State v. Baugh

• Decision Date: 12 October 1964
• Docket Number: No. 1,No. 50419,50419,1
• Citation: State v. Baugh, 382 S.W.2d 608 (Mo. 1964)
• Parties: STATE of Missouri, Respondent, v. Ray Leo BAUGH, Appellant
• Court: Missouri Supreme Court

Page 608

382 S.W.2d 608

STATE of Missouri, Respondent, v. Ray Leo BAUGH, Appellant.

No. 50419.

Supreme Court of Missouri, Division No. 1.

Oct. 12, 1964.

Thomas F. Eagleton, Atty. Gen., Howard L. McFadden, Asst. Atty. Gen., Jefferson City, for respondent.

William G. Guerri, St. Louis, for appellant.

WELBORN, Commissioner.

This is an appeal from a judgment denying appellant's Motion to Vacate and Set Aside Judgment and Sentence (Supreme Court Rule 27.26, V.A.M.R.) upon his conviction of statutory rape. The circuit court denied the motion without a hearing. This appeal followed.

On October 15, 1957, appellant was tried and convicted in the St. Louis Circuit Court as a habitual criminal of statutory rape. In accordance with the habitual criminal act then effective (Sections 556.280, 556.290, RSMo 1949, V.A.M.S.), the jury returned the mandatory sentence of imprisonment for life. The conviction was affirmed by the Supreme Court en banc. State v. Baugh, 323 S.W.2d 685.

The basis of the proceeding here under consideration was an incident which occurred during the trial and which was not reported in the transcript on the appeal from the conviction.

On October 15, 1957, after the case had been submitted to the jury and the jury had retired to the jury room for its deliberations, appellant's trial counsel, Mr. C. Arthur Anderson, returned to his office to await the jury's verdict. While Mr. Anderson was absent and appellant was in the custody of the sheriff, and about an hour after the jury had retired to consider its verdict, the following transpired, as recorded in the notes of the official court reporter:

'(* * * '4:05 P.M. Jury returns to ask legal question. Present: Brady and Reardon for State. No one appearing for Defendant. Defendant appearing in person.')

'THE COURT: Now, gentlemen of the jury, the sheriff has informed me that the jury desires to ask a legal question. While Mr. Anderson is not present, I think we can probably entertain your question and endeavor to answer it, even in his absence.

'A JUROR: Your Honor, the jury have not come to a verdict. We wish to ask this question of law, quoting: 'Do we, the jury, have any right to assess the penalty other than life even if we find the defendant guilty as charged of both the Illinois and St. Louis offenses.'

'THE COURT: Now, the answer to this is shown necessarily in the instructions already given you. You have three forms of verdict besides those instructions. The law provides what you stated there, if the jury considers it more appropriate to use the form of verdict that does not refer to the prior coviction we would have no objection to their using that form of verdict. That, I think, with the reference to the instructions, is the only answer that I can properly give, and I think that probably is clear enough to you as to what you should do. You may use that form of verdict.

'A JUROR: I think that answers our question, your Honor. May we be excused?

'THE COURT: The sheriff will take the jury to their deliberating room, and when the jury again departs, we will again be in temporary recess.

'(Reporter's note: Verdict was returned at 4:35 P.M. of the same day)'

Appellant's counsel not having become aware of the communication until nearly four years after its occurrence, no assignment of error based upon this communication between the judge and the jury was made in appellant's motion for a new trial.

In his motion here under consideration, appellant charged that the communication between the judge and jury outside the presence of appellant's counsel was a denial to appellant of assistance of counsel as guaranteed by the Constitution of Missouri and the Constitution of the United States. On this appeal, that contention is urged, together with the contention that the oral communication violated the requirement (Supreme Court Rule 26.02, V.A.M.R.) that all instructions on questions of law shall be given to the jury in writing.

Section 18(a) of Article I, Constitution of Missouri, 1945, V.A.M.S., guarantees: 'That in criminal prosecutions the accused shall have the right to appear and defend, in person and by counsel; * * *.' A similar guarantee of the Sixth Amendment to the Constitution of the United States, at one time considered applicable only to proceedings in federal courts (Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595; State v. Mischanko, Mo.Sup., 272 S.W.2d 210, 215), is now held 'obligatory upon the States by the Fourteenth Amendment.' Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 795, 9 L.Ed.2d 799; Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, 986. In this proceeding we are concerned with the question of whether or not there was in the occurrence complained of in the trial court such an infringement or denial of the rights of the appellant under these constitutional guarantees as to render the judgment of conviction subject to collateral attack. Supreme Court Rule 27.26. Although the right to assistance of counsel is spoken of as an 'unqualified' right (Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4, 10), the cases from both state ¹ and federal ² courts, cited and relied upon by the appellant in this proceeding, considered the absence of counsel at the time of a communication between the trial judge and the jury as a matter of trial error and did not consider whether or not there had been such an abrogation of constitutional rights as to oust the trial court of jurisdiction to act further in the cause. Certainly the question here presented would not have arisen had the trial court followed the procedure suggested in Hartgrove v. Chicago, B. & Q. R. Co., 358 Mo. 971, 218 S.W.2d 557, 563, cited by appellant. However, we are cited to no case in which the temporary absence of counsel for the defendant, at a time when the judge communicated with the jury after submission of the cause, has been found to render the judgment subject to collateral attack.

In our opinion, such absence should make the judgment vulnerable to collateral attack only when there has been a denial, in the circumstances, of a fair trial. Such a denial can be found only when the constitutional infringement asserted has resulted in substantial prejudice to the rights of the accused. This is the standard applied in federal court proceedings under 28 U.S.C.A. Sec. 2255, the substantial equivalent (State v. Thompson, Mo.Sup., 324 S.W.2d 133, 135) of our Rule 27.26. Thus in Martin v. United States, C.C.A., 5th Cir., 182 F.2d 225, 227(1-3), 20 A.L.R.2d 1236, the court stated:

'It may be safely said that at this time there is no question of constitutional law any more firmly established than the oft enunciated and applied principle that, in the trial of criminal cases in the federal courts, the defendant is entitled to have the guiding hand of counsel at every stage of the proceeding. Thus, in the absence of an intelligent waiver of the right to counsel, it is the duty of the Court to appoint competent counsel for the defendant, failing which, the Court loses jurisdiction to proceed. However, recognition and application of this principle to its fullest extent does not require a Court to upset a conviction merely upon proof that at some particular stage of the proceeding counsel may not have been present. A great deal depends upon the nature of the 'stage of the proceeding' from which the counsel is absent. If it be of such minor legal significance as to refute even a possibility of injury, such inconsequential impingement of the constitutional right is merely error without injury.'

See also Kyle v. United States, C.C.A., 2d Cir., 297 F.2d 507, 514(5).

Although in Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 the court, in a collateral proceeding, declined to weigh the prejudice against the defendant resulting from his denial of counsel upon arraignment, and in White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.E.2d 193, on direct appeal, did 'not stop to determine whether prejudice resulted' from the denial of counsel at a preliminary hearing, the existence of prejudice was inherent in the situations presented in those cases. In Hamilton, the defendant, under Alabama law, stood to lose defenses otherwise available to him if not asserted at the arraignment. Therefore, the assistance of counsel at that stage of...