State v. Maloney, 53599

• Decision Date: 12 November 1968
• Docket Number: No. 1,No. 53599,53599,1
• Citation: 434 S.W.2d 487
• Parties: STATE of Missouri, Respondent, v. Joseph John MALONEY, Appellant
• Court: Missouri Supreme Court

Page 487

434 S.W.2d 487

STATE of Missouri, Respondent, v. Joseph John MALONEY, Appellant.

No. 53599.

Supreme Court of Missouri, Division No. 1.

Nov. 12, 1968.

Motion for Rehearing or to Transfer to Court En Banc Denied

Dec. 9, 1968.

Norman H. Anderson, Atty. Gen., Richard C. Ashby, Asst. Atty. Gen., Jefferson City, for respondent.

Eugene V. Krell, St. Louis, for appellant by appointment for purpose of appeal only, Silver, Suffian & Rosenthal, by Milton Suffian and Joseph S. Rosenthal, St. Louis, by appointment on hearing of motion of appellant only, of counsel.

HIGGINS, Commissioner.

Appeal from denial of Motion to Set Aside Judgment and Sentence pursuant to Criminal Rule 27.26, V.A.M.R.

On February 2, 1960, appellant pleaded guilty to the crimes of murder, first degree, and three changes of robbery, first degree. He was sentenced by Judge Nangle to life imprisonment on each charge, the sentences on the robbery charges to run concurrently with the sentence for murder. He is confined in the Missouri State Penitentiary.

Appellant filed his motion September 7, 1967, and was accorded an evidentiary hearing November 3, 1967, at which he testified in his own behalf. He stated he was arrested about 11:30 p.m., December 16, 1959, and taken to Third District Police Station 'until about 1 o'clock Friday afternoon * * * December 18 or 19--18th, I believe.' He signed a confession that Friday afternoon. While at Third District he was kept 'in a jail cell. I would say I was being interrogated more than I was in my cell, but an alternation between the cell and the interrogation room. * * * it lasted all night the first day, and the next day it lasted--it would alternate for periods of about two hours at a time with about an hour lapse in between. * * * There was a girl involved, and we made a deal that if I would sign the confession to all the charges against me they would leave this girl out of the matter entirely, exclude her name from the investigation or any reports they submitted to the Circuit Attorney's office, and on that basis I signed all of the confessions. * * * She was on a convalescent leave from the State Hospital Number 1 in Fulton, Missouri.' As to threats or other deals, 'That was the primary one. Naturally, it was understood probably it would go easier on me if I confessed and things like that, but primarily the only interest was this girl's welfare.' He first appeared in court 'as near as I can remember, around December 21, on Monday morning. * * * the only thing they did was to tell me the seriousness of the charges.' He next appeared in court 'January 15, I believe it was,' for arraignment, at which time he pleaded not guilty. He was in jail between December 21, 1959, and January 15, 1960. He did not make bail and did not know if he was able to make bail ¹ during the period of his detention. 'I wrote one note to Mr. Clarence Godfrey * * * with the Public Defender's Office, and I told him that to the best of my knowledge my people probably would retain a lawyer at a later time when they were able to, but at that time I wanted him to see about filing a motion for a psychiatric examination, because

He had a trial set for February 1, 1960, months before that, and he filed that motion and that was the extent of our association.'

He had a trial set for February 1, 1930, and, on February 2, 1960, pleaded guilty to the four charges against him and received the four concurrent life sentences. Prior to pleading guilty, 'I was taken into a room here in the courts building and my mother was there, and Mr. Metz (Milton Metz, Public Defender for the City of St. Louis) was there, and Mr. Draper (George Draper, Assistant Circuit Attorney) was there * * * I was advised it would be best for me to plead guilty at that time, and I stipulated I wanted to go to a jury trial with the case, and Mr. Metz told me, after signing the confession to the Court I could not be acquitted, and I still insisted I wanted to have a jury trial in the matter and Mr. Metz told me that, and if I couldn't plead guilty for my sake, after the signed confession it would ruin him as a lawyer and so forth. * * * That was the gist of the conversation and my mother started imploring me to plead guilty because she said if I didn't and I received a death sentence it would kill my grandmother, and she would commit suicide, and I still insisted I wanted a jury trial. So, Mr. Metz told my mother that I wouldn't be sentenced that day, and my mother left. * * * One other thing, I was told during the course of this conversation, I was told that that day would be my last chance to plead guilty, because if I didn't plead guilty that day I would be transferred out of Judge Nangle's court into some other judge's court where they really get tough, and that is actually--I was back in the confinement cell, and I called Mr. Metz up and I told him I would go in and plead guilty that day, and we came in court and pleaded guilty.'

He stated he was not offered the services of an attorney prior to making his confession and that he had not been advised of any rights concerning the confession. He did not have a preliminary hearing and, through Mr. Metz, 'I was led to believe the confession was the pivotal point of the entire case, and with it in the State's possession I couldn't be acquitted. So therefore, I had to assume the confession in and of itself was a conviction.' In respect to lineup, 'I was identified in three charges of Armed Robbery at the District Station. * * * I knew that these people had been brought down to identify me for the simple reason I was taken into the booth and they were outside, and we were taken into the identification--interrogation room and I was asked to confess in their presence. I was fairly certain these people were asked to identify me in connection with the crime.'

He never told the court he wanted a jury trial. 'I believe Judge Nangle asked me did I know I was entitled to a trial by jury and if convicted it could be a lesser or greater sentence or something like that, and those are approximately the exact words, but, as I stated before, this matter was already settled before I came in the court room, and I took this all as a matter of policy.'

Appellant acknowledged that Mr. Metz was present with him in open court when the pleas of guilty were entered and sentences pronounced. He also acknowledged presence of Mr. Metz at his arraignment and stated that no physical force was used against him during his detention. At the hearing and pursuant to memoranda, the court showed appointment of Mr. Metz as attorney for defendant nunc pro tunc.

Upon cross-examination appellant described his conference with Mr. Metz, Mr. Draper, and his mother, prior to his plea, as lasting approximately twenty to twenty-five minutes; that he was alone after the conference back in the confinement room, and that after some five minutes he called Mr. Metz and 'asked him * * * if that deal was still open for me to plead guilty for life imprisonment and he said yes. * * * I said, 'Let's go in court. " He was nineteen years old, had been in jail for approximately six weeks and had not been mistreated in any way. Asked if the guilty pleas were voluntarily entered, he stated, 'Voluntarily insofar as it was dictated by the information I had been given--* * * I think it would be more accurate to say I thought it was my only alternative, I had no other alternative. * * * the understanding I had been given was that I could take it to a jury if I wanted to, but it would be suicide if I did.'

In answer to questions from the court, appellant stated that he was scared at the time he pleaded guilty because he had the charges against him; that he had the impression that Mr. Metz in his behalf 'was trying to hustle the Judge to take the plea of guilty on life.' The court asked Mr. Draper to tell what occurred and what appellant was charged with and, after Mr. Draper finished, asked appellant if he admitted Mr. Draper's statement, appellant answered, 'Yes, sir.' The Court: 'You were scared to death you were going to get the death sentence, weren't you? Seven years have changed a lot of things.' Answer: 'It wasn't a matter of the death sentence, the possibility of winning.'

Lt. Russell M. Taylor of the St. Louis Police Department was called by appellant. He had been a detective sergeant with the homicide squad in December 1959. He did not know what food or sleep appellant had during interrogation or how long he was questioned. He was present when a number of witnesses identified appellant as the robber and during the then standard procedure of having an accused repeat his confession to witnesses.

'Q * * * Was there any conversation if he would sign the confession they would not report this girl to the State Mental Institution? A Not to my knowledge.'

Bernice Seibel, appellant's mother, recalled the conference prior to appellant's plea when they discussed 'The sentence, and what would happen, and things like that, just more or less a sentence--what would happen. * * * They said he would either get the death sentence or free, there would be no--nothing in between, but it was all death sentence and they were telling about different young boys, 19 year olds who had gotten the death sentence. * * * He was to be examined by a psychiatrist and they were supposed to get another day, * * * Mr. Metz * * * said, 'Go on home, because there is nothing going to happen today * * *. '' Mrs. Seibel was with her son, Mr. Metz, and Mr. Draper, 'quite awhile.' She never encouraged her son to go to trial in the case, and due to her fear of the death penalty, encouraged the guilty plea. Appellant had been paroled to Mrs. Seibel upon his release from the hospital in July or August of 1959. He entered the Army and after ten weeks went absent without leave and was AWOL when arrested on these charges.

Appellant also called Milton M. Metz, his lawyer at the time he was sentenced. He...