State v. Davis

• Decision Date: 10 February 1969
• Docket Number: No. 53204,No. 1,53204,1
• Citation: 438 S.W.2d 232
• Parties: STATE of Missouri, Respondent, v. Alphonso Denny DAVIS, Appellant
• Court: Missouri Supreme Court

Page 232

438 S.W.2d 232

STATE of Missouri, Respondent, v.Alphonso Denny DAVIS, Appellant.

No. 53204.

Supreme Court of Missouri, Division No. 1.

Feb. 10, 1969.

Motion for Rehearing or to Transfer to Court En Banc Denied

March 10, 1969.

Norman H. Anderson, Atty. Gen., William L. Culver, Asst. Atty. Gen., Jefferson City, for respondent.

Dale Reesman, Boonville, for appellant.

STORCKMAN, Judge.

This appeal is by Alphonso Denny Davis from an order denying his motions under S.Ct. Rules 27.25 and 27.26, V.A.M.R., to set aside a judgment of conviction and to permit him to withdraw a plea of guilty to a charge of forcible rape.He is in the custody of the Department of Corrections of the State of Missouri serving the ninety-nine-year sentence imposed.The prisoner also filed motions to withdraw pleas of guilty and set aside other judgments of conviction and sentences entered on the same day and ordered to run concurrently with the sentence for rape as follows: ninety-nine years for robbery, two years for grand larceny, and five years for escaping jail.On a showing of indigency, counsel was appointed by the trial court.The same counsel has briefed and argued the case for the movant on appeal.Relying upon State v. Engberg, Mo., 391 S.W.2d 868, 869(1), the trial court limited the evidentiary hearing to the motions directed at the plea, judgment and sentence entered on the charge of forcible rape.The trial court filed a memorandum opinion which included findings of fact and conclusions of law.

At the beginning of his present difficulties, the defendant Davis was twenty-one years of age and had been committed to Algoa Intermediate Reformatory where he was serving a ten-year sentence for robbery imposed on April 22, 1954, by the Circuit Court of the City of St. Louis.On February 6, 1956, while attending an institutional basketball game in Jefferson City, Davis escaped and was recaptured the following day.While at large he committed acts resulting in the convictions for armed robbery and for the rape of a housewife in Cole County, Missouri.

After his recapture a complaint was filed and he was brought before the Cole County Magistrate Court on February 8, 1956, at which time he requested a preliminary hearing and one was set for February 17, 1956.Later in the day, however, he appeared without counsel before the magistrate, stated that he had changed his mind and waived the preliminary hearing.An information charging the defendant with rape was filed in the Circuit Court of Cole County on February 9, 1956.On March 19, 1956, Davis escaped from the Cole County jail and on recapture was charged with the two additional offenses-escape and grand larceny.On March 30, 1956, Mr. Edgar M. Eagan of the Cole County Bar was appointed as counsel for the defendant in all four cases.After conferring with his client, Mr. Eagan filed a motion requesting a mental examination of the defendant.The motion was granted and an examination was made by Dr. Henry V. Guhleman, a psychiatrist of Jefferson City.The doctor's report found that the defendant was sane at the time of the examination as well as at the times of the commission of the offenses with which he was charged and that he was capable of helping in his own defense.

On April 27, 1956, the defendant applied for and was granted a change of venue; the four criminal cases were transferred to the Circuit Court of Cooper County on May 7, 1956.There were several conferences between Mr. Eagan and his client.Negotiations by Mr. Eagan with the prosecuting attorney of Cole County resulted in the state agreeing to waive the death penalty and to recommend that the sentences to be imposed on the four charges should run concurrently if the defendant saw fit to plead guilty.Such a plea was entered on June 4, 1956, and sentences were imposed as above stated.Judge Dimmitt Hoffman, who presided in the Circuit Court of Cooper County at the time the pleas were entered and the sentences imposed, and his court reporter, Roy Snyder, both died prior to September 15, 1966, when the motions to vacate were filed.No transcript or notes of the court reporter relating to these proceedings could be found.

The statement of the points to be argued on appeal are: (1) although the only issue is the legality of the appellant's restraint, factors affecting his ability to understand the consequences of his plea have a direct bearing on his motion to vacate; (2)the trial court failed to fulfill the requirements of Rule 25.04 in its perfunctory examination of the defendant at the time of his arraignment and plea, and (3) the absence of the reporter's minutes of the proceedings at the time of arraignment and plea reinforces the importance of the prisoner's testimony.

Motions under S.Ct. Rules 27.25 and 27.26 by a prisoner to withdraw a plea of guilty and set aside the judgment of conviction and sentence are in the nature of civil actions and the procedure before the trial court and on appeal is governed by the rules of civil procedure insofar as they are applicable.S.Ct. Rules 27.25 and 27.26(a) and (j);State v. Stidham, Mo., 403 S.W.2d 616, 618(3);State v. Thompson, Mo., 324 S.W.2d 133, 135(2).The prisoner has the burden of establishing his grounds for relief by a preponderance of the evidence.S.Ct. Rule 27.26(f).

The appellate review of the trial court's ruling of a motion to set aside a conviction is limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous.S.Ct. Rule 27.26(j);Crosswhite v. State, Mo., 426 S.W.2d 67, 70(1);State v. Mountjoy, Mo., 420 S.W.2d 316, 323(8).The exercise of the power to set aside a judgment of conviction and to permit the defendant to withdraw his plea of guilty is discretionary with the trial court and its action should not be disturbed on appeal except for an abuse of such judicial discretion.S.Ct. Rules 25.04 and 27.25;State v. Arnold, Mo., 419 S.W.2d 59, 61(2);State v. Parker, Mo., 413 S.W.2d 489, 493(2), cert. den.390 U.S. 906, 88 S.Ct. 823, 19 L.Ed.2d 874.

As previously stated, a transcript of the proceedings at the hearing of the plea of guilty was not available because of the death of the court reporter.The defendant's contention that the lack of such a transcript tends to 'reinforce the importance' of his testimony is unsound if it is tended to claim some advantage for him as a party or special treatment as a witness.After sentence has been imposed, the court may set aside the judgment of conviction and permit the defendant to withdraw his plea only on a showing of manifest injustice.S.Ct. Rule 27.25.Regardless of the record made at the time the plea was entered, the issues before the court on a motion to vacate and withdraw a plea of guilty are whether the plea was in fact voluntarily made and with an understanding of the nature of the charge; and in determining the factual issues the court is clothed with the discretion ordinarily exercised by a trial court when acting as the trier of facts.State v. Mountjoy, Mo., 420 S.W.2d 316, 323(8).In the absence of a transcript or the notes of the court reporter, the trial court must determine from the evidence otherwise adduced whether the defendant has sustained his burden of showing that he is entitled to the relief sought.State v. Keeble, Mo., 427 S.W.2d 404, 409(10).

Following his capture on February 7, 1956, Davis signed a written confession which was introduced in evidence at the 27.26 hearing.The statement was taken at Troop F Headquarters in the presence of and witnessed by two highway patrolmen, Roy F. Dix and Velmer Sauve, and Jefferson City Chief of PoliceLouis G. Rackers.The confession described his escape from the Algoa Basketball Detail on the evening of February 6, how he spent the night in a stack of logs that had an opening in it, and further stated that the next morning he went into the basement of a nearby home, found a rifle, went upstairs, required a woman in the house to give him a pair of her husband's shoes and then raped her; he was captured soon after he left the house.The confession also stated that it was voluntarily made without threat or promise and with the knowledge that it could be used against him for prosecution.

The movant Davis testified that after he was arrested he was struck on the head with the small end of a pistol by a 'plainclothes policeman'; that he was told by the officers at Patrol Headquarters that they would make him sign a confession; that a detective 'smacked' him in the...