Russell v. State

• Decision Date: 10 November 1969
• Docket Number: No. 1,No. 53429,53429,1
• Citation: 446 S.W.2d 782
• Parties: Walter RUSSELL, Movant-Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 782

446 S.W.2d 782

Walter RUSSELL, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 53429.

Supreme Court of Missouri, Division No. 1.

Nov. 10, 1969.

Charles A. Blackmar, Asst. Atty. Gen., Jefferson City, for the State.

Dale Reesman, Boonville, for appellant.

John C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, for respondent.

HOLMAN, Judge.

On September 14, 1959, Walter Russell pleaded guilty to the crime of rape. He was sentenced to life imprisonment. He has filed a motion pursuant to S.Ct. Rules 27.25 and 27.26, V.A.M.R. to withdraw the plea of guilty and to set aside the judgment. The trial court held an evidentiary hearing and overruled the motion. At the time of entering that order the trial court filed a memorandum which contained detailed findings of fact and a most creditable discussion of the law applicable to the points in the motion. Russell has duly appealed. We will hereinafter refer to movant as defendant.

The prosecutrix, a 35-year-old white married woman, lived in a residence just across the street from the playground of the Training School for Boys located at Boonville, Missouri. About 1:30 a.m. on Sunday, July 12, 1959, a colored man entered the bedroom of her home in which she and her small daughter were sleeping and raped prosecutrix. When the officers investigated they found coal soot on the wall of the bedroom where someone had walked between the bed and the wall. Bill Hughey, chief deputy sheriff, reported to Mr. Sweeney, Superintendent of the Training School, concerning this fact and Sweeney directed Corrections Officer Forbis to bring defendant to his office. Sweeney talked with defendant briefly, alone in the outer office, and then advised the officers present that defendant had confessed the crime. Deputy Highey then took defendant to the office of Prosecuting Attorney John Stegner where defendant gave the details of the crime which were typed by Stegner and signed by defendant as a written confession. Several persons were present on that occasion, including a newspaper man.

Defendant had a good record at the training school and therefore had been given a position of trust in that he had been assigned to work in the power plant. According to the confession defendant was working in the boiler room on the night in question. While his supervisor was in the office, defendant slipped away and went to the nearby residence of prosecutrix. He used a case knife he had taken from the kitchen at the training school and removed the putty from around a pane of glass in a basement window. He took the glass out and thus gained entrance into the basement. After going to the first floor he removed his shoes and then went into a bedroom where a little girl and her mother were sleeping. He put his hand on the woman's throat and a knife to her breast and asked her what she had on. He stated that she suggested that they go into the next room to get away from the little girl, which they did; that he then directed that she take off her clothing, telling her that if she did not have intercourse, or if she made an outcry, he would kill her baby girl. She did as directed and he had intercourse with her, and then went back to his job in the boiler room, arriving before he had been missed by his supervisor.

A complaint was filed in the magistrate court by Prosecuting Attorney John Stegner, and, on July 16 defendant waived a preliminary hearing, without counsel. On August 3, 1959, the circuit court appointed Judge Roy Williams, Lane Harlan, and Hampton Tisdale of the Cooper County Bar to represent defendant. On September 14, 1959, defendant appeared in court with his attorneys and entered a plea of guilty and, as stated, was sentenced to life imprisonment. At that time the information was read to the defendant and the court advised him extensively concerning his rights. The facts concerning the crime were stated by the prosecuting attorney and the court read defendant's written confession. Upon being questioned by the court the defendant admitted that the confession was true except for one rather unimportant detail. Defendant stated that he had had ample opportunity to confer with his attorneys and knew he was entitled to a jury trial if he desired it, but that he desired to enter a plea of guilty. His attorneys presented to the court a psychologist's report which showed that defendant was of low intelligence, that there was no indication of a mental disorder, and that he was considered to be aware of the consequences of his behavior.

At the evidentiary hearing on the motion defendant testified that he made the oral confession in the superintendent's office because of fear. He stated that on the way to the office Mr. Forbis threatened to kick him unless he walked faster; that in the office he was slapped and threatened by Deputy Sheriff Gilson; that Mr. Sweeney (now deceased) took him into the next office and said that if he didn't confess he would let these officers do what they wanted to do, and that he then told Mr. Sweeney the story. He stated that there were no threats or physical violence connected with the events in the prosecuting attorney's office; that he signed that confession because of fear occasioned by what had occurred earlier in the superintendent's office; that at that time the prosecuting attorney advised him concerning his rights as stated in the confession, as follows: 'I have been advised by John J. Stegner, Prosecuting Attorney of Cooper County, that I have certain rights. That among them is the right to have an attorney present, the right to have my friends present and that I do not have to make any statement. Mr. Stegner further advised me that any statements that I may make can be used against me in a court of law, he told me this in the presence of Deputy Sheriff William Hughey, Deputy Sheriff Ira Gilson, and in the presence of Leon Larson and E. J. Melton. I make this statement of my own free will and I have not been offered any favor or reward nor have the authorities told me that if I make this statement things will go easier with me.'

Defendant stated that after the confession he was taken to the jail in Marshall where he said the sheriff threatened to turn him over to a mob if he didn't quit walking around dressed only in his shorts; that he waived his preliminary hearing because the prosecuting attorney told him it was best to do it; that he had never seen the prosecutrix except when he looked across from the training school and would see her in her yard; that he never told his attorneys his confession was coerced; that he conferred with them on two or three occasions and told them he wasn't guilty but they said they didn't think a jury would believe his story so he then decided to plead guilty. He stated that the confession was not true because he was not guilty and that he said it was true when questioned by the judge in court because he was frightened; that he felt that he didn't have anyone representing him because his lawyers had told him they didn't think a jury would believe his story.

Defendant stated that at his request his three attorneys had been relieved from representing him on this motion and another attorney was appointed for that purpose. All three of his attorneys testified at the hearing of the motion. It appears from their testimony that all of them have had extensive experience in the criminal practice; that they conferred with him a number of times, advised him that he was entitled to a jury trial and, in the event he wanted one, they would do their best and would seek a change of venue from Cooper County because of the feeling against him there; that he never complained to them about coercion in getting the confession and never told them that he wasn't guilty, except that Mr. Harlan testified that defendant told him that the prosecutrix had consented to intercourse and that he had advised him that he did not think a jury would believe that story. The attorneys indicated that they recommended that he plead guilty but that the final decision was left entirely to the defendant; that they did not discover the error...