State v. Gray, s. 52502
| Citation | 432 S.W.2d 593 |
| Decision Date | 25 October 1968 |
| Docket Number | 49313,Nos. 52502,No. 3,s. 52502,3 |
| Parties | STATE of Missouri, Respondent, v. Dan Westley GRAY, Appellant |
| Court | United States State Supreme Court of Missouri |
Norman H. Anderson, Atty. Gen., Gerald L. Birnbaum, Asst. Atty. Gen., Jefferson City, for respondent.
Raymond A. Klemp, Caruthersville, Court appointed for appellant.
Appellant Dan Westley Gray was found guilty of murder in the second degree in the Circuit Court of New Madrid County on September 21, 1961, and sentenced to confinement for sixty years. He was represented by counsel of his own choice.
The undisputed facts are that the appellant shot and killed one Cleatus Phillips, a deputy sheriff, while the latter was attempting to arrest him pursuant to a warrant. The conviction was affirmed by Division One of this Court on October 8, 1962 (State v. Gray, Mo., 360 S.W.2d 642), in an opinion wherein the facts are succinctly and accurately stated. Details of the homicide not necessary to a determination of the issues here raised will not be restated.
Because appellant, an indigent, was not represented by counsel on his appeal, this Court, on motion of the Attorney General, in conformity with the rulings in Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33; and Swenson v. Donnell, 8 Cir., 382 F.2d 248; and in compliance with memorandum and order dated August 11, 1967, in Gray v. Swenson, W.D.Mo., 271 F.Supp. 912 (1967), set aside the affirmance, reinstated the cause on the docket, ordered the trial court to appoint counsel to represent appellant on appeal and set the case for hearing at a special session of this Court in Division Three.
We have consolidated for hearing with this direct appeal an appeal from an adverse ruling by the trial court in a proceeding under Supreme Court Rule 27.26, V.A.M.R. in which the appellant makes the same allegations of error as those allegedly occurring in the trial. Appointed counsel and the respondent have filed briefs and made oral arguments. We shall here rule in one opinion the identical issues raised in the consolidated cases.
Appellant claims, first, that the trial court erred in refusing to sustain a motion to deny Hal E. Hunter, Jr. the right to represent the prosecution in the trial because Hunter was acting both as assistant prosecuting attorney and clerk of the magistrate court when he signed the information as assistant prosecuting attorney. (Hunter resigned as magistrate clerk one week before the trial in circuit court.) Section 476.290 1 provides that no clerk while he continues to act as such shall plead, practice or act as counselor or attorney in any court within the county for which he is such clerk.
This allegation of error was fully considered in the prior opinion and ruled adversely to the appellant. We conclude upon full reconsideration that the prior ruling was correct and we specifically adopt the prior holding as part of this opinion.
Appellant also contends that the trial court erred in overruling his oral motion to strike and quash the information--filed after the jury was impaneled and two witnesses had testified--because the information was filed by Hunter in violation of Section 476.300, which provides that any suit commenced or paper filed in violation of Section 476.290 shall, on motion, be dismissed or stricken from the record. Our prior opinion held that the point was not preserved in the motion for new trial and was therefore not before us on appeal. We adhere to that ruling. We add that the ruling on the oral motion to strike does not raise an issue of constitutional proportions under Rule 27.26(b)(3) or of 'plan error' under Rule 27.20(c).
Appellant further claims his conviction violated Fourteenth Amendment due process of law because an inculpatory statement made by the appellant after his arrest and used by the prosecution for impeachment purposes without objection by the appellant, was not voluntarily made because (1) the statement was coerced and (2) the statement was given while the appellant was without the assistance of counsel.
Appellant did not so contend at the trial. The record shows that the first reference to any statement by the appellant was made by the appellant himself on direct examination. He testified that after his arrest he answered a series of questions asked by the highway patrolmen. He did not, however, testify at that time to the contents of any written statement or to any oral questions and answers. Thereafter, on cross-examination, the prosecuting attorney asked the appellant if he had made the answers to the questions contained in a document which was marked as an exhibit but never introduced in evidence. This document consisted of three hundred sixty-four questions and answers. No predicate was laid for its use. In response to almost every question the appellant said he made the answers and that they were true. Often he added explanatory comment. At no time during the trial did the appellant assert that he was physically or mentally abused or coerced or that the statement was other than voluntary. There was no objection by appellant's counsel either to the procedure used by the prosecuting attorney or to the contents of the statement. There was no request for a hearing out of the presence of the jury to determine the voluntariness of the statement. On the contrary, the following colloquy appears in the record:
(Questions by Mr. Hunter, Answers by Appellant)
'Q. Trooper Thomas said (reading) 'Do you want to say anything else that you may have left out?' And your answer was (reading) 'No, sir.' Is that right?
A. That's right.
Q. Now, D. I call your attention to page 2 of this statement.
MR. WELKER: I'll agree if you want that we'll read the whole statement from start to finish.
Mr. Hunter, Jr.: I would like to conduct my cross-examination in my own manner.
THE COURT: You may proceed.'
On redirect examination appellant answered in the affirmative when asked if his answers contained in the statement were the same as his testimony. Additional questions and answers presumably considered favorable to appellant were read from the statement by defense counsel and appellant testified he made the answers and they were true. Appellant's testimony at the trial did not vary in any relevant detail from those portions of the statement read to the jury.
Near the end of the redirect examination of appellant the following appears:
'Q. Are you willing that this whole record in this statement that you made up there at Sikeston be given to the jury?
A. Yes, sir.
MR. HUNTER, Jr.: I object to that for the very reason he has nothing to say about it. The State will introduce it at its own time and it's the State's exhibit.
Appellant questioned the voluntary nature of his statement for the first time in his motion under Rule 27.26 filed on April 26, 1965. At the hearing of the motion on July 2, 1966, appellant testified that he had asked for and been denied opportunity to have counsel; that he was told that his wife, father, mother, brother 'and a few more friends' were in jail and would be released as soon as he made a written statement; that he requested and was denied an opportunity to make a telephone call to his sister in St. Louis for the purpose of retaining the services of a lawyer; that he was not advised that anything he said could be used against him or that he could make a telephone call to his family or that he had a right to counsel. Appellant also testified that he was told by the highway patrolmen that his statement would not be used against him. The prosecution elected not to offer any evidence at the 27.26 hearing.
We hold on this record that the appellant understandingly and intelligently waived his right to have a preliminary determination by the Court as to voluntariness by his failure to object to the use of the statement and by expressly offering to agree and agreeing that the statement be read to the jury in its entirety. See State v. Meiers, Mo., 412 S.W.2d 478, 481; Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Henry v. State...
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