State v. Donnell, 50685

• Decision Date: 08 February 1965
• Docket Number: No. 50685,No. 2,50685,2
• Citation: 387 S.W.2d 508
• Parties: STATE of Missouri, Respondent, v. William DONNELL, Appellant. . Division
• Court: Missouri Supreme Court

Page 508

387 S.W.2d 508

STATE of Missouri, Respondent, v. William DONNELL, Appellant.

No. 50685.

Supreme Court of Missouri. Division No. 2.

Feb. 8, 1965.

Motion for Rehearing or for Transfer to Court En Banc Denied

March 8, 1965.

Thomas F. Fagleton, Atty. Gen., Donald L. Randolph, Asst. Atty. Gen., Jefferson City, for respondent.

Bruce Mangle, St. Louis, for appellant.

EAGER, Judge.

The present appeal is one from an order denying a motion to vacate a judgment of conviction for first degree robbery, and a sentence of 99 years under the Second Offender Act. Section 556.280, RSMo 1959, Laws 1959, S.B. No. 117, V.A.M.S. The opinion affirming that judgment upon defendant's appeal appears at 351 S.W.2d 775. The present motion was denied on February 28, 1964, without the hearing of evidence. This may be done under Criminal Rule 27.26, V.A.M.R. if the motion and the files and records in the case show that the defendant is entitled to no relief. A motion for a rehearing, with an 'addendum' and a supplemental motion filed later, were also denied; the appeal is here by virtue of a special order from this Court. It is prosecuted in forma pauperis and a brief has been filed here by appointed counsel.

In this pro se motion to vacate defendant recites many irrelevant facets of his prior difficulties and proceedings upon which we shall not elaborate. These include incarcerations and paroles in Illinois, a trial and acquittal on another charge in St. Louis, and federal habeas corpus proceedings. On January 26, 1960, defendant was indicted in the City of St. Louis for a robbery committed on May 22, 1959; he was confined in Illinois at the time of the indictment, but he alleges that upon his release on parole in February 1960, he signed a waiver for return to Missouri on the robbery charges. He further states: that after his return to St. Louis he was detained for more than twenty hours without counsel, frequently interrogated, and that he was arraigned without counsel; that he was later tried and convicted in April 1960, but that he was granted a new trial (at which the present conviction resulted, on or about August 8, 1960). Since defendant is represented here by appointed counsel, we shall consider especially the Points and Authorities raised in the brief. Rule 28.02.

The first point in defendant's brief is as follows: 'Defendant was denied an opportunity to prove that the actions of the Police Department and the State were not consistent with his Constitutional rights during the entire time he was extradited to Illinois in October 1959 or when he was returned from Illinois in January 1960. Further, that he was denied assistance of counsel during every step of said proceedings.' We see no point in considering any alleged infringement of defendant's rights occurring before he was returned to Missouri on the present robbery indictment. It is the conviction on that charge which he is now attacking. We shall not consider here the Illinois proceedings or the alleged lack of counsel upon extradition; defendant was delivered to Missouri authorities for return to this state, and we do not look, collaterally, at those proceedings. We have no jurisdiction over the Illinois authorities and, moreover, defendant's mere return to Missouri was not a conviction; we look at the validity of the proceedings after he was returned.

Defendant states: that he was held from March 2 to March 9 by the St. Louis Police and placed in a lineup and interrogated on each day; he does not claim that he made any confession, oral or written, nor is any shown to have been used at his trial (see 351 S.W.2d 775); that on March 7 he was taken before Judge Nangle, who inquired if he had counsel; that he did not, but his case was set 'for March 28 or 30, 1960'; that he wrote Judge Nangle a letter but received no reply; that on March 28 or 30, he was again summoned to Court and asked how he pleaded to which he replied that 'I Plead The Right To Appear Before The Grand Jury.' We have obtained on the Court's own motion certified copies of the minutes of the proceedings prior to the last and final trial. These show the following: 'Monday, March 7, 1960--Arraignment continued to 3/16/60. Wednesday, March 16, 1960--Sidney Ruben appointed by Court as Attorney for Defendant. Pleads Not Guilty; Trial Set March 28, 1960. Monday, March 21, 1960--Erving Cooper appointed by Court as Attorney for Defendant. Sidney Ruben withdraws as attorney for defendant. Erving Cooper withdrawn as attorney for defendant. Jerome Kalishman appointed by Court as attorney for defendant. Wednesday, March 30, 1960--Continued to next term of Court for want of time to try--April 4, 1960. Monday, April 4, 1960--Continued for State--April 11, 1960.' Thereafter the cause was tried on April 11 and 12, 1960, a conviction was had, and a new trial granted on May 16, 1960. On that day new counsel was appointed for him, being more than fifty days before his second and final trial. It is thus obvious that defendant was not arraigned without counsel, nor was he without counsel at any time thereafter. The record does not show, nor does defendant state, way two attorneys found it necessary to withdraw before trial.

In State v. Statler, Mo., 383 S.W.2d 534, at 536-537, we said: 'The sole question in this matter is whether defendant has stated (by affidavit or otherwise) any facts which raise a bona fide issue as to the constitutional validity of his trial. If 'the files and records of the case show to the satisfaction of the court that the prisoner is entitled to no relief,' the Court may deny the motion without an evidentiary hearing. Rule 27.26. The deluge of such motions now being filed, many of which are wholly without merit, attests to the wisdom of the quoted provision.'

The first point in defendant's brief is that he was denied the opportunity to prove that his constitutional rights were violated by the Police and the State during the time when he 'was extradited to Illinois in October 1959 or when he was returned from Illinois in January 1960,' and that he was denied assistance of counsel 'during every step of such proceedings.' Our consideration begins with his return to Missouri after the present indictment. We have held that a mere detention without warrant beyond the twenty-hour period of our Rule 21.14 does not, per se, invalidate a confession nor constitute a ground for collateral attack. State v. Williams, Mo., 369 S.W.2d 408; State v. King, Mo., 380 S.W.2d 370; State v. Bryant, Mo., 375 S.W.2d 122. We likewise hold that a mere detention without warrant beyond twenty hours, where no confession is claimed, does not, per se, invalidate defendant's subsequent trial and conviction. But we look further at the present facts. The purpose of our Rule 21.14, 'Arrest Without Warrant--20 Hour Limit--Bail,' is to prevent excessive detention without a charge being made; when one has been indicted, he is thereby placed under the most formal of charges and, pursuant to Rule 24.19, a warrant is issued. A detention for more than twenty hours here could not conceivably be illegal. This defendant could only be released on bail.

On facts are alleged here which would indicate that defendant's detention up to March 16, 1960, without counsel, caused his final trial (or either of them) to be constitutionally unfair. In Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265, a confession was obtained during lengthy and perhaps misleading interrogations conducted despite repeated requests of the defendant that he be permitted to consult his counsel, already employed. In Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, the situation was much the same; there the defendant had on two or three occasions been denied the right to consult with his attorney, already employed, during the period when a confession was being obtained from him under lengthy (and supposedly misleading) questioning, and without advice concerning his right to remain silent. In that case there were vigorous dissents concurred in by four Justices. Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, also cited, concerned the right to counsel on appeal. It will be mentioned later. In Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448, it was held that mere inter-rogations without counsel while in custody, resulting in a confession, did not constitute a violation of defendant's constitutional rights or render the confession involuntary, even though counsel was requested. The Court further held that a deprivation of counsel in pretrial proceedings did violate due process if the defendant was prejudiced to such extent that his subsequent trial could not be fundamentally fair. There were also dissents in that case. There the Court said in part: 'Petitioner, however, contends that a different rule should determine whether there has been a violation of right to counsel. He would have every state denial of a request to contact counsel be an infringement of the constitutional right without regard to the circumstances of the case. In the absence of any confession, plea or waiver--or other event prejudicial to the accused--such a doctrine would create a complete anomaly, since nothing would remain that could be corrected on new trial. Refusal by state authorities of the request to contact counsel necessarily would then be an absolute bar to conviction. On the other hand, where an event has occurred while the accused was without his counsel which fairly promises to adversely affect his chances, the doctrine suggested by petitioner would have a lesser but still devastating effect on enforcement of criminal law, for it would effectively preclude police questioning--fair as well as unfair--until the accused was afforded opportunity to call his attorney. Due process, a concept 'less rigid and more fluid than those envisaged in other specific and particular provisions of the...