State v. Durham, 52213

• Decision Date: 12 June 1967
• Docket Number: No. 2,No. 52213,52213,2
• Citation: 416 S.W.2d 79
• Parties: STATE of Missouri, Respondent, v. Donald Gene DURHAM, Appellant
• Court: Missouri Supreme Court

Page 79

416 S.W.2d 79

STATE of Missouri, Respondent, v. Donald Gene DURHAM, Appellant.

No. 52213.

Supreme Court of Missouri, Division No. 2.

June 12, 1967.

Motion for Rehearing or to Transfer to Court en Banc Denied

July 10, 1967.

Norman H. Anderson, Atty. Gen., Gerald L. Birnbaum, Asst. Atty. Gen., Jefferson City, for respondent.

Donald Gene Durham, pro se.

STOCKARD, Commissioner.

Defendant has appealed from the order of the Circuit Court of Phelps County denying his motion, without an evidentiary hearing, filed pursuant to Criminal Rule 27.26, V.A.M.R.

Defendant was charged under the habitual criminal act and was found guilty by a jury of burglary and stealing. He was sentenced by the court to a term of eight years for the burglary and four years for the stealing, the terms to run consecutively. Upon appeal the judgment was affirmed. State v. Durham, Mo., 367 S.W.2d 619, certiorari denied 375 U.S. 861, 84 S.Ct. 130, 11 L.Ed.2d 89. A previous motion pursuant to Criminal Rule 27.26 was ruled adversely to defendant, and on appeal that ruling was affirmed. State v. Durham, Mo., 386 S.W.2d 360, certiorari denied 382 U.S. 857, 86 S.Ct. 110, 15 L.Ed.2d 94. Two reported opinions in the federal courts also pertain to a collateral attack by defendant against the validity of the judgment. Durham v. Haynes, D.C., 258 F.Supp. 452 (wherein reference is made to another proceeding in the federal district court attacking the judgment), and Durham v. Haynes, 8 Cir., 368 F.2d 989.

In his brief to this court and in his pro se oral argument defendant asserted that his constitutional rights had been violated in that he was not represented by counsel in this court on his direct appeal. In State v. Schaffer, Mo., 383 S.W.2d 698, and in State v. Moore, Mo., (Case No. 52, 101), this court has ruled that it is not authorized to consider that contention in a proceeding under Criminal Rule 27.26, even when included in the motion. As stated in the Schaffer case, if defendant desires a ruling on the issue of whether he was entitled to counsel on his direct appeal to this court, he should present that issue by an appropriate proceeding instituted in this court.

The first contention in defendant's motion is quite lengthy, and it consists primarily of a narrative statement of the circumstances surrounding his unsuccessful attempt to obtain counsel to represent him at his preliminary hearing. The substance of defendant's contentions is that he was 'refused * * * the right to obtain the aid of counsel, or the ample time to obtain counsel' at his preliminary hearing because the magistrate court refused to grant a continuance. He then relates that the magistrate judge knew that he had been held 'incommunicado in 'the hole' of the Rolla City Jail,' and that he 'repeatedly requested' the 'police and the sheriff' to be allowed to call 'relatives and friends' in St. Louis 'to obtain aid to hire counsel to defend petitioner at the preliminary examination' but this request was refused. Defendant also states that on April 8, 1962, the chief of police agreed to and did call the law firm of White & White in Rolla, and that later Mr. Jay White came to see him and discussed 'the possible handling of this petitioner's defense.' According to defendant's motion, Mr. White told defendant to request a continuance of his preliminary hearing, and that defendant 'should then contact St. Louis to obtain aid to hire Mr. White for defense during the coming preliminary hearing,' and that if the court refused to grant a continuance to tell the judge 'I told you to request it, and that I am going to defend you.' The next morning defendant informed the magistrate court what Mr. White had told him, and after the prosecuting attorney at the judge's request called Mr. White by telephone, he reported back to the court that 'Jay (is) not their lawyer,' and the court denied the request for a continuance. Defendant asserts that by reason of the above incidents his 'federal and state constitutional rights have been violated' and for these reasons 'this cause should be remanded for new proceedings to include a preliminary (hearing) with the right being afforded (defendant) to obtain counsel and to defend his interest.'

Defendant does not contend that at the time of his preliminary hearing he had retained counsel who was not permitted to attend. Neither does he contend that as an indigent he requested the appointment of counsel and was refused. His contention is that the magistrate court refused to grant a continuance of his preliminary hearing so that he could call relatives and friends in St. Louis to obtain financial aid to employ counsel at the preliminary hearing. We note that he does not allege that financial aid would have been forthcoming, and at the trial of his case in the circuit court defendant was represented by counsel appointed by the trial court on the basis that he was an indigent. Defendant was not automatically entitled to a continuance by virtue of his request, particularly when the allegations of his motion establish that the reason stated to the magistrate for the request, that Mr. Jay White was his lawyer and he needed time to obtain money to pay him, was not correct. The granting of the continuance was a matter within the sound discretion of the magistrate, and if that discretion was abused it was subject to review in the trial court and subsequently on appeal, but not in a collateral attack on the validity of the judgment of conviction. No such contention was presented by defendant on his direct appeal to this court, and a proceeding under Criminal Rule 27.26 is not to function as an appeal, State v. Hagedorn, Mo., 305 S.W.2d 700, nor afford a second appellate review. State v. Worley, Mo., 371 S.W.2d 221. The basic issue, therefore, and the one which appears to be urged by defendant in his argument, is whether constitutional requirements prohibited the magistrate court from proceeding with the preliminary hearing without defendant being represented by either retained or appointed counsel.

This issue has been before this court on several previous occasions. In State v. Turner, Mo., 353 S.W.2d 602, this court pointed out that in Missouri a preliminary hearing is not a trial of the accused for the offense alleged in the complaint, but that it is merely an inquiry to determine if there is probable cause to believe that a felony has been committed and that the accused is the offender. If probable cause is found by the magistrate the accused may be bound over, formally charged, and then tried in the circuit court on the issue of his guilt. If probable cause is not found the accused is discharged. It was held in the Turner case that neither the federal or the state constitution nor any applicable statute requires the magistrate court to appoint counsel for the accused at a preliminary hearing. See also State v. Gagallarritti, Mo., 377 S.W.2d 298; State v. Small. Mo., 386 S.W.2d 379; State v. Phelps, Mo., 384 S.W.2d 616; State v. Engberg, Mo., 391 S.W.2d 868; State v. Turley, Mo., 416 S.W.2d 75. Defendant entered no plea of guilty. He made no statement and took no position at the preliminary hearing which was subsequently used against him or to his disadvantage in his trial before a jury on the issue of his guilt. Nothing occurred except an official determination by the magistrate that there was probable cause to charge defendant formally. Defendant does not attempt to allege any occurrence in connection with his preliminary hearing which resulted to his prejudice. We overrule his first contention.

In the statement of defendant's second contention he alleges that his court appointed counsel, Mr. Zane H. White, Filed in the circuit court a 'motion to remand for preliminary hearing,' and that he had told his counsel he wanted to be present at the hearing on the motion and testify and present the testimony of others. Defendant alleges that the hearing on the motion was held on May 7, 1962, at which time he was in the Cole County jail for 'housing,' and that the record entry that he was in 'open court at the time of the hearing' is false. Because of this defendant asserts that he is entitled to have 'the cause vacated, or remanded for a new set of proceedings to include a legal preliminary hearing.'

Defendant makes no allegations concerning the substance of the testimony he now says he desired to present at the hearing on the motion to remand, which, if true, would have demonstrated that he would have been entitled to a remand of the case for a second preliminary hearing. Therefore, accepting as true his allegation that he was not present at the hearing on the motion to remand, the sole issue is whether the subsequent conviction by the jury...