State v. Gray

• Decision Date: 10 April 1972
• Docket Number: 52502,57076,No. 1,Nos. 49313,s. 49313,1
• Citation: 478 S.W.2d 654
• Parties: STATE of Missouri, Respondent, v. Dan Westley GRAY, Appellant
• Court: Missouri Supreme Court

Page 654

478 S.W.2d 654

STATE of Missouri, Respondent, v. Dan Westley GRAY, Appellant.

Nos. 49313, 52502, 57076.

Supreme Court of Missouri, Division No. 1.

April 10, 1972.

John C. Danforth, Atty. Gen., Stephen D. Hoyne, Asst. Atty. Gen., Jefferson City, for respondent.

David E. Blanton, Sikeston, court appointed attorney for defendant-appellant.

HIGGINS, Commissioner.

Dan Westley Gray, charged with murder, first degree, was convicted of murder, second degree, by a jury which assessed his punishment at 60 years' imprisonment. Sentence and judgment were rendered accordingly. §§ 559.010, 559.020, 559.030, V.A.M.S. His appeal from such judgment and sentence, No. 49,313, is consolidated with his appeal from denial, after evidentiary hearing, of motion under Criminal Rule 27.26, V.A.M.R., to vacate and set aside the judgment and conviction, No. 52,502, and his appeal from denial, without evidentiary hearing, of a second such motion, No. 57,076.

On September 12, 1960, in New Madrid County, Dan Westley Gray shot and killed Cleatus Leo Phillips, a deputy sheriff of New Madrid County. On November 17, 1960, after prelimianry hearing, the information charging him with murder, first degree, was filed. On June 13, 1961, the Honorable William L. Ragland, Judge of the Circuit Court of New Mardrid County, was disqualified; and, on June 27, 1961, the Honorable Ray Weightman was transferred by the Supreme Court of Missouri to sit as special judge in the case. On July 11, 1961, defendant filed 'Motion to Disqualify Sheriff, Deputies, and Appointees, and Coroner,' on grounds of their close relation to the deceased, and prayed the appointment of an elisor to serve process and to summon jurors, representing that any member of the New Madrid County Bar, other than those involved in the case, would make a fair and impartial elisor. On July 19, 1961, the court appointed Harry H. Bock and Charles C. Hatley as special officers to perform all duties in the case of the sheriff and deputies and they secured the necessary jurors. On September 20, 1961, trial commenced and, on September 21, 1961, the jury returned its verdict. On October 19, 1961, defendant's Motion for New Trial was filed, reciting sixteen grounds for relief. On November 30, 1961, the Motion for New Trial was denied and sentence and judgment were rendered and, on December 1, 1961, Notice of Appeal was filed. Defendant was represented by counsel of his own choosing throughout all such proceedings.

The appeal was submitted on the State's brief and the motion for new trial; and, according to the practice then prevailing, appellant, unrepresented by counsel, received a review on the allegations of his motion for new trial. On October 8, 1962, the judgment of conviction was affirmed. State v. Gray, No. 49,313, Mo., 360 S.W.2d 642.

On April 26, 1965, Dan Westley Gray filed his first motion to vacate judgment and sentence under Rule 27.26, alleging violation of Sections 476.290 and 476.300, V.A.M.S., in that at the time of preliminary hearing, Hal E. Hunter, Jr., was Clerk of the Magistrate Court and Assistant Prosecuting Attorney of New Madrid County and, as such, executed the information upon which defendant was tried. On July 27, 1965 (Judge Weightman having retired), the Honorable Marshall Craig was assigned to the case. On November 26, 1965, the motion was amended to allege that an involuntary confession had been used in the course of his trial. Raymond A. Klemp was appointed to represent movant and, on July 2, 1966, an evidentiary hearing was accorded. On August 13, 1966, the court made findings and denied relief; and on August 29, 1966, notice of appeal was filed and the appeal was assigned No. 52,502.

On August 11, 1967, while appeal No. 52,502 was pending in this court, the United States District Court for the Western District of Missouri, in a habeas corpus proceeding, found that movant was entitled to the writ on the ground he had not had counsel on his original appeal, No. 49,313, but stayed execution of the writ upon condition that this court grant him a new appeal with counsel. Gray v. Swenson, D.C.W.D.Mo., 271 F.Supp. 912; Bosler v. Swenson, 8 Cir., 363 F.2d 154; Swenson v. Donnell, 8 Cir., 382 F.2d 248. On September 11, 1967, this court, on its own motion and consistent with the foregoing authorities, vacated the judgment of October 8, 1962, No. 49,313, affirming the conviction, State v. Gray, Mo., 360 S.W.2d 642, supra, recalled the mandate of October 24, 1962, consolidated the appeal with the then undecided appeal, No. 52,502, and ordered the Circuit Court of New Madrid County to appoint counsel for appellant with directions to counsel to file an appeal brief for appellant. Mr. Klemp served as appointed counsel on the consolidated appeal; and, on October 25, 1968, the judgment of conviction was again affirmed and the judgment denying the 27.26 motion also was affirmed. State v. Gray, Nos. 49,313, 52,502, Mo., 432 S.W.2d 593.

On March 4, 1969, the United States District Court for the Western District of Missouri, in a second habeas corpus proceeding, found that Dan Westley Gray had presented a question of ineffective assistance of appellate counsel in connection with the brief of Mr. Klemp in the consolidated appeals, Nos. 49.313 and 52,502, and ordered a hearing for determination of the question. Gray v. Swenson, D.C.W.D.Mo., 296 F.Supp. 1040. On July 22, 1969, the United States District Court for the Western District of Missouri found that Dan Westley Gray was entitled to the writ on the ground that he was, as a matter of law, represented by inadequate and ineffective counsel on his second direct appeal and that he had never been accorded a hearing on the voluntariness of his confession as envisioned by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, but stayed execution of the writ upon condition that he be afforded an appropriate plenary evidentiary hearing in the state trial court in accordance with Jackson v. Denno, supra , without limitation on his right to broaden the scope of inquiry by further 27.26 motions. Gray v. Swenson, D.C.W.D.Mo., 302 F.Supp. 1162, affirmed upon petitioner's appeal, Gray v. Swenson, 8 Cir., 430 F.2d 9. On September 8, 1969, this court, of its own motion and consistent with the foregoing authorities, vacated the judgment of October 25, 1968, affirming the conviction a second time and affirming the denial of relief on the first 27.26 motion, State v. Gray, Mo., 432 S.W.2d 593, supra, recalled the mandate of November 12, 1968, ordered the Circuit Court of New Madrid County to conduct a plenary evidentiary hearing in accordance with Jackson v. Denno, supra, on the voluntariness of defendant's confession, and appointed David E. Blanton as counsel for Dan Westley Gray.

On September 24 and September 29, 1969, orders were entered by the Supreme Court of Missouri, upon the disqualification of the Honorable Marshall Craig, transferring the Honorable William H. Billings to sit in the consolidated cases. On October 3, 1969, Judge Billings set the plenary evidentiary hearing for October 15, 1969, in order to comply with the time limitations set by the order of the United States District Court for the Western District of Missouri in Gray v. Swenson, 302 F.Supp. 1162, supra. On October 8, 1969, defendant moved for and secured a continuance pending disposition of his appeal from the order of 302 F.Supp. 1162. On October 28, 1970, following disposition of the appeal in Gray v. Swenson, 8 Cir., 430 F.2d 9, supra, on September 15, 1970, Judge Billings set the hearing for January 22, 1971; and, on January 22, 1971, the cause was continued to January 28, 1971. On January 28 and January 29, 1971, the evidentiary hearing was conducted and, on January 29, 1971, the court made findings of fact and entered judgment denying relief.

On February 8, 1971, movant filed his notice of appeal (Nos. 49,313 and 52,502), and, on June 15, 1971, while those appeals were being perfected, he filed, pro se, yet another motion under Rule 27.26 together with an application for disqualification of judge. On June 22, 1971, Judge Billings denied the motion and application without a hearing. On June 26, 1971, movant filed, pro se, a notice of appeal from this ruling and, on June 29, 1971, counsel also filed notice of appeal. On July 1, 1971, the appeal from denial of this last motion was docketed as No. 57,076; and, on July 28, 1971, this court, of its own motion, ordered appeal No. 57,076 consolidated with the appeals in Nos. 49,313 and 52,502, 'which have heretofore been consolidated.' On January 25, 1972, the consolidated appeals were argued and submitted, and the cause is once again before this court for review.

Appellant does not challenge the sufficiency of evidence to sustain his conviction. The statement of fact in State v. Gray, supra, 360 S.W.2d l.c. 644, succinctly demonstrates the sufficiency of evidence, and the transcript of the original appeal justifies its reproduction as the statement of fact on this appeal.

'Sheriff Ramsey had a warrant for the arrest of defendant. Informed that defendant was at the home of his brother Bobby Gray, the sheriff and Cleatus Phillips, a deputy sheriff, went to the brother's home near Marston, traveling in a pickup truck. The sheriff went to the front door, Phillips to the back of the house. Phillips called out that he saw defendant inside the house. The sheriff called on defendant to come out. Defendant said 'Wait until I get the shirt on.' Time passed and defendant did not come out. The sheriff opened the front door, walked into the front room of the house, and heard a sound like a pump shotgun being pumped, in a rear room. Phillips kicked the back door open, and as Phillips was entering the house defendant shot Phillips in the head with a shotgun at close range, killing him instantly. The sheriff ran out of the house, ordered defendant to come out and throw down his gun, and fired into the...