Reed v. State

• Decision Date: 18 July 1989
• Docket Number: No. WD,WD
• Parties: William Stafford REED, Movant-Appellant, v. STATE of Missouri, Respondent. 41118.
• Court: Missouri Court of Appeals

Page 313

778 S.W.2d 313

William Stafford REED, Movant-Appellant, v. STATE of Missouri, Respondent.

No. WD 41118.

Missouri Court of Appeals Western District.

July 18, 1989.

Motion for Rehearing and/or

Transfer to Supreme Court Denied

Aug. 29, 1989.

Application to Transfer Denied Nov. 14, 1989.

Susan L. Hogan, Columbia, for movant-appellant.

William L. Webster, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before BERREY, P.J., and MANFORD and NUGENT, JJ.

MANFORD, Judge.

Appeal from the denial, after evidentiary hearing, of a Rule 27.26 motion for post-conviction relief. The judgment is affirmed.

Movant raises two points on appeal which charge, in summary, that the hearing court erred in (1) failing to vacate the first degree (felony) murder conviction in order to remedy a double jeopardy violation, and (2) denying post-conviction relief by finding that movant's guilty plea was voluntarily made, and movant was not denied the effective assistance of counsel.

The pertinent facts are as follows:

Movant was originally charged with capital murder under § 565.001, RSMo 1978, and kidnapping, a felony under § 559.240, RSMo 1969. On the date scheduled for trial, he agreed as part of a plea bargain to plead guilty to a reduced charge of first degree (felony) murder, § 565.003, RSMo 1978, and to the kidnapping charge.

Movant appeared at both guilty plea hearings with his attorney, David V. Bear, III. Movant understood that the penalties for capital murder were either death or life imprisonment without parole for 50 years. Movant asserted that he was forced into participating in the murder and that his brother had threatened to kill him if he did not cooperate. Movant stated that he understood the concept of accessory liability. Movant informed the court that his decision to plead guilty to first degree (felony) murder was in part based on his family's desire that he receive a sentence from which he could be paroled sooner than if he was convicted of capital murder. In exchange for his guilty plea to first degree (felony) murder, movant was promised a concurrent sentence of ten-years imprisonment upon his guilty plea to the kidnapping charge.

During the plea hearing, the court asked movant whether on the night of March 9, 1978, he, acting with his brother, took the life of Larry C. Hughes, Jr. It was established that movant and his brother kidnapped Hughes and took him in the back of a station wagon to a place where he was killed. Movant stated that his brother killed Hughes by beating Hughes with a jack, and that his brother threatened to kill him if he tried to stop him.

Movant claimed that he knew nothing about any witnesses other than his brother, and that there were no witnesses he wanted counsel to contact. Movant testified he was not threatened or forced to plead guilty by his attorney or by any law enforcement officer. The only thing he requested that counsel did not do was to have a private psychiatrist give him a second mental evaluation.

Movant stated that he understood that by pleading guilty he waived his right to challenge the admissibility of a statement given to a sheriff in Randolph County. The court ascertained through questioning that movant understood that he also waived his right to a trial by jury and eliminated the possibility of a jury assessing his punishment. Movant finally stated that he was pleading guilty because Bear's motion for a continuance had been denied, because he felt he had no choice, and because his family did not want him to go to trial. Movant stated that no one had forced him to make that decision.

After determining that movant's guilty plea was voluntarily, intelligently, and understandingly entered, the court sentenced movant to a term of life imprisonment on the first degree (felony) murder charge. Movant also entered a plea of guilty to the kidnapping charge and received a sentence of ten-years imprisonment. The sentences were ordered to be served concurrently. When accepting the guilty plea, the court informed movant that even though a bargain was made regarding the first degree (felony) murder charge, he could still have a trial. Movant stated that he pled guilty and did not want a trial.

Movant filed a pro se motion for post-conviction relief under Rule 27.26 in December of 1987, more than nine years after his convictions. He alleged that he had been coerced into making involuntary statements after his arrest and he received ineffective assistance of counsel at his guilty plea hearings.

An amended motion was filed by appointed counsel in May of 1988. The amended motion expanded the claims of ineffective assistance of counsel alleged in the pro se motion. Ineffective assistance of counsel was premised on counsel's failure to confer with movant enough to prepare a defense, failure to arrange a second mental examination, failure to inform movant of the defense of duress, failure to inform movant of the range of punishment for first degree murder or manslaughter, failure to pursue a motion to suppress movant's statement, and failure to prepare adequately for trial.

The amended motion also claimed that movant's plea was the product of coercion and duress, since counsel refused to proceed with a motion to suppress movant's statement, because counsel threatened movant's family and enlisted them to persuade him to plead guilty, because counsel was not prepared for trial, and because movant was physically beaten while in custody. Additionally, movant's plea was claimed to be involuntary because he equivocated during the plea. The motion finally alleged that movant was subjected to double jeopardy by virtue of being convicted of both felony murder and the underlying felony of kidnapping.

An evidentiary hearing was held on the motion on May 26, 1988. Movant testified that his attorney met with him several days before the date scheduled for trial to discuss offers made by the prosecuting attorney, if movant would testify against his brother. Movant rejected the offers and wanted to go to trial. Movant testified that his attorney said he could do nothing more for his case.

When movant arrived at the courthouse on the date scheduled for trial, his grandmother and friends were assembled. His grandmother was crying and urged him to plead guilty so he could be released on parole in about 15 years. Movant insisted he would not plead guilty to the felony murder charge unless he was assured a concurrent sentence on the kidnapping charge. Movant explained that he and his attorney used the judge's chambers to telephone the prosecuting attorney in the kidnapping case. The prosecuting attorney agreed to the concurrent sentence. Thereafter, the guilty pleas were entered.

Movant testified during the evidentiary hearing that law enforcement officers hit him with a nightstick and put him in jail detention before he entered his guilty pleas. When asked if his experience in jail influenced his decision to enter a plea of guilty, movant stated that it was a trying point and he knew he wanted to get out of jail, so it was a factor in his decision.

Movant claimed that he started out with confidence in his attorney, but had none by the end of the case. Movant wanted a second mental evaluation, but Bear did not know if a judge would allow it. Movant did not feel comfortable going to trial with Bear because Bear indicated there was nothing he could do for him. Bear told movant that the evidence against him was strong. Movant did not believe that Bear was prepared for trial, even though Bear had done all movant wanted, except for the second mental evaluation. Movant claimed that Bear never discussed with him the defense of duress. Movant, however, could not remember telling Bear that his brother threatened him during commission of the crimes.

Movant testified that he gave a written statement to the Howard County Sheriff three days after his arrest, and another sheriff told him he would only receive a five-year sentence if he stood by the statement. Movant asked Bear to try to exclude the statement. Movant testified that the fact that no motion had been made to suppress the statement influenced his decision to plead guilty. On cross-examination, movant recalled that a motion to suppress was made at the time of the preliminary hearing, testimony taken at that time, and the motion was overruled. He also agreed that, other than the written statement, he made numerous oral statements about the homicide to persons whom the state could call as witnesses.

Movant further testified at the evidentiary hearing that he understood that by pleading guilty to the lesser charge of first degree (felony) murder and getting a life sentence he had the possibility of being paroled. That understanding was a major consideration in entering the pleas.

Movant testified that Bear talked to all the witnesses that movant desired. In fact, Bear discovered one witness through independent investigation whom movant did not want mentioned at trial. That particular witness was endorsed on the state's information as a possible witness against movant.

Movant further asserted at the evidentiary hearing that he was not attacking his conviction for kidnapping, as he had specifically requested a concurrent sentence on that charge. Additionally, movant stated that the kidnapping charge had been "commutated".

Attorney Bear testified at the evidentiary hearing that he had extensive experience in handling murder cases. He met with movant about ten times before movant pled guilty. He filed a motion to suppress movant's statement to the law enforcement authorities. The motion was overruled, but Bear considered this statement just an average problem for the defense because the state had several witnesses to whom movant admitted that he and his brother killed Hughes. The testimony of one witness made it appear that movant, not his brother, was the prime mover in the murder.

Bear...