State v. Parker

• Decision Date: 10 April 1967
• Docket Number: Nos. 51972--51974,s. 51972--51974
• Citation: 413 S.W.2d 489
• Parties: STATE of Missouri, Appellant, v. Anderson PARKER, Respondent.
• Court: Missouri Supreme Court

Page 489

413 S.W.2d 489

STATE of Missouri, Appellant, v. Anderson PARKER, Respondent.

Nos. 51972--51974.

Supreme Court of Missouri, En Banc.

April 10, 1967.

Norman H. Anderson, Atty. Gen., James E. Darst, First Asst. Circuit Atty., St. Louis, John H. Denman, Asst. Atty. Gen., Jefferson City, for appellant.

Bruce Nangle, St. Louis, for respondent.

HENLEY, Judge.

The State appeals from judgments of the circuit court of the City of St. Louis entered January 20, 1966, setting aside judgments of conviction of respondent entered November 1, 1961, in three felony cases. The three appeals were consolidated for briefing, hearing and argument by order of this court; one opinion will decide the three. The respondent will be referred to as defendant.

By three indictments filed July 20, 1961, defendant was charged as follows: in case number 1074--J, with robbery in the first degree of Harold Siefert on June 30, 1961, section 560.120 (all references to statutes are to RSMo 1959 and V.A.M.S.); in case number 1075--J, with assault of Thomas Crowe with intent to kill with malice aforethought on the same day, June 30, 1961; in case number 1076--J, with assault of Edward Harper with internt to kill with malice aforethought on the same day, section 559.180. The three men named above, Siefert, Crowe and Harper, were, on June 30, 1961, members of the St. Louis Metropolitan Police Department. Each indictment also charged that defendant had been convicted of four prior felonies and sentenced and imprisoned therefor. Section 556.280.

On November 1, 1961, the robbery case (No. 1074--J) came on for trial in Division Twelve before a jury and the Honorable Ivan Lee Holt, Jr., judge. Defendant was represented by experienced able counsel. At the end of a recess near the close of the day, after the state had obviously made a strong submissible case, defendant announced he would withdraw his plea of not guilty and enter a plea of guilty to this charge and the charges in cases numbered 1075--J and 1076--J. Evidence in the robbery case will be referred to later. The court accepted the pleas of guilty, sentencing defendant to imprisonment for thirty years in the robbery case and thirty years' imprisonment in each of the assault cases, the sentences to run concurrently.

On October 20, 1964, while serving his sentences in the penitentiary, defendant filed the instant motion to set aside the judgments of conviction and permit him to withdraw his pleas of guilty. Criminal Rule 27.25 (all references to rules are to Rules of the Supreme Court of Missouri and V.A.M.R.). The motion was heard on February 16, 1965, by the Honorable Alvin J. McFarland, judge. Defendant appeared in person and was represented by counsel of his own choice. Thereafter, on January 20, 1966, the court sustained the motion and set aside the judgments, from which orders the state has appealed. The evidence in support of the allegations of the motion, mostly by way of depositions, will be referred to later.

The trial court having set aside final judgments of conviction, the state is entitled to appeal, Criminal Rule 28.04(b) and §§ 547.200 and 547.210, and this court has jurisdiction, because convictions of felonies are involved. Article V, § 3, Constitution of Missouri, V.A.M.S., State v. Skaggs, Mo., 248 S.W.2d 635, 636(2).

The evidence in the robbery case supports a finding of the following facts. On June 30, 1961, the date of the robbery, Patrolman Harold Siefert, Sergeant Edward Harper and Detective Thomas Crowe were on duty with the Operative Deployment Section, better known as the Decoy Squad. That evening, at about nine o'clock, they and other members of the Squad were patroling an area of high crime incidence in the city, described as being between Franklin avenue on the south and Carr on the north, Sixth street on the east and Tenth on the west. Their method of patroling the area was for some of the officers to walk assigned streets in plain clothes equipped with miniature radio equipment by which they could communicate with each other and other members of the squad in nearby unmarked like-equipped police cars, commonly referred to as police cruisers. In addition to these officers the squad consisted of Detective Norman Kleifisch, Detective John Housley and Patrolwoman Phoebe Blunk. The evening was still light enough at the time of the robbery and subsequent events to distinguish personal features, according to Patrolwoman Blunk.

The patrol began at Sixth street, on the east, with three officers starting at the same time from that point to walk west toward Tenth on separate avenues; Patrolman Siefert was walking the south side of Carr; Detective Housley was walking Cole, the next avenue south of Carr; Detective Kleifisch was walking Franklin, the next avenue south of Cole. Sergeant Harper, supervisor of the squad, followed in a police cruiser at some distance behind the walking officers. Detective Crowe and Patrolwoman Blunk were in a police cruiser moving west, ahead of the walking officers. The walking officers were required to maintain approximately the same pace, stop at each intersection to ascertain whether the others had reached that point on their avenues, and maintain radio contact with each other and the two cruisers.

When Siefert reached the corner of Ninth and Carr he discovered he was ahead of his partners walking Cole and Franklin; to kill time he walked across Ninth and stepped into a nearby outside telephone booth, pretending to look for a number in the directory. He was immediately attacked from behind by defendant and another negro man. He was struck on the head, knocked down, and, while fighting back, was pulled out of the booth, knocked down to the sidewalk, and viciously mauled, kicked and beaten to the point of bare consciousness. His clothes were torn to shreds as the two negroes were taking his wallet, wristwatch, service revolver and handcuffs. As the handcuffs were taken one of the men exclaimed 'this guy is cop,' and they broke and ran west on Carr toward a nearby alley where defendant and his partner separated, defendant heading south into the alley leading to Cole. During the affray Siefert managed to activate his transmitter and call for help. Police cruisers converged on the area, and as Siefert was getting in Sergeant Harper's cruiser they saw defendant, in a yellow shirt, turn into the alley. They followed defendant through the alley to Cole, and east on Cole to Ninth where defendant turned north back towards Carr into the arms, so to speak, of Detective Crowe. A struggle ensued between defendant and Crowe during which the officer was shot in the knee and, as defendant was escaping, he was shot in the back by Crowe. As he escaped Crowe other officers took up the pursuit, during which several shots were exchanged between defendant and the pursuing officers. Defendant outdistanced the officers and ran into a nearby housing development, the Cochran apartments; there he was captured and Siefert's service revolver with three spent cartridges taken from him. Patrolwoman Blunk testified she was within fifteen feet of defendant and Detective Crowe during Crowe's attempt to subdue and arrest defendant; she saw Crowe, shot, drop to the street; she positively identified defendant at the trial. Detective Harper testified that as he pursued defendant beyond Crowe defendant fired at him.

The substance of the allegations of defendant's motion is that he is innocent of the three charges; that since his incarceration in the penitentiary he has received information that evidence exists which will prove his innocence, evidence withheld from him by the state in violation of his constitutional rights. The evidence to which he refers is stated briefly in an affidavit of his trial attorney, attached to the motion. The affidavit states, in substance that prior to and at the time of the robbery trial and pleas of guilty counsel and defendant were led to believe that the bullet which struck Detective Crowe had been fired by defendant. The affidavit implies that the fact is that it had been determined by the state before trial that the bullet extracted from Crowe's knee had not been fired by defendant, but had been fired by a police officer; that the state had this information before and during the trial, but withheld it from defendant and his counsel.

There is no need to relate in detail the testimony of all the fourteen witnesses called to the stand by defendant at the hearing on his motion; much of it was not particularly pertinent to the issues. No evidence was offered by the state. Those testifying included the judge who presided at the robbery trial; the attorneys representing the respective parties in that trial; the circuit attorney; all police officers of the Decoy Squad and other officers in any way involved in the occurrence of June 30, 1961, and their superior officers, including the Chief of Police; and officers and technicians of the police department laboratory who made ballistic tests of the bullet removed from Crowe's knee, Officer Siefert's revolver found in defendant's possession at arrest, and all other police weapons fired during this general melee. This evidence showed conclusively that the bullet which struck Crowe while he was struggling with and trying to apprehend defendant was not fired by defendant from Siefer's revolver, as had been first assumed, but was fired by Sergeant Harper from his revolver. This information was in the possession of the police department, and known to the commanding officer of the Decoy Squad and all of his superiors including the Chief of Police, not later than September before defendant pleaded guilty on November 1, to the charge of assault of Officer Crowe and the other two charges. It is not clear as to when this information was conveyed to the Circuit Attorney's office and the state's trial attorney, but it would be reasonable to conclude it was known by them before the pleas of guilty...