State v. White, WD33040

• Decision Date: 30 November 1982
• Docket Number: No. WD33040,WD33040
• Citation: 646 S.W.2d 804
• Parties: STATE of Missouri, Respondent, v. Jeff F. WHITE, Appellant.
• Court: Missouri Court of Appeals

Page 804

646 S.W.2d 804

STATE of Missouri, Respondent, v.Jeff F. WHITE, Appellant.

No. WD33040.

Missouri Court of Appeals Western District.

Nov. 30, 1982.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

Feb. 1, 1983.

Application to Transfer Denied

March 29, 1983.

Philip Baker, Sp. Asst. Public Defender, Jefferson City, for appellant.

John Ashcroft, Atty. Gen., Rosalynn Van Heest, Asst. Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before KENNEDY, P.J., and WASSERSTROM and LOWENSTEIN, JJ.

WASSERSTROM, Judge.

Defendant was found guilty by a jury on two counts of the sale of marijuana under Section 195.020, RSMo 1978.The court entered judgment and sentence, from which defendant appeals.We affirm.

The jury could reasonably find from the evidence the following facts.On September 3, 1980, defendant and a companion Richard Hargrave were drinking in the Rathskeller of the Governor Hotel in Jefferson City, Missouri.They were approached by Glenn Beazley, a police undercover operative, who asked whether he could join them.When permission was given, Beazley sat down and a general conversation ensued.Defendant mentioned that he had been recently dismissed from the penitentiary, that he had been working in town at odd jobs, and that he wanted to get into an easier line of work, such as the drug traffic.He stated that he had some marijuana and asked if Beazley would like to purchase some.When Beazley responded in the affirmative, they went outside to a station wagon where defendant sold Beazley two ten dollar bags of marijuana.

Subsequently on September 20, 1980, Beazley met defendant again at the Governor Hotel, and defendant asked whether Beazley knew of any persons who would like to buy some marijuana.Beazley answered that he knew people to whom it could be distributed and that he could probably handle a pound.Defendant then took Beazley to a basement where marijuana was strung along five or six clothes lines, and they then partially filled two plastic bags which were delivered to Beazley.No money was exchanged at that time, but the two men met again on September 25, 1980, at which time Beazley paid defendant $125.00.

Defendant's defense was that of entrapment.He testified that both on the September 3 occasion and later on the September 20 occasion, it was Beazley who broached the subject of a marijuana transaction.Defendant testified that when Beazley joined the conversation at the Rathskeller on September 3, he mentioned that Jerry Sordelli was a source of marijuana, that Beazley and Sordelli had had an argument and that Sordelli would not sell Beazley any marijuana.According to defendant, Beazley asked and he agreed to go to Sordelli to obtain marijuana for Beazley.

With respect to the events of September 20, defendant testified that he went to the Holiday Inn, where he saw Beazley drinking with Charles Drennan.According to defendant, he was approached by Beazley and asked to again obtain marijuana from Sordelli.Defendant testified that he did call Sordelli on the phone, but Sordelli said he didn't trust Beazley and would not meet with him.However, defendant says that Sordelli gave him permission to go to Sordelli's basement where he could get marijuana.Defendant says that it was under those circumstances that he took Beazley to the basement premises from which marijuana was obtained and delivered to Beazley.

Hargrave testified on behalf of defendant that he was drinking with defendant at the Rathskeller when Beazley approached, told them about Sordelli being a source of marijuana and asked defendant if he would mind going and buying some marijuana from Sordelli for Beazley.Drennan also testified for defendant and stated that Beazley approached him at the Holiday Inn on September 20 and had a discussion before any appearance was made by defendant.Drennan says that at that time Beazley told him that he was going to ask defendant to get some "pot" for him.Drennan offered to sell marijuana to Beazley, but Beazley (according to Drennan) stated that he wanted to get the marijuana through defendant.

Defendant's Points Relied On may be condensed and summarized as follows: (1)the public defender failed to give defendant effective assistance of counsel; (2)the trial court improperly overruled certain pro se motions which defendant had filed prior to trial; (3)the prosecution failed to negate entrapment; and (4)the trial court undertook to resentence defendant to a longer term of imprisonment after the court had lost jurisdiction to do so.

I.Effective Assistance of Counsel

The state notes two obstacles to the consideration of this point: (a) the point had not been properly preserved by timely motion for new trial; and (b) this is a matter usually reserved for consideration under Rule 27.26.

With respect to the first of those two matters, the public defender did file a timely motion for new trial but the present point was not included.Thereafter, defendant's present counsel was appointed to handle the motion for new trial and any appeal.The newly appointed counsel then filed an amended motion for new trial which did include the present point, but the time for new trial had by then expired.Defendant agrees that the amended motion was ineffective, but he nevertheless argues that this point can and should be considered as plain error.

Defendant also agrees that a question as to effective assistance of counsel is generally a matter for consideration under Rule 27.26.Nevertheless he points out that a full hearing has already been held with respect to effective assistance of counsel in connection with the motion for new trial, at a time when the recollection of witnesses was better than would be true at any new hearing which might be held hereafter in a 27.26 proceeding.He therefore implores this court to follow the exception which permits the question of effective assistance of counsel to be considered on direct appeal where the facts have been adequately developed.We will acceed to this plea by defendant, primarily out of consideration for economy of judicial time and resources.

Defense counsel on this appeal with commendable zeal has made a vigorous attempt to show that the public defender was overworked and was consequently unable to and did not devote the necessary time and effort to the preparation and presentation of the defense in this case.Testimony with respect to this issue was given by defendant, the public defender and the public defender's investigator.All of this testimony, together with the skillful argument made by defense counsel on this appeal, have been carefully considered, but we remain unpersuaded that the defendant has carried the burden of proving that the public defender failed to provide effective assistance of counsel within the prescription of Seales v. State, 580 S.W.2d 733(Mo.banc 1979).A detailed review of the evidence on this point would have no precedential value and would serve no other useful purpose.

Defendant's first point is denied.

II.The Pro Se Motions

Notwithstanding the appointment of the public defender to represent him, defendant persisted in a steady stream of motions and other communications to the trial court.This included, among other items, a motion to dismiss, a request for disclosure, a motion for bill of particulars, and an amended motion to dismiss.

In December 1980this case was pending before Judge Kinder.On December 19, 1980, defendant sent a letter to Judge Kinder which stated in part as follows:

"On December 2, 1980, I wrote Mr. McFadden, the Public Defender, requesting that he send me copies of all the Disclosures allowed by the Prosecuting Attorney, but that Office has disregarded that request.Since I intend to act as co-counsel, with the Courts' leave, this information is necessary for preparation of a defense....

Your Honor, I request that due to the above stated facts and the seriousness and consequences of any conviction that you inquire into this matter, making available all disclosures, allowing me leave to proceed as co-counsel; or in the alternative remove the Public Defender and issue your order for Court Appointed counsel."

On December 24, 1980, Judge Kinder responded as follows:

"If you wish to represent yourself you may, but you cannot have it both ways.Either you are represented by counsel or you are represented by yourself."

By letter dated January 5, 1981, defendant answered: "This is to advise you that I will represent myself."

The stream of communications continued, but a change in persona came about on March 30, 1981, when Judge McHenry assumed the bench and came in charge of this case.In a letter to Judge McHenry dated April 12, 1981, defendant requested that Judge McHenry "review the issues herein and issue the orders that you deem appropriate [sic]...."Judge McHenry replied by letter dated April 21, 1981, as follows: "In reply to your letter of April 12, 1981, the Court records show that you are represented by Howard L. McFadden, Public Defender of the 19th Judicial Circuit.I would request that you communicate with the Court through him."

On the morning set for trial, the pro se motions mentioned remained undisposed of and were taken up by the court in chambers.After the file had been reviewed and had been rather thoroughly discussed, the court ruled as follows:

"THE COURT: All right.Mr. White, you were informed after all was said and done, after all the correspondence, after all the motions had been filed, after one or the other or both previous judges had told you if motions were going to be disposed of they would have to be called up and disposed of; still there was nothing ever done to call those...