State v. Nelson
| Decision Date | 09 November 1970 |
| Docket Number | No. 55010,No. 1,55010,1 |
| Citation | 459 S.W.2d 327 |
| Parties | STATE of Missouri, Respondent, v. Johnny NELSON, Jr., Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Frank P. Cihlar, Asst. Atty. Gen., Jefferson City, for respondent.
Cyril M. Hendricks, Fowlkes & Hendricks, Caruthersville, for appellant.
WELBORN, Commissioner.
Appeal from seven-year sentence for manslaughter, imposed upon jury verdict finding defendant guilty of that offense under an information charging murder.
At around 3:00 A.M. on July 21, 1968, two policemen cruising the downtown area of Caruthersville, Missouri heard three shots fired. They backed their police car toward where the noise had originated and saw James Leek entering a pickup truck. One of the officers went to the truck and saw that Leek was wounded 'because he was bloody all over.' A knife was found near the truck. An ambulance was called and Leek died shortly from a stab wound in the center of his chest.
Sometime between midnight and dawn on Sunday, July 21, Johnny Nelson, Jr., appeared at the residence of Walter Lee Dent in Caruthersville. Nelson's shirt had blood on it and he carried a .38 pistol in his hand. He told Dent: He asked Dent for a shirt, which Dent gave him. He also asked Dent to go find his daddy. Dent looked for Nelson's daddy but couldn't find him.
Sometime before daylight on July 21, Nelson went to Miss Shirley Presberry's house in Caruthersville. He gave her a .38 pistol, telling her that he did not want his father to see it. Miss Presberry turned the pistol over to the sheriff of Pemiscot County. It was identified as having been registered or owned by Leek. When the weapon was turned over to the sheriff, there were five shells in it. Three had been fired. Two were live.
At Nelson's trial, the defendant and Ida Mae Dent, a witness for defendant, testified that Leek's truck stopped when Nelson 'thumbed' a ride. Nelson thought the driver was someone else. Mrs. Dent didn't want to get in the truck when she saw that Leek was the driver because she knew that Leek 'was frisky with colored women.' Nelson told her to go ahead and told Leek they were going to 'colored town.' Leek told him he'd take them there. Ida Mae sat next to Leek and saw that Leek was carrying a pistol. She also noticed that he had been drinking. Leek put his hand on Ida Mae's leg. She said, 'Huh-uh.' Leek took his hand off but shortly put it on her leg again and she again said, 'Huh-uh.' Ida Mae said that he removed his hand and mumbled something she didn't understand. Nelson said that Leek said he wanted to engage in sexual intercourse.
Nelson stated that he was scared because he too noticed that Leek was drinking and also that he was not driving toward colored town. Nelson testified that he took his knife out of his right rear trousers pocket and opened it and placed it along his right hip, without brandishing it.
Leek saw the knife. According to Nelson:
Nelson said he caught Leek's hand and pulled it down and the gun fired into the floorboard. Nelson stabbed him and Leek fired another shot as he was getting out of the truck and then a third shot. Leek then dropped the gun. Nelson let go of the knife and picked up the gun and fled. He left town but subsequently returned and was arrested.
At the trial, the jury was instructed on murder in the second degree. A manslaughter instruction was offered by the defendant and given. An instruction on selfdefense was given. The jury verdict was guilty of manslaughter, with a seven-year sentence. A motion for new trial was filed and overruled. Appellant originally stated that he did not desire to appeal, but after entering prison he changed his mind and a special order permitting an appeal was made under Supreme Court Rule 28.07, V.A.M.R.
The first contention on this appeal is that appellant was denied adequate assistance of counsel because the trial court reappointed Raymond A. Klemp after he had requested not to serve.
An information charging appellant with murder in the first degree was filed in the Pemiscot County Circuit Court on August 1, 1968. On August 5, 1968, Raymond Klemp was appointed counsel for appellant. A motion to remand the cause to the magistrate court on the grounds of lack of an attorney at the preliminary hearing was sustained. On August 22, a second preliminary hearing was held at which Klemp appeared as attorney for appellant. Appellant was bound over to answer a charge of murder in the first degree and the information was refiled on August 22.
On August 30, Klemp filed a motion to withdraw as attorney on the grounds of threats about defending Nelson, a load of trial work, and because 'witnesses * * * are being threatened and browbeaten about their testimony * * * in the magistrate court.' On September 3, the motion to withdraw was taken up and sustained. The judge of the Pemiscot County Circuit Court disqualified himself on his own motion at the same time. Judge Billings was transferred to hear the case.
On September 25, 1968, Judge Billings changed the venue to the 35th Judicial Circuit, Dunklin County, and Klemp and James Vickrey were appointed to represent Nelson. On September 26, Klemp directed a letter to Judge Billings, stating:
On September 30, the court entered an order denying the request of Klemp to be relieved of his appointment.
The trial proceeded with both Klemp and Vickrey present and representing the defendant. The transcript shows no participation by Klemp until the motion for new trial, specifying the charge now under review, was considered.
On this appeal, the contention is that inasmuch as the court deemed the case one that required two counsel for the defendant in order to provide adequate representation, the court should not have required one of such counsel to be a person who, for the reasons Klemp had specified, was unable to provide effective representation.
No objection is here raised as to the adequacy of Mr. Vickrey's services on behalf of the appellant. The transcript reveals quite clearly that Mr. Vickrey assumed the laboring oar upon his appointment. Mr. Vickrey ably conducted the trial. He vigorously presented the defendant's cause. The presentation of the motion for new trial shows that Klemp did assist in the handling of evidence that defense counsel wished to present and in various items in which they wished to make a record. Only one attorney at a time could speak on behalf of the defendant. Mr. Vickrey handled that portion of the trial competently. No showing or hint is advanced as to what more could have been done on behalf of the defendant. On this record, there is no showing of lack of effective assistance of counsel and the point is without merit.
The second point here raised deals with the voir dire examination. Three objections are raised. The first relates to the trial court's refusal to permit defense counsel to interrogate each prospective juror individually regarding possible racial prejudice. The second relates to the refusal to permit interrogation of Negro members of the panel as to whether they might be more inclined to convict a member of their own race. The third relates to the refusal to permit voir dire interrogation as to whether prior convictions of the defendant would influence their verdict.
As appellant acknowledges, the conduct of the voir dire examination is largely a subject for the trial court's control in the exercise of its discretion. A clear and obvious abuse of discretion is required to make the trial court's rulings in this area reversible error. State v. Hawkins, 362 Mo. 152, 240 S.W.2d 688, 693--694(8, 9).
On the first objection, the trial court made some preliminary inquiries of the panel. Among the questions he asked was whether any member of the panel had prejudice against the Negro race that would prevent his giving a fair trial to a Negro charged with killing a white man. No response was received. Defense counsel was then permitted to ask a similar question of the first six veniremen. The response in each case was that the person questioned could give a defendant in such a case a fair trial. The trial court there-upon told defense counsel that, since the question had been propounded by the court, further inquiry along such line should be limited to a question directed to the panel generally, without repetition as to each venireman individually. Over objection, defense counsel did so. The basis of the objection is here repeated, namely, that a person having such prejudice would be less likely to acknowledge it as...
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