State v. Harris

• Decision Date: 11 March 1968
• Docket Number: No. 53116,No. 1,53116,1
• Citation: 425 S.W.2d 148
• Parties: STATE of Missouri, Respondent, v. Willie HARRIS, Appellant
• Court: Missouri Supreme Court

Page 148

425 S.W.2d 148

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

No. 53116.

Supreme Court of Missouri, Division No. 1.

March 11, 1968.

Norman H. Anderson, Atty. Gen., Jefferson City, William A. R. Dalton, Sp. Asst. Atty. Gen., Springfield, for respondent.

Parks G. Carpenter, St. Louis, George Hubel, St. Louis, for defendant-appellant.

HENLEY, Presiding Judge.

Defendant was charged by information with burglary in the second degree. Section 560.070. ¹ The information also alleged that prior to the offense charged he was convicted, sentenced and imprisoned for two other offenses of burglary, second degree. Section 556.280. Prior to submission of the case to the jury the court determined that defendant had been previously convicted, sentenced and imprisoned, as alleged; a jury found him guilty, as charged; the court assessed his punishment at imprisonment in the penitentiary for a term of seven years, § 560.095(2); his motion for new trial was overruled and he was sentenced in accordance with the verdict and the prior assessment of punishment. He appeals. We affirm.

No contention is made that the evidence is insufficient to sustain the conviction; hence, a brief statement of the facts will suffice. The Ellis Pool Room located at 2303 Franklin Avenue in the City of St. Louis was closed and all outside entrances securely locked at about one o'clock, a.m., on March 20, 1966. One light was left burning above the rear pool table, as was the owner's custom. At about three o'clock that morning, Patrolman Robert Leggitt of the St. Louis Metropolitan Police Department, and his partner, Patrolman Phil Stockton, were slowly traveling west in a police car on Franklin when Leggitt saw a shadow 'duck down' behind a pool table in the pool room. Leggitt stopped, he and his partner got out, and as they were approaching the pool room, while still in the street, the front door of the pool room '* * * came flying open and * * * one male subject (defendant) came running out the front door and east on Franklin to * * * the corner of 23rd and Franklin * * * (and) turned north on 23rd street * * *.' One business, a restaurant, is located between the pool room and 23rd street. The officers gave chase, never losing sight of defendant between his exit from the pool room and his apprehension and arrest on 23rd street fifty or sixty feet north of the corner. As he was being searched, defendant dropped a rat tail file. Immediately after the arrest the officers returned to the pool room with defendant in custody. The hasp and padlock, which were secure and locked two hours earlier, had been pried loose from the front door which was then standing open; inside the premises the officers found evidence of a recent attempt to pry open two vending machines; a small radio that had been left on a shelf was found on the floor beside a vending machine.

The record contains a transcript of the proceedings and evidence heard at defendant's preliminary examination in the St. Louis Court of Criminal Correction. The preliminary hearing was held on two dates, the first session on April 6, at which two witnesses were heard, and the second on April 8, 1966, at which a third was heard. Defendant was not represented by counsel at the first session; at the second he was represented by Ellis Outlaw, Esq., a member of the St. Louis bar who had been employed by defendant's mother.

Because of the nature of some of the points raised in defendant's brief and argument we relate at this point a brief chronology of events pertaining to his several counsel. After the information was filed in circuit court (on April 12, 1966), Mr. Outlaw entered his appearance for defendant on April 21. On June 21 Mr. Outlaw filed a motion alleging that he had reason to believe that his client was 'mentally unbalanced' and in need of psychiatric treatment; he prayed that defendant be committed to a hospital for such treatment. He was so committed in October and on December 27, 1966, the Director of Malcolm Bliss Mental Health Center of St. Louis filed a report of a psychiatric examination of defendant and his mental condition as of December 23. Briefly, the report stated that defendant showed no evidence of mental disease or defect; that he was able to cooperate with counsel in his defense. On January 17, 1967, Mr. Outlaw was granted leave to withdraw as counsel, '* * * at the request of the defendant.' On the same day, the court appointed the St. Louis Public Defender to represent defendant, '* * * at the request of defendant and his mother * * *.' Mr. George Hubel of the Public Defender's Office represented defendant at his trial on March 20 and 21. After the verdict was entered, the court, on request of Mr. Hubel, appointed Mr. Parks G. Carpenter as additional counsel to help prepare the motion for new trial. Mr. Carpenter, a member of the St. Louis bar, joined with Mr. Hubel in preparation of defendant's brief and also presented oral argument in this court.

In his first point defendant contends that his federal and state constitutional rights were violated in that he was neither offered nor provided with counsel at the first session of his preliminary hearing in magistrate court. He asserts in argument that the preliminary examination was a critical stage of the criminal proceedings against him and that to deny him counsel at that stage constituted prejudice per se.

This court held in State v. Turner, Mo., 353 S.W.2d 602, 604(8), that 'Neither the federal or state constitution, nor any of our statutes require the magistrate to appoint counsel for the accused at a preliminary examination.' That, and subsequent decisions, ² have held in effect that in this state the preliminary examination of an accused is not a critical stage of a criminal proceeding.

There is no contention by defendant that anything occurred at the first session of the preliminary hearing that resulted in his being prejudiced. We have examined the transcript of the proceedings at that session and find nothing that occurred which conceivably could be said to have caused any of his rights to be prejudiced. There is the contention that because he did not have counsel he was deprived of the right to cross-examine the state's witnesses at that session, but he had that right at the second session, at which he had counsel of his own choice. He makes no effort to explain why his counsel did not recall these witnesses for cross-examination at that session. From this we reasonably may infer that he had his own reasons for not doing so, and elected to waive the right he now belatedly raises as a deprivation of constitutional due process.

He asserts that Sup.Ct. Rule 23.03, V.A.M.R., '* * * clearly and explicitly calls for appointment of counsel at preliminary hearing in cases such as the one at bar * * *;' that State v. McClain, supra, without mentioning the Rule, renders the Rule '* * * null and void and of no consequence * * *;' therefore, we should reconsider the holding in the McClain case and '* * * now declare that the violation of Supreme Court Rule 23.03 should constitute inherent prejudice to a defendant's legal and constitutional rights.' The rule is quite clear in what it does require; it does not require the appointment of counsel for an accused, indigent or otherwise, at his preliminary examination. See majority opinion in State v. Turley, supra. State v. McClain, supra, did not have the effect defendant ascribes to it. Defendant cites Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, but those decisions are not applicable to the facts in this case.

Defendant's second point is that his federal and state constitutional rights were violated in that he was not afforded a prompt and speedy trial.

His trial in circuit court began March 20, 1967, exactly one year from the date of the offense. During nine of those twelve months he was represented by counsel employed by his mother. After employed counsel was permitted to withdraw, the Public Defender was appointed to represent him, and two months thereafter his trial began.

The record does not support defendant's assertion that he was unconstitutionally deprived of a speedy trial. On the contrary, the record shows that the delay of which he now complains was due to his own action. Before his trial commenced the court stated: 'Let the record * * * show that this case has been set for trial on not less than eight prior occasions, and it was continued on each occasion except one by the defendant and on one occasion by the court.' In the light of this record, defendant is in no position to complain that he was denied a speedy trial. He waived his right to trial on the date for which the case was set each time he requested and was granted a continuance; and, he was granted a continuance on at least seven occasions over a period of not more than eleven months, and during that period he was undergoing tests in a hospital, at the instance of his counsel, for approximately two months. There is no merit in defendant's second point and it is denied.

Defendant's third and fourth points may be treated together. His third point is: 'The court erred in failing to appoint at defendant's request effective counsel who could and would make objections to certain inadmissible opinion and conclusion testimony essential to the State's case, and who could and would hold defendant in check to prevent prejudicial comments by him to the jury.' His fourth point is: 'The court erred in threatening to put defendant 'in jail forever' and in inviting defendant in the presence of the jury personally to address the jury and in immediately thereafter convicting defendant of contempt of court for so addressing the jury.'

It should be noted at this point that the court's 'threat' to put defendant 'in jail...