State v. Turley

• Decision Date: 12 June 1967
• Docket Number: No. 1,No. 52206,52206,1
• Citation: 416 S.W.2d 75
• Court: Missouri Supreme Court
• Parties: STATE of Missouri, Respondent, v. Virgil Lewis TURLEY, alias Glen H. Tracy, Appellant

Page 75

416 S.W.2d 75

STATE of Missouri, Respondent, v. Virgil Lewis TURLEY, alias Glen H. Tracy, Appellant.

No. 52206.

Supreme Court of Missouri, Division No. 1.

June 12, 1967.

Motion for Rehearing or for Transfer to Court en Banc Denied

July 10, 1967.

Norman H. Anderson, Atty. Gen., Thomas J. Downey, Asst. Atty. Gen., Jefferson City, for respondent.

Virgil L. Turley, pro se.

HOLMAN, Presiding Judge.

This appeal is from an order overruling defendant's motion (filed under S.Ct. Rule 27.26, V.A.M.R.) to vacate judgments and sentences theretofore imposed upon defendant. The judgment involved were entered on June 14, 1965, when defendant, after appointment of counsel, entered a plea of guilty to charges of burglary and stealing. He was sentenced to imprisonment for four years for the burglary and three years on the charge of stealing, the sentences to run consecutively.

The motion alleged that the judgments should be vacated for the following reason:

'1. On or about the 11th day of June, 1965, a preliminary hearing was donducted in the Magistrate Court of Jasper County without the movant being accorded the benefit of legal counsel after movant had repeatedly advised the court of his inability to secure counsel and of his desire for the court to appoint legal counsel to represent him and of his ignorance of law, legal terms and court proceedings and because of his ignorance could not question or defend himself against the State's witnesses with any competence, efficiency or proficiency whatsoever.

'2. The denial of counsel to movant at the critical stage of the proceedings held against him rendered the subsequent judgment and sentence unlawful and contrary to the law and Constitution of the State of Missouri and violative of the Constitution of the United States.'

We rule that the trial court acted properly in overruling the motion as the allegations therein were not sufficient to warrant the vacation of the judgments. In State v. Turner, Mo.Sup., 353 S.W.2d 602, 604, we stated that '(a) preliminary examination is not a trial of the accused for the offense alleged in the complaint but merely an inquiry to determine if there is probable cause to believe that a felony has been committed and that the accused is the offender so that he may be bound over and formally charged and tried in the circuit court or discharged if probable cause is not found. A preliminary hearing is designed to prevent possible abuse of power by the prosecution and at the same time permit the arrest and detention of an accused in a proper case. Neither the federal or state constitution, nor any of our statutes require the magistrate to appoint counsel for the accused at a preliminary examination.' To like effect, see also State v. McClain, Mo.Supp., 404 S.W.2d 186; State v. Engberg, Mo.Sup., 391 S.W.2d 868; State v. Phelps, Mo.Sup., 384 S.W.2d 616; State v. Gagallarritti, Mo.Sup., 377 S.W.2d 298; State v. Worley, Mo.Sup., 383 S.W.2d 529, and State v. McMillian, Mo.Sup., 383 S.W.2d 721. A case very similar to the one at bar is State v. Small, Mo.Sup., 386 S.W.2d 379. We held therein that the magistrate was not required to appoint counsel for the accused at the preliminary and, in any event, any defect in connection with the preliminary hearing was waived when a plea of guilty was entered by the defendant in the circuit court after being accorded the right of consultation with counsel.

In his brief defendant says he was prejudiced by his failure to have counsel at the preliminary because he was thus denied the right to have counsel to cross-examine the State's witnesses and to present witnesses in his favor. That is just another way of stating his contention that he was entitled to have counsel provided at his preliminary hearing. What we have heretofore said will indicate our view that there is no merit in that contention.

Defendant has cited the cases of Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, and White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193. Pointer did not decide the question as to the necessity of appointing counsel for indigent defendants at a preliminary hearing, the court saying that 'In this Court we do not find it necessary to decide one aspect of the question petitioner raises, that is, whether failure to appoint counsel to represent him at the preliminary hearing unconstitutionally denied him the assistance of counsel within the meaning of Gideon v. Wainwright, supra (372 U.S. 335, 83 S.St. 792, 9 L.Ed.2d 799).' 380 U.S. 402, 85 S.Ct. 1067. White has no application here because in that case the court reversed a conviction based in part upon evidence that the defendant pleaded guilty to the crime at a preliminary hearing where he was without counsel.

The judgment is affirmed.

HENLEY, J., concurs.

SEILER, J., concurs in result and dissents in part in separate opinion filed.

Concurring Opinion

SEILER, Judge.

I concur with the opinion of Judge Holman is no merit in that contention stated in the cited case, State v. Small (Mo.Sup.) 386 S.W.2d 379, '(a)ny defect in connection with the preliminary hearing was waived when a plea of guilty was entered by the defendant (in the circuit court) after being accorded the right of consultation with counsel.'

However, I respectfully state I am unable to concur with that portion of the opinion which holds there is no merit in defendant's contention that under the allegations stated in the motion he was entitled to have counsel provided at his preliminary hearing on felony charges. Missouri Rules of Criminal Procedure, 23.03, provide 'The magistrate before whom an accused is brought shall advise the accused of the charge against him * * *. The accused shall be allowed a reasonable time to advise with his counsel and shall be permitted to send for counsel if he so desires. * * * The accused may cross-examine witnesses, against him * * *.' Lambus v. Kaiser, banc, 352 Mo. 122, 176 S.W.2d 494, decided in 1943, was an application for habeas corpus where the defendant, without counsel, had waived preliminary examination. Thereafter, in circuit court, defendant being unable to employ counsel, the court appointed counsel. Several days later, after consultation, defendant appeared with counsel, pleaded guilty, and the court assessed the death penalty. The application for the writ was on the theory that the circuit court was without jurisdiction because Lambus, being without counsel, did not exercise an intelligent choice in waiving hi preliminary examination. This was ruled against petitioner and the writ was quashed, but the court stated as follows with regard to right to counsel at a preliminary examination, 176 S.W.2d l.c. 495, 497:

'* * * Under either of these provisions (the court was referring to the Sixth Amendment and what is now Article I, Section 18(a) of the 1945 Constitution) there can be no doubt but that an accused at a preliminary examination is entitled to be represented by counsel if he wishes and opportunity of counsel must not be denied him.'

'* * *

'* * * If he had had counsel at the time, by statute the magistrate would have been required to call them if requested * * *.'

The court specifically pointed out that the petitioner did not request the appointment of counsel at the preliminary or complain of absence of counsel at the time, 176 S.W.2d l.c. 497. ¹ In the present case defendant's motion alleges that he informed the magistrate he was unable to employ counsel and asked the court to appoint counsel, that he was ignorant of the law and court proceedings and unable to question the state's witnesses with any degree of competence. If a request so couched were actually made by defendant, it was definite, stated a good reason from defendant's standpoint and could not be taken as merely an idle or theoretical request on his part. As matters stook at that particular time, then, it seems quite clear that if defendant had been able to afford counsel he would have hired counsel to represent him at the preliminary hearing. It is equally clear that if he could pay for counsel he could not have been denied the right to have counsel at the preliminary hearing. He did not get counsel because he could not pay for it, not because he did not ask for it or because there is not a right to counsel at the preliminary. This appears to be an unwarranted discrimination against the...