Moore v. State, 55463

• Court: Missouri Supreme Court
• Writing for the Court: Bantle; PER CURIAM
• Citation: Moore v. State, 461 S.W.2d 881 (Mo. 1971)
• Decision Date: 11 January 1971
• Docket Number: No. 55463,No. 1,55463,1
• Parties: Charles Miller MOORE, Appellant, v. STATE of Missouri, Respondent. . Division

Page 881

461 S.W.2d 881

Charles Miller MOORE, Appellant, v. STATE of Missouri, Respondent.

No. 55463.

Supreme Court of Missouri. Division No. 1.

Jan. 11, 1971.

Irvin Dubinsky, St. Louis, for appellant.

John C. Danforth, Atty. Gen., Thomas H. Stahl, Asst. Atty. Gen., Jefferson City, for respondent.

WELBORN, Commissioner.

Appeal from denial of relief in proceeding under Supreme Court Rule 27.26, V.A.M.R.

On May 18, 1961, three men held up a drug store in St. Louis. A delivery boy was killed in the course of the crime. On May 29, 1961, Lloyd Leo Anderson was arrested for the robbery and murder. A second participant in the crime was killed at the time of the arrest of Anderson. Appellant Charles Miller Moore was also arrested for the crimes and he and Anderson were jointly charged with robbery in the place first degree with a deadly weapon and murder in the first degree.

Appellant's brother employed Mr. James Rankin, an experienced criminal lawyer, to defend appellant and Anderson who was the son of appellant's sister. Rankin appeared with appellant in the Court of Criminal Correction on a preliminary hearing. On June 16, 1961, he appeared with appellant at arraignment on the two charges and entered a plea of not guilty.

Rankin represented Anderson at his jury trial, which began September 23 and ended September 28, 1961, with a verdict of guilty of first degree murder, with punishment of death. Anderson's conviction was affirmed by this Court. State v. Anderson, Mo., 386 S.W.2d 225. The sentence of death was executed. On September 29, 1961, Rankin appeared with appellant before Judge Robert Aronson of the St. Louis Circuit Court. Appellant withdrew his pleas of not guilty to the two charges against him, and entered a plea of guilty to each. On that date, he was sentenced to life imprisonment on each charge, the sentences to run consecutively.

In August, 1968, appellant sought a copy of the transcript of proceedings on his plea of guilty. The court reporter who recorded the proceedings was ill and Judge Aronson was unable to find anyone who could read the reporter's shorthand notes. The reporter subsequently died, as did Judge Aronson and Mr. Rankin before the hearing on this case.

Appellant's 27.26 motion was originally filed March 25, 1969. Subsequently, an amended motion was filed. Relief was sought on the grounds that his plea of guilty was not voluntary because of coercion and promises of a parole by his attorney and that the plea was not knowingly and understandingly made. The motion also alleged ineffective assistance of counsel.

Testifying on the motion, appellant stated that he was thirty-six years of age at the time of the crime; that he had completed the sixth grade of school at the age of seventeen. He testified that he first met Mr. Rankin at the preliminary hearing, at which time Rankin told appellant that appellant's brother had employed him. At that time, Rankin told him to plead not guilty but made no inquiry of appellant as to his role in the crime. Appellant testified that he next saw Rankin in the city jail where Rankin told him that they had just given Anderson the death penalty and that the same thing was in store for him if he proceeded to a jury trial. He said that Rankin told him that he could get him a life sentence, under which he could get a parole 'in approximately one third of my life span.'

The next day, appellant says, he appeared in court and at Rankin's direction pleaded guilty. According to appellant, when the case was called, Mr. Rankin said, 'Your Honor, my client wishes to change * * * his plea from not guilty to guilty.' The judge asked appellant if he knew what he was doing, and, according to appellant, Mr. Rankin said, 'Yes, Your Honor. He has been advised of everything.' Then the circuit attorney stated: 'Your Honor, this man is not actually involved in the actual killing * * * we have the others that are.' He recommended a life sentence on each of the charges.

Right after that, according to appellant, the judge sentenced him to two consecutive life sentences.

Appellant testified that Judge Aronson directed no inquiries to him, except for an inquiry as to whether he understood the proceedings. According to appellant, Rankin nudged him and he nodded his head 'Yes.' Appellant said that Rankin never advised him that he had a right of trial by jury. He said that he did not understand at the time that he received two sentences. According to appellant, he thought that he was charged only with robbery. Nor did he understand the meaning of 'consecutive.' Appellant said that the proceedings before Judge Aronson took about thirty minutes.

Appellant testified that he had no discussion with Rankin about trying the case or about any possible defense, that the only conversation Rankin had with him before entry of the plea was at the preliminary hearing and in the city jail the day before the entry of the plea.

Appellant testified that his niece and sister visited him in jail before he entered his plea of guilty. They told him that Anderson had just received the death penalty and that it would be best to do what Mr. Rankin told him to do.

Robert Moore, brother of appellant, testified that he employed Rankin to represent Anderson and appellant and paid him $2,500 for his services. He testified that Rankin told him that the best thing for appellant to do would be to plead guilty, and try to get a life sentence under which he could get paroled after a certain number of years. The witness testified that he encouraged appellant to follow Rankin's advice. He said that when he discussed Rankin's recommendation with appellant, 'he said the life sentence was better than a death sentence.' The witness said that he didn't see appellant after Anderson was found guilty and before appellant was sentenced. He was not in court when appellant was sentenced.

The state offered as a witness the assistant circuit attorney who appeared on behalf of the state at appellant's sentencing. He had no specific recollection of any conversations that occurred in the courtroom in connection with the sentencing.

Former Circuit Judge John Bantle, First Assistant Circuit Attorney at the time of the hearing, testified that Rankin 'had the reputation of being probably, certainly one of the most competent attorney specializing in the trial of criminal cases during the time he practiced law here in the City of St. Louis.'

Judge Bantle also testified that as an assistant circuit attorney he had handled criminal cases before Judge Aronson in 1946, and was in almost daily contact with Judge Aronson during that year. He testified that since that time he had been in Judge Aronson's court on numerous occasions when he took pleas of guilty. According to Judge Bantle:

'Well, it was his practice even that far back in the year of 1946, when I was the assistant circuit attorney in his division, it was his invariable practice to very carefully inquire of not only the attorney but of the defendant about his admission of his guilt of the offense to which he was pleading, and the fact that he had authorized his attorney to enter the plea of guilty; and likewise that he was aware of what the sentence was that was to be recommended by the State, and likewise of the availability to him of a jury trial if he desired it. That was his practice through the years; that was not only from my observation but later on after I had left the Circuit Attorney's Office, on many occasions I represented defendants myself before Judge Aronson and on many occasions entered pleas of guilty. And that was his invariable practice. He was not satisfied with a mere statement of the attorney that he was entering a plea of guilty, but he likewise inquired of the defendant whether or not he understood and whether or not he had authorized the plea of guilty.'

A deputy sheriff testified that after appellant entered his plea of guilty he remarked to fellow prisoners that he would 'rather take a life sentence than go to that gas chamber.'

The trial court's findings were as follows:

'On September 29th, 1961, the movant Charles Miller Moore entered a plea of guilty to Murder First Degree and to Robery First Degree by Means of a Dangerous and Deadly Weapon and was sentenced to life in each case. On September 27th, 1969, the defendant filed an amended motion as provided by Supreme Court Rule 27.26, in which it is claimed that the pleas were induced by his attorney, with assurances that he would be eligible for parole in approximately one-third of the balance of his life expectancy; and, 2, that he was not advised that he would be given a double life sentence, nor that the terms would run consecutively; and, 3, the pleas of guilty were induced by coercion and fear and threats of the death penalty; and, 4, his attorney spoke in his behalf, and at no time did he assent to the matters that were mentioned on his pleas of guilty; and, 5, he was not advised of the right of a trial by jury, nor the consequence of his alleged pleas of guilty; and, 6, that he has been unable to get a transcript of the testimony; and, 7, his attorney did not properly investigate the case.

'A transcript of the proceedings held September 29th, 1961, when the movant entered pleas of guilty is unavailable because of the death of the court reporter. The Judge presiding in the division of this court when the pleas of guilty were made and entered, and who assessed the life sentences, the Honorable Robert L. Aronson, is also deceased, as is James Rankin, the attorney who represented movant. The Assistant Circuit Attorney who handled the matter for the State testified that he has no independent recollection of what was said in court, and this is understandable in view of the lapse of time and the large number of cases handled by assistants to the Circuit Attorney. The only evidence produced in an attempt to prove the charges was the testimony of the defendant, whose testimony...