Parks v. State, KCD
| Decision Date | 30 December 1974 |
| Docket Number | No. KCD,KCD |
| Parties | John Henry PARKS, Appellant, v. STATE of Missouri, Respondent. 26730. |
| Court | Missouri Court of Appeals |
Willard B. Bunch, Robert A. Simons, Paul T. Miller, Scott A. DiSalvo, Kansas City, for appellant.
John C. Danforth, G. Michael O'Neal, Neal MacFarlane, Jefferson City, for respondent.
Before DIXON, C.J., and SHANGLER and WASSERSTROM, JJ.
On October 15, 1963, appellant entered a plea of guilty to the charge of Murder, First Degree. He thereafter filed a motion pursuant to Rule 27.26, V.A.M.R., which was denied in Division 10, Circuit Court of Jackson County; and he appealed to the Missouri Supreme Court. The Supreme Court transferred the cause to this court for lack of jurisdiction. Parks v. State, 492 S.W.2d 746 (Mo. banc 1973).
Appellant was arrested and charged with the first degree murder of his wife. On August 1, 1963, a preliminary hearing was held wherein appellant was represented by counsel and the testimony of four witnesses was transcribed. The first of those witnesses was a deputy coroner for Jackson County. Mr. Magady had responded to the scene of the shooting and viewed the deceased. He then identified a certain death certificate as being that of the victim, appellant's wife. Roena Johnson, the landlady of Mrs. Parks, stated that on the day of the shooting, she was in the kitchen and overheard Mrs. Parks requesting appellant to leave. This prompted her to phone the police and proceed to the front porch. There she saw the victim seated, with her two-year-old girl in her lap, and the appellant standing by the bannister. Mrs. Parks cautioned the appellant about 'waving that gun around' and he responded that he was not going to shoot her. Mrs. Johnson returned to the kitchen where she heard two shots, but did not venture outside until the police arrived. She further testified that appellant had been on the premises the day before, with a gun in his possession; Mrs. Parks had asked her to call the police one month before because of appellant's presence with gun in hand. An officer testified that having responded to the call from the landlady, he found Mrs. Parks suffering from three bullet wounds and appearently dead. He issued a 'pickup' for appellant. A detective interrogated the appellant following the arrest. Appellant related to the detective that he and his wife were separated and had encountered much difficulty in their relationship; that he had taken a gun with him both on the day of the fatal incident and the night before; that nother man had come between him and his wife; and that on July 7, 1963, he shot his spouse at least three times.
Appellant was arraigned on August 5, 1963 and entered a plea of not guilty. He was not at that time represented by counsel, but the trial court specifically found he was mentally able and sufficiently informed to waive his right to counsel based on the court's interrogation of the defendant.
On October 15, 1963, appellant personally appeared in court, withdrew his plea of not guilty, and entered a plea of guilty. He was at that time represented by the same lawyer as had represented him at the preliminary hearing. In response to questioning by his counsel, appellant indicated that he understood his right to jury trial, the range of punishment, and what his 'chances' were. The State briefly outlined the facts, whereupon the following took place:
The court then accepted the plea of guilty and the recommendation of life imprisonment.
This 27.26 motion was filed November 4, 1970, and a hearing was held on February 26, 1971. Appellant was the only witness called at the hearing. His trial counsel, Richard B. Kirwan, an able, experienced trial lawyer was deceased at the time of the hearing. Appellant expressed a lack of memory regarding such things as the act itself, the arrest, the preliminary hearing, and the plea proceedings. However, his memory was not so clouded concerning other aspects of the case. Appellant stated that he asked Mr. Kirwan to obtain a psychiatric examination, but that Mr. Kirwan told him the cost was prohibitive. He further testified that his attorney did not explain the nature of the charge of first degree murder, or other degrees of homicide; but he did understand that he was being charged with a murder. He then stated that he entered a plea of guilty in order to escape the gas chamber. The appellant asserted that he saw Mr. Kirwan only once specifying that this was on the day he pleaded guilty. The record itself belies this assertion since Mr. Kirwan appeared on his behalf at the preliminary hearing. On cross-examination, the prosecutor explored appellant's lack of memory regarding the time period during which the crime and attendant proceeding took place. Again, appellant's position was that, 'I just don't remember anything that happened.' He reasserted his opinion that he was suffering from a mental defect at the time of the crime, and continued:
'I told Mr. Kirwan that I didn't think I had committed the crime because I loved my wife and I don't think I would do anything to hurt her like that.'
On appeal, appellant relies on the same points asserted in his 27.26 motion, viz:
I. The absence of counsel at arraignment prejudiced appellant to the extent that he sacrified the defense of insanity.
II. Appellant was denied the effective assistance of counsel through counsel's failure to move for a mental examination.
III. Appellant's plea was not entered voluntarily and with an understanding of the nature of the charge.
Appellant was not represented by counsel at his arraignment on August 5, 1963. Under Missouri law, arraignment is not a critical stage in a criminal proceeding. McClain v. Swenson, 435 F.2d 327, 330 (8th Cir. 1970); State v. Grimm, 461 S.W.2d 746, 753 (Mo.1971); State v. Donnell, 430 S.W.2d 297, 300 (Mo.1968). Absent some prejudice to the accused, the non-appearance of counsel at arraignment is not violate of due process. McClain v. Swenson; State v. Grimm; and State v. Donnell. Appellant asserts prejudice did, in fact, occur because of the requirements of Section 552.030, RSMo 1969, V.A.M.S., (relating to a plea of not guilty by reason of mental defect). Subsection 2 of that statute requires that a defendant announce his intention to rely on the defense of mental disease or defect at the time he enters his plea, or give written notice of such intention within ten days after entry of his plea. (The court may expand the ten-day limitation upon a showing of good cause.) Appellant argues that the absence of counsel at arraignment resulted in the unintentional waiver of his defense of insanity.
From the outset, appellant's contention meets with difficulty. The effective date of Section 552.030 was October 13, 1963, and appellant was arraigned on August 5, 1963. Thus, his argument calls into question the retroactive aspects of Section 552.030. However, it appears that a resolution of this question is not necessary for the disposition of this point. If Section 552.030 does not apply, no prejudice could have resulted because under the former statute 'he could have asserted the defense of insanity under his plea of not guilty and would not have had to enter a special plea.' State v. Donnell, 430 S.W.2d 297, 302 (Mo.1968). If, on the other hand, Section 552.030 does apply, the record does not indicate that appellant was prejudiced by lack of counsel at arraignment. A defendant is not absolutely required to raise the defense of insanity at arraignment. He may file written notice of his intention within ten days thereafter or at an even latter date upon a showing of good cause. Aside from appellant's self-serving assertion that he told his deceased lawyer he wanted to see a doctor, there was no proof that the appellant ever exhibited any symptoms or requested any relief from anyone on the ground he was insane. He had been imprisoned for seven years at the time of the hearing and had never been examined for mental disease or defect; the other failure of any showing of prejudice is apparent in the ensuing discussion of appellant's next point.
Appellant next contends that he was denied the effective assistance of counsel through his attorney's failure to move for a mental examination.
Where a guilty plea has been entered, the determination of the adequacy of counsel is immaterial except to the extent that it bears on the issues of voluntariness and understanding. Barylski v. State, 473 S.W.2d 399, 402 (Mo.1971). Thus, the question is whether counsel's inaction prevented the appellant from making 'a voluntary and intelligent choice among the alternative courses of action.' North Carolina v....
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