State v. Harris, 52326

• Decision Date: 13 November 1967
• Docket Number: No. 2,No. 52326,52326,2
• Citation: 420 S.W.2d 325
• Parties: STATE of Missouri, Respondent, v. James Elmer HARRIS, Appellant
• Court: Missouri Supreme Court

Page 325

420 S.W.2d 325

STATE of Missouri, Respondent, v. James Elmer HARRIS, Appellant.

No. 52326.

Supreme Court of Missouri, Division No. 2.

Nov. 13, 1967.

Norman H. Anderson, Atty. Gen., Moody Mansur, Asst. Atty. Gen., Jefferson City, for respondent.

Scherck & Healy, Roger L. Scherck, John C. Healy, St. Louis, for appellant.

EAGER, Judge.

Defendant was charged by amended information on March 4, 1966, with second degree burglary and stealing, and with the conviction of a prior felony, with a parole. The original information had been filed on February 4, 1966, and an attorney appointed on February 10th. The burglary charged was an entry into the residerce of one Rose Henry, and the stealing charged was of a Stereo phonograph.' The present appeal arises from a sentence imposed upon the denial of a motion asking leave to withdraw a plea of guilty. No motion for new trial was filed, but the motion to withdraw the plea was filed before judgment and sentence and we shall deal with the case on the merits. In the light of this issue we shall need to recite the record in considerable detail.

On April 6, 1966, defendant appeared with an associate of his appointed attorney who announced that defendant wished to withdraw his plea of not guilty and enter a plea of guilty. Upon inquiry by the Court the Assistant Circuit Attorney stated the supposed facts, substantially as charged in the information, and expressly stated then that the State recommended a sentence of three years on the burglary charge and three years on the stealing, to run concurrently. The Court asked defendant if what the State's Attorney had said was true and defendant said, 'Yes, sir'; he also asked defendant if he was guilty of burglary and stealing and he again said, 'Yes, sir.' At the instance of defendant's counsel, who apparently had not heard everything, both inquiries were repeated and defendant again answered affirmatively. The defendant also stated, by affirmative answers, that he had discussed the matter with his attorney 'completely and thoroughly' and that he had authorized his attorney to enter a plea of guilty on both elements of the charge; he affirmed again that he had committed the burglary, that he was satisfied with his attorney's advice, and stated that he understood 'what it means' to plead guilty to second degree burglary; allocution was granted but, upon request of defendant's counsel, sentence for the burglary was deferred pending a pre-sentence investigation. Upon further questioning by the Court, defendant affirmed his guilt of the offense of stealing, and stated that his attorney had explained fully what it meant to plead guilty to that offense. To that particular question, after his answer of 'Yes, sir,' he added, 'I guess so.' Sentence was also deferred on the stealing charge, after pleas of guilty had been accepted to both burglary and stealing.

On May 16, 1966, defendant, by counsel filed his motion to 'strike' his plea of guilty and to enter a plea of not guilty; as grounds he stated that he was 'unaware that the fact that he entered the premises with the consent of the plaintiff * * *' had any bearing on the questions and might exonerate him, and so kept quiet, and that he had not advised his counsel that he had 'done the alleged act with the consent of the prosecuting witness * * *.'

At a hearing set for May 18, 1966, defendant appeared with Mr. Scherck, his appointed attorney, who stated that his associate, Mr. Oberhellmann, had been handling the matter, and that the latter had told him of inconsistent statements made by the defendant. At that point the Court read to defendant and his counsel from a transcript substantially all of the discussion questions and answers which had transpired when the pleas of guilty were made and accepted; the Court further stated, in the record, that it had on May 11, received a letter from the defendant asking for a parole because of 'family problems,' and that it now noted with interest defendant's present claim of 'consent.' Further colloquy ensued, consisting largely of what defendant had supposedly told Mr. Oberhellmann, including the fact that defendant had broken down a door, but claimed that he did so in order to 'get back his own property.' In the course of that colloquy Mr. Scherck said: 'You don't break down the door with consent, that's true,' and the Court noted: 'It's hard to believe,' and further: 'Well, he had been, I believe, something less than completely pletely frank with all of us in this matter. I believe he understood exactly what he was doing on the 6th of April. He said he did. He was well represented. If you have anything further that you would like to say, but I wanted you to be aware of the transcript * * *.' The motion was then argued briefly, partially on facts assumed by counsel, and defendant was sworn as a witness; Mr. Scherck explained that he was there because Mr. Oberhellmann was ill. The Court asked defendant if it was satisfactory with him to proceed in the absence of Mr. Oberhellmann, who might know more about his case, and defendant indicated that he preferred to wait for Mr. Oberhellmann. The hearing was then continued for that reason and at defendant's request.

On June 1, 1966, the hearing was resumed, with both Mr. Scherck and Mr. Oberhellmann present. Counsel suggested that the State's attorney had previously indicated orally that defendant could withdraw his plea, but had later stated the contrary. The assistant in question, he being called in, stated for the record that he had merely said that defendant might file such a motion, and that if it was sustained the State would try the case and seek the maximum penalty; that he felt that the plea was voluntary and proper in all respects, and that he had never consented to a setting aside of the plea. Counsel for defendant then stated that the prosecuting witness was present and that she had 'been down here three times trying to drop these charges.' He also suggested to the Court, very vaguely, certain supposed constitutional infringements which are not pursued here. The State's attorney replied that defendant had written to the prosecuting witness asking her to drop the charges. The Court indicated that it would hear any evidence which the defendant chose to offer. These various colloquies, while not given under oath, appear to have received consideration from all concerned.

The defendant did not testify at the hearing on his motion; we note this because the hearing was not a trial before a jury in which his failure to testify may not be considered, but it was one before the Court upon a motion on which he had the burden of proof. Mrs. Rose Henry was the only witness produced; it was obviously her house which had been entered, but she gave no details whatever nor was she asked for any. The substance of her testimony was: that her daughter was defendant's 'girl friend,' that she had a baby by him, and that defendant was 'like a son of mine. He was welcome to the house at all times.' Objections were sustained to proffered testimony concerning her effort to drop the charges, this on the ground that the State was prosecuting the charge, not the witness. The only evidence given concerning any sort of permission was: 'Mrs. Henry, could you then tell the Court--Did you ever give permission to this defendant to come in your home? Did he have access to your home? A Why, sure, I gave him permission to come in.' To this an objection (made after the answer) was sustained on the ground that the giving of permission 'at any time' was not material on the issue of voluntariness of the plea of guilty. She was never asked whether defendant had permission to enter at the time in question, or whether he was ever given permission to break down a door. The witness testified also that she owned a 'hi-fi stereo,' stating specifically: 'I own it.' In the next answer she said that she gave it to her daughter, and that it was 'supposed' to have been 'swapped' in the 'girl friend and boy friend.' That was all of the testimony produced. It seems obvious that such evidence did not establish any consent to a breaking and entering, nor did it establish in defendant any ownership of the stereo. The motion was taken under advisement and it was overruled on June 10, 1966; at that time defendant was present with his counsel, allocution was granted on each charge, and he was sentenced to concurrent terms of three years on each charge following such a recommendation by the State. The request for probation was denied. After some discussion of defendant's prior offense and the dates of probation therefor, an allowance was made for defendant's 'jail-time.'

The sole point made here by defendant is that the Court failed 'to use the proper judicial procedures' in the acceptance of the plea of guilty in that it failed to 'bring to light' a valid and legal defense to the charges, and thus permitted defendant to waive 'inadvertently' his right to a trial. More specifically, counsel say: that the Court did not explain the charges to defendant or 'inform him of the requirements for guilt,' and that it did not explain the consequences of the plea. In substance, the argument seems to hinge on the failure, or supposed failure, of the Court to bring out affirmatively the now-advanced theory of 'consent.' Counsel quote briefly from the proceedings at the hearings which we have already related, but they omit much. They cite our Rule 25.04, V.A.M.R., which requires the Court to determine that a plea of guility is made 'voluntarily with understanding of the nature of the charge.'

The principles involved are rather...