State v. Nielsen
| Decision Date | 04 January 1977 |
| Docket Number | No. 36260,36260 |
| Citation | 547 S.W.2d 153 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. William Victor NIELSEN, Defendant-Appellant. . Louis District, Division Three |
| Court | Missouri Court of Appeals |
Alan G. Kimbrell, Rosecan, Popkin & Chervitz, St. Louis, for defendant-appellant.
John C. Danforth, Atty. Gen., Preston Dean, J. Michael Davis, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Joseph A. Derque, III, Gene H. Fahrenkrog, Jr., Asst. Pros. Attys., Clayton, for plaintiff-respondent.
This is an appeal by the movant-appellant, William Victor Nielsen, from an order of the circuit court entered on April 4, 1974, overruling appellant's motion to withdraw his plea of guilty pursuant to Rule 27.25. 1 The motion to withdraw was made before he was sentenced to thirty years imprisonment for the offense of murder in the second degree. For reasons hereinafter stated, we affirm.
Movant, William Victor Nielsen, was originally charged with murder in the first degree for the alleged killing of his father-in-law, Leonard Besel, 2 on March 9, 1973. He was arrested at the home of a friend in the City of St. Louis for the offense and some hours later made a statement which implicated him in the murder. Throughout the day and that evening prior to his arrest, he had been taking numerous and sundry drugs. Prior to trial, a motion to suppress his statement was made by defense counsel. 3 Hearing was held on that motion on September 5, 1973. This motion was heard by the same judge who subsequently heard the plea of guilty and the motion to withdraw and who sentenced the movant to thirty years imprisonment.
On the motion to suppress statements made by Nielsen, the testimony showed that during the day of the murder, March 9, 1973, beginning at about 11:00 a. m., movant had taken some drugs "Grass, acid and Darvons" and that "(a)round seven or eight o'clock" he arrived at the home of his friend Joe Speaks in the City of St. Louis. While there for the evening, he sat around and talked with friends "smoking dope" and he took "(t)wo (2) hits of acid, smoked two and a half (21/2) lids 4 of grass and dropped six (6) or seven (7) Darvons." During the previous day and a half, he had only about three and one half hours of sleep and that was during the afternoon of March 9, 1973. About midnight on March 9, two police officers of St. Louis County Officers George Ice and Sam Yarborough based upon information they had received earlier in the evening from relatives of the deceased, proceeded to the home of Mr. Speaks and inquired whether the movant was present. After determining that he was, Nielsen was requested to "come out to the car" so that the officers could speak to him. The officers drove around attempting to reach the dispatcher and finally pulled onto a grocery store parking lot nearby. On the lot was Mr. Besel's automobile; the officers asked movant for the keys to this automobile and he (Nielsen) placed them on the trunk of the patrol car or gave them to Officer Yarborough. The keys fit the automobile and movant was placed under arrest by Officer Ice.
According to Officer Ice, he informed Nielsen of his constitutional rights and Nielsen indicated he understood them. At the scene, Nielsen did not implicate himself in the killing of Mr. Besel and indicated he knew nothing about the killing. The officers stayed on the grocery parking lot for "approximately two hours" while movant, Nielsen, "went to sleep in back of the police car." Finally, the officers arrived at County Police Headquarters "between 2:00 and 3:00" a. m. on March 10, 1973. After Nielsen was fingerprinted and booked, he was left there and the two officers did not see him again until 9:30 or 10:00 a. m. the next morning.
Nielsen's testimony at the hearing on the motion to suppress was that when the officers came to Speaks' home, he went out to the patrol car and after the two officers exchanged a few words one of them said, ". . . (d)on't bother about questioning him, he's too doped up," "too messed up" or "too far gone." After the officers obtained the keys to Mr. Besel's automobile on the parking lot, Nielsen got into the back seat of the patrol car and "went to sleep." He woke up later in front of the "Clayton Court House"(?). He was taken into an office where other officers were present. It was "(a)round 1:00 when we arrived." He contends that questioning took place throughout the night, that he was not advised of his rights, and that at about 5:00 a. m. was taken to Clayton jail. Movant testified that he made a statement about 4:00 a. m. which was typed up and handed over "to me" and he was told to "sign it." 5
According to Officers Ice and Yarborough, however, they did not interrogate him until the next morning at about 9:30 or 10:00 a. m. At that time, movant apparently gave several versions of what happened but the "stories . . . just didn't hold" so he was conveyed to the "hold-over" about 11:30 a. m. Officer Ice testified that on the morning of March 10, Mr. Nielsen finally "told everybody to leave the office but Detective Yarborough, (and) that he would tell Yarborough exactly what had happened." Finally, about 12:30 or 1:00 p. m., after having given certain statements containing discrepancies, "tears came to his eyes" and Nielsen gave a statement to Yarborough which implicated him in the death of his father-in-law. The statement was transcribed.
Both officers testified at the hearing on the motion that at the time they first saw Nielsen late in the evening of March 9, or early in the morning of March 10 he seemed to be "glassy-eyed" and tired, but he responded to questions asked. 6
At the end of the hearing on the motion to suppress, although the record does not clearly state, the motion was overruled.
In October, 1973, the movant proceeded to trial before a jury. He was then represented by the public defender. During the opening statement of the assistant circuit attorney, he outlined the evidence which would be presented to the jury which included the testimony of Officers Ice and Yarborough that ". . . the defendant voluntarily and freely later on made a statement admitting the killing of the victim in this case, Leonard Besel."
After a four-day trial and during the presentation of the evidence, a motion for mistrial was made and granted. Later, the defendant withdrew his plea of not guilty and entered a plea of guilty to a charge of murder in the second degree.
On January 28, 1974, his plea was taken. Counsel for the state amended the charge to murder in the second degree, and counsel for Nielsen withdrew the prior plea of not guilty and formally entered a plea of guilty. The court addressed Mr. Nielsen and questioned him concerning the facts and other matters. The court inquired whether he gave his permission to enter a guilty plea and also questioned him about the facts surrounding the death of Mr. Besel. Mr. Nielsen admitted that he stabbed Mr. Besel during the afternoon of March 9, 1973, and that he and his father-in-law engaged in an argument because the father-in-law accused him of "having his (Besel's) kids sniffing tea leaves." Nielsen stated that they had a struggle; Mr. Besel "got a knife out," and Nielsen took it away and stabbed him ten or eleven times. Nielsen also used a billy club during the affray. Other details concerning Nielsen's background and other matters were brought out. The plea was quite detailed. Nielsen stated that he was not under the influence of any drugs or alcohol, that he discussed the matter of the plea with his attorney before entering it, that no threats or promises were made and that he recognized he was entitled to various constitutional rights. The court informed him that it would follow the recommendation of the prosecutor's office and would sentence him to thirty years. The plea was accepted and formal sentencing was deferred until a pre-sentence investigation could be made.
In March, 1974, and prior to the formal sentencing, movant filed a motion to withdraw the guilty plea. 7 A hearing was held on this motion on April 4, 1974, before the same judge who earlier had heard the motion to suppress the statement (or statements). Mr. Nielsen's attorney (the same attorney who represented him on the guilty plea) testified that after the plea had been entered he "ran into" Mr. Timothy O'Connor, employed by the St. Louis County Welfare Department, and counsel discussed the Nielsen case with him. Counsel testified that O'Connor told him that he remembered the Nielsen case when he was brought to the jail on March 10, 1973, and that ". . . he could recognize a person who is under the influence of narcotics." O'Connor felt that any statement or confession Nielsen gave "would be unreliable" because he was "spaced out." Counsel argues on the motion to withdraw that if he had been aware of this evidence he would have presented it at the earlier motion to suppress, and, not having obtained the information from O'Connor prior to the motion to suppress, he felt that "the defendant has had ineffective assistance of counsel." Counsel further argued that if he had been aware of the observers' testimony prior to the guilty plea, he would never have advised that appellant enter a plea of guilty. Counsel requested that the court hear two witnesses, Mr. West and Mr. O'Connor, who would testify as to Nielsen being under the influence of drugs so that any confession or statement might well have been suppressed at the hearing on the motion to suppress the statement(s).
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