Rhoades v. State, KCD
| Decision Date | 31 December 1973 |
| Docket Number | No. KCD,KCD |
| Citation | 504 S.W.2d 291 |
| Parties | Thomas F. RHOADES, Appellant, v. STATE of Missouri, Respondent. 26310. |
| Court | Missouri Court of Appeals |
Willard B. Bunch, Kansas City, for appellant.
G. Michael O'Neal, .asst. Atty. Gen., Jefferson City, for respondent.
Before DIXON, P.J., PRITCHARD, J. and HALL, Special Judge.
Appellant has filed this appeal from a judgment denying his motion under Rules 27.25 and 27.26 V.A.M.R. to set aside consecutive sentences of ninety-nine years each entered September 26, 1938, upon his pleas of guilty to two separate chargs of forcible rape.
He alleges error in that (1) his pleas of guilty were not voluntary and knowledgeable because no one advised him of the consequences of the pleas nor the range of punishment within which the court could sentence him; (2) he was not permitted to withdraw his guilty pleas, which were coerced from him by force; (3) he was denied effective assistance of counsel, who failed to file a motion to suppress his coerced confession, failed to advise him of the range of punishment for rape, and permitted him to plead guilty to both charges when one victim's statement exculpated him from the crime of rape.
The trial court appointed the public defender to represent movant, heard the evidence, and in a well-considered opinion overruled movant's contentions.
This motion, filed September 20, 1971, charges errors in Movant's trial proceedings which occurred thirty-three years earlier, on September 26, 1938. While Rules 27.25 and 27.26 V.A.M.R. expressly permit such filing at any time during custody, the long unexplained delay by movant may be considered by the court in passing on movant's credibility and good faith.
As stated in State v. Hamel, 420 S.W.2d 264, at 267 (Mo.1967):
'While a motion under Rule 27.26 may be filed at any time and the doctrine of laches is inapplicable * * * it must be recognized that lapse of time may be considered in determining the good faith and credibility of one seeking post-conviction relief.'
During this thirty-three year interim the trial judge who heard the case, the prosecuting attorney, movant's trial lawyer (whom he now charges with failure to properly represent him), have all died. One of the arresting officers is deceased and the other, if living, could not be located. All other persons, including the witnesses to movant's signed confession, who had any connection with the case are either deceased, unavailable, or have no recollection of the events. Thus, as a result of this long delay, there are no living witnesses to dispute movant's testimony.
Certain court files, police records, movant's signed confession, and the statement of Della Pearce, one of the complaining witnesses, were available and are a part of the record. No other records, including the stenographic notes of movant's plea, could be located.
Movant's confession recited that during the evening of March 14, 1938, he had been drinking at several taverns and observed Ruth Barker walking alone near 23rd and Troost. He went up behind her grabbed her arm, and holding a knife at her back, forced her into an alley where he raped her. That sometime later he saw Della Pearce and her roommate, Mary Layson, get off the streetcar at 29th and Troost and walk west on 29th Street toward their home. He went up behind them, and holding his knife in his pocket so that it looked like a gun, said it was a stickup and to give him their purses. Mary Layson ran away and alerted the police.
Movant held Della Pearce and by threatening her with his knife forced her under a porch and made her remove her pants and lie down. He tried to insert his penis into her privates but he stated her privates were too small and he was not able to get his penis into her.
Della Pearce stated he tried to put his penis into her vagina but was unable to do so. He then moistened her privates and again tried to put his penis in her vagina.
At that time movant saw the flashlights of the police, who were searching for him, and hid in a nearby basementway, where he was arrested.
Movant resisted arrest and was taken by the arresting officers to General Hospital where he was left in custody for treatment of lacerations received during his arrest. On April 18, 1938, he was removed to the city jail, where he testified he was beaten by police prior to the signing of the confession on April 23, 1938. Three or four days later he was transferred to the county jail and had no complaints of his treatment during the five months he was confined there prior to entering his pleas of guilty.
The court appointed Mr. James Pouncey, an experienced criminal lawyer, to represent him in the five criminal charges which had been filed, growing out of these attacks. During the five-month period preceding the trial, Mr. Pouncey filed numerous pretrial motions signed by movant, in each of the five pending cases. These included motions to inspect hospital records of movant and the complaining witnesses, all photographs, all statements of the complaining witnesses and movant, including any weapon alleged to have been found on movant. In addition, Mr. Pouncey demonstrated his concern for the potential race prejudice inherent in the trial of movant for the rape of two white women by raising constitutional questions relating to exclusion of Negroes from the grand jury. When the cases were reached for trial September 26, 1938, Mr. Pouncey advised movant that he could not win and that he should plead guilty and throw himself on the mercy of the court. Movant agreed to do so, whereupon the State dismissed three of the five pending charges and movant pleaded guilty to the two charges of rape in question.
The court concurs with the trial court's finding that grave doubt is cast upon movant's credibility by reason of the fact that he waited thirty-three years to assert his claims of error. During this period he was released twice on probation--the frist time on July 31, 1953, which was revoked two years later for parole violation, and the second time in 1966, which was revoked three years later for parole violation. He was undoubtedly aware that there were no surviving persons who could refute his statements, and it would seem logical that if there was any merit to the claims he now asserts, he would have made them long before the passage of such an inordinate length of time. Under such circumstances the trial court may reject such testimony, even though there is no...
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