State v. Crawford, 62852

• Decision Date: 14 July 1981
• Docket Number: No. 1,No. 62852,62852,1
• Parties: STATE of Missouri, Respondent, v. Jesse Gene CRAWFORD, Appellant
• Court: Missouri Supreme Court

Page 735

619 S.W.2d 735

STATE of Missouri, Respondent, v. Jesse Gene CRAWFORD, Appellant.

No. 62852.

Supreme Court of Missouri, Division No. 1.

July 14, 1981.

Rehearing Denied Sept. 8, 1981.

Robert W. Meyers and David Bloch, Clayton, for appellant.

Thomas G. Auffenberg, Asst. Atty. Gen., Jefferson City, for respondent.

HOUSER, Senior Judge.

Jesse Gene Crawford, convicted by a jury of two counts of first degree robbery, § 569.020 RSMo 1978, and sentenced to concurrent terms of life and thirty years in prison, seeks reversal of the judgment of conviction for failure of proof, reception of improper evidence, and prejudicial conduct of the prosecutor.

Preliminary to a consideration of the merits of this appeal we consider certain correspondence and papers filed by appellant with the Missouri Court of Appeals, Eastern District (to which this appeal was originally taken and from which it was transferred to this Court), re-filed in this Court, ordered to be considered and treated as a pro se motion for the appointment of new counsel, taken under advisement and ordered to be determined with the case.

The basis for the motion is a letter from appellant to the counsel appointed to defend him, subscribed and sworn to before a notary public. In the letter, dated March 27, 1981, written more than one month after appellant's brief on appeal was filed, appellant complained that counsel handled his case "with total incompetence" in that he tried to charge appellant fifteen cents per page for copies of court documents, knowing that appellant was indigent; failed to subpoena a "key witness" for the defense (unnamed) requested by appellant to be summoned; allowed introduction in evidence of a shotgun in no way connected with appellant, and failed to "bring up" the fact that a witness for the prosecution perjured himself; that counsel assigned as a reason for inaction on the perjury that the witness was a high school buddy of counsel. Appellant further complained that during the preceding year seven letters to counsel requesting copies of court papers and general information concerning the case had gone unanswered. Appellant called on counsel to resign from the case, stating that otherwise appellant would be forced to initiate proceedings to have him removed on grounds of ineffective counsel and sue him for malpractice.

By agreement of counsel the Court has been supplied with a Xerox copy of a letter written by appellant to his counsel twelve days after he was sentenced. The letter, dated March 31, 1980, made inquiries about procedure, the possibility of a new trial, when appellant was scheduled to go to court on the "other case", and concluded: "Mr. Meyers even though we lost I want to thank you for trying. I've never set through a full jury trial before and I didn't know what to exspect (sic), but from my point of view you put up a hell of a fight for me." The valediction: "Your friend."

This is not a motion to vacate, set aside, or correct the sentence. The papers filed by appellant have not been so treated. It is a motion for the appointment of new counsel, based upon alleged ineffectiveness of counsel at the trial stage of these proceedings. His charges relate only to alleged acts and omissions of counsel at the trial level. The effectiveness of counsel in handling the appeal has not been challenged. Appellant does not assert that the brief filed by his counsel is deficient or lacking in any respect.

A motion filed in the Supreme Court for appointment of new counsel is inappropriate and untimely under these facts. Any order by this Court at this time relieving appointed counsel of his representation would be ineffective. The approved and appropriate procedure for obtaining relief from a sentence imposed as a result of the ineffectiveness of counsel begins with the filing in the court where the sentence was imposed of a motion under Rule 27.26 to vacate, set aside or correct the same. That procedure affords the aggrieved party an opportunity to plead facts, not conclusions, which if true would entitle him to relief and to adduce evidence in support of his complaint, and gives counsel accused of ineffectiveness a forum within which to defend his handling of the case.

The motion for the appointment of new counsel is overruled.

The State's evidence: An armed robbery of the named victims occurred at Nelson's Landing Restaurant in St. Louis County on September 10, 1979. Three men wearing green ski masks, carrying shotguns, entered the restaurant, announced a robbery and commanded patrons and employees to lie face down on the floor. One of the three robbers, whose height, build and weight corresponded with that of appellant, required the assistant manager of the restaurant, William Shryock, at gun point, to open the cash register and safe and put the money in a sack. This robber, who was not wearing gloves, went back into the office, where there was a telephone. He was alone in the office for a few seconds. After removing wallets from Shryock and a patron the three robbers fled. Shortly after their departure Shryock, who had been forced to lie down on the floor, arose and went into the office to telephone for the police. The telephone was not usable; it looked like someone had "tried to rip it out of the wall." The phone was equipped with an 8-foot cord. The phone case was "in the air", hanging off the edge of the desk "with the little curled wire part that goes to the receiver hanging from that." The receiver was lying on the floor on the other side of the room. Shryock did not touch the phone or receiver. He went to the pay phone in the lobby and called the police, who responded quickly. The office phone was dusted for fingerprints by the police within 20 to 30 minutes after the robbery. No one touched the phone between the time of the robbery and the arrival of the police. All persons in the restaurant who had access to the office were fingerprinted. Five latent fingerprints were lifted. Officer Lawrence Stulte, a qualified fingerprint expert, lifted a palm print from the phone receiver. The prints were taken to the fingerprint unit of the county police department for examination.

Appellant was arrested on September 19, 1979. His finger and palm prints were rolled and filed in the police records on October 9, 1979. An I.D. fingerprint comparison report on his prints was prepared and filed. Comparisons of the prints of the restaurant employees who had access to the office and the print lifted from the phone receiver eliminated each of them as the person who last touched the receiver.

The I.D. fingerprint comparison report, furnished counsel for appellant in response to a pre-trial request for discovery pursuant to Rule 25.32, recited that the fingerprint evidence was interpreted by Detective Charles E. Pyatt on October 9, 1979, and re-examined on that date by Detective D. F. Brian; that Lift Photo B, "Right side of Phone Receiver in Manager's Office", was identified as "Right Palm of Jesse G. Crawford, W.M. DCN: 54646"; that the print of suspect Jesse G. Crawford was rolled by "Jones, Dept. of Welfare 9/20/79."

Detectives Charles Pyatt and Donald Francis Brian testified. Pyatt, pursuant to court order, took appellant's finger and palm prints on the day before the trial began. He testified that on the basis of twelve points of comparison (eight being sufficient for positive identification) the palm print of appellant taken on October 9, 1979, the palm print of appellant taken the day before trial, and palm print "B" lifted from the phone receiver September 10, 1979, were identical. From his ten years as a qualified expert there was no doubt in his mind as to the identity of the palm print on the phone receiver it was "all his (appellant's) right hand."

Brian, supervisor of the fingerprint section, a qualified fingerprint expert with eleven years' experience in the field, reevaluated Pyatt's analysis. Upon examination of all the exhibits Brian identified the palm print lifted from the phone receiver as the same as the palm prints of appellant rolled on October 9, 1979 and on the day before trial, on the basis of twelve points of comparison.

Appellant's first point is that the State failed to prove his presence at the scene of the crime, in that there was no proof "that the palm print taken at the scene of the crime could have been made only at the time the crime was committed." Although he does not explicitly admit that the palm print on the phone receiver in his, appellant does so implicitly. Appellant took the stand and testified to the following: He entered the restaurant on September 8 or 9, 1979, seeking employment. A person in a white uniform he took to be a cook handed him an application form and had him sit at the office desk to fill it out. He was in the office 10 or 15 minutes, during which time he made two telephone calls one to his girl friend and another to his stepfather, to obtain information called for on the application form. He finally took the form home, completed it there, and returned it to the restaurant, where he handed the form to a hostess. Appellant argues that the record "does not exclude the reasonable possibility that the palm print, which was taken from the telephone receiver, and which was the only print identified as being that of the defendant, was made shortly before the robbery in question."

On rebuttal Shryock testified that the restaurant customarily and routinely keeps job applications in a personnel file for 6, 7 or 8 months; that he looked through the files for the month of September, 1979 and found no application in the name of Jesse Crawford, Jesse Wagy (a name sometimes used by appellant), or Terry Weygand (the name used by appellant in making the application. Appellant, on parole at the time, did not want the restaurant people to know he had been convicted); that no male applied for a job in September, 1979; that the only time an application would be filled out...