Lahmann v. State, No. 35032

CourtMissouri Court of Appeals
Writing for the CourtSIMEONE; DOWD
Citation509 S.W.2d 791
PartiesArchie L. LAHMANN, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent. . Louis District, Division One
Docket NumberNo. 35032
Decision Date07 May 1974

Page 791

509 S.W.2d 791
Archie L. LAHMANN, Plaintiff-Appellant,
v.
STATE of Missouri, Defendant-Respondent.
No. 35032.
Missouri Court of Appeals, St. Louis District, Division One.
May 7, 1974.

Page 792

Fred Rush, St. Charles County Public Defender, St. Charles, for plaintiff-appellant.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Robert Presson, Asst. Attys. Gen., Jefferson City, David A. Dalton, Pros. Atty., Dale Rollings, Sp. Pros. Atty., St. Charles, for defendant-respondent.

SIMEONE, Judge.

This is an appeal from an order of the circuit court of St. Charles County entered after an evidentiary hearing denying movant-appellant's motion pursuant to Rule 27.26, V.A.M.R. to vacate sentence imposed for the offenses of burglary second degree and stealing.

Appellant, Archie Lahmann, was tried in November, 1969 and sentenced on February 2, 1970 on charges of burglary second degree and stealing and the conviction was affirmed. State v. Lahmann, 460 S.W.2d 559 (Mo.1970).

On March 18, 1971 he filed his motion to vacate in the circuit court of St. Charles County alleging as grounds of his motion that (a) 'This Court refused petitioner a preliminary hearing with counsel present' and (b) 'This Court denied petitioner the right to competent and effective counsel.'

An evidentiary hearing was held at which movant and his former attorney,

Page 793

Ronald L. Boggs, were the principal witnesses.

After being charged with the offenses of burglary and stealing movant first appeared in magistrate court on June 18, 1969, and the right to obtain counsel was explained. The preliminary hearing was set for and heard on June 26, 1969. At the preliminary hearing on that date he appeared without counsel and was questioned whether he desired to hire an attorney or whether he desired the court to appoint one. Movant desired to hire his own counsel and desired a continuance to do so. The court indicated that it would grant a one-day continuance to employ counsel, but movant indicated he needed more time. The continuance was denied and the preliminary hearing was held without counsel.

Sometime early in July and prior to July 18, 1969, movant employed Ronald L. Boggs as counsel. On July 18, 1969 Boggs filed a motion to remand the cause for a preliminary hearing with the assistance of counsel. This motion was denied on August 4, and on the date movant entered a plea of not guilty. At defendant's request, the cause was continued until November 25, 1969. During that period movant met with counsel three or four times. The day before trial movant informed Boggs that he did not wish to be represented by Boggs and wanted to obtain a different attorney. The reason that movant gave was that petitioner 'had not told him (Boggs) everything.' Sometime prior to the trial a 'joint decision' was reached that Boggs would sit mute during the trial because no attorney was present at the preliminary hearing, the court denied a continuance and because movant no longer wanted Boggs as his attorney. The 'agreement' was somewhat 'of instructions (from movant) and somewhat of an agreement.'

While not all the facts concerning this decision were detailed in the evidentiary hearing on the motion, they are related in State v. Lahmann, supra.

After the evidentiary hearing the trial court made findings of fact and conclusions of law. The court found inter alia that (1) while petitioner does not have an abundance of formal education, he is 'articulate, possesses an average or better command of the English language and expresses himself clearly, (2) that in the Magistrate Court he was granted time to employ counsel for preliminary hearing but that he failed to do so although ample explanation was made of his right to obtain counsel, (3) petitioner was not represented by counsel at the preliminary hearing on June 26, 1969, (4) the first time petitioner told counsel he did not want him to defend him was the night before trial for the reason that he has not told counsel everything, (5) petitioner 'ordered' his counsel to sit mute during the trial and that this tactic was employed because the trial court refused to grant a continuance to employ other counsel, and that this tactic was agreed upon between movant and counsel for the purpose of injecting error, and (6) the grounds set...

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31 practice notes
  • People v. McKenzie, Cr. 22615
    • United States
    • United States State Supreme Court (California)
    • 8 September 1983
    ...evidence. 12 Thus, unlike Aiken, there were a number of objections which counsel here should have raised. In Lahmann v. State (Mo.1974) 509 S.W.2d 791, relied on by the People, the circumstances were significantly different in that counsel's refusal to participate was based on the instructi......
  • People v. Sullivan
    • United States
    • New York Supreme Court Appellate Division
    • 8 January 1990
    ...board where inference appears that defense counsel feigned ineffectiveness in order to create appellate issue]; Lahmann v. State, 509 S.W.2d 791 [Mo] [rejecting claim of ineffective assistance of counsel where defendant and attorney adopted tactic for purpose of creating reversible error]; ......
  • Singleton v. Lockhart, No. PB-C-82-165.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • 28 August 1986
    ...upon counsel and client agreeing upon a course of conduct which demonstrates egregious harm to the defendant. In Lahmann v. State, 509 S.W.2d 791 (Mo. App.1974), the court held that a client's and counsel's joint decision for counsel to sit mute through the trial could not serve to vitiate ......
  • McCrary v. State, No. 36400
    • United States
    • Missouri Court of Appeals
    • 23 September 1975
    ...review we are limited to a determination of whether the order of the trial court is clearly erroneous. Rule 27.26(j); Lahmann v. State, 509 S.W.2d 791, 794 As to appellant's point concerning an illegal search and seizure, the trial court was clearly correct in denying the motion to vacate. ......
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31 cases
  • People v. McKenzie, Cr. 22615
    • United States
    • United States State Supreme Court (California)
    • 8 September 1983
    ...evidence. 12 Thus, unlike Aiken, there were a number of objections which counsel here should have raised. In Lahmann v. State (Mo.1974) 509 S.W.2d 791, relied on by the People, the circumstances were significantly different in that counsel's refusal to participate was based on the instructi......
  • People v. Sullivan
    • United States
    • New York Supreme Court Appellate Division
    • 8 January 1990
    ...board where inference appears that defense counsel feigned ineffectiveness in order to create appellate issue]; Lahmann v. State, 509 S.W.2d 791 [Mo] [rejecting claim of ineffective assistance of counsel where defendant and attorney adopted tactic for purpose of creating reversible error]; ......
  • Singleton v. Lockhart, No. PB-C-82-165.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • 28 August 1986
    ...upon counsel and client agreeing upon a course of conduct which demonstrates egregious harm to the defendant. In Lahmann v. State, 509 S.W.2d 791 (Mo. App.1974), the court held that a client's and counsel's joint decision for counsel to sit mute through the trial could not serve to vitiate ......
  • McCrary v. State, No. 36400
    • United States
    • Missouri Court of Appeals
    • 23 September 1975
    ...review we are limited to a determination of whether the order of the trial court is clearly erroneous. Rule 27.26(j); Lahmann v. State, 509 S.W.2d 791, 794 As to appellant's point concerning an illegal search and seizure, the trial court was clearly correct in denying the motion to vacate. ......
  • Request a trial to view additional results

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