State v. Slicker
| Decision Date | 13 February 1961 |
| Docket Number | No. 2,No. 48367,48367,2 |
| Citation | 342 S.W.2d 946 |
| Parties | STATE of Missouri, Respondent, v. Norman L. SLICKER, Appellant |
| Court | Missouri Supreme Court |
No attorney for appellant.
John M. Dalton, Atty. Gen., Robert T. Donnelly, Sp. Asst. Atty. Gen., for respondent.
A jury found the defendant guilty of escaping jail before conviction, Sec. 557.390, RSMo 1949, V.A.M.S., and assessed his punishment at imprisonment in the state penitentiary for a term of two years. After the defendant's motion for new trial was overruled, he was sentenced in accordance with the verdict. In due course he appealed from the judgment of conviction.
No brief has been filed by the defendant and the case is before us on the transcript of the record and the brief of the state. In this situation our review extends to the assignments of error properly preserved in the motion for new trial and the essential portions of the record. Supreme Court Rules 27.20 and 28.02, V.A.M.R.; State v. Archer, Mo., 328 S.W.2d 661, 663. A liberal construction of the motion permits a review of alleged errors in the admission of evidence, the refusal of the court to allow the defendant sufficient time in which to procure witnesses and the failure to provide the defendant with adequate counsel.
The record shows that the defendant refused the appointment of counsel and chose to represent himself. At a hearing on March 14, 1960, in open court, the court advised the defendant of the nature of the charge against him and that on a plea of guilty or conviction by a jury he might be sentenced to the penitentiary. At that time the defendant told the court his attorney was Mr. Robert E. Yocum. On March 17 a letter from Mr. Yocum stating that he had not been employed to represent the defendant was received by the prosecuting attorney.
On March 21, 1960, the court appointed Mr. Bradford, a leading member of the Phelps County Bar and a lawyer with many years of experience, to represent the defendant. After conferring with Mr. Bradford, the defendant informed the court he did not care to have Mr. Bradford represent him and that he would like to represent himself. There followed a discourse between the court, the defendant, and Mr. Bradford, the report of which occupies ten pages of the transcript. Mr. Bradford told the court that the defendant had the idea that he could build a defense around 'the conditions of the jail' and that he was insisting on bringing prisoners back from the penitentiary to testify, but that he, Mr. Bradford, had advised the defendant that the proposed proof did not constitute a legal defense to breaking jail. The court told the defendant that it was best to have a lawyer represent him and that he should follow the advice of his lawyer. This the defendant refused to do as shown by this excerpt:
'The Court: You--you won't follow the advice of the lawyer?
'The Defendant: Not when it endangers the defense that I believe that could get me off with less than two years on this charge.'
The court told the defendant that he could not expect a reputable lawyer to subpoena witnesses which could not give material testimony. The court again advised the defendant of the nature of the charge against him and the possible punishment upon conviction. The defendant said that he understood this and admitted that he had had considerable experience in courts. Again at the conclusion of the hearing the defendant declined Mr. Bradford's services and waived the appointment of an attorney. The defendant was 27 years of age at the time. The court entered a finding that the defendant was mentally able and sufficiently informed to decide his need for counsel and that the failure to appoint counsel would not result in injustice to him. The court then set the case for trial on April 1st and informed the defendant that he would be expected to go to trial on that date.
The defendant alleges that 'counsel was inadequate due to the fact he had no knowledge of the case previous to his appearance in court on the date of the trial'. This assertion is wholly at variance with the facts shown by the record. When the defendant defaulted in obtaining counsel of his own choosing, after having been given an opportunity to do so, the court appointed able and experienced counsel to conduct the defense in full compliance with Art. I, Sec. 18, of the Constitution of Missouri, V.A.M.S., Sec. 545.820, RSMo 1949, V.A.M.S., and Supreme Court Rule 29.01. The defendant declined to accept the services of the counsel so appointed and elected to conduct his own defense. The court's finding that the defendant was mentally able and sufficiently informed to decide his need for counsel is well supported by the record. In these circumstances the defendant was entitled to represent himself and the court cannot be convicted of error in permitting him to do so. State v. Glenn, Mo., 317 S.W.2d 403, 407; State v. Warren, Mo., 321 S.W.2d 705, 709; State v. Thompson, Mo., 324 S.W.2d 133, 139.
The state's evidence tended to prove that a criminal case charging the defendant with stealing a motor vehicle in Texas County was sent to Phelps County on change of venue; that the sheriff of Texas County delivered the defendant to the sheriff of Phelps County and the defendant was committed to the Phelps County jail awaiting trial; that on June 28, 1959, it was discovered that a hole had been dug through the wall of the county jail and that the defendant had escaped during the nighttime; that the jail had been properly secured and the doors locked and that the lock had been sawed from the cell in which the defendant was confined. The defendant was apprehended in Denver, Colorado, and returned to Phelps County. The defendant's cross-examination of the sheriff of Phelps County was concluded as follows;
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...in the defendant's motion for a new trial and designated portions of the record. S.Ct. Rules 27.20 and 28.02, V.A.M.R.; State v. Slicker, Mo., 342 S.W.2d 946, 947. The principal grounds for new trial alleged in the defendant's motion are that the trial court erred in the admission of certai......
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