Newbold v. State, 57247

• Citation: 492 S.W.2d 809
• Decision Date: 12 March 1973
• Docket Number: No. 57247,No. 1,57247,1
• Parties: Edward Lee NEWBOLD, Appellant, v. STATE of Missouri, Respondent
• Court: United States State Supreme Court of Missouri

Page 809

492 S.W.2d 809

Edward Lee NEWBOLD, Appellant, v. STATE of Missouri, Respondent.

No. 57247.

Supreme Court of Missouri, Division No. 1.

March 12, 1973.

Motion for Rehearing or to Transfer to Court En Banc Denied

April 9, 1973.

Joseph W. Lewis, Lawrence Aln Waldman, St. Louis, for appellant.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.

HIGGINS, Commissioner.

Appeal (taken prior to January 1, 1972) from denial, after evidentiary hearing, of motion under Rule 27.26, V.A.M.R., to vacate and set aside three judgments of conviction entered upon pleas of guilty to three indictments filed February 20, 1968, charging attempted robbery, first degree, with a dangerous and deadly weapon, assault with intent to kill with malice, and murder, first degree.

As grounds for relief, movant asserted: (a) he was mentally incompetent at the time of his plea of guilty to three separate charges and when he was sentenced to imprisonment on concurrent terms of five years, life and life; (b) he was denied constitutional right to fair trial by failure of trial court to comply with Chapter 552, RSMo 1969, V.A.M.S., in that he was not accorded a hearing and judicial determination of his competence to stand trial prior to the time his pleas of guilty were accepted by the court; (c) he was denied effective assistance of counsel by reason of counsel's ignorance of the provisions of Chapter 552, supra; (d) he was coerced into pleading guilty; (e) his guilty pleas were involuntary and accepted in violation of Rule 25.04.

The transcript of proceedings in the Circuit Court of the City of St. Louis before the Honorable J. Casey Walsh on May 21, 1969, shows: that defendant, Edward Lee Newbold, was present at all times, with one of his appointed lawyers, Mr. Ben G. Landau; that the charge of murder, first degree (356--Q), was called, and Mr. Landau announced defendant's guilty plea; that upon request of the court Mr. Robert Curran, assistant circuit attorney, stated the facts: '* * * this involves an incident that occurred on the 6th day of January, 1968 about 12:35 in the morning at 3160 Park Avenue in the Weber's Tavern located there in which Mr. John Weber was the operator of the tavern and present in the tavern were three people, Mr. George Pretysch, his wife Jeanette Pretysch, one Beatrice Garrison. Approximately this time, Mr. Weber, preparing to close, was counting some money and defendant came in, produced a weapon, at which time Mr. Weber also produced a weapon and there was an exchange of gunfire. Mr. Weber on the 16th day of January, 1968 as a result of these shots fired expired at the hospital and the gun was later recovered from Mr. Newbold, and ballistically was checked. The bullet that killed Mr. Weber was fired from the gun that was later recovered from Mr. Newbold. Mr. Newbold also in talking to Corporal Griffin remembered being in the tavern, stated he didn't remember firing any shots. He remembered being shot at.' Mr. Curran also stated the availability of witnesses to these facts.

Upon questions from the court, defendant admitted the truth of the recital of facts, his engagement in the shooting affair, his guilty plea, that he shot Mr. Weber in the tavern, that he understood the range of punishment of life imprisonment or death, that such had been explained to him by Mr. Landau, that he was advised of all his rights including jury trial, that by his guilty plea he was waiving his right to jury trial, his age, 21, his education, two years at the University of Houston. In explanation, defendant stated he was intoxicated, guessed he got scared and did not remember the details of the attempted robbery and the consequent shotting. He recognized that his intoxication did not excuse his unlawful actions. His family of mother and two sisters lived in St. Louis, and he had discussed his plea of guilty with Mr. Lee Weber, family friend and St. Louis City alderman.

Mr. Landau expressed his position: 'I talked to Mr. Newbold numerous occasions; I talked to his mother, too, not about this plea of guilty because he does have a problem, a psychiatric problem, and his mother recognizes this. Mr. Newbold recognizes this; Mr. Weber does, too. I have talked to him on many occasions, and it appears to me that the evidence that the State has is overwhelming and so that under the circumstances I did not, I asked Mr. Newbold as well, to make up his own mind--I couldn't make up his mind in this case as serious as this.'

The court observed from a psychiatric report concerning defendant: 'that the accused has no mental disease or defect within the meaning of Section 552.010, that the accused has the capacity to understand the proceedings against him and can assist in his own defense, accused did know and appreciate the nature, quality and wrongfulness of the offense with which he is charged. So they find that he's capable of assisting in his own defense and that he knew what he was doing.'

Allocution was then granted, after which the court assessed punishment at imprisonment for 'the rest of your natural life' on the charge of murder, first degree.

The transcript of proceedings of May 21, 1969, shows further the immediate calling of the charge of assault with intent to kill with malice (355--Q), and Mr. Landau announced defendant's plea of guilty as charged. Again, upon request of the court, Mr. Curran recited the facts: '* * * This involves the same evening or same morning * * * January the 6th, 1968 at 3:40 A.M. 3028 South Grand Avenue in the City of St. Louis. It is a corner of Grand and Arsenal. Located there on the northeast corner is the Little Eatmore Restaurant which was occupied at the time by two people, one Lorraine Oppenheimer who was a waitress and one Donald Boulch who was eating * * * at the counter. At this time Mr. Newbold came in, produced a weapon and announced to Miss Oppenheimer that it was a * * * hold up, at which time she went behind the counter to get the money. Mr. Boulch at this time, figuring that he could get the jump on Mr. Newbold, had a sugar container and went after him. Mr. Boulch was shot twice in the upper chest during the course of the struggle that ensued, went through a plate glass window and also the gun--Mr. Newbold's gun, glasses and hat were left at the scene. Approximately one-half hour later there was a police call for an injury at 3405 Pestalozzi which police--same officer--Officer Dunsford that had received the original call at the Little Eatmore responded. He recognized the description and the general cut on the head which was the result of the sugar dispenser--Mr. Newbold's head. He arrested him. There was a search conducted incident to that arrest and in which some cartridges, twenty-two caliber, were found in the apartment of Mr. Newbold. These were matched to the gun found at the scene of the Little Eatmore which, of course, was the gun also matched to the bullets found in Mr. Boulch, removed at the hospital. Separately from that, there are two other people on the street in addition to Miss Oppenheimer and Mr. Boulch who identified this defendant.'

Upon questions from the court, defendant, after first determining whether the facts related to 'Grand and Arsenal,' again admitted the truth of the recital of facts, stated he was on dope, and that he did not know 'about the malice part.' He again acknowledged his guilty plea, and stated he did not remember falling through the window due to being 'messed up' with the influence of drink and narcotic drugs. He again acknowledged discussion of his guilty plea with Mr. Landau, that he was fully advised of his rights including right to jury trial, and that he did not want a trial but wanted to plead guilty. Mr. Landau stated he had investigated this case including interviews with his mother and witnesses Oppenheimer and Boulch. 'His glasses were in the place' and the evidence of guilt of this charge was 'overwhelming,' also. Defendant again acknowledged his understanding of the range of punishment, 'from imprisonment for two years to life,' and that his guilty plea was his free and voluntary act. He also stated, in answer to the court, that nothing had been promised to cause him to plead guilty and that he had not been intimidated or forced or threatened into entering his guilty plea.

Allocution was then granted on the charge of assault with intent to kill, after which the court assessed another life sentence to run concurrently with the sentence imposed under Cause No. 356--Q.

The transcript of proceedings of May 21, 1969, then shows the immediate calling of a charge of attempted robbery, first degree, with a dangerous and deadly weapon (354--Q) and Mr. Landau announced the third of defendant's guilty pleas. Mr. Curran stated 'this also involved the incident in the Little Eatmore,' which the court recited 'was interfered with by Mr. Boulch? Well, I still relate back, Edward Lee Newbold, to this case which happened down on Grand and Arsenal where they say you went in there and attempted to rob the place. You still say you were under influence of dope, of narcotics. Of course, that is no excuse, * * * but the evidence according to your attorney is overwhelming against you.' Both Mr. Landau and defendant stated their understanding that the charge arose out of the incident at Grand and Arsenal previously described. Defendant again acknowledged explanation of his rights including entitlement to jury trial, that he was waiving right to trial, and that he had gone over all such matters with Mr. Landau. Upon request of the court, Mr. Landau explained: 'We got appointed, I guess, about two or three months ago and then afterwards--maybe five or six months ago, I thought this case was beyond my capacity to try it so I asked Judge McMullen to appoint an associate with me. He appointed Bob Keaney and Bob Keaney and I have done a great deal of investigation in this matter,...