State v. Davis

• Decision Date: 09 May 1979
• Docket Number: No. 39044,39044
• Citation: 582 S.W.2d 342
• Parties: STATE of Missouri, Respondent, v. Ben L. DAVIS, Appellant.
• Court: Missouri Court of Appeals

Page 342

582 S.W.2d 342

STATE of Missouri, Respondent, v. Ben L. DAVIS, Appellant.

No. 39044.

Missouri Court of Appeals, Eastern District.

May 9, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 15, 1979.

Application to Transfer Denied July 17, 1979.

William J. Shaw, Public Defender, Dennis N. Smith, Asst. Public Defender, Clayton, for appellant.

John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Lawrence Mooney, Clayton, for respondent.

SMITH, Judge.

Defendant appeals from his conviction by a jury of four counts of first degree robbery. Defendant was tried under the second offender act and sentenced to three concurrent ten year terms on the first three counts and a fifty year consecutive term on the fourth count.

No contention is raised that the evidence was insufficient to support the verdict so only a short factual statement is required. At approximately 11 a. m. on July 11, 1975 three men robbed a Tennessee Jed's restaurant on Lindberg in Frontenac. Two of the men carried sawed-off shotguns, the third may have had a pistol. Defendant was identified as one of the robbers. Following arrest on another charge, defendant made some inculpatory statements, both oral and written, and took policemen to a house in Wellston where a sawed-off shotgun was found in a location described by defendant. Further discussion of defendant's statements will be made subsequently.

Defendant's first contention is that he was denied due process because the sentence imposed on Count IV exceeded the sentence he would have received had he pled guilty. After hearings on certain pre-trial motions plea bargaining negotiations were conducted between counsel for defendant and the State. Following these negotiations a discussion occurred between counsel and the court. The court indicated that if defendant entered a plea of guilty the court would sentence him in accordance with the recommendation of the State. The recommendation of the State would be fifteen years on each of five counts (the four here involved and one other still pending) to run concurrently. Defendant opted to go to trial.

During the trial, following several requests by defense counsel, the court advised counsel that based upon testimony he had heard and having been advised that defendant had several prior felony convictions, if defendant was convicted and sentencing was up to the court defendant would receive "a substantial amount of time . . . more than recommended." The court also advised counsel that the time for such determination had not arrived, that the court could give no definite length of sentence at that time, and that the sentence "would be in accordance with the evidence and all of his background."

Following conviction the court assessed the sentences set out above. We attach as an appendix hereto the colloquy between defense counsel and the court following sentencing.

In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968) the United States Supreme Court held that it was a denial of due process to enhance or threaten to enhance a defendant's punishment to prevent him from exercising a constitutional right. But the doctrine of those cases has been expressly held not applicable to cases involving plea-bargaining. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), Corbitt v. New Jersey, 439 U.S. 212, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978). In the latter cases it is recognized that in the "give-and-take" of plea bargaining, concessions are made by the prosecutor and leniency is granted by the court in exchange for the plea.

"There is no doubt that those homicide defendants who are willing to plead non vult may be treated more leniently than those who go to trial, but withholding the Missouri has also recognized the propriety of plea bargaining. Schellert v. State, 569 S.W.2d 735 (Mo. banc 1978). While judicial participation in the bargaining itself is not approved (State v. Tyler, 440 S.W.2d 470 (Mo. banc 1969) (4-7)) indication of the judge's willingness to accept a particular disposition is not improper (Bonner v. State, 535 S.W.2d 289 (Mo.App.1976) (8)) and in fact the court must advise the defendant of its intention to reject the bargained for recommendation, Schellert v. State, supra, (5). It is therefore apparent that, without more, a judge's willingness to accept a bargained for disposition does not establish that his subsequent refusal to grant leniency after trial constitutes an unconstitutional denial of due process by punishing defendant for exercising his right to trial.

possibility of leniency from the latter cannot be equated with impermissible punishment as long as our cases sustaining plea bargaining remain undisturbed." Corbitt v. New Jersey, supra, 439 U.S. 212, l.c. 223, 99 S.Ct. 492, l.c. 500, 58 L.Ed.2d 466, l.c. 477.

Nor does the record here support a contention that in this case the court enhanced punishment as a penalty for going to trial. The court pointed out its reasons for assessing the punishment it did and the consideration it made of the offenses committed as well as defendant's background. Defendant points to the first sentence of the court's last statement at the sentencing hearing "I would rather that such is the situation" as indicating that the court was utilizing higher sentences to coerce waiver of jury trials. We cannot attribute to the statement that meaning. It is ambiguous on its face and when read with the remainder of the court's comment clearly indicates that the court was stating that it makes its sentencing decisions on the basis of all the facts before it. We find no error in the sentencing.

Defendant's second point is that he was denied due process because the prosecuting attorney told the main state witness not to discuss the case with defense counsel. We do not find it necessary to address the legal issue presented. Defense counsel called the witness, Mrs. Johnson, late one evening. Mrs. Johnson said he identified himself as from the prosecutor's office. She advised defense counsel that she had had two martinis and did not wish to discuss the case at that time. The next evening the prosecuting attorney called. In the course of the conversation he suggested that Mrs. Johnson not talk to defense counsel unless he, the prosecutor, or someone representing her interests was present. The defense attorney called shortly thereafter. Mrs. Johnson told him that she wanted to discuss the matter with her husband before agreeing to meet with defense counsel. She had told the prosecutor that she wanted to discuss the matter with her husband before talking with the prosecutor. She was apprehensive because defendant had escaped from jail while awaiting trial and she thought she might not proceed further because of that. Defense counsel had advised her of the escape during his first call. Mrs. Johnson advised defense counsel that she would call back the next day after consulting with her husband. By the time she arrived home the next day it was too late to call. Defense counsel never attempted thereafter to contact Mrs. Johnson. On this record we are unable to conclude that the prosecutor's statements to Mrs. Johnson blocked defense counsel's opportunity to interview. Mrs. Johnson, of course, had the right to refuse to meet with counsel and she consistently indicated that she wished to consult with her husband before making a decision. There is no indication this desired consultation was prompted by the prosecutor's statements, in fact, it appears to have originated because defense counsel advised Mrs. Johnson that defendant had escaped. Defense counsel thereafter failed to follow up his prior request, or to learn what Mrs. Johnson's decision was. We find no error in the court denying defendant's motions to dismiss, for continuance, and to strike based upon this alleged prosecutorial misconduct.

Defendant's remaining points arise from the testimony of two police officers. This testimony concerned certain inculpatory statements made by defendant to the officers. Defendant was originally arrested by the City of St. Louis police in connection with an unrelated crime. At the time of his arrest defendant received Miranda warnings and defendant refused to make any statement. Defendant was subsequently asked if he wanted an attorney present before a lineup was conducted. He stated he did and gave the name of an attorney. Police contacted the attorney who advised that he did not represent defendant and would not unless hired by defendant's parents. He further told the police that he would not be present at the lineup but to please advise him of the results. When advised of the conversation with the lawyer, defendant declined having a public defender represent him at the lineup. The lineup was never held because of the refusal of the victim to proceed further.

Approximately an hour later, defendant was interviewed by a St. Louis County policeman, Detective Newberry, in connection with different crimes. The record is unclear whether Newberry was advised that defendant had asked for counsel at the lineup. Defendant was given Miranda warnings. In his statements to Detective Newberry defendant denied participation in the robberies Newberry was investigating, but admitted participating in the Tennessee Jed robbery and volunteered to take Newberry to a house in Wellston where a sawed-off shotgun defendant claimed was used in that robbery was hidden. This was done the next day following additional Miranda...