filed the instant motion to vacate the judgment under S.Ct. Rule 27.26, V.A.M.R. After holding an evidentiary hearing the trial court overruled the motion and defendant has duly appealed.

The grounds alleged in the motion to vacate were that "(1) Petitioner was denied and deprived of a competency hearing prior to the acceptance of a plea of guilty, by the trial court, because evidence of incompetency existed, contrary to due process of the law. (2) Petitioner did not enter a voluntary plea of guilty with the full understanding of the nature of the charge and the consequences of a guilty plea, contrary to due process of the law. (3) Petitioner was not competent to enter into a bargain for a set amount of time, for a guilty plea, because he was addicted to habit-forming drugs prior to arrest, and was mentally affected from withdrawal symptoms at the time of plea arrangement, pleading and sentencing."

It will perhaps be of interest to state briefly the facts relating to the shooting out of which this case arose. On the evening of September 16, 1967, the defendant and a companion entered a tavern located on South Grand Avenue in St. Louis and went to a certain table. Certain words of profanity took place between defendant and other parties sitting at the table. After a time defendant obtained a pistol from his companion and pointed it at a man called "Spider." Spider took hold of defendant's hand and raised the gun and a shot was discharged. At that time Spider started to move away and defendant fired another shot in his direction. Defendant then walked over toward the bar area, turned, and fired a shot which struck one Terry Dillman. Dillman died shortly thereafter. Defendant and his companion left the tavern and were arrested a few hours later by police officers.

On the hearing of the 27.26 motion defendant testified that he did not know Terry Dillman and did not intend to kill him. The clear inference from this testimony is that he intended to shoot Spider but that the bullet struck Dillman. Defendant further testified that prior to his arrest he had been taking various drugs, including amphetamine and marijuana; that on the morning that his plea of guilty was entered he took a "shot" which included amphetamine and cocaine but that he remembered what occurred at the time his plea was entered; that on that morning, in the conference room, he talked with his attorney, and to his wife, mother, and brother about whether he should take the 20 years or go to trial; that he really didn't want to plead guilty but he did so because his attorney said he would get 50 years if he went to trial; that he did not consider that he was guilty of the charge because, although he shot the victim, it was accidental; that he did not understand the elements of second degree murder. He also testified as follows: "Q Now, prior to the time you pled guilty in this case were you aware of the minimum and maximum range of sentence that could be placed on you for second degree murder? A Ten or life. Q Did you know that? A Yes. Q Were you aware— Did Mr. Dobberstein tell you that the minimum was ten, or did you find that out afterwards? A Guys in jail told me. Q Did you know this before you pled guilty, that the range of sentence was from ten to life? A I didn't know for sure, no. * * * Q (by Mr. Baldwin): Did Mr. Dobberstein tell you the various elements that constitute the crime of second degree murder? A No, sir."

Defendant's older brother, William R. Jones, testified that he had seen defendant using drugs several times prior to his arrest. He testified that on the morning of the court proceedings defendant "didn't act like himself; his eyes were real big and the pupils were open wide. He would be real quiet one minute and then flare up real quick"; that in the conference room "my brother was asking us whether or not he should take that twenty years and we were just having a conversation between us and his wife says, `Go ahead and take it' and he just flared up and turned around and spun and hit the wall"; that a guard who was present told defendant, "You best take that twenty years because you'll get fifty if you don't." He further stated that he and his mother did not want defendant to enter a plea of guilty.

Paul Dobberstein, Jr., an attorney specializing in criminal practice, represented defendant on the original charge. He testified that when he first interviewed defendant he saw nothing unusual about his mental condition; that he talked with defendant's mother and she told him that defendant was struck with a baseball bat in 1962 and she suspected that he might have a mental problem; that he therefore filed a motion to obtain a psychiatric examination; that the circuit attorney's office consented to the motion and the examination was ordered; that after the examination was made at the State Hospital at Fulton he received a copy of a report, dated May 24, 1968. The witness was requested to read portions of the report, which included the following: "Orientation: He is oriented for time, place and person. Memory: His memory is unimpaired for both recent and remote events. Speech and mental activity: He is coherent, alert, relevant and there are no hallucinations or delusions. Mood and effect: There is neither depression nor elation and his mood is appropriate to the situation. Although he showed some mild anxiety it is considered to be no more than that which would be expected in a person in his present situation. Insight and Judgment: Both appear to be intact. Psychological testing: Psychiatric test indicates that he is functioning in dull normal range of intelligence. The test failed to indicate the presence of any psychosis. * * * FINDINGS: One: That the accused has no mental disease or defect within the meaning of § 552.010. Two: That the accused has the capacity to understand the proceedings against him and can assist in his own defense. Three: That the accused did know and appreciate the nature, quality, and wrongfulness of the act with which he is charged."

This witness testified further that he did not remember "for sure" whether he explained to defendant the elements of second degree murder or the range of punishment; that the case was set for trial for July 8, 1968, and he was prepared to try it; that on that morning he conferred with the defendant and several members of his family in the conference room; that defendant appeared very nervous and at times didn't seem to hear what was said; that he left the room for a short time and when he returned defendant told him he would enter a plea of guilty. He stated that he had previously "explained to him what could happen and the consequences of going to trial"; that under the facts of the case he felt it was to the defendant's best interest to enter a plea of guilty and had recommended that he do so.

Defendant also offered as a witness Dr. T. F. Summers who testified that he had been the Jones family physician from about 1957 to 1966; that when defendant was struck by the baseball bat in 1962 he was unconscious for a period of time, during which time he had several spasms and afterwards complained of severe headaches; that he underwent a personality change, complaining of loss of memory, and was inclined to be cross and ill-tempered; that he had him admitted to a hospital for examination but no definite organic pathology was found; that in 1966, when he last saw him, he thought defendant's mental condition was such that he could have understood the nature of the charges that were brought against him.

An examination of the transcript of the proceedings at the time the plea was entered discloses that the court used meticulous care in explaining the procedure and in endeavoring to ascertain that defendant was entering his plea voluntarily and with full knowledge of the consequences. The only possible omission was that the court did not tell defendant the range of punishment for the offense. That, no doubt, was omitted because it clearly appears that the attorneys had a definite agreement that if defendant pleaded guilty he was to receive a twenty-year sentence. Apparently the court had knowledge of the agreement, and it had been discussed by defendant with the members of his family.

At the time of ruling on the motion the trial court entered detailed findings of fact and conclusions of law. We will not extend this opinion by quoting...