Samuels v. State, 15807

• Decision Date: 15 May 1989
• Docket Number: No. 15807,15807
• Citation: 770 S.W.2d 717
• Parties: Lemon SAMUELS, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 717

770 S.W.2d 717

Lemon SAMUELS, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 15807.

Missouri Court of Appeals,

Southern District,

Division Two.

May 15, 1989.

Robert D. Rachlin, Downs, Rachlin & Martin, Burlington, Vt., Richard M. Goldstein, Cape Girardeau, for movant-appellant.

William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

MAUS, Judge.

Movant Lemon Samuels entered a plea of guilty to a charge of murder in the second degree. His plea was accepted and he was sentenced to imprisonment for 25 years. He seeks to set aside that plea by a motion under Rule 27.26. ¹ After an evidentiary hearing, the motion court denied relief. Movant states one point on appeal.

The record presents little documentation of the proceedings in the underlying criminal case. The following is the general background of that case gleaned by implication from the testimony and findings of the motion court. The movant and Leon Garner were charged with the first degree murder of Steve Swofford on February 5, 1986. See State v. Garner, 760 S.W.2d 893 (Mo.App.1988). Movant and Garner were accorded a joint preliminary hearing on April 24, 1986. They were bound over for trial. At an undisclosed time, movant was granted a change of venue to Pemiscot County. His case was set for trial on March 5, 1987. At the request of movant, it was continued to March 30, 1987. Then, at the request of movant, the case was removed from the trial docket. Thereafter, the case was set for trial on October 26, 1987. On October 22, 1987, after consulting with his attorney, public defender Peter Sterling, the movant determined to accept a plea bargain. On October 23, 1987, the movant, his attorney Peter Sterling, and the prosecuting attorney appeared before the circuit court. Pursuant to the plea bargain, the movant entered a plea of guilty to an amended charge of murder in the second degree. He was sentenced to imprisonment for 25 years.

On November 19, 1987, the movant filed the pending motion under Rule 27.26. According to the motion, attorney Maurice Geiger of the Rural Justice Center of North Conway, New Hampshire, assisted him "in preparing and submitting this pro se motion." The motion further states, "Attorney Geiger has never 'represented' me but has been assisting me throughout my case because I have asked him to, he has cooperated with my court appointed attorney, and has assisted me in preparing this motion."

The motion purports to state eight grounds for relief. Those allegations include the following:

(b) I only pled guilty because my lawyer, Peter Sterling, told me that if I went to trial that I would probably get an all white jury and that because I am black and accused of killing a white man that the jury would probably find me guilty and give me the death sentence, and that even though I had a very good case that he thought that my best chance to avoid the death penalty was to accept the offer to plead guilty to second degree murder and that I did not have any chance to get the advise [sic] of others and based on what my lawyer told me and what I know about the way things work in this part of Missouri, I was convinced that my only real choices were to plead guilty for something I did not do or end up dying in the gas chamber for something I did not do.

(c) That there is no factual basis for my guilty plea, and everything said in court on October 23rd about how I killed Steve Swafford [sic] was made up because my lawyer told me that we needed to tell the court a story of how the killing happened that fit with what the prosecutor was going to say, and the prosecutor's story was going to be that I hit Swafford [sic] with a brick and stabbed him with his own knife, and that it had to do with drugs. My lawyer helped me get a story together but it was all untrue because I had nothing to do with killing Swafford [sic] and I have no idea how Swafford [sic] was killed.

The balance of the allegations basically are repetitive, emphasizing the movant's indigency, lack of education and lack of time to talk to friends before accepting the plea bargain. At the evidentiary hearing on that motion, the movant testified and presented the testimony of his attorney, Peter Sterling. The motion court made extensive and comprehensive findings of fact in respect to each allegation of the motion and denied relief. "Appellate review shall be limited to a determination of whether the findings, conclusions, and judgment of the trial court are clearly erroneous." Rule 27.26(j). Also see Rule 24.035(j) and Rule 29.15(j).

The movant's point on appeal is as follows: "The trial court abused its discretion in overruling appellant's motion to vacate his conviction and sentence--withdrawal of appellant's plea of guilty is necessary to correct manifest injustice." The rules for appellate procedure include the following: "The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous, with citations of authority thereunder." Rule 84.04(d). "Setting out only abstract statements of law without showing how they are related to any action or ruling of the court is not a compliance with this Rule." Id. Also see Rule 30.06(d). The point, as stated, preserves nothing for review. Thummel v. King, 570 S.W.2d 679 (Mo. banc 1978). However, in argument, the movant states two headings or captions which will be considered.

The first heading asserts the plea was not voluntary because "[t]he Trial Court did not Adequately Inquire into Appellant's Plea of Guilty." Only by considering arguments under that heading can it be determined the movant contends the trial court did not follow Rule 24.02(b) in addressing the movant personally in open court. The trial court's personal dialogue with the movant extends for more than nine pages of the transcript of the guilty plea proceedings. It thoroughly covers and emphasizes each inquiry required by Rule 24.02. The transcript of the plea proceeding conclusively establishes that the movant's assertion in his first heading has no merit.

By his second heading, the movant asserts his "Plea of Guilty was Made Involuntary by Reliance on his Attorney's Advice." In argument under that heading movant states the following: "Specifically, Appellant asserts his counsel (a) instructed Appellant how to respond to the trial court's questions to assure acceptance of the plea at the plea hearing; and (b) informed Appellant he would be found guilty and given the death penalty, despite the merits of his case."

Movant's assertion (a) has the following background. In the record before the motion court one Bobby (Pork Chop) Hatton at the preliminary hearing testified he saw the homicide. Basically, he stated that he, Garner, the movant and others were congregated outside the Iceberg Club in Caruthersville in the early morning hours of February 5, 1986. The victim was walking by the group. The movant and Garner grabbed him and took him around the corner. Movant hit the victim in the head with some object and slammed him against the wall. The victim fell to the ground. Movant and Garner kicked him, stabbed him and hit him in the head with a hammer. The testimony of Hatton substantially recounted the same events as a video taped confession by Garner.

Tillson was an inmate in jail with the movant. He was prepared to testify to admissions made by the movant. What his exact testimony would be is not clear. Attorney Sterling testified he told movant that the Tillson version was that movant was alone when he encountered victim and stabbed and hit him. Sterling also said he told the movant that he would have to accept one version or the other in pleading guilty. The movant said he would adopt the Tillson version.

The substance of the anticipated Tillson testimony is placed in doubt by the prosecutor's recitation at the guilty plea hearing. In that recitation the prosecutor first gave a brief summary of Hatton's anticipated testimony. He then said the state would present the testimony of Tillson. He summarized the anticipated testimony of Tillson as follows:

[Tillson] would testify that he asked this defendant did he, in fact, kill this young man, or words to that effect and which the defendant said he did. He would further state to the effect that this victim allegedly had some drugs that the defendant wanted, and they had some kind of confrontation about that, and this was at The Iceberg nightclub, and that the victim left and came back, and also the person who was incarcerated in jail with him would say that during an argument over some cards while they were playing there in the cell that this defendant became angry at another cellmate and said words to the effect of 'Don't mess with me. I have done killed one,' or words to that effect, and basically that would be what our evidence would be, Your Honor.

This recitation does not establish any inconsistency between the testimony of Hatton and Tillson. The only factual account of the homicide was to be established by the testimony of Hatton. Following the statement by the prosecutor, the court asked Mr. Sterling if he wanted to ask the movant questions concerning the prosecutor's rendition of the facts. Sterling then asked the movant, "Is that also your understanding of what the evidence would be in this case?" The movant answered, "Yes." The court then asked the movant the following questions: "There is no major deviations from what the prosecutor says? That's basically true? Is that your position?" The movant answered, "Yes."

The motion court specifically found that Sterling did not tell movant what to say. This determination is supported by the record. It is significant that in the plea proceeding no one referred to Sterling's version of Tillson's anticipated testimony. The movant did not adopt that version of the homicide. The record conclusively...