State v. Hunter
| Decision Date | 27 October 1992 |
| Docket Number | No. 72521,72521 |
| Citation | 840 S.W.2d 850 |
| Parties | STATE of Missouri, Respondent, v. Bert L. HUNTER, Appellant. |
| Court | Missouri Supreme Court |
Dave Hemingway, St. Louis, for appellant.
William L. Webster, Atty. Gen., John Morris, Asst. Atty. Gen., Jefferson City, for respondent.
On March 28, 1989, defendant Bert Leroy Hunter was indicted on two counts of first degree murder, § 565.020.1, and one count of first degree robbery, § 569.020. 1 Although represented by counsel at all other relevant court proceedings, defendant was permitted to act as counsel pro se at a hearing on July 21, 1989. On that date he entered a plea of guilty to all three charges. On February 15, 1990, he was sentenced to death for the murders. Defendant was sentenced to life in prison for first degree robbery. He filed a post-conviction motion pursuant to Rule 24.035. That motion was overruled. Both judgments were appealed. The appeals have been consolidated. Because the trial court imposed the death penalty, this Court has jurisdiction. Mo. Const. art. V, § 3.
The points relied on are not a model of clarity. With a few exceptions, the points fail to comply with Rule 84.04(d). As best can be perceived, the issues on appeal include the voluntariness of defendant's waiver of counsel, the voluntariness of and factual basis for the defendant's plea of guilty, alleged errors in the sentencing procedure, a claim of bias by the trial judge who accepted the plea and sentenced the defendant, claims of ineffective assistance of counsel, and the proportionality of the death sentence. Ordinarily, appellate review of guilty pleas is extremely narrow. However, § 565.035.2 requires this Court in death penalty cases to consider the punishment and "any errors enumerated by way of appeal." The judgments are affirmed.
The facts leading up to the filing of charges have been gleaned from the plea of guilty proceeding and from the record at the sentencing hearing. 2 On the afternoon of December 15, 1988, defendant and an accomplice, Tomas Ervin, carried out a plan to rob Richard Hodges at his home on Boonville Road in Jefferson City. Defendant and Ervin believed Hodges kept large amounts of cash in a file cabinet in his home. With a pistol in his pocket, defendant knocked on the Hodges' door. Richard's mother, Mildred Hodges, answered. Defendant then pulled a stocking mask down over his face and, entering the house, grabbed Mrs. Hodges by the hand. He held a gun in the other hand. Mrs. Hodges became very excited and cried out for her son, Richard. Richard came into the room where they were standing, telling the two assailants to leave Mrs. Hodges alone because she had just returned home after heart surgery. As Richard attempted to calm his mother, Ervin and defendant began binding her hands and feet with duct tape. She was made to lie down on a bed in a back bedroom. Ervin took Richard to the living room and made him lie on the floor. Ervin began taping Richard's hands. At the same time, defendant was searching the house for money and other valuables. Meanwhile, Mrs. Hodges managed to get free and ran into the living room where Ervin was still taping Richard's hands. She pulled the mask off Ervin, causing him to fall back on the floor. Ervin called out defendant's first name. Defendant returned to the living room and saw what had occurred. Once the mask was pulled off Ervin and Hunter's name was called out, defendant and Ervin made a mutual decision that both the Hodges were to be killed.
The indictment was filed on March 28, 1989, charging two counts of first degree murder and one count of first degree robbery. From the outset defendant had appointed counsel. However, he indicated to his lawyer that he wanted to plead guilty at the initial arraignment. The lawyer prevailed on defendant to wait until after a mental examination was conducted. As a result, the docket entry at the April 4, 1989, arraignment showed "defendant stands mute as to his plea, and a plea of not guilty as to all three counts is entered on behalf of defendant by the court ... Mental Examination ordered." A psychiatric examination report was filed with the court on July 6, 1989.
A hearing was scheduled on a motion for change of venue and objections to the psychiatric report on July 17, 1989. At that time the trial judge was informed that defendant and his lawyer were in disagreement as to how to proceed because defendant wanted to plead guilty. The matter was continued to July 21, 1989.
At the beginning of the July 21 hearing, defendant again expressed his desire to plead guilty notwithstanding counsel's advice to the contrary. Defendant thereafter was permitted to represent himself, and he entered a plea of guilty to each of the three charges. The court made findings that the right to jury trial at both the guilt and sentencing phases were knowingly, intelligently and voluntarily waived and that the plea of guilty was also entered into voluntarily, intelligently and with full understanding of the charges and consequences of the plea. The trial judge also found there was a factual basis for the pleas of guilty. The pleas were accepted. A second psychiatric report and a presentence investigation were ordered. Those were filed on September 13, 1989.
On September 29 defendant, through the same attorney who represented him in previous proceedings, filed various motions and objections. On October 18, 1989, the same attorney filed a motion to withdraw the pleas of guilty. Defendant at a hearing on motions on November 7, 1989, confirmed that defense counsel was representing him on the motions. The motion to withdraw the plea of guilty was overruled.
On February 15, 1990, the sentencing phase hearing was held. At the close of the hearing the trial judge specifically stated he was "not impressed" with the mitigating evidence and that he found specific aggravating circumstances. The defendant was sentenced to death on the two murder charges and to life imprisonment on the robbery charge.
A pro se motion for post-conviction relief pursuant to Rule 24.035 was filed on April 25, 1990. A timely amended motion was filed on June 29, 1990. Following an evidentiary hearing, the post-conviction judge filed findings of fact and conclusions of law on July 24, 1991, denying defendant any relief. The appeal from that judgment was consolidated with the direct appeal. More detailed facts relating to the proceedings will be developed in relation to the points raised.
At a hearing on pretrial motions on July 17, 1989, the trial judge was informed that defense counsel and defendant did not see "eye to eye" on how to proceed. Defense counsel wanted to proceed on the motions in preparation for trial. Defendant informed the trial judge he had "been trying to plead guilty from day one" but had been dissuaded by his attorney pending the outcome of the psychiatric evaluation, which defendant considered to be "a joke." If the lawyer was going to press for a trial, defendant stated, "[T]hen I'll have to get another lawyer." The trial judge decided to allow additional time to permit defendant and his attorney to reconcile their differences and for defendant to talk with family, friends, or clergy. The court also offered to obtain a psychiatrist to visit with defendant before a plea of guilty would be taken up, although the trial judge believed defendant to be acting rationally. Defendant declined further evaluations, saying he just wanted to "get this [ ] over with."
On July 21, 1989, defendant again appeared before the trial judge. Again, after confirming a "difference of opinion" between defendant and his attorney, Donald Catlett, as to whether to plead guilty, the trial judge asked, "[D]o you want to fire Mr. Catlett?" Further discussion ensued, which included the following:
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