State v. Brown, 54270

• Decision Date: 09 February 1970
• Docket Number: No. 1,No. 54270,54270,1
• Citation: 449 S.W.2d 664
• Parties: STATE of Missouri, Respondent, v. Dudley G. BROWN, Appellant
• Court: Missouri Supreme Court

Page 664

449 S.W.2d 664

STATE of Missouri, Respondent, v.Dudley G. BROWN, Appellant.

No. 54270.

Supreme Court of Missouri, Division No. 1.

Feb. 9, 1970.

John C. Danforth, Atty. Gen., Thomas L. Patten, Asst. Atty. Gen., Jefferson City, for respondent.

John Torrey Berger, Jr., James W. Herron, St. Louis, for appellant.

HIGGINS, Commissioner.

Appeal from denial, after hearing, of motion to withdraw guilty plea and to set aside judgment of conviction of robbery, first degree, with a dangerous and deadly weapon, imposed on a plea of guilty. §§ 27.25 and 27.26, V.A.M.R.

On June 21, 1967, Dudley G. Brown and his wife, Tina, with their attorney, Mr. Alan Kimbrell of the public defender's office, pleaded guilty to robbery, first degree, by means of a dangerous and deadly weapon, of Schimmel Fur Company, Clayton, Missouri, May 19, 1966.Sentence was deferred to July 7, 1967, pending a presentence investigation.On July 7, 1967, Dudley and Tina, represented by Mr. William Shaw, also of the public defender's office, were sentenced to 9-years' imprisonment on their guilty pleas.

Appellant, Dudley G. Brown, arrived in St. Louis, Missouri, in February, 1964.He was on parole from a grand larceny conviction in California and was under Missouri probation and parole supervision.In September, 1965, he was arrested for possession of narcotics by Richard Patch, a federal narcotics agent.His indictment was suppressed and his parole continued in exchange for his consent to act as an informant which he did for the succeeding seven or eight months, during which his assistance led to some seven or eight arrests for narcotics violations.Defendant was using narcotics during this period, as he had done previously at the time of his discharge from military service in 1951.The arrests accomplished through Dudley's assistance also eliminated his supply of narcotics and he received threats against his safety and that of his family.Patch advised him about a week before the robbery that he could not send him to the federal hospital in Lexington, Kentucky, for treatment.Although denied by Patch, Dudley said Patch gave him a .45-caliber nickelplated automatic pistol and a .38-caliber blue steel revolver for the protection of his family.Dudley said he was also given a sawed-off shotgun, but this also was denied by Patch and the weapon never appeared in evidence.

Dudley stated that for two days prior to the robbery he had no narcotics and was suffering from acute withdrawal reaction, and he suffered symptoms and illness of withdrawal following his arrest.

Dudley and his wife used the pistol and revolver to rob the Schimmel Fur Company at about 4:00 p.m., May 19, 1966, and were arrested later that afternoon at their home, at which time a search was made, stolen furs, Tina's red wig and green dress, and the weapons were found and seized.

Dudley was taken to the St. Louis Police Department where he was interrogated for an hour and kept overnight.The following morning he was taken to the Clayton Police Department.He was interrogated further and admitted the robbery.He became ill and was taken to the county hospital and treated for his withdrawal illness.

Dudley had counsel of his own choosing, Mr. Charles Shaw, at his preliminary hearing.When he could not pay additional money he had an attorney, Mr. Kelleher, obtained by Patch, who advised him that Patch was not a defense in his situation.Mr. Kelleher withdrew as counsel and Mr. Kimbrell was appointed.

Appellant alleged as ground for relief that he was not adequately represented by counsel; that he was under a misapprehension, was misinformed, or was ignorant of the existence of defenses and his ability to suppress evidence; and that his guilty plea was involuntary.

Appellant's first contention is that the court erred in finding and ruling that hehe established counsel's inadequacy he established counselhs inadequacy by showing he failed to take steps to suppress the items taken at the time of arrest, failed to move to suppress the statement of admission, failed to discover evidence and take steps to determine defenses of insanity, necessity, compulsion, or entrapment, and generally did not render effective pretrial assistance.

The court found that the charge of inadequate representation was not supported by the evidence and, specifically, with respect to these charges, found that Mr. Kimbrell spent 'a great deal of time' with his client and adequately advised him of the various defenses, including may discussions with the court in an effort to get appellant into a hospital for treatment of his narcotics addiction.Appellant called Mr. Kimbrell as a witness and his testimony showed that he talked with both Dudley and Tina on several occasions.He did not discuss the robbery charge with Patch because he had no indication that Patch had any knowledge of the facts of the case.He did talk to him on two or three occasions about his client.He did not talk to Detective Morrissey of the Clayton police, but one of his associates in the public defender's office did so for him.He was informed of his client's fears, his narcotics addiction, and his story of the source of the weapons and their seizure.His preparation prior to his client's guilty plea consisted of his interviews with Dudley and Tina.He had considered grounds for suppression of evidence and statement and had planned to file motions to that end had it been likely for the case to go to trial.Dudley suggested consideration of temporary insanity and entrapment defenses which were 'open' questions prior to the plea.'I would characterize the majority of the effort as an attempt based on the request of the defendant to keep him out of the Missouri Penitentiary, and that is by the route of having him committed through any available means as a narcotic addict.'He conducted research to this end; he discussed these possibilities with Judge Schaaf, the parole officer, Dr. Peterson of the Fulton State Hospital, and drew commitment petitions.The state was not willing to dismiss its charges in exchange for six months to a year in the hospital for treatment.After efforts to secure hospitalization for his client failed, Mr. Kimbrell concentrated on conditions under which disposition by guilty plea might be made.He stated to his client that if he wished his case tried he would do so, but he ultimately wished to plead guilty.Mr. Kimbrell had a professional opinion that there was no defense of 'temporary insanity' because the sole question in that regard was whether the accused was mentally responsible for his actions at the time he committed his crime.He discussed his impression with his client along the line that narcotics addiction did not constitute an insanity defense.He discussed entrapment with his client and gave his opinion that actions of federal officers in connection with narcotics cases could not be imputed to the State of Missouri in this robbery case.In discussing conditions of a guilty plea he succeeded in persuading the prosecuting attorney to reduce his recommendation with respect to sentence from 15 to 10, and ultimately to nine years.He felt under such circumstances that he gave his client good service in negotiating a plea and advice in recommending a guilty plea.He did not coerce his client but acted in his interest.He felt that trial would result in a heavier penalty, perhaps a minimum of twenty years.During the 27.26 hearing the court ordered a psychiatric examination of appellant and the impressions were 'that the young man was self-centered, that he put his own welfare ahead of the welfare of others or the greater society, and that on this sub-stratum--if it was really true that he was a heroin user in any appreciable amount * * * could be built a sociopathic personality with acting-out behavior; also, that during the course of an acute intoxication off of drugs or immediately in the withdrawal period, early in the withdrawal period he could be capable of acting without control; that is, he could be capable of doing illegal, antisocial things over which he would not be able to immediately curtail his actions.'

The burden of proving his grounds for relief rested on appellant and review is limited to determining whether the findings, conclusions and judgment of the trial court are clearly erroneous.Criminal Rule 27.26, V.A.M.R.;Crosswhite v. State, Mo., 426 S.W.2d 67, 70(1).The stated evidence shows not only a failure of the appellant to sustain his burden of showing inadequacy of counsel, but shows also support for the finding and judgment of the court to the contrary; and, as a consequence, appellant's charge of inadequacy of counsel was properly denied.Crosswhite v. State, supra, 426 S.W.2d l.c. 71--72(4, 5).Illegal evidence and an illegal confession in the hands of the state, if so, cannot be made the basis for a collateral attack upon a judgment of conviction entered upon a plea of guilty voluntarily and understandably made, because such a plea is conclusive as to guilt and waives all nonjurisdictional defects in prior proceedings.The rule would apply also to defenses, if any, existing by way of insanity and entrapment because they, too, may be and are waived by a voluntary plea.Young v. State, Mo., 438 S.W.2d 280, 284(4);Turley v. State Mo., 439 S.W.2d 521, 524(1--6);Busby v. Holman, 5 Cir., 356 F.2d 75, 77--78(1--4).

Was the guilty plea voluntarily and understandably entered?Appellant contends it was not because it was entered under mistaken belief he had no defense, was induced by a promise he would be sent to the state hospital, and appellant feared for his life.The trial court conducted an exhaustive examination which is reproduced in detail because it, together with the previous statement, demonstrates, contrary to appellant's contention, that the plea was voluntarily entered and supports the trial court's finding that 'there wasn't any believable evidence that the...