State v. Grant
| Decision Date | 13 July 1964 |
| Docket Number | No. 2,No. 50406,50406,2 |
| Citation | 380 S.W.2d 799 |
| Parties | STATE of Missouri, Respondent, v. Freddie Lee GRANT, alias Freddie Lee King, Appellant |
| Court | Missouri Supreme Court |
Thomas F. Eagleton, Atty. Gen., Jefferson City, John H. Denman, Asst. Atty. Gen., for respondent.
Rosenblum & Goldenhersh and Merle L. Silverstein, Clayton, for appellant.
This is an appeal from an order and judgment overruling a motion under S.Ct. Rule 27.26, V.A.M.R. to vacate a conviction of forcible rape. In accordance with the habitual criminal act, the court assessed the punishment and fixed it at imprisonment for 99 years. The contentions raised are that the sentence and judgment were entered immediately after the verdict was returned thereby preventing the defendant from filing a valid motion for new trial and precluding him from preserving assignments of errors for review on appeal in violation of his rights under the constitutions of the United States and the State of Missouri, that he was not afforded allocution, and that entering judgment and sentence immediately after verdict deprived the appellant of the effective assistance of counsel in violation of his constitutional rights. The entire proceedings of the original trial are included in the transcript of the record on this appeal.
On November 3, 1960, Mrs. Hazel Christine Burton lived with her husband and two children, a seven-year-old boy and a one and one-half-year-old girl, in the country about a mile and a half south of Morehouse in New Madried County. On that day Mr. Burton was away from home working and the boy was in school. About 11:30 a. m. a Negro man, later identified as the defendant, came to Mrs. Burton's home, asked where someone lived and when she could not supply the information he asked for a drink of water. Mrs. Burton got a glass of water from the house which the defendant drank and when she started back into the house with the glass he followed her and forced his way into the home. She escaped from him and ran outside calling for help. Mrs. Fred Williams, the closest neighbor, lived about a quarter of a mile away. The defendant caught her, grabbed her around the neck and dragged her back into the living room. He choked her until she lost consciousness momentarily and when she came to she was on a couch. He had removed his clothes and had torn hers off. He cursed and threatened her while he had sexual intercourse with her; he tried to keep a cloth over her fact but she would pull it off. When he had finished the act, he demanded money. She refused to give him any and ran into the room where her daughter was and closed the door. The defendant took three dollars off the television set and left. She watched him go across a field and when he was gone she hurried over to the Williams home where there was a telephone. Police officers in Sikeston and Morehouse were promptly called and notified of the assault.
The defendant was captured in a drainage ditch about a mile and a half from the Burton home about 45 minutes after the assault and was taken to the Williams home where Mrs. Burton identified him as her assailant but stated that he was wearing a striped coat when he was at her house. One of the officers asked about the coat and the defendant said he had thrown it away. The officers took him to the place he designated and the coat was recovered in a field in the vicinity of the drainage ditch where he was arrested. A couple of days later, Mrs. Burton again identified the defendant in a lineup of several Negroes in Sikeston, and at the trial further identified the defendant as the man who committed the assault on her.
Police officers and Mrs. Williams also testified on behalf of the state. The defendant, 25 years of age, testified in his own behalf. He admitted that he passed through the neighborhood where the Burtons lived on November 3, 1960, but denied that he went to the house and assaulted Mrs. Burton.
Since the defendant was charged as a habitual criminal, the state at the beginning of the trial, out of the presence of the jury, introduced evidence of four convictions. The first in 1955 was for burglary and larceny in New Madrid County for which the defendant was sentenced to two years in the penitentiary. The other three were in the City of St. Louis in 1957 of which two were for burglary and larceny and the other was for stealing $50 and over. The sentences for these three offenses totaled four and one-half years. The defendant was released from the Missouri penitentiary April 23, 1960. At the close of the state's case, the court announced his finding that the defendant had been convicted of the prior felonies as charged. On cross-examination the defendant admitted the prior felonies and an additional conviction for stealing an automobile for which he served a term in a federal prison.
The jury returned a verdict finding the defendant guilty as charged in the information. After the jury was discharged, the defendant was granted thirty days to file a motion for new trial. The court then announced that he would take up the matter of sentencing the defendant and stated he would like to hear from the state's attorney and the defendant's attorney 'as to what the punishment should be'. Both counsel stated their views; the state asked for the death penalty. At the conclusion of the arguments, the court announced: 'It will be the judgment of this Court that you be sentenced to ninety nine years in the Department of Correction.' This occurrence will be discussed in further detail later. On July 11, 1962, within the thirty days allowed, the defendant by his trial counsel filed a motion for a new trial which the parties concede was never ruled on.
The next record entry in point of time is the filing of the motion to vacate on August 27, 1963, by the defendant's present counsel. On September 10, 1963, the motion to vacate was heard, submitted, and overruled by the court from which order and judgment the defendant filed his notice of appeal on September 13, 1963.
Two of the points presented by the defendant on this appeal are based on the proposition that the 'sentence and judgment were entered immediately after the verdict was returned'; the other is that the 'sentence and judgment were unlawful in that they were pronounced without affording appellant allocution.' Therefore, it behooves us to determine at the outset the nature and legal effect of what occurred immediately after the verdict was returned and the jury discharged.
Section 556.280, RSMo 1959, V.A.M.S., known as the Habitual Criminal Act, deals with the assessment of the punishment in a case where the defendant has committed a prior felony; it provides in such case that the punishment shall be determined by the court rather than the jury. The statute, as amended in 1959, requires that evidence pertaining to the prior conviction shall be heard and determined by the trial judge out of the hearing of the jury prior to the submission of the case to the jury and that the court shall enter his findings thereon. In compliance with this provision, the judge, at the close of the state's case, announced his finding that the defendant had been convicted of prior felonies. Section 556.280 further provides that if the accused is found to have been convicted of a prior felony he 'shall receive such punishment provided by law for the subsequent offense as the trial judge determines after the person has been convicted.' The determination of the punishment must be made after the conviction and should be made before the motion for a new trial is prepared and filed in order to give defendant's counsel an opportunity to assign error with respect thereto in the motion. It was therefore in order for the court to determine the punishment after the jury had returned its verdict and been discharged.
After the judge had granted defendant's counsel thirty days in which to file a motion for new trial, he stated: Mr. Hunter, the prosecuting attorney, argued in favor of the death penalty. The court then called on Mr. Garner, counsel for the defendant, who spoke against the death penalty in general and as applied to his client in particular. He also argued mitigating circumstances and in conclusion stated in effect that he would not have a thing to say against life imprisonment. The court responded and concluded the hearing in this fashion:
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...different conclusion and imposing a different sentence on final judgment. State v. Jaeger, Mo., 394 S.W.2d 347, 354(14); State v. Grant, Mo., 380 S.W.2d 799, 802--803(3). A preliminary indication of the punishment the court intends to impose is helpful in that it enables the defendant to in......
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