Morris v. State
| Decision Date | 13 July 1970 |
| Docket Number | No. 1,No. 54808,54808,1 |
| Citation | 456 S.W.2d 289 |
| Parties | Robert Lynn MORRIS, APPELLANT, v. STATE of Missouri, Respondent |
| Court | Missouri Supreme Court |
Daniel V. O'Brien, Stephen H. Gilmore, St. Louis, for appellant.
John C. Danforth, Atty. Gen., Dale L. Rollings, Asst. Atty. Gen., Jefferson City, for respondent.
WELBORN, Commissioner.
By motion under Supreme Court Rule 27.26, V.A.M.R., petitioner, Robert Lynn Morris, sought to set aside a judgment of conviction and sentence to life imprisonment for rape, entered upon plea of guilty. Following an evidentiary hearing, the trial court denied relied. Petitioner appealed.
The offense involved occurred on July 23, 1963, in St. Francois County. The information charged forcible rape of a 15-year-old girl, a capital offense. § 559.260, RSMo 1959, V.A.M.S. Morris was arrested on July 24 and on July 25, 1963, entered a plea of guilty to the charge and was on that date sentenced to life imprisonment.
The claim to relief is based upon the allegation that at the time of his plea of guilty defendant was not represented by counsel and that he had not knowingly and intelligently waived such right. The evidence on this issue included the transcript of the proceedings upon entry of the plea, the testimony of the then prosecuting attorney, of the petitioner and the petitioner's mother. Relevant portions of the transcript were as follows:
'BY THE COURT: You are Robert Morris? A Yes, sir.
Q How old are you? A Twenty-seven.
Q Now, you are charged here with a crime for which if found guilty you can be sentenced to the penitentiary for life; are you aware of that? A Yes, sir.
Q Do you have a lawyer representing you? A No, sir.
Q Do you want a lawyer to represent you? A No, sir.
Q Do you understand that if you had a lawyer he would advise you whether or not the papers charging this crime against you are in proper form; he would determine whether or not you should plead guilty or stand trial; you understand those things? A Yes, sir.
Q And understanding them you are willing to waive having an attorney represent you? A Yes, sir.
Q I understand and I do believe that your parents live in this county? A Yes.
Q Do they know that you have been charged with a crime? A Yes.
Q Have you discussed with them whether or not you should appear without an attorney? A No, sir.'
A discussion of the facts of the offense ensued with petitioner's supplying information and assenting to facts related by the court.
Q How long were you in service? A A little over three years.
Q Have you been in the penitentiary previously? A No, sir. I was in the Reformatory.
Q And where was this? A Hutchinson, Kansas.
Q And what was this for? A Writin' checks.
Q And how long were you in? A Ten months and twenty-seven days. One to five years.
BY THE COURT: When did you get out? A In '58.
Q Had you been in the Army before? A Yes.
Q You were in the Army before. Anything further, Mr. Hyler?
Q Then it is the sentence and judgment of the Court that you be taken by the Sheriff of this County to the City of Jefferson and there delivered to the State Board of Criminal Correction and by that Board detained for the rest of your natural life. You may sit down or go with the Sheriff.'
Mr. Hyler, called as a witness on behalf of the petitioner, testified that he thought that he took a statement from the petitioner, although none could be found in the file on the case. Mr. Hyler said that he was 'sure' that he 'advised him of the rights in connection with counsel.' Mr. Hyler testified that he was in the magistrate court when petitioner waived preliminary hearing. In response to the question as to whether he or the magistrate judge advised petitioner that counsel could be appointed for him, the witness replied:
The petitioner testified that he had been drinking for approximately two weeks before the occurrence and that he could recall nothing that happened in either the magistrate or the circuit court. He testified that he did ask Mr. Hyler for an attorney and that Hyler left the room and said he'd see if he could find one; when he came back he said 'there wasn't none in the building.' Hyler denied that any such request was made.
Appellant's mother testified that she lived in St. Francois County at the time of her son's arrest. She testified:
'* * * See, he was arrested on a Tuesday night and I knowed it the next day. Then I, I called down to the jail to find out whether they would let me come down there and bring him some clean clothes and a razor and things so he could shave, and that was the third day. He was arrested on Tuesday night and it was Thursday that I, I called down there, and they said * * * that he had been sentenced, already tried and sentenced and they was just ready to leave with him, and I said, 'Why wasn't we notified?' and they said they didn't know, said, 'I don't know anything about that, you'll have to ask the judge.'"'
At the conclusion of the hearing, the trial court contrasted petitioner's testimony with the transcript of the arraignment proceedings and concluded:
Among the court's formal findings of fact were the following:
The court's first conclusion of law was:
On this appeal, appellant asserts that the trial court's conclusion that he intelligently waived his right to counsel is clearly erroneous and that he was denied the right to counsel in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States. The right asserted being one based upon the federal constitution, we must determined the question according to federal standards. The brief of neither the appellant nor of the state is particularly helpful in demonstrating the federal standards involved. Despite the rather large volume of federal law on this subject, appellant has seen fit to rely primarily upon state cases and upon not directly applicable federal authority, such as Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, and McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418. The state relies upon the failure of the appellant to sustain his burden of proof (Crosswhite v. State Mo., 426 S.W.2d 67), upon distinguishing appellant's authority, and upon Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, as the sole authority for sustaining the effectiveness of appellant's...
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