State v. Harris, 53139

• Decision Date: 10 June 1968
• Docket Number: No. 1,No. 53139,53139,1
• Citation: 428 S.W.2d 497
• Parties: STATE of Missouri, Respondent, v. Murray HARRIS, Appellant
• Court: Missouri Supreme Court

Page 497

428 S.W.2d 497

STATE of Missouri, Respondent, v. Murray HARRIS, Appellant.

No. 53139.

Supreme Court of Missouri, Division No. 1.

June 10, 1968.

Norman H. Anderson, Atty. Gen., O. Hampton Stevens, Asst. Atty. Gen., Jefferson City, for respondent.

Henry D. Pahl, Jr., St. Louis, for defendant-appellant.

HOUSER, Commissioner.

Appeal from a judgment of the Circuit Court of the City of St. Louis overruling a motion for a writ of error coram nobis, treated as a motion to vacate judgment and sentence under Criminal Rule 27.26, V.A.M.R.

It appears that on January 28, 1966 Murray Harris was found guilty of receiving the earnings of a prostitute and sentenced to imprisonment for two years. Two prostitutes testified for the State and against defendant. A motion for new trial on the basis of newly discovered evidence affecting the reliability of the testimony of one of the prosecuting witnesses was filed and overruled. A notice of appeal was filed but the appeal was later abandoned. On a date not disclosed in this record, but apparently after the expiration of the time for the filing of motion for new trial, a second motion for new trial was filed, based upon affidavits of the two prosecuting witnesses apparently contradicting their testimony at the trial; denying the specific acts of prostitution alleged and denying payment of money to defendant. These affidavits, 'lodged' but not file with the circuit clerk April 13, 1966, were not introduced in evidence at the 27.26 hearing and have not been filed in or exhibited to this Court. The trial court ruled that the time for filling a motion for new trial had passed.

Thereafter, on May 10, 1967, defendant filed a motion for writ of error coram nobis (the basis of the present proceeding) claiming that he was convicted on perjured testimony, to the knowledge of the circuit attorney, and thus was denied due process of law. The motion alleged that the affidavits of witnesses A and B, 'now a part of the Court file,' relate the facts to which they swore under oath at the trial, and that the affidavits 'show on their faces that said testimony of the witnesses, (A and B), at the trial of the Defendant was false and perjured; that said witnesses were coached, coerced, forced and threatened to testify to the false facts as aforesaid.'

When the motion came on for hearing defendant's counsel stated that witness A could not be located, but that witness B was under subpoena. B took the stand. The trial judge asked B if she had an attorney and upon being informed the she had no attorney refused to hear the motion, stating that the witness would have to have an attorney, and '* * * if you testify here, madam, the Court's duty will be to certify this record to the Circuit Attorney for action.' The next morning the witness B appeared with an attorney representing her and the motion was heard. Defendant's counsel placed B on the stand. At the outset, after a few preliminary questions, B's attorney stated that he had advised B not to make any statements which would tend to incriminate her. The judge said that he wanted B to testify; that the affidavit did not rise to the dignity of testimony in court and was inadmissible, but that he would 'sustain the motion' of B's attorney with reference to incrimination. Defendant's attorney nevertheless was permitted to inquire of B with reference to what went on in the circuit attorney's office before she testified before the grand jury. B testified that she was taken to that office by two police officers who told her that the circuit attorney's office wanted her to make a statement; that she had been mentioned in a case where a man was arrested; that an assistant circuit attorney came into the office and said, 'Young lady, we understand you have been in trouble before with the Juvenile authorities.' B answered 'Yes sir.' He said 'Well, you know you are mixed up with this now, you know that, too?' B answered 'Yes, I see I am involved.' Then the assistant circuit attorney said, 'Well, I just want you to know, young lady, if you don't cooperate with us to the fullest extent and tell us what you know and do as we say, this matter will be presented to Judge McMillian of the Juvenile Court, and he will take further steps.' When asked whether the assistant circuit attorney told her anything to say before the Grand Jury, B stated that they asked her 'all the questions' in the office; told her that similar questions would be asked before the Grand Jury; that two assistant circuit attorneys questioned her before the Grand Jury, going over the same questions she had answered in the office before going before the Grand Jury. Asked, 'Did they ask you to change any of your answers before you went before the Grand Jury,' B answered, 'I don't remember.'

B testified that thereafter she and A appeared several times in the office of the circuit attorney, before the trial of defendant. On one occasion apparently A told the assistants that she was not going to testify and they were 'pretty mad' at A. One of the assistants 'stormed out of his office and he says 'She is not going to be going home, lock her up,' real mad.' B testified that she and A were in a room together with an assistant circuit attorney on the morning of the trial of defendant at which time the assistant went over the statements A and B had made in the Grand Jury room. The assistant circuit attorney would ask the girls a question. If they answered 'in a different way than we said in the Grand Jury he would throw his arms up in the air and say, 'That is not the way you are supposed to answer the question. '' A was crying. B further testified as follows: 'He went over her (A's) whole statement two or three times and she sat there and didn't know what to say to him, and he says, 'Now, this is how it's going to be, his lawyer will say this and I'm going to object, of course, and his lawyer will say this and don't be afraid, we are with you all the way, and whatever in here I think he shouldn't ask you, I will object to that, also' and it was just--oh, oh, it was awful, just all he did. * * * if we forgot exactly the words we used in the Grand Jury room, that was like we were going to be arrested.' A and B were not represented by counsel at that time.

Objections were sustained to questions asked B whether A or B had lied while on the stand in the trial of defendant's case. B's lawyer objected to these questions on the ground that the answer might tend to incriminate her. Objection was sustained to the question whether B made a statement in the lawyer's office contradictory to her testimony at defendant's trial. On advice of counsel B stood on her constitutional right not to testify on these matters. Defendant's counsel asked B if she appeared at his office on April 4, 1966 and signed a certain document (apparently an affidavit repudiating her testimony at defendant's trial). Following a colloquy on the matter of incrimination defendant's counsel asked B if the signature to the document entitled 'Statement of B' (3 pages of questions and answers) was hers, and she answered 'Yes.' B recalled signing it at defendant's attorney's office. She said she went there voluntarily; that no one paid her anything for making the statement; that she was questioned in the presence of the attorney for defendant, his secretary and another attorney; that the secretary took notes of the conversation and a couple of days later the typewritten questions and answers were presented to her in transcript form for inspection and signature; that she signed it before a notary public, swearing that the statements were true and accurate to the best of her knowledge, information and belief. Counsel then began to read from the statement. After a few preliminary questions and answers were read counsel for the state objected to the reading of the affidavit, and the objection was sustained. The state introduced no evidence. The court found that the witnesses A and B 'were not coached, coerced, forced or threatened to testify falsely at the trial of the defendant, and that said testimony therefore, was not false,' and overruled the motion 'under Supreme Court Rule 27.26.' This appeal followed.

Appellant's first point: 'The Trial Court erred in denying Defendant's second motion for new trial as it was based on new evidence not available at the original trial or at the time of making the first motion for new trial.' In support of this assignment appellant argues that although he is armed with affidavits of the prosecuting witnesses showing that defendant was convicted on perjured testimony, he had repeatedly been thwarted in his attempts to obtain a full and fair hearing of this new evidence; that these affidavits constitute part of the record in the present appeal; that these affidavits formed the basis of his second motion for a new trial; that notwithstanding the motion for new trial was not timely filed, it should have impelled the court to grant a new trial on its own motion under Criminal Rule 27.19(a)(1) (For newly discovered evidence'), and that refusal to consider the merits of the newly discovered evidence 'exceeds the bounds of the court's discretionary power.'

It would be patently unjust for a trial judge to refuse to grant a new trial in any case in which an accused was found guilty of a crime on the basis of false testimony, and the court 'if satisfied that perjury had been committed and that an improper verdict or finding was thereby occasioned,' ...