State v. Macon
| Decision Date | 13 June 1966 |
| Docket Number | No. 1,No. 51550,51550,1 |
| Citation | 403 S.W.2d 630 |
| Parties | STATE of Missouri, Respondent, v. Frederick Donald MACON, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Moody Mansur, Asst. Atty. Gen., Jefferson City, for respondent.
Newmark & Baris, Irl B. Baris, St. Louis, for appellant.
Defendant has appealed from the order of the trial court overruling his motion to vacate filed under S.Ct. Rule 27.26, V.A.M.R.
On March 7, 1962, a jury found defendant guilty of the offense of first degree robbery and the court, under the provisions of § 556.280, RSMo 1959, V.A.M.S., fixed his punishment at imprisonment in the penitentiary for a period of ten years. On March 19, 1962, defendant's motion for new trial was overruled and he was formally sentenced by the court. At that time defendant also withdrew his plea of not guilty to charges of burglary and stealing and entered a plea of guilty thereto. The court sentenced him to five years' imprisonment on each offense but provided that those sentences should run concurrently with the sentence in the robbery case.
The motion to vacate sought to set aside the judgments in both cases. In State v. Engberg, Mo.Sup., 391 S.W.2d 868, we indicated that in a proceeding under Rule 27.26 it is improper to attack more than one judgment in a single motion. However, since these judgments were entered at the same time and involved related offenses we will consider the motion on appeal as applicable to all of the judgments.
In his effort to set aside the robbery judgment defendant alleges (1) that the assistant circuit attorney made prejudicial and highly inflammatory remarks at the time of exhibiting a shotgun to the jury, at which time he was rebuked by the court although defendant's counsel failed to object; and (2) that he was denied due process because his appointed counsel (not his present attorney) was so inexperienced and incapable that he did not render effective assistance to defendant.
The first point alleged, if true, would have been merely a trial error which may not be considered in support of a motion of this nature. State v. Hagedorn, Mo.Sup., 305 S.W.2d 700. However, we will discuss it because it is also relied on to support defendant's contention relating to the ineffectiveness of his counsel. A sawed-off shotgun (alleged to have been used in the robbery) was admitted in evidence. Just as the jury was about to retire to begin its deliberations the assistant circuit attorney picked up the gun and indicated a desire that the jury take it to the jury room. The trial judge (out of the hearing of the jury) rather sternly advised him that he should not exhibit the gun in that manner and that it should not be taken to the jury room. The court then asked defendant's attorney if it was 'all right with you to send it down,' and upon his objection the matter was apparently abandoned.
We do not see that defendant's attorney was deficient in any respect in regard to the foregoing incident. The trial judge was apparently under the erroneous impression that the exhibit should not be sent to the jury room except by agreement. He therefore took action so quickly that there was no occasion for an objection. Later, when the question was presented to him, defendant's counsel objected and the gun was not sent to the jury room. We are unable to see how any more could have been accomplished by any attorney.
In order to determine the issue concerning the effectiveness of the services rendered by defendant's attorney we have, perhaps ex gratia, read the entire transcript of the trial. The state presented a number of lay witnesses who testified that defendant confessed to the offense in their presence. In an effort to diminish the effect of that testimony defendant's attorney cross-examined those witnesses, as well as others, extensively, and, we think, rather skillfully. He also presented a witness who testified to facts supporting defendant's alibi, and made about the only type of argument which could...
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Dickson v. State
...basis for relief in this belated collateral proceeding. This view, particularly since the three sentences are concurrent, (State v. Macon, Mo., 403 S.W.2d 630) necessarily disposes of the appellant's second point that the sentence of ten years on the assault with intent to rob indictment sh......
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Watkins v. State
...Futrell v. State, 667 S.W.2d 404, 405 (Mo. banc 1984). Trial errors are not cognizable in a proceeding under Rule 27.26. State v. Macon, 403 S.W.2d 630, 631 (Mo.1966); Fullerton v. State, 750 S.W.2d 484, 487 (Mo.App.1988); Hill v. State, 641 S.W.2d 194, 195 (Mo.App.1982). A proceeding under......
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State v. Crump
...a different venue), and they are not shown to have involved related offenses to warrant consideration on this appeal as in State v. Macon, Mo., 403 S.W.2d 630, 631(1). Appellant's motions stated no facts to raise an issue of the constitutional validity of his convictions, and the trial cour......
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State v. Smith
...for collateral attack under the rules. State v. Warren, Mo., 344 S.W.2d 85, 86; State v. Schaffer, Mo., 383 S.W.2d 698, 699; State v. Macon, Mo., 403 S.W.2d 630, 631. The point is Secondly, appellant urges error in the denial of his request for appointment of counsel at his preliminary hear......