Mace v. State, 54628

• Decision Date: 13 April 1970
• Docket Number: No. 1,No. 54628,54628,1
• Citation: 452 S.W.2d 130
• Parties: Doyle Howard MACE, Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 130

452 S.W.2d 130

Doyle Howard MACE, Appellant, v. STATE of Missouri, Respondent.

No. 54628.

Supreme Court of Missouri, Division No. 1.

April 13, 1970.

James K. Prewitt, Springfield, for appellant.

John C. Danforth, Atty. Gen., Thomas L. Patten, Asst. Atty. Gen., Jefferson City, for respondent.

HIGGINS, Commissioner.

Appeal from denial, after hearing, of motion, under Criminal Rule 27.26, V.A.M.R., to vacate and set aside judgment of conviction of possession of a stimulant drug.

Doyle Howard Mace, charged with the felony of possession of amphetamine sulfate, a drug designated by the division of health to be a stimulant, and as a second offender, was convicted by a jury and the court sentenced him to three years' imprisonment. The judgment was affirmed upon direct appeal, State v. Mace, Mo., 427 S.W.2d 507, certiorari denied 393 U.S. 1039, 89 S.Ct. 663, 21 L.Ed.2d 587.

Appellant was represented by employed counsel throughout pre-trial proceedings, his jury trial, and upon direct appeal from his conviction. Although his motion for new trial contained allegations that the trial court erred in denying his motion for acquittal on the ground of insufficiency of evidence, in failing to instruct on entrapment, in overruling his motion to suppress evidence on the ground of unlawful search and seizure, in admitting evidence obtained by search and seizure, and in overruling his motion for discharge for failure to bring him to trial within the time allowed by Sections 545.920 and 545.900, V.A.M.S., the only issue presented by his brief on direct appeal was his contention he was entitled to discharge, which issue was ruled adversely to him.

Point I of appellant's brief on his collateral attack on the judgment of conviction states the contentions argued in Points II, III, IV, V, and VI. ¹ By point I appellant contends he was denied effective assistance of counsel by his employed lawyer charging that counsel failed: to raise and preserve entrapment, probable cause for arrest, and search and seizure for review; to apply for a change of venue when requested; to object and preserve error in the admission of testimony of Imogene Willard; and to notify appellant of the ruling on direct appeal, 427 S.W.2d 507, in time for him to point out how that decision was erroneous.

The trial court accorded an exhaustive evidentiary hearing on all grounds and, in denying relief, has made findings of fact and rulings of law on all issues. This review will recognize that movant and the burden of proving his grounds for relief, and will be limited to a determination whether the findings, conclusions, and judgment of the trial court are clearly erroneous. Crosswhite v. State, Mo., 426 S.W.2d 67, 70(1).

Point II contains two propositions:

The first is a contention that the supreme court erred in its decision adverse to appellant on direct appeal of this conviction and a reargument of that case. As previously stated, there was but a single question on that appeal, and the contention fails under the 'established rule that issues disposed of by the appellate court on review of the original judgment will not be reviewed in a collateral attack by motion pursuant to Rule 27.26.' Crawford v. State, Mo., 436 S.W.2d 632, 633(1).

The second contention of Point II is, in effect, that he had ineffective assistance of counsel in that appellant was not notified of the decision in time to file a motion for rehearing by which to supply information upon which the supreme court could further consider its decision. Under Civil Rule 83.16, V.A.M.R., a motion for rehearing 'must be filed within fifteen days after the opinion of the court shall be filed, * * * must be served on the adverse party or his attorney within said time.' The opinion disposing of the original appeal of this conviction was filed May 13, 1968, and the fifteen days in which to have filed motion for rehearing expired May 28, 1968. The supreme court file shows that neither counsel nor appellant filed a motion for rehearing. However, on May 28, 1968, there was filed by appellant, pro se, a 'Notice of Intent to File and Petition the Court for Re-Hearing of the Issue with Showing of New Grounds.' That document stated that appellant had, as of May 23, 1968, a copy of the court's opinion of May 13, 1968, and that he had received no previous knowledge of the decision from his lawyer. His plea was not for rehearing but was for 'additional time * * * for appellant to seek counsel and advice.' The motion was denied for the obvious reason that the rule makes no provision for extension of time in which to file motion for rehearing. See Ely v. Parsons, Mo.App., 399 S.W.2d 613, 619(12--14). The file further shows that appellant was on May 28, residing at P.O. Box 4000, Springfield, Missouri. His motion in this proceeding states that he had knowledge that the decision had been filed eleven days after it had been filed and acknowledged that he then had four days in which to file a motion for rehearing. Appellant's testimony at the hearing was that Mr. Moon did not notify him of the court's decision and that he learned of it 'several days' after it was filed. 'I happen to get ahold of an old local newspaper out at the Medical Genter, several days old, * * *.' He was at the Center 'serving time' on a federal charge of possession of drugs. Appellant acknowledged that Mr. Moon had represented him in criminal matters 'quite a number of times'; that he had a reputation as one of the best criminal lawyers in southwest Missouri; that he hired him because he thought him to be a good lawyer. He also acknowledged that his wife visited him about every week at the Medical Center and that she came out in person and told him that his conviction hd been affirmed, 'probably along about the same time I read it in a week old newspaper or thereabouts.' William A. Moon has been a lawyer since 1936 in a practice of at least fifty percent criminal cases. He had represented appellant numerous times and had always secured acquittals from him until 1966. He communicated the decision on the original appeal to appellant through his wife. 'Mary Mace was in my office every little bit and I contacted her when I received the notification. I contacted her immediately. * * * The same day. * * * I knew that she was going out every week to the Medical Center to see Doyle and I didn't go to the Medical Center because it's quite a task for an attorney to set up an appointment out there * * *. We were on the best of terms as far as I know, still on good terms. No one was more surprised than myself when Doyle raised all these points.' Mr. Moon's notice that the supreme court had filed its decision came by telegram, he notified Mr. Mace the same day he received it, he got a copy of the opinion 'two or three days after the telegram,' and 'came to the conclusion * * * that no after appeal motion would avail us of anything and I didn't file one.' He so told Mrs. Mace. It was about four months later that he received a letter from appellant expressing dissatisfaction. '* * * it was the most mean and hateful letter that I had ever received from anybody in my life and I was completely surprised and I discussed that with Mrs. Mace and neither one of us could account for it.'

This evidence on this allegation of ineffective assistance of counsel demonstrates, without further exposition, some conflict with respect to whether and when appellant was notified by counsel of the decision of the direct appeal. The trial court resolved such conflicts against appellant and, on such evidence, it cannot be said that the finding was clearly erroneous.

Point III charges that the state was guilty of entrapment; that the court failed to instruct on the defense of entrapment, and inferentially, when read with Point I, that appellant had ineffective assistance of counsel by failure to secure an instruction and to brief the court's failure to give such instruction.

The all-inclusive answer to this contention is that there was no entrapment in this case. A fortiori, there is no trial error or ineffective assistance of counsel in failure to give or to offer such instruction or to brief any such point on appeal. Ronald A. Kramer, vice president of C. H. Ruckstuhl Drug Company in St. Louis, came to the Springfield Police Department to discuss a drug order contained in a letter purporting to be from 'James R. Caffey, M.D.,' who was not listed in the drug company's directory. The police knew there was no such doctor in Springfield. The police knew James R. Caffey as a felon in the Missouri penitentiary and, not knowing from whom the order actually came, asked Mr. Kramer to mail the drugs to the address indicated. Pursuant to the request, Mr. Kramer mailed the drugs, called the police and described the container. The police asked the postal inspectors to notify them when the package arrived. Upon receipt of that notification, the police went to the post office and identified the package from Ruckstuhl. It bore the address 2428 North Fremont, Springfield, Missouri, and the police parked near there when the postman delivered the package. About ten or fifteen minutes after delivery, appellant arrived by automobile, when into the house, and emerged with a package. The police followed appellant, stopped him and, upon observing the open package with bottles of pills on the rear seat of appellant's car, arrested him for possession of drugs. Appellant's statement was that he had received the box at the home of Charles Caffey at the Fremont address and that he had gone there at the request of his friend ('Mr. Caffey's...