State v. Ussery

• Decision Date: 13 April 1970
• Docket Number: No. 1,No. 40606,40606,1
• Citation: 452 S.W.2d 146
• Parties: STATE of Missouri, Respondent, v. William Ernest USSERY, Appellant
• Court: Missouri Supreme Court

Page 146

452 S.W.2d 146

STATE of Missouri, Respondent, v. William Ernest USSERY, Appellant.

No. 40606.

Supreme Court of Missouri, Division No. 1.

April 13, 1970.

John C. Danforth, Atty. Gen., Dale L. Rollings, Asst. Atty. Gen., Jefferson City, for respondent.

Neale, Newman, Bradshaw, Freeman & Neale, Thom G. Field, Springfield, for appellant.

HOUSER, Commissioner.

This is a second appeal. William Ernest Ussery, convicted on October 16, 1946 of first degree murder, appealed to this court, which affirmed the judgment of conviction and sentence of life imprisonment. State v. Ussery, 357 Mo. 414, 208 S.W.2d 245. Because defendant was not represented by counsel on the first appeal this court on December 31, 1968 set aside its judgment affirming the judgment of conviction, in accordance with the decisions in Bosler v. Swenson, 8 Cir., 363 F.2d 154, and Swenson v. Donnell, 8 Cir., 382 F.2d 248, reinstated the cause on the docket of this court, ordered the circuit court to appoint counsel to represent defendant on the appeal and directed counsel to file a brief. On this second appeal defendant, by his counsel, has filed a brief raising two points.

Defendant, an indigent person, contends first that his constitutional rights under the Sixth and Fourteenth Amendments to the federal constitution, and Sections 10 and 18(a) of Article I of the state constitution, V.A.M.S. were violated because he was denied assistance of counsel for his defense at the preliminary hearing. He contends that questions and answer of a damaging nature given by him at that hearing were incorporated in a transcript which the trial judge admitted in evidence at a hearing on a motion to suppress a written confession defendant gave the police; that this contributed to the court's overruling the motion to suppress as a result of which the confession was admitted in evidence at the trial of the case; that if he had had the benefit of counsel at the preliminary hearing defendant would not have thus damaged his case.

The trial transcript shows that a copy of the transcript of the proceedings at the preliminary examination was admitted in evidence at the hearing of the motion to suppress. The preliminary transcript was not read into the record, however, and has since been lost. We do not know what it contained and are not advised what questions and answers of a damaging nature were given by defendant at the preliminary hearing. From the trial transcript we glean only that the preliminary transcript included the testimony of five named witnesses later used by the state in proving its case; that during the cross-examination of defendant on the motion to suppress the prosecuting attorney informed the court that at the preliminary hearing defendant 'questioned the witnesses himself on cross-examination, and I think that his questions and his answers will throw considerable light on the merits of this motion'; and that at the preliminary hearing defendant was without counsel.

In support of his contention defendant cites Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114. Hamilton was arraigned without counsel for a capital offense, to which he pleaded not guilty. His subsequent conviction and sentence to death was reversed as a violation of his constitutional right to counsel at the time of arraignment because under Alabama law arraignment is a critical stage in a criminal proceeding. Under the law of that state available defenses (such as insanity, pleas in abatement, improper drawing of grand juries, etc.) must be pleaded at that stage of the proceedings or the opportunity to assert those defenses at the trial is lost. The court reasoned that only with the guiding hand of counsel at that critical stage could the accused be enabled to know all the defenses available to him and to plead intelligently. Defendant also cites White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193. White, who was without counsel, was taken before a magistrate on a charge of murder. He pleaded guilty at the preliminary hearing. Later afforded counsel and tried before a jury on a plea of not guilty he was convicted and sentenced to death. The trial court admitted in evidence the plea of guilty made at the preliminary hearing. The judgment was reversed because of a violation of defendant's constitutional right to counsel, the court holding that in this case the preliminary hearing was a critical stage; that Hamilton v. Alabama applies, and that only by having counsel present would the accused have been able to know all the defenses available to him and to plead intelligently.

Defendant seeks to draw a parallel but the Hamilton and White cases do not present analogous situations. Hamilton was at a distinct disadvantage when he appeared at the arraignment without counsel; there was a distinct possibility of prejudice in not having counsel at a critical stage of the proceeding when important choices were to be made with respect to the invocation of defenses. In contrast, under Missouri law a preliminary hearing is not a critical stage of the proceeding, and a defendant does not have a constitutional right to counsel at his preliminary hearing where nothing appears in the record to show that defendant was prejudiced by lack of counsel. Crosswhite v. State, Mo.Sup., 426 S.W.2d 67(3). In this jurisdiction the inquiry at a preliminary hearing is whether there is probable cause to believe that a felony has been committed and whether accused is the offender and if so to bind him over to answer a formal charge in circuit court, State v. Turner, Mo.Sup., 353 S.W.2d 602, 604, and an accused is not bound to elect his defenses at the preliminary hearing on pain of losing them if he fails to do so. White was also at a disadvantage when he appeared at the preliminary hearing and entered a plea of guilty without counsel. The possibility of prejudice in this situation was inherent. In contrast with the Maryland procedure a defendant is not obliged to plead at preliminary examinations in felony cases in this state, and in this case defendant did not plead guilty at the preliminary hearing Consequently White v. Maryland is not necessarily controlling as to the right of counsel. Pointer v. Texas, 380 U.S. 400, 402, 85 S.Ct. 1065, 13 L.Ed.2d 923.

In Ussery's case the possibility of prejudice due to absence of counsel was not manifest. Whether that possibility existed depended upon what occurred at the preliminary hearing; whether Ussery made any incriminating statements or gave damaging answers to questions. What occurred there has not been shown. The transcript is unavailable. We are not apprised of the nature and content of the questions and answers claimed by defendant to have damaged him. It is indeed questionable whether defendant testified at the preliminary hearing. From the comments of the prosecuting attorney it appears that defendant did not testify at the preliminary, but only cross-examined the state's witnesses. The only possible basis for concluding that he testified is the prosecuting attorney's reference to 'his' answers but that in context appears to have been an inadvertent mistake in transcription. The burden of demonstrating error and prejudice was on defendant. Missouri Digest, Criminal Law, k1141(2). He concedes that the record is not clear and that '(i)t is difficult to evaluate the significance of the use of the transcript at the preliminary hearing.' As in State v. Owens, Mo.Sup., 391 S.W.2d 248, there is nothing in the record to indicate that by reason of the preliminary hearing the state 'either sought or gained the slightest advantage or that there was any overreaching,' and defendant has failed to demonstrate 'the slightest prejudice or infringement of his right to a fair trial in the circuit court resulting from his lack of counsel at the preliminary hearing.' 391 S.W.2d l.c. 254.

Next, defendant contends that under the rule of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, the trial court erred in leaving it to the jury to determine the voluntariness of his confession without a prior independent determination of voluntariness by the court. The transcript of the record reveals that the court did not with unmistakable clarity find the confession to be voluntary. The State, not contending otherwise, rests its submission upon the contention that the rule of Jackson v. Denno is not to be given retroactive operation and should not be applied to this case (tried in 1946).

From our review of the question we have concluded that the rule of Jackson v. Denno is retroactive in operation. The case itself stands for that proposition, for in it the United States Supreme Court on June 22, 1964 applied the new rule to a set of facts which occurred in 1960 or 1961; to a conviction which had been affirmed by the highest court of New York, and after previously denying certiorari. After his conviction had thus become final Jackson filed a habeas corpus proceeding and it was on a new certiorari granted to review the order made in the habeas corpus proceeding that the high court announced its new ruling, applying it retroactively to the old conviction. ¹ That is was to be considered retroactive is evidenced by remarks of two of the justices in dissenting opinions. Justice Harlan said, 'I find nothing in (the court's majority) opinion to suggest that its holding will not be applied retroactively.' 378 U.S., l.c. 439, 84 S.Ct., l.c. 1813, 12 L.Ed.2d, l.c. 952. Justice Black said, 'Certainly if having the voluntariness of their confessions passed on only by a jury is a violation of the Fourteenth Amendment, as the Court says it is, then not only Jackson but all other state and federal prisoners already convicted under this procedure are, under our holding in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, (9 L.Ed.2d 837), entitled to release unless the States and Federal Government are still willing and able to prosecute and convict them.' 378 U.S., l.c....