Richardson v. State
| Decision Date | 13 September 1971 |
| Docket Number | No. 1,No. 56242,56242,1 |
| Parties | Bitz RICHARDSON, Appellant, v. STATE of Missouri, Respondent |
| Court | Missouri Supreme Court |
Louis J. Pelofsky, Joseph N. Miniace, Joel Pelofsky, Kansas City, for appellant.
John C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, for respondent.
HOUSER, Commissioner.
Appeal by Bitz Richardson from an order overruling a motion filed under Criminal Rule 27.26, V.A.M.R., to vacate a first degree murder conviction and life sentence entered in the Circuit Court of Henry County December 30, 1958.
This is the eighth time appellant has applied to a court for relief from this judgment and sentence. On May 16, 1960 he filed a motion under Criminal Rule 27.26 to vacate; an evidentiary hearing was held before Honorable W. O. Jackson, Judge of the Circuit Court of Henry County; the motion was overruled and he appealed to the Supreme Court of Missouri, which affirmed the judgment in an opinion by Dalton, J., reference to which is made for the general factual background of this case. State v. Richardson, Mo.Sup., 347 S.W.2d 165. Certiorari was denied by the United States Supreme Court. 372 U.S. 954, 83 S.Ct. 953, 9 L.Ed.2d 978 (1963). On January 22, 1964 an evidentiary hearing of appellant's petition for a writ of habeas corpus was conducted before then United States District Judge Floyd R. Gibson, following which an opinion and order was filed denying the petition. Richardson v. Nash, U.S.D.C., W.D.Mo.W.Div., No. 14534--2. Appellant sought review by the United States Court of Appeals, which court found no probable cause for review of the district court's action. Richardson v. Nash, U.S.C.A., 8 Cir., Misc. No. 287, opinion filed August 31, 1964. In 1968 appellant filed a second petition for a writ of habeas corpus, this time in the United States District Court for the Western Division of Missouri, Central Division, alleging newly discovered evidence. Chief Judge William H. Becker on November 15, 1968 made an order dismissing the petition without prejudice, suggesting the filing of a new motion under our Criminal Rule 27.26 to secure state court adjudication of claims arising out of the allegedly newly discovered evidence. On April 23, 1969 appellant filed this, his second motion under Criminal Rule 27.26, alleging ineffective assistance of counsel; that movant did not make a knowing and voluntary waiver of his preliminary hearing and of defects in the information; coercion into entering a plea of guilty by the threat of a death penalty if he stood trial; and denial of allocution. An evidentiary hearing was held before Honorable Kelso Journey, Judge of the Circuit Court of Henry County, at which appellant was represented by counsel. Findings of fact and conclusions of law were made and judgment overruling and denying the motion to vacate was entered. This appeal followed.
Appellant raises four points: ineffective assistance of counsel at and before the plea of guilty; uninformed and involuntary waiver of the preliminary hearing and of defects in the complaint and information; coercion of the plea of guilty by appellant's counsel intimidating appellant by repeatedly emphasizing the possibility of a death penalty if he stood trial, and failure of the sentencing court to observe the rules of the Supreme Court in taking the plea of guilty and sentencing appellant.
The specific findings of fact and conclusions of law made by the circuit court on each of these four points are presumed to be correct and should be affirmed unless clearly erroneous. Criminal Rule 27.26(j); State v. Mountjoy, Mo.Sup., 420 S.W.2d 316; Crosswhite v. State, Mo.Sup., 426 S.W.2d 67. A finding is clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been committed, and the burden of proving the grounds for relief is upon appellant. Crosswhite v. State, supra, 426 S.W.2d l.c. 70.
In determining this appeal we have the benefit of the transcripts of the hearings before Judges Journey, Gibson and Jackson, all of which were introduced in evidence. Our review of the three transcripts and other exhibits leaves us with the definite and firm conviction that no mistake has been committed; and that the findings and conclusions of Judge Journey are not erroneous but are supported by substantial testimony and are free of error.
Appellant claims his counsel failed to properly investigate the case and failed to advise him as to the elements of first degree murder, possible defenses, mitigation or avoidance of punishment, and the consequences of pleading guilty. Under the standards and tests by which courts appraise the effectiveness of assistance of counsel 1 there is ample evidence to sustain the finding that there was no failure to properly investigate the case or to advise appellant in these particulars. The evidence justifies the following findings of fact: Appellant's counsel made a creditable investigation. He ascertained the names of the State's witnesses Eversole and Havens and informed himself of the salient facts. He procured a tape recording of Eversole's testimony at the coroner's inquest. He read a statement by Havens at the prosecuting attorney's office. Appellant and one Gregg had a falling out over Gregg's failure to pay for some poles cut from appellant's property. Appellant had complained to the sheriff about the acts of Gregg. From the stories of Eversole and Havens counsel concluded that they would testify in court to the following account of the killing: Gregg was driving a truck, with Eversole and Havens in the seat with him. They were waylaid by appellant, who approached and shot Gregg three times with a pistol, while Gregg's hand was still on the steering wheel--none of the three got out of the truck. Gregg was shot with .22 calibre bullets. Appellant's son had registered a .22 pistol with the sheriff a few days previously. That gun was missing from the drawer where the son kept it at home. The gun was never found. Havens and Eversole both identified appellant in a lineup, and Haven's statement identified appellant as the man involved in the shooting. Counsel investigated in the nearby county where Gregg had lived, conferred with appellant's wife son and other relatives; interviewed the sheriff and his deputy, the chief of police, prosecuting attorney, the divorced wife of appellant, and others. He discussed the facts with appellant and counseled with him 28 times between September 19 and December 30, 1958. Together they reviewed the tape recording of the coroner's inquest. Counsel supplied appellant and his wife with a transcript of the recording. He advised appellant as to the nature of the crime charged and the range of punishment upon conviction and discussed with him possible defenses, including self-defense and temporary insanity. In testifying before Judge Gibson appellant claimed that Gregg waved him down on the highway and got out of his truck, accompanied by three other persons; that appellant was alone; that Gregg approached him with a gun, threatened him, and when appellant got out of his truck Gregg hit him in the mouth, raised the gun in a threatening position; appellant grabbed him by the wrist and in the scuffle, while appellant was defending himself, the gun accidentally discharged and killed Gregg. Counsel testified that appellant never told counsel 'any story like that.' He first told counsel 'something about reaching for a gun (a gun never found) or reaching for a jack,' but later when they were alone appellant told counsel the same facts recited by the prosecuting attorney to the court (from the statements of Eversole and Havens). Counsel considered a change of venue and the prospects in the counties to which the case might be sent on change of venue. He discussed with appellant his prior conviction of manslaughter, its admissibility in evidence and possible effect on the jury in the event of trial. He determined that appellant had no defense and that it would be a mistake for him to take the stand with this previous conviction. He told appellant, his wife, sons and the sister that appellant had 'an awful good chance of getting the death penalty if he ever had a jury trial.' He discussed the possibility of parole and advised appellant that it was impossible to say how long he would be imprisoned under a life sentence (contradicting appellant's testimony that counsel indicated that he would be out in not more than 8 months). He advised appellant to plead guilty and take life imprisonment. After long conferences between counsel, appellant and the relatives, and between appellant and his kinsmen in private without counsel present, appellant and his relatives agreed that he would plead guilty with the expectation of receiving a life sentence. Counsel prepared and had both appellant and his relatives sign a paper agreeing to such a disposition of the case. Although the prosecuting attorney at first would not recommend less than the death penalty, even on a plea, finally, after further talks with counsel, he promised to recommend a life sentence on a plea of guilty. Counsel had experienced in the past the circuit judge not accepting the prosecuting attorney's recommendations and therefore in chambers, in the presence of the prosecuting attorney, counsel asked the judge whether he would follow the recommendation of the prosecuting attorney.
In this state of the record we conclude that the finding of Judge Journey that counsel 'made a very complete and credible investigation of all the facts concerning the charge, * * * gave much study and consideration of all the aspects of the State's case against his client and of the possible defenses,' including the defenses of self-defense and temporary insanity; 'did investigate and consider every facet of the case' and that counsel's obtaining the recommendation of the prosecuting attorney of a life sentence 'was a very effective...
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