Pulliam v. State, 56077

• Decision Date: 12 June 1972
• Docket Number: No. 56077,No. 1,56077,1
• Citation: 480 S.W.2d 896
• Parties: Emmett PULLIAM, Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 896

480 S.W.2d 896

Emmett PULLIAM, Appellant, v. STATE of Missouri, Respondent.

No. 56077.

Supreme Court of Missouri, Division No. 1.

June 12, 1972.

Sidney Fortus, Clayton, for petitioner-appellant.

John C. Danforth, Atty. Gen., Richard S. Paden, Asst. Atty. Gen., Jefferson City, for respondent.

HIGGINS, Commissioner.

Appeal from denial, after evidentiary hearing, of motion under Rule 27.26, V.A.M.R., to vacate and set aside judgment of conviction of murder, second degree.

Emmett Pulliam, charged with murder for shooting his wife, Earline Viola Pulliam, 'wilfully, unlawfully, feloniously, premeditatedly, and of his malice aforethought,' pleaded guilty to murder, second degree, March 25, 1968. On May 10, 1968, the court assessed his punishment at 12 years' imprisonment, and sentence and judgment were rendered accordingly. §§ 559.020, 559.030, V.A.M.S.

On August 4, 1969, Emmett Pulliam filed his motion, alleging as all his known grounds for relief:

8(a) 'Petitioner's plea of guilty was involuntary and the product of an unconstitutional bargain * * *.'

8(b) 'The information * * * is fatally defective and fails to charge * * * murder second degree by omission of the essential averment that the acts were with intent to kill.'

8(c) 'The information is fatally defective in omitting the essential averment that the deceased was 'killed or murdered,' and will not therefore, charge the offense of murder in any degree.'

On August 4, 1969, Emmett Pulliam, assisted by counsel, filed his amended motion, to add, as grounds for relief:

8(d) 'Petitioner was legally incapable by reason of insanity at such time to enter his plea of guilty herein or to be sentenced.'

8(e) '* * * petitioner was incapable of understanding the nature and consequences of his guilty plea herein or of his sentencing.'

8(f) 'That the Court's acceptance of such plea and sentencing was unlawful, illegal and did violate the constitutional rights of petitioner * * *.'

8(g) 'That in fact, a psychiatric examination of petitioner * * * did indicate that petitioner was unable to form the intent necessary to constitute Second Degree Murder and, hence, petitioner could not and should not have pleaded guilty to such charge and recommending and allowing him to do so was a violation of law and of his constitutional rights * * *.'

8(h) 'That petitioner's attorney and the Prosecuting Attorney possessed knowledge of the results of the psychiatric examination * * * and, yet, did allow, recommend, encourage and induce petitioner to so plead, all in violation, etc., * * *.'

8(i) 'That the failure of petitioner's counsel and the Prosecuting Attorney to advise this Court * * * relating to said psychiatric examination was misleading, improper, illegal and in derogation of the rights of this petitioner * * *.'

8(j) 'That the failure of the Court to order a psychiatric examination of movant and to hold a hearing on the question of his competency * * *, resulted in a denial of movant's constitutional rights * * *.'

8(k) 'That by virtue * * * petitioner's plea of guilty resulted from and was induced by fraud, misrepresentation, misapprehension, persuasion and the holding out of false hopes which proved to be false and ill found.'

At the time of his guilty plea, March 25, 1968, defendant was represented by Mr. Paul Dobberstein, Jr., and the following took place:

'THE COURT: All right, Mr. Pulliam. You are charged here by indictment in this Circuit Court with the charge of Murder In The Second Degree, * * * And you understand what you are charged with? 'THE DEFENDANT: Yes, sir.

'THE COURT: And you care at this time to read--or you have something to say about the waiver of the reading of the indictment? MR. DOBBERSTEIN: Yes, Your Honor, the defendant and at this the reading of the indictment and at this time he will withdraw his former plea of not guilty and enter a plea of guilty to the charge.

'THE COURT: Do you understand fully, Mr. Pulliam, what your lawyer has said; that you are withdrawing your former plea of not guilty and entering a plea of guilty, you understand that? THE DEFENDANT: Yes, sir. THE COURT: And you are not today addicted to alcohol or narcotic drugs are you? THE DEFENDANT: No, I'm not. THE COURT: And you know what you are doing, is that right? THE DEFENDANT: Yes. THE COURT: Now, you understand also that you have a right to a trial by jury and only you can waive this right, do you, Mr. Pulliam? THE DEFENDANT: Right. THE COURT: And you have discussed this matter with your attorney fully and with the members of your family, is that correct? THE DEFENDANT: Yes, sir. THE COURT: And it is your desire to waive trial by jury? THE DEFENDANT: Yes.

'THE COURT: Do you have anything to say, Mr. Settich? MR. SETTICH: Yes, Judge. Very briefly, the defendant is charged with the offense of Murder In The Second Degree and the State alleges that on the 13th day of May 1967 that the defendant with a .22 caliber pistol shot it at his wife, Earline Viola Pulliam, and as a result of this gunshot wound why she passed away--well, she was dead on arrival at St. Louis County Hospital and that was at 5:09 a.m. on May 13 and the Coroner's Report shows the cause of death due to gunshot wound of the left chest. The defendant was apprehended shortly after the shooting and the gun that was used in this matter was recovered and the defendant admitted shooting his wife after having an altercation with her and the State would make a recommendation to the offense of Murder In The Second Degree of twelve years in the Missouri Department of Corrections.

'THE COURT: All right, you heard, Mr. Pulliam, what the Prosecuting Attorney has said. You understand what he has just said? THE DEFENDANT: Yes.

'THE COURT: You have something to say, Mr. Dobberstein, at this time? MR. DOBBERSTEIN: Yes, Your Honor. The defendant would request that sentencing be deferred and a pre-sentence investigation be ordered. THE COURT: Very well, we will defer sentencing at this time until April the 29th and we'll order a presentence investigation. Now, you understand, Mr. Pulliam, that this does not necessarily mean that you will be given any consideration on probation. The Court is not committing itself in either way, you understand that fully? THE DEFENDANT: I understand.

'THE COURT: The Court then accepts your plea of guilty to the charge of Murder In The Second Degree and at this time will defer sentencing as I said until April the 29th. * * * Now, Mr. Pulliam, do you fully understand what we've talked about here this morning about your plea and so forth? Do you have any questions about any of these things that we've talked about? THE DEFENDANT: No, sir. * * *.'

At the time of his sentencing, defendant was again represented by Mr. Dobberstein, and the following took place:

'THE COURT: Mr. Pulliam, you are charged with Murder In The Second Degree and you understand this charge that you're charged with? THE DEFENDANT: Yes. THE COURT: And you have entered a plea of guilty to this charge, you understand that? THE DEFENDANT: Yes. THE COURT: And you understand that you have a right to a trial by a jury now if you want and you have chose(n) to plead guilty to this charge, is this correct? THE DEFENDANT: Yes, sir.

'THE COURT: All right, the Court now accepts your plea of guilty to the charge of Murder In The Second Degree and by law I must grant you allocution. At this time do you have any legal reason why the Court should not now pronounce sentence upon you? MR. DOBBERSTEIN: There's no legal reason, Your Honor. THE COURT: Well, I want Mr. Pulliam to say so. THE DEFENDANT: No, sir.

'THE COURT: In accordance with your plea of guilty to the charge of Murder In The Second Degree the Court will sentence you to the Missouri Department of Correction for a period of twelve years * * *.'

Dr. Nathan Blackman, a psychiatrist, examined Emmett Pulliam in August, 1967, prior to his guilty plea in March, 1968, and in January, 1970, prior to the evidentiary hearing on his motion in January and February, 1970.

Appellant's version of Dr. Blackman's testimony emphasizes the doctor's opinion that defendant was a severely retarded individual who told him he shot his wife 'to scare or hush' her, and that at the time of the shooting there was no intent by defendant to 'dispose of' her. 'It was a frightened, upset, mentally retarded person, reacting to an undue stress.' The mental retardation, the degree of suspiciousness, the 'dissension in the midst of the hassle' ruled out an intent to kill. The doctor recognized that a mentally retarded person 'can communicate with his attorney, he knows the proceedings, but doesn't know them with the kind of subtleness that a more intelligent, sophisticated person would. * * * He understands this is (h)is attorney, this is the attorney of the State, that they are trying to work out the best thing for the community and for him, I believe he is competent. That doesn't mean that he has the same kind of ability to discriminate or discern the goings on in the Court.' The doctor was also of the opinion that he observed in defendant a lack of ability to discern the import of changing his plea and that the court was 'dealing with an individual with limited intelligence who when a question is tossed at him he looks at the defendant's attorney and says whatever the attorney tells him.' When asked whether he thought defendant expected to be paroled or placed on probation, Dr. Blackman felt 'He might have done it on the basis of the optimism that I oozed out or perhaps his attorney. In his mind he was certain that he would not be stepped upon as severely as he was.' Finally, Dr. Blackman recognized that movant was now, after some time in prison, a 'brighter' person and observed, 'You are not dealing with a(n) angry predatory that is going to come out, become upset, but a quiet, dependable person who is being crucified with a marriage that should not never have been held * * *.' Defendant had...