State v. Crider
| Decision Date | 09 March 1970 |
| Docket Number | No. 54350,No. 1,54350,1 |
| Citation | 451 S.W.2d 825 |
| Parties | STATE of Missouri, Respondent, v. Fred Leonard CRIDER, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Michael L. Boicourt, Asst. Atty. Gen., Jefferson City, for respondent.
Weldon W. Moore, Rolla, for appellant.
HOUSER, Commissioner.
Fred Leonard Crider appeals from a judgment and order denying and dismissing his motion filed under Criminal Rule 27.26, V.A.M.R. to vacate and set aside a judgment of conviction of robbery first degree and sentence of 30 years' imprisonment. On October 9, 1967 appellant's original judgment of conviction was affirmed on appeal. State v. Crider, Mo.Sup., 419 S.W.2d 13. Appellant himself prepared and approximately five months later filed this motion. Hon. Jay White was appointed attorney to represent movant. An evidentiary hearing was conducted. In denying and dismissing the motion the court made specific findings on the various points raised. The court allowed movant to appeal as a poor person and reappointed Mr. White to represent him on appeal. After the transcript was filed in this court Mr. White was permitted to withdraw. Hon. Weldon W. Moore, appointed in his stead, filed a brief and argued the case for appellant.
The sole point raised on this appeal is that
The magistrate appointed a lawyer to represent Crider at the preliminary hearing, which was held April 1, 1966. The lawyer, B. B. Turley, advised both Crider and his wife at the time that they had a right to employ additional counsel and were free to make arrangements for additional or substitute counsel. Mrs. Crider testified that she talked to other lawyers about representing her husband but they wanted cash in advance and she did not have cash to pay them in full. Crider was bound over to circuit court. An information charging robbery first degree and a previous conviction was filed on April 15. Three days later the circuit judge appointed the same Mr. Turley, a 1953 graduate of the law school of the University of Missouri, to represent Crider in circuit court. The names of 28 withnesses for the State were endorsed on the information. Sometime between April 15 and May 7 the case was set for trial on June 7. Mr. Turley prepared for trial and was ready for trial on June 7. Late in the evening of June 6 Mrs. Crider employed Hon. Jay White to defend her husband on the charge of armed robbery. The reason she gave for hiring Mr. White so late was that it took that long to raise the fee; that friends helped her borrow the money to hire the attorney. Mr. Turley testified that on the morning of June 7 there was 'some discussion' between court and counsel about a continuance on the ground that Mr. White had just been brought into the case in the course of which the judge asked Mr. Turley if he had had time to prepare for trial. Mr. Turley answered 'Yes.' The judge then asked Mr. Turley if he felt that he was ready for trial personally. Mr. Turley answered in the affirmative. No written request for a continuance was made. The court denied the oral request for a continuance. The case went to trial and the trial was concluded on June 7, 1966.
On the foregoing facts, which were of record or testified to by Mr. Turley or Mrs. Crider, appellant contends that the court abused its discretion in directing that the case proceed to trial without granting a continuance, and that he was thereby unconstitutionally deprived of competent service of counsel of his own choosing.
The transcript of the trial of June 7, 1966, admitted in evidence in the 27.26 hearing, discloses that both Mr. Turley and Mr. White actively collaborated in the defense of Crider and effectively represented him. Following Mr. White's objection to the number of veniremen called the prosecuting attorney waived the death penalty. Mr. Turley asked for the enforcement of the rule excluding the witnesses from the courtroom. The state examined five witnesses. Mr. Turley cross-examined three of the State's witnesses and Mr. White cross-examined two of them. Their cross-examinations were not cursory and superficial. Their cross-examinations effectively tended to weaken the direct testimony of the State's witnesses. Mr. White introduced a photograph in evidence and examined two witnesses called on behalf of the defendant in an effort to break down the testimony of the State's witness Norma Jean Hrovat, the storekeeper who identified defendant as the man who had purchased a shotgun on the day of the robbery. Mr. Turley made two objections to the final argument of the prosecutions attorney. One was sustained. The other was overruled.
The action of the court in refusing to vacate this sentence and judgment on the ground that the court abused its discretion in denying a continuance was not clearly erroneous under the requirement of Criminal Rule 27.26(j). Nor was the ruling that appellant's constitutional rights were not violated clearly erroneous.
Anent the continuance: The complaint is that Mr. White, counsel of appellant's own choosing, was not given adequate time to prepare for trial, and that for this reason the court erred in denying a continuance; that the effect of the ruling was to force upon appellant counsel not of his own choosing and to deprive appellant to the effective assistance of counsel of his own choosing. The employment by the accused of counsel of his own choosing on the eve of trial does not automatically entitle an accused to a continuance, and the denial of a continuance for that reason, where qualified court-appointed counsel remains in the case, does not conclusively demonstrate that accused was deprived of effective assistance of counsel. It depends upon the circumstances. State v. Hamel, Mo.Sup., 420 S.W.2d 264, 266(2). The question is one of prejudice. The burden of proof on the issue is upon the accused to demonstrate that the denial of a continuance prejudiced him. Appellant raises the question of the competence of co...
To continue reading
Request your trial
-
State v. Gaskin, 61433
...him. The right to change counsel cannot be used to defeat or destroy the orderly process of the administration of justice. State v. Crider, 451 S.W.2d 825 (Mo.1970). We find no abuse of discretion in the refusal to grant a Appellant's challenge to his conviction and sentence of imprisonment......
-
State v. Bowens
...to hire private counsel, that right is not unlimited. State v. Leigh , 621 S.W.2d 515, 517 (Mo. App. E.D. 1981) (citing State v. Crider , 451 S.W.2d 825, 828 (Mo. 1970) ). "[A] trial court is not required to grant a continuance when the [d]efendant voluntarily obtains private counsel on the......
-
State v. Wilson, s. 16884
...right to counsel does not include the right to defeat or impede the orderly processes of the administration of justice. State v. Crider, 451 S.W.2d 825, 828 (Mo.1970); State v. Wright, 650 S.W.2d 714, 716 (Mo.App.1983). A persistent and ongoing refusal by an accused to hire counsel after be......
-
Walker v. State
...that Mr. Vandover had conferred with defendant at length, and fully advised and protected defendant in all respects. State v. Crider, 451 S.W.2d 825 (Mo.1970). Judgment WELBORN, C., concurs. PER CURIAM: The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court. All of the......