State v. Rollie

• Citation: 585 S.W.2d 78
• Decision Date: 11 June 1979
• Docket Number: No. 29515,29515
• Parties: STATE of Missouri, Respondent, v. Henry ROLLIE, Appellant.
• Court: Court of Appeal of Missouri (US)

Page 78

585 S.W.2d 78

STATE of Missouri, Respondent, v. Henry ROLLIE, Appellant.

No. 29515.

Missouri Court of Appeals, Western District.

June 11, 1979.

Application to Transfer Denied Sept. 11, 1979.

Henry M. Rollie, pro se.

Donald O. Tripp, Liberty, for appellant.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.

Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.

MANFORD, Judge.

Direct appeal from jury conviction for murder in the first degree. Jury affixed punishment at life imprisonment. Motion for new trial timely filed and overruled. Affirmed.

This court is presented with fifteen points upon which to rule. Seven of these points come by way of appellant's brief filed by court appointed counsel. Eight of these points come by way of appellant's pro se brief.

Recitation of pertinent facts is a necessity created by the admixture of points raised.

The Grand Jury of Clay County, Missouri indicted appellant on charges of attempted robbery and felony murder on March 17, 1976. Attorney Brian Hall was appointed to defend appellant.

On April 22, 1976, appellant filed his motion for change of venue and after a hearing upon the motion, the cause was transferred to Clinton County. Attorney Hall was granted leave to withdraw as counsel, and attorney Joe Scott was appointed his successor. On November 10, 1976, appellant was reindicted in Clay County for first degree murder pursuant to § 559.007, RSMo Supp.1975. Attorney Hall was reappointed defense counsel, but at appellant's request, was relieved and the court appointed P. Wayne Kuhlman as defense counsel.

On December 19, 1976, appellant filed his request to represent himself. The record in this case is replete with the questioning concerning this request and following an extensive hearing, the trial court concluded appellant was sufficiently intelligent, educated and mentally aware to have made his request voluntarily and with full knowledge and understanding of his actions. The court ordered attorney Kuhlman to be present at trial and to assist appellant should appellant make a request for assistance.

Appellant then filed a series of motions as follows:

(1) Request for use of telephone

(2) Request for use of law library at prescribed hours 3-4 days per week.

(3) Copies of transcripts of co-defendants trials.

On March 25, 1977, a substitute information for the indictment was filed, charging appellant with first degree murder. Appellant filed a motion for a Bill of Particulars, which was sustained and an answer thereto was filed by the state. On April 4, 1977, the trial commenced with appellant acting as his own defense counsel, assisted by attorney Kuhlman.

The evidence of record is summarized as follows:

On March 10, 1976, between 10:00 a. m. and 10:30 a. m., three armed and masked men entered the North Hills Bank in Clay County. Two employees, two customers and the security guard were in the bank. Almost simultaneously with the robbers' entry into the bank, gunshots were exchanged between the would-be robbers and the security guard. The guard suffered multiple and fatal wounds. The robbers fled the scene, taking no money with them. Upon their flight, two of them were observed by a passing motorist. This motorist followed the get-away car and secured the license number. The get-away car, a 1973 gold Ford LTD, was found abandoned later and was determined to have been stolen.

One of the robbers fled on foot and was observed by another witness. This witness observed this robber removing his coveralls. The witness later identified this robber upon a separate trial as one Robert Denson.

The evidence further established that on March 10, 1976, one Mary Morris had granted permission to one James Faulkner to use her apartment in Jackson County, Missouri for a meeting. This meeting commenced at 8:30 a. m. and appellant was present along with Cardis Berry, James Faulkner, Steven Williams, Robert Denson and Jerome Handley. Upon arrival, all were dressed in street clothes, but upon departure, Handley, Williams and Denson wore striped jumpsuits.

At approximately noon on March 10, 1976, appellant and James Faulkner returned to the Morris apartment to listen to the news. Shortly after their arrival, they were joined by Handley and Williams.

Appellant and Faulkner inquired as to where the money was and were advised by Handley and Williams that there was no money and that there had been trouble with the security guard. Morris testified that appellant became angry upon learning of the results. Approximately 10 minutes later, Berry arrived at the apartment by cab, but Morris did not admit him to the apartment.

James Faulkner, turning state's evidence in exchange for a 15 year sentence, testified that in January of 1976, he commenced plans for the robbery of the bank. He further testified that in mid January, he discussed the matter with appellant and appellant agreed to rob the bank. He further testified that he, appellant and others drove to Clay County to "scope" the bank for purposes of furthering the robbery plans. Faulkner further testified appellant solicited Steven Williams for the latter's role in the robbery. The plan called for Handley, Williams and Denson to rob the bank.

A gold LTD and a blue and black Buick were stolen for use in the robbery scheme. At 8:00 a. m. on the morning of the robbery, Faulkner, appellant and the others met at Faulkner's apartment. At this meeting, the weapons "were wiped down" for purposes of removing fingerprints. Three striped jumpsuits and ski masks were furnished Handley, Williams and Denson.

Faulkner, appellant and Berry were driven to the Morris apartment by one Loren Brown. Brown had been persuaded to drive the trio to the Morris apartment by Faulkner. En route to North Kansas City in Clay County, appellant left the others to make an appearance at a place called Coach's Council at 18th and Paseo, Kansas City, Jackson County, Missouri. Appellant was required to appear at the Coach's Council at the direction of appellant's parole officer.

The plan included appellant being picked up by Faulkner at 18th and Paseo. Faulkner, upon his return from Clay County, picked up appellant. Appellant and Faulkner returned to the Morris apartment to await the return of the others.

Appellant was arrested in Jackson County, Missouri on March 15, 1976. When taken into custody, appellant was hiding under a chest of drawers. Appellant had in his possession two bus tickets. One ticket was good for a trip from Kansas City to St. Louis; the second, from St. Louis to Washington, D.C.

Appellant did not testify upon trial, but called two witnesses in his behalf. The first witness was Steven Williams. This witness admitted his participation in the crime, but denied seeing the appellant upon the day the crime was committed. This witness, upon his own trial concluded previously, testified, however, appellant was involved, but explained his change of story because Faulkner had told him to testify against appellant in his own trial.

The second witness, Jerome Handley, admitted his role in the robbery, but testified appellant was not involved or present at its planning. At the close of the evidence, the jury found appellant guilty and assessed his punishment.

Fifteen alleged errors are presented by appellant's counsel and by appellant's pro se brief. ¹

I (Counsel)

"The trial court erred in failing to inquire into defendant's request for change of venue and in trying the defendant in Clay County, Missouri."

I (Pro se)

"The trial court was without jurisdiction to try appellant as the evidence failed to establish that appellant commited (sic) any offence (sic) in Clay County."

Point one is ruled against appellant. Allegations that the court should have inquired into appellant's request for change of venue is not supported by the evidence. The record shows appellant was furnished case law and procedural instructions by attorney Kuhlman; appellant did nothing relative to a formal motion for change of venue.

Rule 30.04 requires an application for a change of venue shall be made, setting forth the facts or grounds upon which such change is sought.

Appellant cannot be heard to complain on this point for three reasons. First, counsel had advised him as to what was needed. Appellant rejected this advice. Secondly, appellant had, pursuant to the first indictment, successfully filed and was granted a change of venue, and was to that extent, familiar with the necessity to make a formal request for a change of venue. Finally, appellant refused to permit such a motion to be filed. Mere general allegations of prejudice without facts supporting the allegations do not suffice. See State v. Denmon, 473 S.W.2d 741 (Mo.1971), State v. Euge, 349 S.W.2d 502 (Mo.App.1961).

There is nothing in the record on this case to even suggest that the procedure or the jurors selected were prejudiced against appellant. The failure or refusal of the court on its own motion to order a change of venue was not an abuse of discretion.

As to the matter raised in appellant's brief (Pro se I), it is likewise without merit.

It is true our state constitution, Article I, § 18(a), insures to an accused the right to a speedy trial by an impartial jury of the county. This has been interpreted to mean a speedy trial by an impartial jury of the county wherein the crime was committed. This constitutional guarantee is further supported by statute, see § 541.033, RSMo 1969, which provides:

"Persons accused of committing offenses against the laws of this state, except as may be otherwise provided by law, shall be prosecuted:

1. In the county in which the offense is committed . . ."

In resolving this point, specific statutory language and the evidence of record as it interrelates to the statutes, must be considered conjunctively.

Appellant argues he was an alleged aider and abettor, thus concluding he was at best an accessory before...