State v. Hurtt, s. 48061

• Decision Date: 08 April 1974
• Docket Number: No. 2,56899,Nos. 48061,s. 48061,2
• Citation: 509 S.W.2d 14
• Parties: STATE of Missouri, Respondent, v. John Kenneth HURTT, Appellant. John Kenneth HURTT, Movant-Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 14

509 S.W.2d 14

STATE of Missouri, Respondent, v. John Kenneth HURTT, Appellant.

John Kenneth HURTT, Movant-Appellant, v. STATE of Missouri, Respondent.

Nos. 48061, 56899.

Supreme Court of Missouri, Division No. 2.

April 8, 1974.

Motion for Rehearing or to Transfer to Court en Banc Denied

May 13, 1974.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.

William J. Fleischaker, Public Defender, Jasper County, 29th Judicial Circuit, Joplin, for movant-appellant.

MORGAN, Judge.

Jurisdiction over the consolidated appeals considered herein lies with this court as both Notices of Appeal involved were filed prior to January 1, 1972; thus falling under pre-amendment Article V, Section 3 of the Missouri Constitution of 1945, V.A.M.S.

Appellant was tried for first degree robbery as an habitual criminal. Transcripts of two prior convictions for robbery, one from Nebraska and one from Missouri, were introduced to support the habitual criminal charge. The jury returned a verdict of guilty but was unable to agree as to punishment. The trial judge, therefore, pronounced sentence of life imprisonment. Appellant was tried and sentenced under the habitual criminal statute of 1949. No motion for new trial was filed; however, appellant did receive permission from this court to file an appeal out of time. The conviction was affirmed on appeal, State v. Hurtt, 338 S.W.2d 876 (Mo.1960).

In 1968 appellant filed a motion to vacate judgment and sentence under Supreme Court Rule 27.26, V.A.M.R. The main points of this motion included: first, judgment and sentence of life imprisonment was unconstitutional, null and void as an extrajudicial decree of law; second, appellant was denied a fair trial by his appointed counsel's refusal to file a motion for new trial and appeal; third, the use of appellant's prior Nebraska conviction to support the habitual criminal charge denied appellant due process of law, as that conviction was based on an invalid plea of guilty. No attack was made on appellant's prior Missouri conviction. The trial court overruled appellant's motion and an appeal was filed. Subsequently we ordered our previous opinion in State v. Hurtt, supra, set aside, after finding that appellant had not been represented by counsel on that appeal, Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33, and reinstated the case on our docket. These appeals were then consolidated for argument and decision.

Turning first to the appeal from appellant's original conviction, we find, and appellant concedes, that his prior Nebraska conviction was admitted into evidence at trial without objection. Furthermore, it is undisputed that appellant filed no motion for new trial. In view of these facts nothing has been preserved for appellate review. 'Constitutional questions can be waived by failing to preserve the issue for appellate review or by ignoring procedural requirements which serve a legitimate state interest. * * * Our procedural requirements for objections to be made to the admission of evidence and for assignments of error to be set forth in a motion for new trial unquestionably serve a legitimate state interest essential to orderly procedure. . . .' State v. Phelps, 478 S.W.2d 304, l.c. 308(11, 12) (Mo.1972). See also State v. Tyler, 454 S.W.2d 564, 567 (Mo.1970), and State v. Bryson, 506 S.W.2d 358 (Mo.1974).

Appellant urges that the introduction into evidence of the record of his prior, and allegedly invalid, Nebraska conviction can be reviewed under our Rule 27.20(c) as plain error. In order to invoke the plain error rule there must be a "sound, substantial manifestation . . . a strong, clear showing, that injustice or miscarriage of justice will result if the rule is not invoked." State v. Caffey, 457 S.W.2d 657, l.c. 660(4, 5) (Mo.1970). Appellant here fails to make such a showing. On the contrary, the transcript of appellant's trial indicates strong evidence of guilt including, inter alia, appellant's confession, statements to the police, testimony of the alleged accomplice and multiple eyewitness identifications, much of which was uncontroverted. When guilt is established by such overwhelming evidence no injustice or miscarriage of justice will result from a refusal to invoke the rule. State v. Caffey, supra. Likewise no injustice will result from affirmance of this judgment of conviction.

We now consider the appeal from the trial court's unfavorable ruling on appellant's motion for post-conviction relief under our Rule 27.26. Appellant's motion raised the three points mentioned above. In appellant's brief on this appeal he admits that the sentence of life imprisonment imposed by the trial court was within the limits of punishment for first degree robbery under § 560.135, RSMo 1949, V.A.M.S.; and, therefore abandons the first point of his motion.

In its Findings of Fact and Conclusions of Law, after the evidentiary hearing on this motion, the trial court found that it was doubtful that appellant ever requested his trial counsel to file a motion for new trial, but if such a request had been made it was made after the time for filing such a motion had passed. The Court based these findings on the fact that appellant made no complaint about the failure to file a motion for new trial until after the death of the attorney accused of that failure; the appellant's co-counsel at trial had never received or heard of such a request; appellant's own testimony showed that he didn't express the alleged desire to file a motion for new trial until after the time for filing had expired; and the only testimony supporting the existence of such a request was that of the appellant. In a motion under Rule 27.26 the trial court is not required to believe movant's testimony. Rhoades v. State, 504 S.W.2d 291, 293(2) (Mo.App.); Kimble v. State, 487 S.W.2d 544 (Mo.1972). The trial court here did not believe movant's version of the facts, and ruled accordingly. This ruling is not clearly erroneous and, therefore, must be upheld. Goodloe v. State, 486 S.W.2d 430 (Mo.1972); Richardson v. State, 470 S.W.2d 479 (Mo.1971); Crosswhite v. State, 426 S.W.2d 67 (Mo.1968).

The remaining point of contention on this appeal, as succinctly stated in appellant's brief, is whether or not appellant is entitled to relief because of the introduction into evidence of the record of his prior Nebraska conviction at his original trial. Appellant urges that his prior Nebraska conviction is constitutionally infirm. Since, assuming arguendo the invalidity of this prior conviction, this point must still be ruled against appellant; it will be unnecessary to decide the question of the validity of appellant's prior Nebraska conviction; but, we do note that the trial court on remand determined that the appellant's prior Nebraska conviction was entirely valid.

Appellant relies on the case of Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), wherein the Supreme Court of the United States held that the use of invalid prior convictions under the Texas recidivist statute was inherently prejudicial. An essential difference between the Burgett case and the case at bar is that in Burgett all the prior convictions submitted were infirm; whereas here there was at least one valid prior conviction, the prior Missouri conviction, which was all that was necessary to satisfy § 556.280, RSMo 1949, V.A.M.S., the habitual criminal statute under which appellant was tried. This important distinction is pointed out in Gerberding v. Swenson, 435 F.2d 368--370 (8th Cir. 1970), cert. denied, 403 U.S. 906, 91 S.Ct. 2211, 29 L.Ed.2d 682. The issue in Gerberding was identical to that presented by the instant case, '. . . whether a conviction obtained in a one-stage penalty enhancement trial is constitutionally infirm, where one of...