Rice v. State

• Decision Date: 11 September 1979
• Docket Number: No. 61167,61167
• Parties: Arthur Lee RICE, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 488

585 S.W.2d 488

Arthur Lee RICE, Appellant, v. STATE of Missouri, Respondent.

No. 61167.

Supreme Court of Missouri, En Banc.

Sept. 11, 1979.

Raymond Howard, Jr., Justin J. Meehan, Howard, Singer & Meehan, St. Louis, for appellant.

John D. Ashcroft, Atty. Gen., Steven D. Steinhilber, Asst. Atty. Gen., Jefferson City, for respondent.

WELLIVER, Judge.

Appellant filed a Rule 27.26 motion to set aside and vacate a judgment and sentence imposed for second degree murder based on a plea of guilty. The trial court denied the motion without evidentiary hearing on the ground that it did not present an issue of fact or question of law. Movant appealed to the Missouri Court of Appeals, Eastern District, which affirmed. Upon application of appellant, we ordered the case transferred to this court. The case will be determined in this court the same as on original appeal. Rule 83.09; Mo.Const. art. 5, § 10. We affirm.

On February 8, 1975, a 16 year old male named Kevin Gary was found by St. Louis police lying on a city sidewalk. He was pronounced dead of gunshot wounds on arrival at St. Louis City Hospital. An indictment was filed in connection with Gary's death charging appellant Arthur Rice in one count with first degree murder and in a second count with first degree attempted robbery by means of a dangerous and deadly weapon. Appellant was then an 18 year old male native of St. Louis with no prior convictions.

On March 7, 1975, Robert M. Kaiser appeared as retained attorney for appellant and thereafter filed motions for discovery and inspection, separate trial, and suppression of identification testimony. On December 10, 1975, a hearing was held before the Honorable Harry M. James, Judge of Division No. 19 of the Twenty-Second Judicial Circuit. Present at the hearing were the appellant, his attorney, Robert M. Kaiser, and Assistant Circuit Attorney Henry J. Fredericks. A transcript of the hearing shows that the state elected to reduce the charge in the first count to second degree murder and to dismiss the robbery charge. In response, the attorney for appellant announced that appellant would change his plea to guilty.

The court then spoke directly with appellant. In response to the court's questions, appellant indicated that he had authorized his attorney to change his plea and that he was not then under the influence of drugs or alcohol. The court asked appellant whether he understood that he could have the charges tried by a jury, that he had a right to confront witnesses who would testify against him, and that through his attorney he could call and examine witnesses in his own behalf. The court then inquired whether appellant was asking to waive all those rights and privileges and was asking the court to accept his plea to the charge of second degree murder; whether the appellant had discussed his case with his attorney and was satisfied with the advice he had received; whether the appellant knew that if a jury had found him guilty of second degree murder that they could sentence him to any period of years a hundred years in the penitentiary; whether appellant understood that a plea of guilty is the same as though a jury had found him guilty; whether appellant had been told that if the court accepted the plea of guilty and the recommendations of the prosecution, that the appellant would be sentenced to twenty years in the Missouri Department of Corrections. To all of these questions the appellant responded, "Yes, sir."

The court asked the Assistant Circuit Attorney to state what he expected the state's evidence would show. The prosecutor outlined the following account. The victim of the fatal shooting, Kevin Gary, had been walking with Maurice Gilmore when they met a third person, Keith Johnson. While the three were talking on the sidewalk, four men ran toward them and one demanded the victim's coat. When the victim resisted, one of the four men grasped the coat and attempted to take it. Another of the four urged the man who grasped the coat to shoot the victim. One of the four did fire a shot, mortally wounding Gary. Subsequently, Maurice Gilmore picked appellant's photograph from several which the police showed him, and identified appellant as one of the group of four who had attempted to take the victim's coat, and as one who had held a pistol. On February 11, 1975, three days after the shooting, Gilmore viewed the appellant in a police line-up and again identified appellant as being one of the four, and as having a pistol in his hand. The appellant told the police that he had been in the home of William and Lillian Checks at the time of the shooting, but the Checks contradicted this alibi. Appellant also told the police that he had told Thelma Wallace to summon help, but Wallace would not corroborate this claim.

After this recitation of the state's case, the court asked the appellant whether the prosecutor's account was substantially correct. Appellant admitted that it was, with the sole reservation that he had asked a nearby resident to call for help. The court then asked whether appellant, together with others, attempted to steal a coat from a man and when he resisted, appellant shot him. Appellant admitted these allegations and gave a description of the shooting incident in his own terms that was consistent with the prosecutor's description. The court accepted the plea upon the express finding that it was voluntarily made, and sentenced appellant to twenty years in the Missouri Department of Corrections. ¹

Appellant presents three general grounds in support of his motion to vacate the conviction: "(a) Petitioner did not make a knowing and voluntary plea of guilty in that he was coerced, misled, and intimidated; (b) Petitioner did not knowlingly (sic) and voluntarily waive his right to a jury trial in that he was coerced, misled and intimidated; (c) Petitioner did not have effective assistance of counsel by Robert M. Kaiser." Appellant catalogues nine "factual grounds" in support of his motion. Five of these allegations concern conduct of his retained attorney, I. e., that the attorney refused to make an investigation of appellant's case because appellant could not afford to pay private investigators $1500 in fees; that his attorney never explained to him the range of punishment possible with second degree murder and that the attorney "intimidated, misled, and coerced" the appellant to plead guilty by telling him that the family of the victim "had hired the best prosecutor in Missouri," that appellant would have no witnesses for his defense but that sixteen to forty witnesses would testify against him, and that the trial court would not permit appellant to submit to a lie detector test to establish his innocence. The other four allegations concern the conduct of the trial court in the appellant's guilty plea hearing, I. e., that the trial court failed to inquire into assertions made by the appellant to the effect that the shooting victim had a gun "which established self defense to the murder charge; that the court "coerced, intimidated and misled" the appellant to plead guilty by stating that upon a jury finding of guilt he "would be sentenced to '100 years' in the penetentiary (sic);" that the court did not make a finding that the appellant in fact knew the possible range of sentence in a conviction for second degree murder; and that the court did not make a finding that the appellant voluntarily waived jury trial and voluntarily pleaded guilty.

The sole question presented on appeal is whether the trial court erred in denying appellant's motion for postconviction relief without affording him an evidentiary hearing on the factual allegations contained in the motion. The standard for determining whether a Rule 27.26 movant is entitled to an evidentiary hearing is that stated in Smith v. State, 513 S.W.2d 407, 411 (Mo. banc 1974), Cert. denied 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975): "A 27.26 movant, in order to be entitled to an evidentiary hearing, must plead Facts, not conclusions, which, if true, would entitle him to relief and must show that such factual allegations are not refuted by facts elicited at the guilty plea hearing. ² (Emphasis in original.) This standard has been applied consistently by Missouri appellate courts to support the denial of an evidentiary hearing on a Rule 27.26 motion for relief from a judgment of conviction of second degree murder based on a guilty plea. James V. State, 571 S.W.2d 127, 128 (Mo.App.1978); Tillman v. State, 570 S.W.2d 844, 845 (Mo.App.1978); Breeland v. State, 568 S.W.2d 564 (Mo.App.1978); Giles v. State, 562 S.W.2d 106, 110 (Mo.App.1977); Haliburton v. State, 546 S.W.2d 771, 773 (Mo.App.1977); Hooper v. State, 541 S.W.2d 773, 774 (Mo.App.1976); Shepherd v. State, 540 S.W.2d 619, 620 (Mo.App.1976); Taylor v. State, 539 S.W.2d 589, 590 (Mo.App.1976); Winston v. State, 533 S.W.2d 709, 714 (Mo.App.1976); Fisk v. State, 515 S.W.2d 865, 866 (Mo.App.1974).

In overruling the motion to vacate, the trial court made specific findings of fact and conclusions of law as required by Rule 27.26(i), Fields v. State, 572 S.W.2d 477, 482 (Mo. banc 1978). The court considered each of appellant's allegations separately, compared the allegations with the transcript of the guilty plea hearing, and found that each failed at least one of the three requirements for entitlement to an evidentiary hearing. Our review is confined "to a determination of whether the findings, conclusions, and judgment of the trial court are clearly erroneous." Rule 27.26(j); O'Neil v. State, 502 S.W.2d 342, 343 (Mo.1973); McClure v. State, 470 S.W.2d 548, 551 (Mo.1971); Crosswhite v. State, 426 S.W.2d 67, 70 (Mo.1968).

The trial court found that appellant's allegation that his attorney refused to adequately investigate "facts and witnesses" merely stated conclusions, and so did not warrant extension of an evidentiary hearing. Where a plea of guilty has been entered, the...