State v. McClinton

Decision Date11 September 1967
Docket NumberNo. 52122,52122
Citation418 S.W.2d 55
PartiesSTATE of Missouri, Respondent, v. Lee Allen McCLINTON, Appellant.
CourtMissouri Supreme Court

Norman H. Anderson, Atty. Gen., Jefferson City, Rodney Weiss, Sp. Asst. Atty. Gen., St. Louis, for respondent.

Wilson Gray, St. Louis, for defendant-appellant.


The defendant Lee Allen McClinton was convicted in the St. Louis Court of Criminal Correction of stealing less than $50, a misdemeanor. Sections 560.156 and 560.161, RSMo 1959, V.A.M.S. He appealed to the St. Louis Court of Appeals which reversed the judgment and remanded the cause, but because of the general interest and importance of the question involved and for the purpose of re-examining the existing law ordered the cause transferred to this court pursuant to Art. V, § 10, Constitution of Missouri 1945, V.A.M.S.

The defendant was charged by information with stealing a man's jacket valued at less than fifty dollars. He was tried in summary manner by the court without a jury and found guilty as charged. The defendant was not represented by counsel at his trial nor at the initial hearing on appeal. The St. Louis Court of Appeals reviewed the questions properly preserved by defendant's motion for new trial and found the evidence sufficient to support the conviction; it further reviewed as plain error under S.Ct. Rule 27.20(c), V.A.M.R. the absence of any entry of record showing a waiver of a trial by jury and held this to be a violation of S.Ct. Rule 26.01(b), V.A.M.R.

We find as did the St. Louis Court of Appeals that the evidence was sufficient to support a conviction of stealing less than fifty dollars. We review the evidence briefly. The testimony of the prosecuting witness Alvin Raines was that on the day in question he parked the panel truck he was driving on Olive Street about 200 feet west of Eighteenth Street and left his jacket on the front seat of the car. As he approached the truck upon his return from a call at a nearby office he saw a man he later identified as the defendant back out of the vehicle with the jacket under his arm and start to walk westwardly on Olive Street. Raines ran after the defendant who, when he perceived that he was being pursued, threw the jacket at Raines and escaped. Raines notified a passing officer and together they began a search of the surrounding neighborhood. Shortly thereafter Raines found the defendant in Union Station and caused his arrest. Raines' identification of the defendant as the man he saw stealing his jacket which he valued at $15 was positive and unequivocal. In determining whether the evidence was sufficient to support the verdict, the appellate court must consider as true all evidence favorable to the state together with inferences that can reasonable be drawn therefrom and must reject contrary evidence and inferences. State v. Thomas, Mo., 393 S.W.2d 533, 536(2). Raines' testimony was clearly sufficient to establish defendant's commission of the offense charged and to support the judgment of conviction.

The assertion in the defendant's motion for new trial that the finding and judgment of the court was against the weight of the credible evidence does not comply with S.Ct. Rule 27.20(a) and preserves nothing for appellate review. State v. Roberts, Mo., 332 S.W.2d 896, 898.

The remaining ground in the motion for new trial is that the finding and judgment of the court was contrary to law. In examining the transcript of the record on appeal, we were immediately struck by the fact that the defendant's request for time to procure an attorney was not granted, that the defendant represented himself poorly at the trial and his rights were not fully protected. If not strictly within the purview of the specification that the judgment of the court was contrary to law, we deem it worthy of consideration under the plain error Rule 27.20(c) on the record before us.

Section 18(a) of Art. I of the 1945 Constitution of Missouri provides that in criminal prosecutions the accused shall have the right to appear and defend in person or by counsel. The denial of a person's right to be represented by counsel constitutes a violation of a constitutional right and may justify the reversal and remand of a judgment of conviction. State ex rel. Cave v. Tincher, 258 Mo. 1, 166 S.W. 1028, 1032--1033(11). At the beginning of the trial, the trial judge interrogated the defendant in the following manner:

'THE COURT: Are you ready for trial? A Yes, sir.

THE COURT: Do you have a lawyer? A No, sir.

THE COURT: Do you wish to go to trial without a lawyer? A Well, if you give me a chance to get one, I will get one.

THE COURT: You have had a lot of chance to get a lawyer. You have been out on bond for over a month. A Yes, sir.

THE COURT: Why didn't you get a lawyer? A Well, I didn't think it was necessary to. I am not guilty of the crime.

THE COURT: That is what we are going to find out. What changed your mind? A Well--.

THE COURT: What? A I guess because you just said that, that was all.

THE COURT: What did I say? A Did I want to go to trial with a lawyer.

THE COURT: I said, do you want to go to trial without a lawyer. A Without, yes, sir.

THE COURT: All right. Have a seat there.'

Apparently this was the first setting of the case. The record further shows that the defendant who had a seventh-grade education was employed as a truck driver earning $60 a week and had never been convicted of violating a criminal law.

The record demonstrates ways in which legal counsel could have been of service to the defendant. There were only two witnesses--the owner of the jacket and the arresting police officer. The defendant made no objection to any of their testimony. At the court's invitation, the defendant undertook to cross-examine the prosecuting witness but his inept efforts prompted an inquiry by the court as to whether the defendant was asking a question or making a statement. The defendant replied that he was making a statement, whereupon the court advised him that he was not permitted to make a statement and that he would have an opportunity to testify. The defendant's attempt to cross-examine the witness only tended to emphasize and strengthen the state's case.

Further it appears that counsel would have been beneficial to the defendant in regard to the procedure of his testifying in his own behalf and protecting his statutory rights with respect to his cross-examination. Section 546.260, RSMo 1959, V.A.M.S., provides that the accused shall not be required to testify but may testify in his own behalf and if he elects to do so shall be liable to cross-examination 'as to any matter referred to in his examination in chief'. At the conclusion of the state's case in chief, the defendant answered in the affirmative the following question by the court: 'Do you wish to take the stand and testify in your own behalf and tell your side of the story?' The witness was then sworn and was immediately subjected to direct examination by the assistant prosecuting attorney and the court. After seven questions had been asked and answered, the court stated that he would like to advise the defendant of his constitutional rights, that the defendant was not required to take the stand and to testify, that this was a right that could be waived and if he testified anything he said could be used against him. The court again asked the defendant if he wished to testify and tell his side of the story and the defendant indicated he did. The interrogation by the prosecuting attorney and the court in question and answer form then continued without objection. While the defendant steadfastly denied that he had taken the jacket, he made no preliminary statement in his part of the case and there was no direct examination as such. Nevertheless, his appearance on the stand was the occasion for extensive crossexamination by he prosecuting attorney and the court. The cross-examination of an accused outside of the scope of his direct examination is generally held to be in violation of § 546.260 and to constitute reversible error. State v. Pierson, 331 Mo. 636, 56 S.W.2d 120, 124--125(6--9); State v. Kelley, Mo., 284 S.W. 801, 802(2); State v. Santino, Mo., 186 S.W. 976, 978(7). It has been said that it is impossible to lay down any definite rule as to the scope of crossexamination of a defendant who testifies in his own behalf and each case is very much dependent upon its own facts and background. State v. Scown, Mo., 312 S.W.2d 782, 786(1).

At the conclusion of the defendant's testimony, the court recalled the prosecuting witness to the stand. Under further questioning by the court, the prosecuting witness reiterated his identification of the defendant and his certainty of it. This is another instance in which the defendant might have benefited by the advice and assistance of counsel.

As previously noted, the defendant expressed a desire to obtain counsel if permitted to do so. So far as appears from the record, this was the first setting of the case and there were only two witnesses for the state. Undoubtedly the defendant was negligent in not obtaining counsel during the interval between his arraignment on March 17, 1965, and the beginning of his trial on April 15, 1965. On the other hand, the record does not demonstrate there would have been any prejudice to the state or great inconvenience if the court had continued the case for a few days with the strict understanding that he must obtain counsel and be ready for trial on the next setting. Instead the trial was conducted in the manner described with the result that the court immediately found the defendant guilty as charged and sentenced him to serve sixty days in the workhouse.

In the circumstances shown by this record, we hold that the failure of the trial court to grant the defendant an opportunity to obtain counsel was an abuse of discretion affecting substantial rights of the defendant. The error is prejudicial and justifies a...

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