Shoemake v. State
| Decision Date | 08 February 1971 |
| Docket Number | No. 54746,54746 |
| Citation | 462 S.W.2d 772 |
| Parties | Harold Lindell SHOEMAKE, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Supreme Court |
W. Oliver Rasch, Bonne Terre, for appellant.
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.
WELBORN, Commissioner.
Appeal from denial of relief in proceeding to set aside judgment and sentence of life imprisonment, entered upon plea of guilty.
On Sunday morning, June 9, 1957, shortly after midnight, Porter Dorsey was found shot to death in his house in a rural area of Wayne County. On Sunday afternoon, appellant, Harold Lindell Shoemake, was taken into custody at Fredericktown by a member of the Missouri State Highway Patrol, who turned Shoemake over to the sheriff of Wayne County, Elmer Chatman. Shoemake was taken to the Wayne County jail at Greenville and questioned by Chatman, Roy McGhee, Jr., prosecuting attorney of Wayne County, and members of the highway patrol. Shoemake was held in jail Sunday night. The next morning he was again questioned by Sheriff Chatman. In the course of the interrogation, Shoemake admitted that he had shot Dorsey and wrote a statement, as follows:
On June 10, 1957, a complaint charging Shoemake with first degree murder in Dorsey's death was filed in the Wayne County Magistrate Court.
On June 19, 1957, a preliminary hearing on the charge was held in the magistrate court. Shoemake was represented at the hearing by Robert I. McIlrath, an attorney employed by members of Shoemake's family. The coroner and sheriff testified at the preliminary hearing and Shoemake was bound over to the circuit court and remained in jail, the magistrate concluding that the offense was not bailable. On July 1, 1957, an information was filed in the circuit court, charging Shoemake with murder in the first degree.
On September 4, 1957, Shoemake appeared in the Wayne County Circuit Court. Attorney McIlrath was not present and the court appointed Ronald M. Ross to represent Shoemake. The case was set for trial on September 23, 1957. On that date, Shoemake appeared before Judge Eversole, Judge of the Wayne County Circuit Court, accompanied by attorney Ross. A plea of guilty was entered and, after granting allocution, the court pronounced sentence of life imprisonment.
This proceeding originated in a pro se motion to vacate the judgment, filed in the Wayne County Circuit Court on March 17, 1967. On September 7, 1967, Robert B. Baker was appointed to represent Shoemake and on February 16, 1968, an amended motion was filed on behalf of Shoemake. The grounds for relief (including an amendment by interlineation) were:
'(a) Movant was harassed, brow-beat, threatened, made promises of leniency and put in great fear for his life until movant agreed to write a statement and/or confession.
'(c) Movant's plea of guilty was not voluntary, it was made under the influence of promises and coercion on the part of the Wayne County Sheriff, further, movant did not enter the plea, rather his attorney did for him.
'(e) Movant was forced to trial in such a way as to deprive him of the effective assistance of counsel.
'(f) The complaining witness in this case did not have actual knowledge of the alleged facts set forth in the complaint.
'(g) Movant was denied due process of law in that he was denied the effective assistance of counsel, because counsel was incompetent to advise him on the merits of this charge, in violation of Article 1 Section 10 of the Missouri Constitution (V.A.M.S.) and Amendments 5 & 14 of the United States Constitution.
'(h) Movant was not represented by counsel at a critical stage in the proceedings in his case, to-wit: at the arraignment before the preliminary hearing, wherein the complaint was read to him and he entered a plea of guilty to the complaint as made, and this was recorded by the Magistrate in the Transcript of the proceedings, in violation of Article 1 Section 10 of the Missouri Constitution and Amendments 5 & 14 of the United States Constitution.'
An evidentiary hearing on the motion was held in the Wayne County Circuit Court. The court made findings of fact and conclusions of law and denied relief. This appeal followed. Mr. Baker died pending the appeal and Mr. Oliver Rasch was appointed to represent appellant in this court.
The issues on this appeal are primarily factual rather than legal. The appellant complains that the trial court's findings were contrary to the 'preponderance of the credible evidence,' or to the 'undisputed evidence.' However, we do not weigh the evidence on this appeal. The weight of the evidence and credibility of the witnesses are matters for the trial court. Our function is to determine whether the judgment of the trial court was 'clearly erroneous.' Supreme Court Rule 27.26(j), V.A.M.R.; Crosswhite v. State, Mo.Sup., 426 S.W.2d 67. In our review we recognize that the trial court had the right to reject testimony on behalf of the movant, even though there was no contrary evidence offered at the hearing. That is particularly true when the favorable testimony came from appellant himself, with an obvious interest in the outcome, and the proceedings for relief arose sometime after the events in question and after death had removed from the scene persons with direct knowledge of the events, such as Mr. Ross and Sheriff Chatman. State v. Hamel, Mo.Sup., 420 S.W.2d 264, 267(3, 4), (5).
Turning to the issues on this appeal, appellant first contends that the trial court's finding that appellant's statement of June 10, 1957 was voluntary is erroneous because it is contrary to the proponderance of the credible evidence which showed that the statement was induced and coerced by threats of the sheriff to charge appellant's brother with murder if appellant did not sign the statement; that it was induced by a promise by the sheriff to release the brother if appellant would sign the statement; that the statement was the result of incommunicado interrogation in an unfamiliar and menacing atmosphere.
The statement was not used as evidence, appellant having pleaded guilty. However, appellant asserts that the voluntariness of his plea was affected by the involuntary statement. In view of the trial court's rejection of the contention of the involuntariness of the statement, a finding which we do not find clearly erroneous, we need not pursue the question of the relevancy of an involuntary statement to the voluntariness of a plea of guilty. See Mitchell v. State, Mo.Sup., 447 S.W.2d 281.
There is unquestionably evidence to support the finding which appellant asserts the trial court should have made. Appellant himself testified in accordance with what he now says the preponderance of the evidence showed. His brother, Estel Shoemake, testified that he was arrested on June 9 in connection with the Dorsey shooting; that the next day he was brought to the room where the sheriff was questioning appellant and that the sheriff told appellant that if he would sign a statement, they would release Estel; that appellant then wrote the statement.
On the other hand, the sheriff testified at the preliminary hearing that the statement had been made to him after appellant had been advised of his rights and that no threats or promises were made to appellant. Sergeant Wright of the highway patrol, who was present when appellant admitted the shooting and who saw appellant write the statement, testified that, prior to the questioning, appellant was advised of his right to an attorney, that he could call an attorney or any other person, that he was not required to make a statement and that what he said might be used against him. Sergeant Wright testified that he made no threats or promises and that none were made in his presence. Sergeant Wright testified that he heard no promise of leniency to Estel as an inducement for the statement by appellant. Deputy Sheriff Alexander, the jailer who was present during portions of the interrogation, could recall no threats or promises to appellant.
The trial court resolved the conflict in testimony against appellant. We are not convinced that the finding urged by appellant was the only one which the evidence called for. The court's finding is supported by positive testimony. We do not find it clearly erroneous.
Appellant next contends that he was deprived of counsel of his own choice. He contends that his employed counsel, Mr. McIlrath, was not notified of the September 4th call of the...
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