State v. Reese

• Decision Date: 13 July 1970
• Docket Number: No. 54591,54591
• Citation: 457 S.W.2d 713
• Parties: STATE of Missouri, Respondent, v. Samuel Norbert REESE, Appellant.
• Court: Missouri Supreme Court

Page 713

457 S.W.2d 713

STATE of Missouri, Respondent, v. Samuel Norbert REESE, Appellant.

No. 54591.

Supreme Court of Missouri, En Banc.

July 13, 1970.

Rehearing Denied Sept. 14, 1970.

John C. Danforth, Atty. Gen., E. Thomas Coleman, Jr., Asst. Atty. Gen., Kansas City, for respondent.

M. E. Stokes, St. Louis, for appellant.

ROBERT G. BRADY, Special Judge.

Defendant filed his Motion to Vacate Judgment under Criminal Rule 27.26, V.A.M.R. Following an evidentiary hearing the motion was denied. He appeals alleging the trial court erred in its ruling on his motion for the reason the record demonstrates a violation of Criminal Rule 25.04, V.A.M.R. By opinion of May 11, 1970, this court granted defendant the relief requested. That opinion was withdrawn and the matter again taken under submission.

Defendant was charged with the first degree murder of one Zagib while in the course of an armed robbery of a store and with the same offense as to one Krieger while in the course of an arumed robbery of the Windsor Hotel. He was also charged with armed robbery. The record before us indicates that charge was related to one of the acts resulting in the deaths of Krieger and Zagib. However, by referring to the original file in the armed robbery charge we have determined it arose from the alleged robbery of one Russell. In 1952 defendant was tried for the Krieger killing, found guilty and sentenced to death. The other two charges were then nolle prossed; his conviction was set aside (see State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (1954)); and he was returned to jail in the City of St. Louis to await retrial. The nolle prossed charges were reinstated. By his request and with the consent of the state, retrial was assigned to the Honorable Robert L. Aronson who had presided at the first trial. As the date for retrial approached defendant was adamant in his refusal to enter a plea of guilty. Nevertheless, defendant's Exhibit C, a transcript of the proceedings, shows that defendant did plead guilty to all three charges.

The proceedings took place on two separate days. The trascript consisting of twenty-two pages contains only two questions directed to the defendant by the court bearing on the issue before us. Those were: 'Now, Samuel Reese, have you heard what Mr. Block just said that you withdraw your plea of not guilty and that you desire to plead guilty? MR. REESE: (No answer) THE COURT: I have to hear an answer. You must speak aloud. In other words, it is your desire to plead guilty on these three charges? MR. REESE: Yes.' The transcript of the proceedings held on this occasion is entirely silent as to any other efforts to determine if defendant's plea was voluntarily made with understanding of the nature of the charges against him.

The transcript discloses that defendant entered his pleas as above stated on Tuesday, April 4, 1955, and on that day was sentenced to life imprisonment for the Krieger murder; Case No. 396. The trial court recessed the proceedings until Thursday, April 6, 1955. Upon resuming, the court heard from the circuit attorney and defense counsel as to suggested sentences, and dwelt at length upon his reasons for the sentences in Cases 573--D and 574--D; respectively the murder of Zagib and the armed robbery of Russell. At the conclusion of its remarks the trial court asked if there were any reason why sentence should not then be pronounced. The transcript discloses his attorney stated: 'I want the record to show that defendant requests that he be sentenced in accordance with the pleas of guilty.' The trial court then announced a sentence of life imprisonment for the Zagib murder (Case 573--D) and ordered the sentence to run consecutively. At the same time it announced a term of 75 years for the armed robbery charge. At the conclusion of the court's statement of the sentences, the record discloses the circuit attorney asked whether the armed robbery sentence would run consecutively. The court stated: 'I don't think it is too material.'

For the purpose of showing defendant's general mental condition at the time of sentencing in 1955, evidence consisting of testimony given in the 1952 trial by Drs. Mary Ellen Steele and William Nelson, witnesses for the defense, and by Dr. Sassin, for the state, was introduced. From that it appears that Drs. Steele and Nelson tested defendant under procedures Dr. Sassin agreed were proper to determine his intellectual level and found his mental age in 1952 to be 12 years and 9 months. Dr. Sassin testified appellant was neurotic and psychopathic to an extent but that he was able to distinguish between right and wrong. At the evidentiary hearing defendant's expert medical witness testified defendant had an IQ of 65 which classified him as a mentally deficient person; a moron. He also testified that defendant's mental level had not improved since 1952 and would not do so. There was no contradictory evidence.

Defendant denied he was given any explanation of or warning or admonition concerning the nature of his charges or the consequences of his plea of guilty. He maintains he would not have entered his plea had he understood the nature of the charges and had the consequences of the entry of that plea been explained to him.

At the evidentiary hearing defendant denied he killed Krieger but admitted his participation in the armed robbery in which Krieger was killed. He was asked if he participated in the armed robbery during which Zagib was killed and if he killed Zagib. He denied doing either act. He was then asked if he wrote a letter to Judge Aronson dated Feb. 15, 1968. He answered that he had and identified the letter as being in his own handwriting. The following then occurred: 'Q This does refresh your recollection? A That does not say I killed George Zabig (sic). MR. STOKES: Could you give me a date on that letter? MR. BANTLE: It is dated February 15, 1968. A You did not ask me what I said, you asked what I did. Q (Mr. Bantle) I asked you, first of all--A I wrote the letter, I did indeed. THE COURT: Mr. Reese, you will not argue with counsel, you will have a chance to make any explanation you care to make. A All right, Sir. (Document handed to the witness by counsel for the Plaintiff.) A I see that. Q (Mr. Bantle) Mr. Reese, my question to you was whether or not you had participated in the killing of Mr. George Zagib and I believe you answered you had not? A I did not participate in the direct killing, no.' Later the following portion of the letter was read to him and he acknowledged he wrote the following: '* * * 'I was not a principal in the killing of John Krieger nor in the wounding of Officer Johnson, only in that of George Zagib, and in the Windsor Hotel incident elevator operator Crump, notwithstanding I pleaded guilty to all these offenses. If such things can ever be atoned for, as the Law implies, who sentenced a man to imprisonment for them, I feel seventeen years here, four of which awaiting death, should suffice for the one man I have killed and the other I have once seriously hurt'; * * *.' Later the state was asked if it was going to offer the whole letter and stated it was not. The following then occurred: 'MR. STOKES: I see. I want to put into evidence, so the entire letter is before the Court, State's Exhibit Number 1, and I offer it at this time. THE COURT: Any objection? MR. BANTLE: Yes, for the reason it contains many matters that are hearsay, immaterial and irrelevant. I have not offered the letter, I have marked it and the defendant confirmed he did write and say the things I wanted to establish. THE COURT: May I see the Exhibit? MR. BANTLE: Surely. (Document handed to the Court by counsel for Plaintiff.) THE COURT: The offer of State's Exhibit Number 1 by the defendant in evidence will be refused on the grounds it contains statements that are self-serving and hearsay. You may proceed.'

Defendant cites Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), contending that decision requires reversal of this judgment. We cannot agree. In Crego v. State, Mo., 447 S.W.2d 550, and State v. Roach, Mo., 447 S.W.2d 553, this court held Boykin and McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), applicable only to those defendants whose guilty pleas were accepted after April 2, 1969. See Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16. We rule this case on Missouri law.

Criminal Rule 25.04, in effect in this state since January 1, 1953, forbids acceptance of a plea of guilty without a determination first being made the plea is voluntarily made with understanding of the nature of the charge. This rule is but a condification of case law in this state which has long required the trial court to protect the rights of an accused. See State v. Stephens, 1880, 71 Mo. 535, l.c. 536. The case law interpretations of the rule are too well known to require extensive repetitive statement in this opinion. See Drew v. State, Mo., 436 S.W.2d 727; State v. Sayre, Mo., 420 S.W.2d 303; Mooney v. State, Mo., 433 S.W.2d 542; Crosswhite v. State, Mo., 426 S.W.2d 67, l.c. 70; State v. Mountjoy, Mo., 420 S.W.2d 316; State v. Roach, supra. Neither will it serve any useful purpose to further dwell upon those or other similar cases in an attempt to rule or to distinguish the instant appeal by what is held therein. Each case must stand upon its own merits.

In essence, a plea of guilty is a confession in open court and like a confession made out of court it should be received with caution and never so unless it is fully and voluntarily made with understanding of the nature of the charge or charges. State v. Edmondson, Mo., 438 S.W.2d 237. The law favors the trial of all criminal cases and the greater the offense the greater is the reluctance of the courts to accept a plea of guilty. State v. Hardy, 339 Mo. 897, 98 S.W.2d 593. In State v. Williams, Mo., 361 S.W.2d 772, this court held: 'Certainly in a...