State v. Quinn

• Decision Date: 11 February 1980
• Docket Number: No. 61266,61266
• Citation: 594 S.W.2d 599
• Parties: STATE of Missouri, Respondent, v. Joe Nathan QUINN, Appellant.
• Court: Missouri Supreme Court

Page 599

594 S.W.2d 599

STATE of Missouri, Respondent, v. Joe Nathan QUINN, Appellant.

No. 61266.

Supreme Court of Missouri, En Banc.

Feb. 11, 1980.

Rehearing Denied March 11, 1980.

Robert C. Babione, Public Defender, St. Louis, for appellant.

John Ashcroft, Atty. Gen., John M. Morris, III, Asst. Atty. Gen., Jefferson City, for respondent.

MORGAN, Judge.

Convicted by a jury of armed robbery, appellant was sentenced under the Second Offender Act ¹ to a term of twenty years. The Court of Appeals, Eastern District, affirmed the conviction in an opinion written by Crist, J. For the purpose of considering again the law regarding "instructing specially on mistaken identification," we ordered transfer and now decide the cause as an original appeal.

The sufficiency of the evidence is not challenged, and a brief recitation of the facts should suffice. About 11 o'clock one night a man and woman approached the office drive-in window of the Ebony Motel. The man inquired about room rates, then pointed a gun at the clerk and announced a holdup. The clerk put money, approximately $250.00, in the window. The man took it and fled.

Nine days later appellant was arrested in connection with the robbery. A few hours after the arrest, the clerk identified appellant in a lineup of five male subjects as the man who robbed her.

Appellant objects to the following in this appeal: (1) the admissibility of the state's proof of a prior conviction to invoke the Second Offender Act; (2) use of prior "invalid" convictions for impeachment; (3) testimony of the state's witness as to details of her pretrial identification of appellant; (4) absence of counsel at the lineup; and (5) the refusal to submit appellant's instruction on identification.

We find these claims without merit and affirm the judgment.

For the Second Offender Act to apply in a criminal prosecution the state must prove that the defendant was convicted of a prior offense punishable by imprisonment in the penitentiary, that he was sentenced for that offense and that he was placed on probation, paroled, fined or imprisoned therefor. State v. Blackwell, 459 S.W.2d 268 (Mo. banc 1970). To meet this burden the prosecutor in this case presented the testimony of the deputy circuit clerk and certain certified records. Outside the hearing of the jury, the clerk read into the record an entry in the minute book of the circuit court in which appellant first was convicted, which was as follows:

Wednesday, July 29, 1970, 2654-R, State of Missouri v. Joseph Nathan Quinn, 1969, on Information for Carrying a Concealed Weapon: Now on this day comes the Assistant Circuit Attorney for the State, and the Defendant herein, in person and in the custody of the Sheriff of this City, and in the presence of Robert G. McClintock, attorney and counsel, in open Court;

Whereupon, the Court orders the official court reporter to take notes to preserve the evidence;

Whereupon, by leave of Court and consent of the State, the Defendant withdraws his former plea of not guilty and now enters a plea of guilty to the crime of Carrying a Concealed Weapon, said plea being accepted by the Court upon a recommendation of the Assistant Circuit Attorney for the State; and being now asked by the Court if he has any cause to show why judgment should not be pronounced against him according to law, and still failing to show such cause, it is therefore sentenced, ordered and adjudged by the Court that the said Defendant Joseph Nathan Quinn, having pleaded guilty as aforesaid under an Information against him, shall be confined to the Department of Corrections of the State of Missouri for a period of Two (2) years, there to be kept and stand committed in the Department of Corrections and confined until the judgment and sentence of the Court herein be complied with or until said Defendant shall be otherwise discharged by due course of law.

It is further ordered by the Court that the Defendant be allowed six (6) months jail time prior to conviction in the above-titled cause.

It is further considered, ordered and adjudged by the Court that the State have and recover of said Defendant the costs in this cause expended, and that hereof execution issue therefor.

After a brief cross-examination, appellant's counsel objected to the admission of the record and moved to strike it on the ground that it did not show that appellant had waived his right to trial by jury and all the constitutional rights connected therewith or that the plea had a factual basis. This objection was overruled.

The prosecutor then introduced for the record a certified transcript of appellant's serial record from the Division of Corrections to establish the facts of his incarceration in prison and his subsequent discharge. Over more objections unrelated to this appeal, this record also was accepted by the court. The court then asked appellant's counsel if he had any other evidence he wished to offer with regard to these matters. Counsel replied he did not.

It is clear from these facts that the state met its burden by the admission of testimony and certified records to invoke the application of the Second Offender Act. In order to accept appellant's claim on this point, the Court would have to find the following: (1) that the minutes as admitted constituted the entire record of the guilty plea proceeding; (2) that as such the record was invalid on its face; (3) that the requirements of Rule 25.04 on the court's duty in accepting a guilty plea must be met affirmatively by the state in its proof for the application of the Second Offender Act; and (4) that upon objection to the "record" by appellant, the state has a further burden of overcoming such objection. This we cannot do under the facts of this case.

First of all, the certified records presented by the state were sufficient to require application of the Second Offender Act. The state need not present in such a case an entire transcript of a previous conviction showing all the circumstances and conditions surrounding that conviction. Because the entire record need not be presented, it cannot be alleged that the "record" is invalid on its face. The "record" as such is not before the court, only parts of it are. Moreover, because certain recitations are not in the minutes presented by the state, it cannot be assumed that the entire record is invalid for lack of those recitations.

The claim that the "record" is invalid on its face is crucial to appellant's point here because the majority rule, followed by Missouri, is that a person being prosecuted as a second offender may not raise questions of mere error in the former conviction to prevent the use of the Second Offender Act. State v. Goff, 449 S.W.2d 591, 593 (Mo. banc. 1970); State v. Brinkley, 354 Mo. 337, 189 S.W.2d 314, 331 (Mo.1945). As noted before, the whole "record" was not presented to the court, and on that basis alone, it cannot be said that the "record" is invalid on its face. In addition, appellant claims that Rule 25.04 is the guide by which it should be determined whether the requirements of the United States Constitution were met in appellant's prior conviction. If it were true that this rule was controlling in a Second Offender case such as this, appellant's point still must fail because it has been held that the lack of strict compliance with Rule 25.04 does not require that the guilty plea be set aside or vacated unless it can be established by a preponderance of the evidence that the plea was entered involuntarily or without the defendant understanding the nature of the charge. Tyler v. State, 476 S.W.2d 611 (Mo.1972); Huffman v. State, 451 S.W.2d 21 (Mo.1970); State v. Mountjoy, 420 S.W.2d 316 (Mo.1967). No evidence to this effect is present here.

As to the burden in a case such as this, appellant seeks to avoid his responsibility by circumventing the usual procedural requirements. As the Eastern District properly noted in its decision in this case, State v. Goff, supra, bars appellant's objection to admission of the prior conviction at a subsequent trial because of his failure to take timely advantage of the various remedies provided to set aside the judgment for invalidities not apparent on the face of the judgment. This rule applies because no patent invalidity of the record exists in this case. Had appellant attempted to set aside the judgment through direct appeal of the earlier conviction, a Rule 27.26 motion or a writ of error coram nobis, the burden of establishing grounds for relief would have been on him. See, e. g., State v. Jackson, 477 S.W.2d 47 (Mo.1972); Mooney v. State, 433 S.W.2d 542 (Mo.1968); and State v. Stodulski, 298 S.W.2d 420 (Mo.1957). Appellant asserts that he did not file a 27.26 motion because he did not desire to run the risk, having served the sentence long ago, of being retried and subjected to another sentence. He sought a much more limited type of relief, to which end he objected to the state's use of the record of the prior conviction. It must be noted, in passing, that appellant's proper remedy, assuming he would be entitled to any relief, would have been by writ of error coram nobis because Rule 27.26 is limited to proceedings by persons still serving the sentence they seek to challenge. Regardless of the label, however, appellant cannot shift what would have been his burden of proof in the usual postconviction proceeding by using another approach to obtain the same result. Therefore, even if this Court were to allow this attack on the prior conviction despite appellant's failure to timely pursue the proper remedy, appellant could not prevail because he did not present any evidence to support his challenge.

It also is interesting to note in this regard that at no time in this case, from the objection at the robbery trial through the briefs and oral arguments before this Court, has appellant claimed that his plea to the earlier charge was involuntary or otherwise violative of his...