Kimble v. State

• Decision Date: 13 November 1972
• Docket Number: No. 57298,No. 2,57298,2
• Citation: 487 S.W.2d 544
• Parties: Fred L. KIMBLE, Movant-Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 544

487 S.W.2d 544

Fred L. KIMBLE, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 57298.

Supreme Court of Missouri, Division No. 2.

Nov. 13, 1972.

Motion for Rehearing or Transfer to Court En Banc Denied

Dec. 11, 1972.

Terry C. Allen, George R. Wilhoit, Jr., Hyde, Purcell, Wilhoit & Edmundson, Poplar Bluff, for movant-appellant.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.

NINIAN M. EDWARDS, Special Judge.

This is appeal by Fred L. Kimble from the Order of the Circuit Court of Butler County denying his Motion pursuant to Supreme Court Rule 27.26 V.A.M.R. to withdraw his plea of guilty entered on March 28, 1969 to the armed robbery of the Puxico State Bank in Stoddard County, Missouri, and to set aside the judgment and sentence for a term of sixteen (16) years.

The appellant in September 1968 was arrested on suspicion of having robbed a bank in Stoddard County, Missouri. After the complaint was filed in the Magistrate Court of Stoddard County charging this appellant and other persons with having committed this armed robbery he disqualified the Stoddard County Magistrate and the Butler County Magistrate was called in to conduct the preliminary hearing. The preliminary hearing was held and the appellant appeared in person and with retained counsel. He was bound over for trial in the Circuit Court of Stoddard County, together with his other co-defendants. Upon his application for change of venue the cause was transferred to the Circuit Court of Butler County, Missouri. The preliminary hearing was held on September 20, 1968 and subsequently on March 28, 1969 the appellant appeared in the Circuit Court of Butler County with his retained counsel where he withdrew his plea of not guilty and entered a plea of guilty. He was questioned by the Court, allocution was granted and he was sentenced to imprisonment for a term of sixteen (16) years with the Missouri Department of Corrections, which sentence he is now serving.

On January 11, 1971 appellant filed his Motion to Vacate charging (1) that he was denied effective assistance of counsel; (2) that his plea of guilty was involuntary; (3) that he was mentally incompetent when he entered the plea and that the sentencing court failed to investigate this fact and failed to notify him of his right to a mental examination by a doctor of his own choosing paid for by the State; and (4) that the trial court was prejudiced against him.

At the evidentiary hearing held on appellant's Motion he testified that on September 3, 1968, which was the same day of the alleged bank robbery in Puxico, Missouri, he was arrested and confined in the Butler County Jail; that he remained there overnight and was released on bond the next day, and that he remained free on bond from that time until November 6, 1968 when he was charged in Stoddard County which resulted in his being confined in the Pemiscot County Jail; that he remained in the Pemiscot County Jail from November 6, 1968 until the last part of February or first of March 1969, a period of some four (4) months. He complained that while he was there he was physically mistreated, resulting in a 'busted lip' and two black eyes, and that while there he was interrogated by various enforcement officers who offered to release his sister and his girl friend from custody if, he the appellant, would plead guilty to the charge against him. He further described himself as being a drug addict and stated that he was withdrawing from this addiction while in jail which caused him to be ill and to be sick and he stated that certain officers told him that his habit would be taken care of if he would plead guilty and get it over with. Others testified to the effect that on visits into the Pemiscot County Jail they had observed that appellant had a 'busted lip' on one occasion and two black eyes on other occasions. The appellant stated that upon his arrest he employed a lawyer of his own choosing and that this lawyer appeared with him at the preliminary hearing when he was bound over to the circuit court. He said his lawyer advised him that it would be well for him to enter a plea of guilty and that if he did so the girls (that is, his girl friend and his sister) would be released. He described his service in the United States Army wherein he was in the Corps of Engineers from 1961 to 1963 and admitted that he went A.W.O.L. several times. He testified that he was eventually court-martialed for going A.W.O.L. and he was given a bad-conduct discharge and sentenced to serve two (2) years in Leavenworth. He served approximately seven (7) months of the time given him and while there he received medication from the physician there for his nerves. He stated that he was treated regularly by a psychiatrist once or twice a week while he was there and that he had always been what you would call a nervous person. On cross-examination he observed that he did pass the physical examination at the time he entered the Army in 1961 and that upon his release from Leavenworth he returned to his occupation as a cabinet maker in St. Louis, where he worked regularly at that occupation. He also testified that he did have a physician that treated him in St. Louis upon his release from service and that the last time this physician saw him about his nervous condition was about 1965 or 1966. He said that he had never been in any mental institution, but he said that he is still taking pills at the present time for his nervous condition. He never has been in the State Hospital at Fulton and the treatment that he is receiving at the Missouri Penitentiary has been only at the main hospital.

The evidence offered by the appellant also showed that he was visited regularly by his parents and the parents of his girl friend while he was incarcerated in both the jail at Pemiscot County and the jail at Stoddard County. During the entire period of time from his arrest in September 1968 until he entered a plea of guilty in March 1969 he had the services of his retained attorney. Both his mother and father were present at the time he entered the plea of guilty, as were the mother and father of his girl friend. The records of the Sheriff of Butler County showed that prior to his plea of guilty he was returned to that County on February 10, 1969 and he remained in Butler County ...