State v. Hindman, 9816

• Decision Date: 21 September 1976
• Docket Number: No. 9816,9816
• Citation: 543 S.W.2d 278
• Parties: STATE OF Missouri, Respondent, v. William R. HINDMAN, Appellant.
• Court: Missouri Court of Appeals

Page 278

543 S.W.2d 278

STATE OF Missouri, Respondent, v. William R. HINDMAN, Appellant.

No. 9816.

Missouri Court of Appeals, Springfield District.

Sept. 21, 1976.

Motion for Transfer Denied Oct. 13, 1976.

Application to Transfer Denied Dec. 13, 1976.

John C. Danforth, Atty. Gen., Sheila K. Hyatt, Asst. Atty. Gen., Jefferson City, for respondent.

Devon F. Sherwood, Springfield, for appellant.

Before STONE, P.J., and HOGAN and TITUS, JJ.

TITUS, Judge.

After a change of judge and a change of venue (Rule 30) ¹ a jury found defendant guilty of assault with intent to kill Robert Dugger with malice aforethought (§ 559.180) but could not agree upon the punishment to be inflicted. The court assessed punishment at 25 years' imprisonment and rendered sentence and judgment accordingly. Rule 27.03.

The incidents involved occurred around midnight October 26 to 1 a.m. October 27, 1973. Carroll Renfro, asleep in his home 3 or 4 miles north of Hartville, was awakened 'with a pounding on my door.' Upon answering the door he was greeted by defendant (whom Renfro did not know) holding a rifle 'similar to' the Springfield bolt-action rifle which was a state's exhibit at trial. ² With the admonition 'Don't make me shoot you,' defendant obliged Renfro at gunpoint to drive him into Hartville in the latter's pickup truck. Enroute defendant said to Renfro: 'They (sic) is a lying, thieving, son-of-a-bitch down here that I have got to kill.' Defendant did not identify the object of his disaffection. ³

After the pickup truck arrived at the Hartville square, defendant directed Renfro to "Pull up behind the Courthouse" and "Park there beside where the Sheriff is at." Renfro complied. At defendant's invitation to "Get out and go down to the door and see if anybody is here," Renfro, accompanied by defendant, 'knocked and rattled the door, and I told him that there wasn't nobody here. And he said, 'Well, wait just a minute, and there will be somebody here.''

While Renfro and defendant waited at the rear of the courthouse, they were espied by two boys riding in an automobile. The passenger 'knowed Renfro' but didn't know the man with the rifle. They proceeded to find Hartville Police Officer Robert Dugger and tell him of their observation. Dugger drove the city police car to the courthouse and stopped it near Renfro's truck. He testified that when this occurred, defendant 'whirled (the gun) right toward the windshield of the (police) car, right directly at me, aiming right in the chest.' This caused Officer Dugger to depart. He drove to near the post office and radioed the sheriff for help.

Following the police car's departure, defendant told Renfro 'to get out and go on home . . . 'There's going to be a shooting here in just a minute. '"' Renfro did not hesitate. As the pickup was driven from the rear of the courthouse leaving defendant behind, Officer Dugger drove away from the post office intending to get behind the truck. When the police car neared the northeast corner of the courtyard 'there was a shot, and the back glass popped out of the car. . . . I fell over in the seat . . . my arm up, and then the second shot went off, and that shot come (sic) through the steering wheel . . . and got me in the arm. . . . and another shot . . . that hit the car door, come (sic) through and hit me in the hip. . . . Hit (the) Mace can that I had on. . . . I started on up the street . . . and then another shot rang out (that) hit the rear door of the (police) car. . . . After that fourth one, I thought I heard another shot--but I wouldn't say, positive.' While several witnesses heard the firing of two or more shots, no one saw who actually fired them.

After the foregoing occurred, Curtis Whiteaker was driving 'through the downtown area' of Hartville when he encountered defendant 'standing along the side of the street.' Defendant, afoot, 'stepped out in the street . . . in front of me, and brought his rifle down . . . and said, 'You will stop,' and I stopped.' Thereafter, defendant 'shoved the rifle' within some 8 inches of Whiteaker's face. We do not know what occurred after Whiteaker said he 'shoved the rifle out of my face with my hand,' except that he eventually drove away unscathed to see Officer Dugger leaving the scene via an ambulance.

When Sheriff Kelly arrived at the square he was informed where defendant could be found and that defendant wanted to surrender his weapon. The sheriff and a deputy drove to a motor company's lot where they saw defendant 'hunkered down . . . between the building and a car' holding the rifle in his hand. In response to defendant's statement to "Come over here and I will give you this gun," the sheriff approached and was handed the rifle which was loaded. Either just before or immediately after being given the rifle, defendant volunteered, "I think I shot that there officer's arm off, didn't I?" The deputy drove the car back to the courthouse while defendant and the sheriff followed on foot. Without being asked any questions, defendant told the sheriff 'that he had a bad heart condition, and that he didn't have long to live, and he said, 'I am going to get rid of some of these sons-of-bitches. '' Upon reaching the sheriff's office in the courthouse, defendant was given the 'Miranda Warning.' Again without being questioned, defendant asked "Who was that officer that I shot his arm off?" and the sheriff replied, "That is the City Police, Bob Dugger. " To this defendant responded, "I don't know Bob Dugger."

Within an hour or two after Dugger was wounded, several expended shell casings and live rounds of ammunition were found near the corner of the courthouse atop leaves lying in the courtyard. These, the rifle obtained from defendant, and other ammunition removed from the rifle and defendant's person, were sent to the Missouri Highway Patrol laboratory for testing. Two laboratory technicians testified that the expended shell casings found in the courtyard had been fired in defendant's rifle. Further facts will be related when necessary to discuss the points relied on by defendant in this appeal.

Second Disqualification of Judge

Although Rule 30.12 permits one change of judge as a matter of right and provides that a defendant may not apply for another change of judge in the same case, defendant contends that the trial judge erred in denying his second application for disqualification. In his brief defendant pens that '(t)he issue is whether a defendant who has previously disqualified a judge under Rule 30.12 V.A.M.R. must face trial before a substitute judge who is biased and prejudiced against him.'

The matter arose in this fashion. On June 17, 1974, the trial judge entered the following order: 'It appearing to the Court that William R. Hindman is now charged with three charges of felonious assault in the Circuit Court of Webster County, Missouri, said offenses having occurred in Wright County, Missouri, and having been transferred to Webster County on a Change of Venue.

'It further appearing that the said William R. Hindman has not been able to make a bond and is now being held in custody awaiting trial, and that the said William R. Hindman has been involved in several acts of violence, and that he is presently suffering from a heart attack; that by reason of his physical condition it is necessary for him to be, and he is presently confined in a hospital, and because of his violent nature and the seriousness of the crimes with which he is charged it is necessary to maintain a guard over him 24 hours a day.

'It further appearing that Webster County, Missouri, does not have the facilities to care for said prisoner, and does not have the necessary staff to maintain a guard over said prisoner, and that said care could be provided by the Missouri Department of Corrections.

'IT IS THEREFORE, ORDERED that the said William R. Hindman be delivered to the Missouri Department of Corrections to be held for Webster County, Missouri pending trial on the charges, or until further order of this Court.'

Rule 23.10 (relating to magistrates) and Rule 24.23 (relating to circuit courts) state that if a defendant fails to make bond, he 'shall be committed to the county jail of the county, or other safe place.' (Our emphasis). Defendant does not dispute the authority of the court to commit him to the Department of Corrections as being an 'other safe place.' Rather, as stated in his motion for a second disqualification, and argued here, defendant asserts the findings made ex parte and without a hearing by the court in its order to the effect that he had 'been involved in several acts of violence' and had a 'violent nature' indicated such bias and prejudice on the part of the court that the judge should have disqualified himself even though defendant had already been allowed one change of judge.

After a defendant has been afforded one change of judge under Rule 30.12, the successor judge is under a duty to remain as judge in the cause, and this duty is equally as strong as his duty to recuse himself under circumstances requiring it. Euge v. Trantina, 298 F.Supp. 876(2) (E.D.Mo. 1969). Defendant does not here challenge the accuracy of the findings made in the order set out above and has never undertaken to prove the facts to be otherwise than stated therein. His conclusion the judge was biased and prejudiced against him is simply predicated upon the findings of fact enumerated in the order and the court's determination it would be better that defendant be held for Webster County in the custody of the Missouri Department of Corrections.

No one doubts that if the trial judge was, in fact, for any reason biased and prejudiced against the defendant, he should have recused himself to insure defendant of a fair trial. However, motions and other pleadings do not prove themselves (Fulton v. Fulton, 528 S.W.2d 146, 157 (Mo.App.1975)); neither do statements in briefs (State v. Hamblin, 448 S.W.2d 603, 606(2) (Mo.1970); State...