Ray v. State

• Decision Date: 05 December 1975
• Docket Number: No. 9848,9848
• Parties: Douglas RAY, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 478

532 S.W.2d 478

Douglas RAY, Appellant, v. STATE of Missouri, Respondent.

No. 9848.

Missouri Court of Appeals, Springfield District.

Dec. 5, 1975.

Devon F. Sherwood, Springfield, for appellant.

John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for respondent.

Before STONE, P.J., and HOGAN and FLANIGAN, JJ.

FLANIGAN, Judge.

Movant appeals from a denial of his motion for postconviction relief filed pursuant to Rule 27.26 V.A.M.R. In the original action, tried in 1974, movant was charged with murder in the first degree, § 559.010 V.A.M.S. He was tried under the Second Offender Act, § 556.280 V.A.M.S. A jury found him guilty of manslaughter, § 559.070 V.A.M.S., and the court sentenced him to imprisonment for 10 years.

The trial court held a hearing on the motion. Movant and his appointed counsel, who represents him on this appeal but did not represent him in the original action, attended that hearing and introduced evidence. The trial court, after making certain findings of fact and conclusions of law, denied the motion.

The first of movant's three appellate contentions reads:

'Appellant's right to the effective assistance of counsel under the Sixth and Fourteenth Amendments to the Constitution of the United States was denied by the failure of his appointed attorney to secure the testimony of witness Wayne Early for appellant's defense, since the testimony could have been secured and that testimony would have tended to prove the defense of accident.'

This 'point relied on' does not comply with Rule 84.04(d) V.A.M.R. for the reason that it fails to state 'briefly and concisely what actions or rulings of the court was sought to be reviewed and wherein and why they are claimed to be erroneous.' State v. Warren, 469 S.W.2d 662, 663(3) (Mo.App.1971); Bensinger v. California Life Ins. Co., 459 S.W.2d 511, 513(1) (Mo.App.1970).

However, a gratuitous review of the briefs and transcript, in light of the point defectively stated, discloses its lack of merit.

Prior to the trial, movant's counsel had interviewed Early three times and had examined a statement Early had given the state. He had discussed with movant the matter of calling Early as a witness and they had agreed that it was inadvisable.

This court has reviewed the contents of the statement given by the uncalled witness Early. As in Monteer v. State, 506 S.W.2d 25, 26(5) (Mo.App.1974), it is clear that movant's trial counsel had a reasonable basis to determine, as a matter of strategy, that the testimony of Early would have been harmful to his client.

'(A)n appellate court will not review or reassess by hindsight the judgment of defense counsel on questions of strategy, trial tactics, or trial decisions.' Cheek v. State, 459 S.W.2d 278, 281(2) (Mo.1970). Choice of witnesses is a matter of trial strategy. Crow v. State, 514 S.W.2d 13, 16(5) (Mo.App.1974).

Movant's first contention has no merit.

Movant's second contention focuses on his 1960 conviction in the state of Nevada for the crime of robbery. Though the instant record does not specifically so disclose, the inference is that the Nevada conviction was the basis for invoking the Second Offender Act, § 556.280 V.A.M.S. Movant asserts that the Nevada conviction was tainted by reason of ineffectiveness of movant's Nevada counsel. Movant contends the trial court erred in holding that his Nevada counsel was effective and that the Nevada conviction was valid. This contention has no merit.

An authenticated copy of the records of the Nevada proceeding, including the 'judgment and sentencing' therein, shows that on January 7, 1960, movant pleaded guilty to a charge of robbery and received a sentence of not less than five years nor more than six years. The record also reflects the presence of the defendant at the time of 'passing judgment and sentence' and the presence of 'his counsel, Loyal R. Hibbs.'

Whether or not there was a duty ¹ on the Missouri court to hear evidence making such an attack upon the validity of the Nevada conviction, which was regular on its face, the trial court did conduct a hearing on the issue. At that hearing movant testified that he had pleaded guilty to the Nevada charge, that he had counsel at that time 'if that is what you want to call it,' but that he had no 'discussions' with him. He admitted his guilt of the Nevada offense and the serving of his sentence therefor.

With respect to the Nevada conviction, the trial court found 'as a fact that (movant) did have counsel and did have effective assistance of counsel at the time (movant) entered such plea.'

The allegations of a Rule 27.26 motion do not prove themselves. Ward v. State, 451 S.W.2d 79, 81(1) (Mo.1970). One seeking relief under Rule 27.26 has the burden of proving his grounds for relief by a preponderance of the evidence. Rule 27.26(f). Collins v. State, 450 S.W.2d 186, 187(1) (Mo.1970). The trial court has the right and duty to pass upon the credibility of the witnesses and the scope of appellate review is limited to a determination of whether the findings, conclusion, and judgment of the trial court are clearly erroneous. Garrett v. State, 503 S.W.2d 45, 47(1) (Mo.App.1973).

The trial court had a right to find, as it did, that movant's testimony was unworthy of belief and that he failed to carry the burden of proof on the issue of ineffective assistance of his Nevada counsel. Such finding was not clearly erroneous. State v. Thomas, 452 S.W.2d 160, 163(7, 8) (Mo.1970); Garrett v. State, supra.

Movant's third contention is that the trial court erred in not finding that movant was denied due process of law in that his appointed counsel gave movant erroneous advice concerning former jeopardy and thereby impaired his right to appeal.

The contention is sound.

At the original trial on the charge of first degree murder movant was represented by attorney L. The jury convicted him of manslaughter, and the court sentenced him to a term of 10 years. The punishment was the maximum permitted for manslaughter, § 559.140 V.A.M.S. Movant did not file a motion for a new trial.

At the Rule 27.26 hearing movant adduced evidence to the following effect: After the return of the verdict, and during the period the court had granted for filing a motion for new trial, attorney L discussed with movant the advisability of filing such a motion. He told movant that filing a motion for a new trial was a necessary step in prosecuting an appeal. He also told him that if the motion for new trial were granted, or if an appeal succeeded, movant could be retried on the original charge of murder.

Movant was also told by attorney L that in the latter's opinion 'no errors had been committed during the trial' and there was no valid basis for seeking a new trial.

This court need not and cannot determine, from the instant record, whether there was any error in the original trial. Movant does not have the burden of demonstrating that there was such error. Ball v. State, 479 S.W.2d 486, 488 (Mo.1972).

In telling movant that a new trial entailed re-exposure to the charge of first degree murder, attorney L gave erroneous advice. Having been found guilty only of manslaughter, movant had been 'implicitly' acquitted of the greater offense of first degree murder and he could not be retried for murder. Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970).

Significant misleading statements of counsel can rise to a level of denial of due process of law and result in a vitiation of the judicial proceeding because of ineffective assistance of counsel.' Cooks v. United States, 461 F.2d 530, 532(3) (5th Cir. 1972). See also Kelsey v. United States, 484 F.2d 1198 (3rd Cir. 1973).

Movant testified that he did not file a motion for new trial because he did not want to be retried for murder.

The trial court found as a fact that attorney L did tell movant that 'if he was retried he could be retried on the original charge.' However, the trial court also found 'movant knowingly and understandingly waived his right to file a motion for new trial and to appeal, and the erroneous advice given him by his counsel that if the motion for new trial was sustained or if on appeal the judgment was reversed that he could be retried for first degree murder had no part in movant's decision not to file a motion for new trial and to accept the verdict of the jury, but his decision was motivated by the fact that he thought he had received more than he thought he was entitled to by the jury and that the verdict was entirely justified.'

This court holds that the erroneous advice given movant by attorney L invalidated movant's waiver of his right to file a motion for new trial and his right to appeal. There was no waiver because the relinquishment of those rights was not a 'knowing' ² one. It may well be, as the trial court found, that movant was pleased with the verdict in that it constituted an implicit acquittal of the charge of murder. It is also true that at the time he desisted from filing a motion for new trial he had not yet been sentenced to the maximum punishment of 10 years but he would have known of that sentence in deciding whether to file a notice of appeal.

A motion for new trial is a basic step in the process of perfecting an appeal in this state. Rules 27.20 and 28.02 V.A.M.R. Movant, as an indigent defendant, was entitled to effective assistance of counsel, and such right applies to all critical stages in the proceedings. Walker v. State, 511 S.W.2d 859 (Mo.1974). The prosecution of an appeal, including the preparation of a motion for new trial as a predicate therefor, is such a stage. Nicholson v. State, 524 S.W.2d 106, 111 (Mo. banc 1975); Ball v. State, supra.

The ultimate issue is whether the conduct of attorney L, in giving movant the erroneous advice, had the effect of...