State v. Donnell
| Citation | 430 S.W.2d 297 |
| Decision Date | 28 May 1968 |
| Docket Number | No. 48601,No. 3,48601,3 |
| Parties | STATE of Missouri, Respondent, v. William B. DONNELL, Appellant |
| Court | United States State Supreme Court of Missouri |
On November 13, 1961, Division I of this court, 351 S.W.2d 775, affirmed Appellant's judgment of conviction of robbery in the first degree by means of a dangerous and deadly weapon and a 99-year sentence therefor under the Second Offender Act (§ 556.280, RSMo 1959, V.A.M.S.). Appellant, an indigent, was not represented by counsel on that appeal. On February 8, 1965, Division II affirmed the trial court's denial of his motion to vacate the judgment of conviction and the sentence, 387 S.W.2d 508. On October 3, 1967, the Court en Banc sustained the Attorney General's application to set aside the affirmance and reinstate the appeal on the docket, and set the case for hearing at a special session of this court in Division III, and ordered the circuit court to appoint counsel to represent Appellant on the appeal in accordance with Supreme Court Rule 29.01(c) 1 and prepare and file in this court a brief for him. This was done following Swenson v. Donnell, 8 Cir., 382 F.2d 248, affirming Donnell v. Swenson, 258 F.Supp. 317 (W.D. Mo.1966), which sustained defendant's habeas corpus proceeding on the ground that defendant was not furnished counsel for the appeal (applying Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, retrospectively).
Appointed counsel herein has ably and competently briefed and presented oral argument. Respondent has submitted an additional brief and also its original brief. We have carefully reconsidered all of the points and arguments urged by Appellant through counsel and in his briefs pro se in the above two appeals to this court. We review Appellant's trial proceedings equivalently as if this had originally been done. We now deal with the points raised by Appellant.
ARRAIGNMENT
Appellant contends that the trial court 'plainly' erred in proceeding with his trial when he was not represented by counsel at his arraignment, in violation of his right to assistance of counsel required by Amendment VI to the Federal Constitution, and Art. I, § 18(a) of the 1945 Missouri Constitution, V.A.M.S. He urges the court to reverse the conviction on the basis of plain error under Rule 27.20(c). We will not consider the matter under Rule 27.20(c) but as a federal constitutional matter, even though the point was not raised in Appellant's motion for a few trial or on the first direct appeal (Cf. State v. Reynolds, Mo., 422 S.W.2d 278, 282(2)).
On the original appeal this court found that Appellant, represented by counsel, entered a plea of not guilty, 351 S.W.2d l.c. 777. In affirming the denial of his motion to vacate, the court, with certified copies of the minutes of the proceedings prior to the final trial and a certificate supplementing the records on both appeals obtained by this court on its own motion, found that Appellant was not arraigned without counsel, 387 S.W.2d l.c. 510, 512.
In Donnell v. Swenson, supra, the district judge stated (258 F.Supp. l.c. 333) that in the appeal on the motion to vacate Appellant had presented to this court the federal constitutional question of 'whether a proper application of the principles of Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, and Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, had been abridged by reason of the fact that he had been arraigned without counsel.' The district judge found on the basis of evidence adduced that Appellant was not represented by counsel at the time of his arraignment and plea of not guilty, and stated (l.c. 335):
In its brief Respondent points out that the federal court expressly left open the question of the applicability of Hamilton and White to the lack of counsel on arraignment. At oral argument Assistant Attorney General Howard L. McFadden urged this court to pass on the merits of Appellant's contention, pointing out that it was a main point in the federal case, that the court reporter is dead and his notes cannot be found, that the attorneys supposedly appointed have said they never represented Appellant, and the State is 'satisfied' that he had no attorney at arraignment.
The federal court indicates that we could order a further hearing at which additional evidence may be adduced that would require a different finding (258 F.Supp. l.c. 321). We do not see fit to order such further hearing in view of the admission by the State that Appellant did not have counsel at arraignment.
We do not decide whether in this proceeding we must either accept the federal court's factual finding or order a further evidential hearing on the fact question. Instead, we will assume for purpose of this appeal only (subject to the fact being found otherwise in another proceeding, if such should ever occur and thus make the legal question moot) that Appellant was not represented by counsel at arraignment. We will meet and determine the arraignment question under such assumption (Cf. State v. Montgomery, Mo., 424 S.W.2d 744, 746), and City of St. Louis v. Vetter, Mo.App., 293 S.W.2d 140).
We do not confront or decide the question of whether Hamilton and White should or must be applied retroactively, a question Judge Oliver says is open for decision (258 F.Supp. l.c. 335), but assume for purpose of this appeal only, that those cases do apply retroactively.
We now examine Appellant's legal contention. The purpose of arraignment in Missouri is to ascertain whether defendant is personally before the court so that he may know what is being done in his case and to give him the opportunity to plead (State v. Borchert, 312 Mo. 447, 279 S.W. 72, 75). It must be conducted in open court 'and shall consist of reading the indictment or information to the defendant or stating to him the substance of the charge and calling on him to plead thereto,' and 'a defendant may plead not guilty or guilty' (Rule 25.04, and § 546.020 RSMo 1959, V.A.M.S.). Rule 29.01(a) requires the court to appoint counsel for a person charged with the commission of a felony and unable to employ counsel who appears upon arraignment without counsel and requests the court to appoint counsel. This rule provides: 'Counsel so appointed shall be allowed a reasonable time in which to prepare the defense.'
We have held that the absence of counsel during arraignment is not, per se, a violation of the Sixth Amendment. See State v. Benison, Mo., 415 S.W.2d 773, 775, where we stated:
'At this stage of the proceedings he was not required under the laws of this state to assert any right, plea or defense to preserve any statutory or constitutional right; no possible rights, pleas or defenses were lost to him at these proceedings, they were preserved inviolate, and no prejudice to defendant resulted.'
In Benison the court, upon defendant's standing mute, entered a plea of not guilty for him, and immediately appointed counsel and no further proceedings were had until defendant next appeared in court with counsel. The fact that the court entered the plea of not guilty does not distinguish Benison from the instant case. Appellant was in the same position as Benison in the respects just quoted. See also State v. Worley, Mo., 383 S.W.2d 529, 533, where the court points out that following the preliminary hearing defendant pleaded not guilty at his arraignment, counsel was appointed, and he preserved his full rights to a trial completely unhampered by any waivers or admissions. There the court specifically mentioned Hamilton and White. While the case dealt with alleged error in lack of counsel at the preliminary hearing, the court had those cases before it in consideration of such contention. We have previously distinguished Hamilton and White in proceedings involving claims of error because of lack of counsel at preliminary hearing, which we have held repeatedly is not in itself a constitutional error and does not make the preliminary hearing a 'critical stage' (State v. Patrick, Mo., 420 S.W.2d 258, 261).
We hereby expressly declare that it is the law of Missouri now and was at the time from Appellant's arraignment through his trial that a defendant has an absolute right to consideration on the merits of objections to the indictment and similar pretrial types of attacks on the proceedings. Cf. McGill v. United States, 121 U.S.App.D.C. 179, 348 F.2d 791, 793--794.
Nothing in Rule 25.04, dealing with arraignment, indicates that a defendant pleading not guilty without counsel waives anything. Rule 25.05 provides that pleadings in criminal proceedings shall be the indictment and the information and the pleas of not guilty or guilty; abolishes all other 'pleas and demurrers and motions to quash'; and provides that the defenses and objections raised before trial which heretofore could have been raised by one or more of them shall be raised only by motion to dismiss or to grant appropriate relief as provided in the Rules.
Rule 25.06(a) provides that any defense or objection 'which is capable of determination without the trial of the general issue may be...
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...is not, per se, a violation of the Sixth Amendment." State v. Benison, 415 S.W.2d 773, 775 (Mo.1967). See also State v. Donnell, 430 S.W.2d 297, 300 (Mo. 1968) (absence of counsel during arraignment not a per se Sixth Amendment violation); McClain v. State, 448 S.W.2d 599, 602 (Mo.1970) (ab......
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