State v. Johnson

• Decision Date: 25 March 1997
• Docket Number: 70429,Nos. 67898,s. 67898
• Citation: 943 S.W.2d 285
• Parties: STATE of Missouri, Respondent, v. Donald JOHNSON, Appellant. Donald JOHNSON, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 285

943 S.W.2d 285

STATE of Missouri, Respondent, v. Donald JOHNSON, Appellant.

Donald JOHNSON, Movant-Appellant, v. STATE of Missouri, Respondent.

Nos. 67898, 70429.

Missouri Court of Appeals,

Eastern District,

Division Four.

March 25, 1997.

Robert E. Steele, Jr., Asst. Public Defender, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, David R. Truman, Assistant Attorney General, Jefferson City, for respondent.

KAROHL, Judge.

Defendant, Donald Johnson, appeals after sentencing on jury verdicts convicting him of murder in the first degree and armed criminal action. He also appeals denial, after an evidentiary hearing, of his Rule 29.15 motion. We consider both appeals.

In November 1982, Theophelus Shelton, Sr. and Heleon Phillips lived at 4522 Newberry Terrace in St. Louis, Missouri. Shelton, Sr. hired defendant to perform odd jobs at this residence such as roofing, painting and moving furniture. Theophelus Shelton, Jr. testified he witnessed defendant working at his father's home.

On November 17, 1982, Shelton, Sr. and Phillips left their home around 11:00 a.m. to go grocery shopping. They returned about 1:00 p.m. and parked in the garage. Phillips walked to the rear of the house which had an enclosed sun porch outside the back door. As she approached the exterior door to the sun porch, she noticed a windowpane had been broken from that door and that the interior door leading into the kitchen had been kicked open. She also saw some garbage bags sitting on the back porch that had not been there when they left. She walked into the kitchen. She saw a hand holding a gun and heard a voice telling her to get out. A shot was fired. She dropped the groceries, told Shelton, Sr. to go back into the garage and ran to a neighbor's house to call the police. She heard two or three more shots.

Later, Phillips returned to the house and discovered the body of Shelton, Sr. He died in the garage from a bullet in his head. She also found the missing windowpane from the back door leaning against a wall near the porch. At trial she testified that a VCR and a large sum of money kept in the headboard of Shelton, Sr.'s bed were missing. She also recognized the gun held in the unknown assailant's hand as belonging to Shelton, Sr.

The police dusted for fingerprints. They lifted prints from (1) the VCR found in one of the garbage bags on the porch; (2) the windowpane from the back door; and (3) a strip of wood which held the windowpane in place. Detective Jackie Hendricks and his partner investigated the murder in November 1982. At that time, they talked to neighbors and attempted to locate witnesses but were unable to identify a suspect.

Twelve years later, on February 11, 1994, Detective Hendricks and his partner received information from Sergeant Gregory Owens concerning the fingerprints. The St. Louis Police Department was still interested in the unsolved crime. Sergeant Owens, of the department, entered the prints lifted from the crime scene into the Automated Fingerprint Identification System (AFIS) and matched some of the prints from the VCR, windowpane and wood strip to defendant. Detective Hendricks then placed a "wanted" in the police computer for defendant's arrest.

The police received information on March 7, 1994, that defendant was living with his aunt. At trial, Detective Hendricks testified they "went to that location, located [defendant], took him into custody and conveyed him to our office." Defendant was taken to the office "for the purpose of conducting a further investigation." Detective Hendricks advised defendant of his Miranda rights. Defendant said he understood them and indicated he wished to waive them and continue with the interview. Subsequently, defendant admitted to burglarizing Shelton, Sr.'s house with another man named Vernon because they did not believe Shelton, Sr. was going to pay them for their work. Defendant agreed to make the audio taped statement which was played at trial over objection.

Defendant testified. He told the jury on the day of the murder he was at his mother's home cleaning her yard. His mother was not called to testify. He also claimed his burglary confession was involuntary and untrue.

The jury found defendant guilty of the first degree murder of Shelton, Sr. and armed criminal action. The trial court sentenced him as a prior offender to thirty years for the murder and a concurrent ten years for the armed criminal action. He filed a Rule 29.15 motion for post conviction relief alleging ineffective assistance of counsel. After an evidentiary hearing, the motion court denied his motion on March 18, 1996. He appeals from both decisions.

Defendant asserts four issues on appeal. First, he argues the trial court erred in denying his pro se motion to remove appointed counsel. In order to preserve an issue for appeal in a jury-tried case, it must be included in a motion for new trial. State v. Candela, 929 S.W.2d 852, 860 (Mo.App. E.D.1996); Rule 29.11(d). An allegation of error not included in a motion for new trial is reviewable only for plain error resulting in manifest injustice or miscarriage of justice. Candela, 929 S.W.2d at 860. Here, defendant failed to raise this issue in his motion for new trial. As such, we review only for plain error.

Prior to the date of trial, the trial court heard defendant's pro se motion to dismiss appointed counsel. In his motion, he only asked for the appointment of new counsel, not for the right to defend himself. Defendant was not present when his motion was submitted. The trial court denied the motion. The pretrial decision was made without notice to, and without the defendant's presence.

When the trial began, before the venire panel was summoned, the trial court afforded defendant the opportunity to re-open his motion to dismiss counsel. He gave several reasons why he wanted appointed counsel dismissed. He argued appointed counsel: (1) neglected to have him present at the motion hearing scheduled in October 1994; (2) was not planning on calling his mother to testify in support of his alibi defense; and, (3) lied to his mother by saying he admitted to committing the charged crimes, when in fact he never made such a statement.

Regarding defendant's first reason to remove appointed counsel, Article I, § 18(a), Constitution of Missouri, provides "the accused shall have the right to appear and defend, in person and by counsel." Section 546.030 RSMo 1994 provides "[n]o person indicted for a felony can be tried unless he be personally present, during the trial." Generally, however, the word 'trial' in the statute does not embrace every administrative and procedural step and the accused's presence is not necessary during proceedings which are not part of the trial, such as preliminary or formal proceedings or motions which do not affect his guilt or innocence. State v. Durham, 416 S.W.2d 79, 83 (Mo. banc 1967).

We find the trial court did not deny defendant his right to appear and defend. The question of whether the pretrial hearing of defendant's pro se motion to dismiss counsel was nullified by his absence is not before us because of the trial court's subsequent actions. Although he was not present at the pretrial ruling, he was given an opportunity to re-open his motion prior to trial and personally make his presentation. Clearly, without defendant's presence, proof of the grounds alleged would not be available. Moreover, the attorney who was the subject of defendant's pro se motion, could not represent defendant at the hearing. However, the court cured any defect so that the pretrial ruling on his motion was not prejudicial.

As to defendant's second and third reasons to warrant substitution of counsel, he must show "justifiable dissatisfaction" with his appointed counsel. State v. Gilmore, 697 S.W.2d 172, 174 (Mo. banc 1985). Refusing to present a proposed alibi defense is not per se justifiable dissatisfaction because determination of what witnesses to call is largely a matter of trial strategy and the decision is best left to counsel. Id. As such, the trial court did not plainly err in denying defendant's motion to dismiss appointed counsel on the basis she decided not to call defendant's mother as a witness to events which occurred over ten years ago. Nor does defendant's argument concerning his inability to trust counsel based on a statement made by counsel to his mother rise to the level of justifiable dissatisfaction under plain error review. The context of the statement, if made, was not presented. Further, the statement attributed to counsel was more consistent with defendant's admission of participating in the burglary than his full alibi.

After the trial court found defendant's reasons insufficient to remove appointed counsel, defendant told the court "since the State is not gonna provide me with, you know, a[sic] attorney that I think is gonna defend me, do I have the right to defend myself?" The trial court subsequently answered this question in the affirmative but also maintained defendant had not provided a basis to have appointed counsel dismissed.

In his brief, defendant argues the court denied his constitutional right to defend himself under the Sixth and Fourteenth Amendments to the United States Constitution, and Article 1, Sections 10 and 18(a) of the Missouri Constitution. A defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). However, (1) the request to proceed pro se must be unequivocal and timely made, State v. Herron, 736 S.W.2d 447, 449 (Mo.App.1987); and, (2) there can be no denial of the right to self-representation in the absence of an unequivocal request to exercise that right, State v. Freeman, 702 S.W.2d 869, 871 (Mo.App.1985).

Defendant never made an unequivocal request to represent himself. In his pro...