State v. Hoopes

• Decision Date: 08 March 1976
• Docket Number: No. 58649,58649
• Citation: 534 S.W.2d 26
• Parties: STATE of Missouri, Respondent, v. Donald Albert HOOPES, Appellant.
• Court: Missouri Supreme Court

Page 26

534 S.W.2d 26

STATE of Missouri, Respondent, v. Donald Albert HOOPES, Appellant.

No. 58649.

Supreme Court of Missouri, En Banc.

March 8, 1976.

Gary R. Black, Sr., Flat River, for appellant.

Neil MacFarlane, Jefferson City, for respondent.

BARDGETT, Judge.

Defendant was convicted by a jury on a two-count information containing necessary allegations to bring it within the second offender act, section 556.280, RSMo 1969, with robbery in the first degree by means of a dangerous and deadly weapon, section 560.120, and in the second count with murder in the first degree, section 559.010. He was sentenced by the court to life imprisonment on the murder conviction and twenty-five years, consecutive, on the robbery conviction. The motion for new trial was overruled and defendant appeals.

This case presents an unusual factual situation not previously encountered in earlier cases bearing upon an accused's constitutional right to trial by jury and privilege against self-incrimination as affected by a written commitment to plead guilty or a confession given by the accused to his own attorney and filed in court where the plea of guilty was aborted and the commitment or confession was thereafter used as evidence against the accused in the trial of the case. Although original jurisdiction of this appeal in this court is somewhat tenuous, this court will retain and decide the case for the reasons stated in Foremost-McKesson, Inc. v. Davis, 488 S.W.2d 193, 196 (Mo. banc 1972). Cf. State v. Thomas, 529 S.W.2d 379 (Mo.1975).

The homicide allegedly occurred during the course of the robbery. On July 6, 1973, appellant was formally arraigned and, with counsel present, pled not guilty to both On January 16, 1974, an 'Amended Second Offender Information' was filed which does not materially differ from the first information noted supra. The trial was set for January 28, 1974. On January 28, 1974, the case was continued to February 4, 1974, because defendant's attorney was engaged in trial elsewhere. On February 11, 1974, the trial began and after the jury was selected the prosecutor requested a conference with defense counsel and the court to 'take up the matter of Hoopes's confession to robbery, which is part of the record.' Defense counsel objected to the use of the document. This document was marked state's exhibit A, entitled 'Affidavit and Plea of Guilty'. ¹ The accompanying Respondent adopts defendant's statement of facts except that respondent asserts that Although the first affidavit of the court reporter which is attached to the transcript shows it was 'approved' by the circuit judge, nevertheless, it does not purport to be a correction of the record but rather the inclusion in the record of purported statements made off the record. The trial court and the attorneys knew at the time of the purported discussion that it was 'off the record'. That means they did not consider what was said to be part of the conference or trial of this case. If the attorneys or the court had desired to place 'on the record' statements, discussion, or proceedings which took place 'off the record', it was their obligation to do so at the time the statement or event occurred. Cf. State v. Ford, 487 S.W.2d 1, 6 (Mo.1972), cert. denied 411 U.S. 983, 93 S.Ct. 2277, 36 L.Ed.2d 959 (1973).

counts. The cause was sent for trial on October 22, 1973, but was continued at defendant's request to the November term of court. Mr. McIlrath was retained to represent defendant sometime before October 22, 1973, and the previously appointed counsel was permitted to withdraw cover letter from defendant's attorney was marked state's exhibit A--1. ² Both exhibits were admitted into evidence and read to the jury over defendant's objection. The document had been forwarded to the trial court by defense counsel on January 28, 1974, under the cover letter dated January 27, 1974, which requested that it be filed in the case. Extensive discussion ensued in the conference. ³ The prosecutor stated that every word spoken by defense counsel was true the affidavit and plea of guilty was not induced by any plea-bargain agreement made by the prosecutor and that the prosecutor made no agreement to dismiss the murder charge if defendant would plead guilty to robbery. Respondent further asserts that at a pretrial conference a finding was made by the trial court that the confession was voluntary and was not induced by a plea-bargaining agreement made by the prosecutor. Respondent refers the court to the 'attached affidavit' as the record support for its assertions. Appended to the transcript of the record is an affidavit of the court reporter in which it is stated that during a conference on the first day of trial the 'prosecuting attorney made a statement to the effect: 'I told you before all deals were off. '' This affidavit was not agreed to by the defendant; it does not purport to be a correction of the record as such; it does not reflect where in the record any such statement allegedly occurred; it does not state that such a statement was made on the record and inadvertently not made a part of transcript but just as well could have been a remark made off the record, and it is on its face a conclusion by the court reporter rather than a transcription of that which was allegedly actually stated. The affidavit does not relate itself sequentially to any particular statement by anyone else. The only place in the record of the pretrial conference wherein it is noted that something was said and not recorded by the court reporter is at the conclusion of the discussion concerning the affidavit where the following appears: 'THE COURT: Off the record. Now, wait a minute, wait a minute. (Whereupon, a discussion was had off the record.)' By a subsequent affidavit of the same court reporter filed here April 15, 1975, the reporter attests that the 'in effect' statement referred to supra was made when the court was not on the record and that had such a statement been made while the court was 'on the record', the court reporter would have recorded and transcribed it.

The court will not consider the affidavit of the court reporter as part of the record on appeal in this case. See State v. Ford, supra.

Three additional affidavits were filed here September 9, 1975, by the state together with a 'Motion Requesting Court to Consider Affidavits'. These also seek to put into the record on appeal additional evidence, explanations of rulings allegedly made, and various conclusions. None of these affidavits are agreed to by defendant and none of them purport to correct the transcript of the record on appeal. They constitute argument, put forth in the form of affidavits, to support the position of the state that the trial court did not err in admitting the 'Affidavit and Plea of Guilty' and the cover letter from defendant's attorney into evidence in this case.

The motion to consider these affidavits is overruled. State v. Ford, supra; Hendershot v. Minich, 297 S.W.2d 403, 410 (Mo.1956).

The court will therefore consider the state's adoption of defendant's statement of We have set forth in a footnote supra the relevant portions of the record as to the pretrial conference and consider the statement by the prosecutor made during that conference that everything the defense counsel stated was true to be conclusive on the facts in this case as to those matters which were within the sole knowledge of the prosecutor and defense counsel. The court considers this to be particularly appropriate in this case. This for the reason that, although the prosecutor was present during all stages of these proceedings, no evidence was offered by him and no assertions were made by him during the pretrial conference, during the trial, or during the evidentiary hearing on the motion for new trial, which in any respect contradicted, diluted, or rendered suspect any of the assertions of defense counsel made during that pretrial conference.

facts as agreement that the facts as stated are correct but that the state denies they warrant a conclusion that the affidavit and plea of guilty was obtained pursuant to an agreement between the prosecutor and defense counsel.

The following is the testimony of defendant's attorney during the hearing on the motion for new trial as set forth in defendant's brief:

'MR. McILRATH . . .

'On January the--On the Saturday before January 28th I went to the jail to see the Defendant Donald Hoopes; his mother and father were there. I'd talked to Mr. Roberts about what he would do on a plea. At one time he said if he got ready that he wouldn't take a plea. Later he told me that he would. And I went to see if this man would give a plea. I explained to him that the guns were found at his sister's; that the case was dangerous. He said he didn't do it and he wouldn't plead.

'I was called--I went over to see Mr. Roberts, because I had to take a change of venue--I went to his house--I had to take a change of venue on the matter, and I went to his house before that, though, to talk about this because I couldn't try it. We discussed the thing. I--he gave me some testimony and some tapes that he had. And I told him this the man wouldn't plead.

'So, I was called Sunday. And I told him that if he would enter this plea of guilty to robbery that the murder case would be dismissed; Mr. Roberts had promised me that.

'So then Sunday I was called and he said he would sign it. And I called Mr. Roberts and Mr. Roberts told me that he would dismiss the murder charge; that he'd recommend ten years.

'And I set out in the confession that any promises that were made to him you (i.e., the trial judge) did not have to follow; that you and you alone would do the sentencing. But, it was definitely understood that the murder charge would be dismissed. And, for that reason, and that reason alone, this fella (i.e., the defendant) signed the confession.

'And then after that was over Mr. Roberts decided that he...