State v. Hamblin

• Decision Date: 12 January 1970
• Docket Number: No. 54231,No. 2,54231,2
• Parties: STATE of Missouri, Respondent, v. James Julius HAMBLIN, Appellant
• Court: Missouri Supreme Court

Page 603

448 S.W.2d 603

STATE of Missouri, Respondent, v. James Julius HAMBLIN, Appellant.

No. 54231.

Supreme Court of Missouri, Division No. 2.

Jan. 12, 1970.

John C. Danforth, Atty. Gen., Jefferson City, Charles, B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.

B. B. Turley, Routh & Turley, Rolla, for appellant.

STOCKARD, Commissioner.

Defendant has appealed from the judgment entered pursuant to jury verdict imposing a sentence of twelve years for first degree robbery.

From the evidence presented by the State a jury reasonably could find the following occurrences. About 8:30 o'clock of the morning of September 26, 1967, defendant and two other persons entered Pecan Joes on Highway 66 in Phelps County, Missouri, where Mrs. Reba Basham, the clerk and cashier, was alone. Defendant pointed a gun at Mrs. Basham and told her, 'This is a robbery. Give me your money--all of it.' Mrs. Basham opened a cash register and placed the till on the counter and defendant took from it all the bills. He then told her to open a second cash register, and while Mrs. Basham was doing so defendant 'warped' her on her hand. Defendant then told her to get on the floor, and when she was on her knees he gave her a 'judo lick across the back of (her) neck and * * * four other licks (with the butt of the gun) on (her) head,' and then ran after taking the bills from the cash register. After she called the Highway Patrol Mrs. Basham was taken to the Pulaski County General Hospital at Waynesville where fourteen stitches were required to close her wounds.

Just before 9:00 o'clock Highway Patrolman Jim Hudson saw defendant driving his automobile at an excessive speed on Highway 66. He contacted his headquarters and then stopped defendant's automobile. There were two other persons in the automobile besides defendant. Shortly thereafter two additional Highway Patrolmen arrived, and because they had 'information that these men had committed a robbery' defendant 'was arrested for armed robbery in Phelps County, Missouri, at Pecan Joes.' Defendant and the two others were taken to the Pulaski County General Hospital 'for identification purposes.' Whether or not Mrs. Basham identified defendant as one of the robbers is not shown by the record, and there was no testimony concerning the confrontation at the hospital. At the trial Mrs. Basham unequivocally identified the defendant as the one who pointed the gun at her, took the money, and assaulted her. She was cross-examined concerning the basis of her identification, and among other things she said that she was able to observe the defendant, and that 'when you're looking into a couple of mean eyes and the barrel of a gun' she could and did form an impression of him. She added that she would 'never forget him the rest of the life.'

After the jury returned its verdict, defendant's counsel advised the court in the presence of defendant that he was willing to file a motion for new trial. However, defendant first demanded the appointment of other counsel, and then after a lengthy discussion in which the court painstakingly attempted to explain the necessity for a motion for new trial in order to have a meaningful appeal, defendant affirmatively stated that he did not want his counsel to file such a motion. Subsequently, but timely, defendant filed pro se a motion for new trial in which he set forth as grounds therefor that (1) his arrest was illegal, (2) the evidence was obtained illegally, and (3) he was denied the right to dismiss his court appointed counsel. Because the reasons for these assignments are not set forth, the pro se motion does not comply with the minimum requirements of Supreme Court Rule 27.20, V.A.M.R. We shall, however, set forth the contentions presented as points in defendant's brief which pertain to the above general assignments, and one point not mentioned in the motion for new trial, to show their lack of merit. In addition, as to some it may be argued that they present a federal constitutional question which could be presented in a post-conviction proceeding, and if so, there is no compelling reason not to now consider and rule the issues.

The first point in defendant's brief is that the court erred in failing to discharge defendant because he was 'illegally arrested and held without warrant,' and he should have been discharged from custody after being held for twenty hours.

Defendant advances no reason why the arrest is claimed to have been illegal, and none is apparent from the record. He asserts in argument that 'a search of the files fails to disclose that a warrant was ever issued naming appellant.' This contention was not presented to the trial court at any time, and a statement in the brief that a search of the file by counsel (by whom we assume it was made) did not reveal a warrant does not prove that none existed. The record before this court does not establish that defendant's custody was unlawful. Any challenge by defendant concerning the warrant should have been presented to the magistrate or trial court in appropriate proceedings. State v. Worley, Mo., 383 S.W.2d 529. The warrant pertained to the validity of defendant's custody prior to his preliminary hearing. It had no bearing on the merits of his trial, and defendant cannot now for the first time on appeal challenge the sufficiency or absence of a warrant.

Defendant next contends that the court erred in admitting in evidence items which were 'illegally and unlawfully obtained.' In his brief reference is had to the admission in evidence of a .38 caliber pistol and a bullet. There was no motion to suppress the evidence filed in advance of trial, and for this reason alone the contention now presented on appeal is without merit. See State v. Harrington, Mo., 435 S.W.2d 318. In addition, there was no objection at the time the items were offered in evidence. See State v. Hill, Mo., 419 S.W.2d 46. It is immaterial that Patrolman Hudson may have originally stopped the automobile for speeding. Defendant was arrested for robbery. This was acknowledged by defendant when he stated to the court at the time of allocution, 'While I was sitting there he (Patrolman Hudson) got a call over the radio and he answered the call and then put us under arrest for armed robbery.' No search of defendant's person or his automobile was made, if any search was in fact made, until after defendant was placed under arrest for robbery. As an incident to that lawful arrest the patrolmen were authorized to make a contemporaneous search of the person of defendant and of his automobile. State v. Johnson, Mo., 447 S.W.2d 285; State v. Moody, Mo., 443 S.W.2d 802; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790; Gullett v. United States, 8 Cir., 387 F.2d 307. However, we doubt that the evidence shows that either item was obtained as the result of a search. The bullet was found by one of the patrolmen on the ground near the automobile. Patrolman Rowe testified that he searched defendant but found no weapon and that he did not search the automobile. In answer to the question of whether he saw a gun 'in the vicinity of the car' where he arrested the three persons, he answered, 'Yes, sir. It was a .38 caliber Smith & Wesson revolver.' Patrolman Hudson testified that he obtained 'this pistol from (defendant's) car after he stated it was there.' This was the only testimony on the issue. If Patrolman Hudson obtained the gun from the automobile with defendant's permission, he cannot now contended there was an unlawful search and seizure. If the gun was obtained as the result of a search and seizure it was not unlawful under the circumstances for the reasons above set forth.

Defendant next contends the court erred in refusing his request to discharge his court appointed counsel and appoint a 'criminal lawyer.' Defendant's appointed counsel at the preliminary hearing, and who subsequently represented him at trial, was the Hon. Eugene E. Northern, who had been engaged in the active practice of law for thirty-seven years and was the mayor of the City of Rolla. Prior to arraignment Mr. Northern, defendant, and the prosecuting attorney appeared before the court, and Mr. Northern advised the court that defendant was 'displeased' with his services because he was not 'trained and experienced as a criminal lawyer,' and because as mayor of Rolla he had supervision over the city police and therefore was 'somewhat obligated to the law enforcing agencies of this community.' The court sated that it knew from personal experience that Mr. Northern was one of the 'leading lawyers in this section of the country * * * and he's tried as many criminal cases * * * as nearly any other general practitioner in this area of south Missouri,' and that one of the reasons he was selected was 'because of his long experience and his reputation as an outstanding lawyer.' The prosecuting attorney then stated that there were no witnesses for the State who were in the employment of the City of Rolla, and that as far as he knew no member of the city police, or any one connected with the city participated in the investigation of the case.

There was no conflict of interest on the part of appointed counsel, and the principles set forth in State v. Crockett, Mo., 419 S.W.2d 22, have no application. The constitutional right to counsel does not mean that the accused is entitled to any particular attorney, State v. Williams, Mo., 419 S.W.2d 49, and the selection of appointed counsel for an accused is within the discretion of the trial court. Mr. Northern was a competent and experienced attorney, and the refusal of the trial court to replace him was not an abuse of discretion, and did not violate any protected right of the accused.

Defendant's last point is that the 'constitutional rights of appellant guaranteed under the Sixth Amendment of the Constitution of the United States were violated by failure of the State of Missouri to...