State v. Turley

• Decision Date: 09 March 1970
• Docket Number: No. 2,No. 53994,53994,2
• Citation: 452 S.W.2d 65
• Parties: STATE of Missouri, Respondent, v. Virgil L. TURLEY and Albert Peterson, Appellants
• Court: Missouri Supreme Court

Page 65

452 S.W.2d 65

STATE of Missouri, Respondent, v. Virgil L. TURLEY and Albert Peterson, Appellants.

No. 53994.

Supreme Court of Missouri, Division No. 2.

March 9, 1970.

Motion for Rehearing or to Transfer to Court En Banc Denied

April 13, 1970.

John C. Danforth, Atty. Gen., Peter H. Ruger, Asst. Atty. Gen., Jefferson City, for respondent.

Virgil L. Turley and Albert L. Peterson, pro se.

BARRETT, Commissioner.

A jury found that on September 30, 1967, Virgil L. Turley and Albert Peterson were guilty of attempting to escape from the penitentiary in Jefferson City. Since they had prior felony convictions, the court, under the second offender act (RSMo 1959, Supp. § 556.280, V.A.M.S.), fixed Turley's punishment at four years' imprisonment and Peterson's punishment at three years' imprisonment.

Upon the trial of their cause the appellants were capably represented by two court-appointed lawyers and upon this appeal they are represented by a third lawyer who has capably and vigorously prosecuted their cause. In spite of all this counsel-representation, the appellants, ill-advisedly, have insisted upon filing their own separate personal pro se brief and, unknown to counsel, have written numerous letters to the court and have filed one or more motions--one of which has been sustained. While both Turley and Peterson have had considerable personal experience with the criminal law, and apparently are quite bright, their brief is highly technical, frivolous unsupported points are made, misplaced analigies are drawn and the long lists of cases reveal a most imperfect knowledge of the law. In addition, they have purposefully, in a transparently crafty sort of way, circumvented and frustrated appointed counsel in his attempt to properly brief and present the merits of their appeal. For example, in one of their joint communications, they have said, 'He left the brief (in fact the transcript of their trial) with the provision that we return it to him within 15 days. In order that Mr. Seibel can be more easily relieved of his obligation as our attorney we will not return the transcript to him and thus, hopefully, he will not be able to file anything in our behalf. And anything he does file in our behalf we cannot be a part of and will not cooperate with him in any way.' This jurisdiction 'provides some reasonable alternative' (to 'prison 'writ writers") Johnson v. Avery, 393 U.S. 483 89 S.Ct. 747, 21 L.Ed.2d 718, to assist indigent prison inmates in the preparation of post-conviction remedies (Criminal Rule 27.26, V.A.M.R.) and in addition, as here, in the spirit of Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33, capable counsel, in this instance three lawyers, on both trial and appellate levels, have been appointed and have duly represented the appellants without compensation. Notwithstading, insofar as it presents intelligible points or questions their pro se brief and additional record, as well as counsel's brief, will be duly considered.

One of the principal points is that the court erred in denying the appellants' motion to dismiss the amended information. Counsel submits that the amended information should have been dismissed because equal protection and due process were denied when at defendants' request the magistrate court refused to appoint counsel to represent them upon preliminary hearing. It is said that they were denied the right of confrontation and 'more important to the defense, to learn in advance of trial the foundation of the charge and the evidence that will comprise the State's case so that the defense may be prepared to refute, wherever possible.' Incidentally the only amendment to the information and of which defendants personally complain is of the date, the allegation of September 20 was amended to the correct date September 30 as permitted by the statute of jeofails, particularly as will appear in this instance. RSMo 1959, § 545.030(5)(6), V.A.M.S.; Cr.Rule 24.11; State v. Brookshire, Mo.Spp., 329 S.W.2d 252. It was in this connection that the appellants insisted upon the magistrate court proceedings to suppliment the transcript. That record shows that when the appellants were first arraigned on October 10, 1967, they requested a preliminary hearing and the appointment of counsel to represent them. The record then recites that subpoenas for witnesses were requested and issued and that on November 22, 1967 'Both defendants appeared in person and withdrew their request for a preliminary hearing. Both defendants waived their preliminary hearing' and were 'bound over for trial in the circuit court.' State v. Crouch, Mo., 353 S.W.2d 597. In passing it sould be noted that there is an inconsistency in the appellants' claim of right to counsel upon a mere preliminary hearing and their insistent attitude against counsel on appeal.

The amended information alleged that 'on the 30th day of September, 1967, at Cole County, Missouri, the defendants, Virgil L. Turley and Albert Peterson, were persons sentenced to the custody of the State Department of Corrections of the State of Missouri and were lawfully confined in the Missouri State Penitentiary, an institution under the control of the State Department of Corrections, and that the said Virgil L. Turley and Albert Peterson, acting in concert, did unlawfully and feloniously attempt to escape therefrom and go at large, by then and there opening the outer doors of their cells located in the building, known as 'F Hall,' and climbing out of a window in said hall and climbing upon and over the outer wall of the Missouri State Penitentiary, and that they were apprehended in their attempt to escape * * *.' Despite the appellants' complaint of a fatal failure to allege 'intent,' it may summarily be said that the information, in the language of the statute (RSMo 1959 Supp., § 557.351), appropriately charges the offense of an attempt to escape and sufficiently apprises the appellants of all the elements of the crime. State v. Rentschler, Mo., 444 S.W.2d 453; State v. Peck, Mo., 429 S.W.2d 247.

But in connection with this point and particularly in connection with the appellants' per se claim of failure of proof, variance and numerous other matters connected with both the proof and the information the indisputable circumstances of the offense should be briefly noted. On September 30, 1967, about midnight, senior guard Stock was on duty in tower 13 on the north side of the penitentiary, there was no guard in tower 12 at that hour. The floodlights were on and in the area of tower 12 Stock saw some object and 'finally I saw a hand come out from behind the tower and it had a rope in it.' Stock alerted the control center and Guard Nevins and Lieutenant Morrow, in charge of the prison, appeared and 'on top of the wall, on the walk outside the tower' there was 'a head' and finally a man, Peterson. Halfway down the wall, on the outside, sitting on an old angle iron, formerly the support for a stairway, was Turley and 'a rope hanging down there' both men about thirty feet from the gound. In the meanwhile a guard in charge of F-Hall made a head count, 'pulled the covers' and in cells 25 and 27 supposedly occupied by Turley and Peterson there were 'dummies' or 'mockups' made to resemble sleeping inmates, but Turley and Peterson were missing. One of the hall windows was tied open with a 'string.' In addition to the 'string' of which appellants complain and a disgram of F-Hall, which certainly, in the court's discretion (23 C.J.S. Criminal Law § 853(1)) was admissible, the defendants had 'khaki' prison-made pants on over their regular 'prison greens.' All these articles, connected with the defendants or with the offence--with the possible exceptions of the harmless, noninflammatory 'string' were, of course, properly admissible in evidence. 22A C.J.S. Criminal Law §§ 600, 709 and 30A C.J.S. Escape § 26, p. 902: 'Evidence is admissible to show the means employed in aiding one to escape; and, in order to prove intent, the prosecution may show what means were employed, and what acts were done in an attempt to escape.' As the lieutenant and Nevins and the defendants were 'going back inside' Peterson said to Nevins, 'You can't blame a man for trying.' This statement was 'given freely and voluntarily without any compelling influences,' it was not in response to even a question, let alone interrogation and does not fall within the ban of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1902, 16 L.Ed.2d 694. The circumstance and the remark are fairly comparable to Peck's volunteered remark 'Well, there went ten months of digging.' State v. Peck, Mo., 429 S.W.2d 247, 251. The short of the matter is that unlike Turley's 1965 successful escape for one month and twenty-six days (State v. Turley, Mo., 442 S.W.2d 75), this is not even a circumstantial evidence case, both Turley and Peterson were literally caught in mid-air. And, needless to add, the proof supports the charge and the jury's verdict. State v. Rentschler; State v. Turley; State v. Peck, supra. But important here, particularly upon the complaint of lack of counsel at their preliminary, in addition to their waiver, is the fact that in these circumstances Turley and Peterson had firsthand knowledge of every possible witness as well as every circumstance in the state's knowledge and there was no possibility of prejudice to them from a lack of knowledge or 'a chance to learn in advance * * * the evidence that would comprise the state's case.' State v. Patrick, Mo., 420 S.W.2d 258; State v. Turley, supra; State v. Peck, supra. Furthermore, in these circumstances there was no infringement of state or federal constitutional safeguards and rights. State v. Jefferson, Mo., 426 S.W.2d 41; Pope v. Swenson, 8 Cir., 395 F.2d 321; Latham v. Crouse, 10 Cir., 320 F.2d 120.

Another point, presented from several facets, is that during the progress of the trial, at a recess, Turley and Peterson claim to have seen a state's...