State v. Wilkinson
| Decision Date | 12 February 1968 |
| Docket Number | No. 52611,No. 1,52611,1 |
| Citation | 423 S.W.2d 693 |
| Parties | STATE of Missouri, Respondent, v. Robert Lee WILKINSON, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Carl R. Gaertner, Sp. Asst. Atty. Gen., St. Louis, for respondent.
Roscoe E. Moulthrop, Bethany, for appellant.
Defendant was convicted of burglary in the second degree and under the provisions of the Habitual Criminal Act was sentenced to nine years in the custody of the Department of Corrections. Sections 560.070, 560.095, and 556.280, RSMo 1959, V.A.M.S. Three points are raised by the defendant on appeal: that he was not accorded a constitutionally fair trial because of the misconduct of his trial counsel; that the circuit court erred in refusing to remand the case to the magistrate court for a preliminary hearing; and that the court erred in overruling an application of the defendant for a change of judge. While the sufficiency of the evidence to support the conviction is not questioned, a brief review of the facts constituting the offense will be helpful in understanding the import of the defendant's complaints.
During the night of April 8, 1965, a jewelry store owned and operated by Russell Whisler in the City of Trenton was broken into. A padlock was pried off a rear basement door, a bar was knocked off an interior door, and a hole was broken through a plasterboard wall near the top of a basement stairway leading into the store proper. A bag and tools were found in the room in which were located two safes, the combinations of which had been broken off. The outer portion of one safe had been pried away and the insulation was exposed and scattered about the room. Some merchandise was found stacked near the rear exit.
About 1:00 a.m. on the night in question, Olan Moore saw two men park a white two-door Pontiac automobile near his home which was about four or five blocks from the Whisler Jewelry Store. The two men, one of whom Mr. Moore identified as the defendant, left the car and walked toward the business district. One of the men was carrying a bag similar to the one found in the jewelry store. Since it was 'a strange car', Mr. Moore notified the police by telephone and waited to see what would happen. About 5:30 a.m. he saw the two men return to the car without the bag. As they drove away a highway patrol car followed and when they were out of sight Mr. Moore heard the cars speed up and then the firing of shots.
In the meantime the Trenton police had notified the Highway Patrol and two patrolmen took up separate stations near the parked Pontiac. Later other officers started to 'shake doors' in the business district and about 5:30 a.m. the back door of the jewelry store was found to be open. Patrolman C. J. Baker in a patrol car pursued the departing Pontiac; the driver lost control of the Pontiac and it ran off the pavement into a yard and the patrolman shot out its right rear tire. The Pontiac was then backed at high speed toward Patrolman Baker who fired four more shots from a riot gun through the rear window of the car. When the Pontiac came to a stop the defendant was slumped under the steering wheel in a wounded condition. He and his companion were arrested. The defendant was first taken to a Trenton hospital and then to Columbia where he was treated. Debris taken from the clothes worn by the defendant was examined by a chemist in the Highway Patrol Laboratory. This expert witness testified that particles of plaster and insulation material taken from the cuffs of defendant's trousers were similar to samples of material found in the jewelry store and that clothing fibers found hanging on the edges of the hole in the plasterboard wall of the jewelry store matched the fibers of the defendant's jacket. The defendant did not testify or offer any other evidence in his behalf.
The matters of which the defendant complains on appeal occurred for the most part prior to the actual trial in the circuit court. The transcript and other records filed by stipulation of the parties disclose that on April 23, 1965, the defendant appeared with a Trenton attorney in the Magistrate Court of Grundy County, furnished bond in the sum of $4000 for his appearance at a preliminary hearing in magistrate court on May 7, 1965, and was released from custody. The defendant failed to appear on May 7 and his bond was forfeited. The magistrate further entered an order which recited that a letter received that morning from a Kansas City attorney purported to transmit an application and affidavit for continuance. The order further recited that the presence of counsel in person was required when any motion is taken up and considered and the hearing was continued to May 15, 1965. The hearing was further continued to May 21 and then to May 28, at which time the defendant appeared with a Kansas City attorney who presented the application for a continuance on the ground that he, the defendant's attorney, was a member of the general assembly then in session. By leave defendant amended the application to state this his counsel was the only attorney representing the defendant and that such attorney would be present and actively represent the defendant at any trial of the case. The application was then sustained and the hearing was continued to July 30, 1965; the forfeiture of defendant's bond was set aside.
On July 30, Louis Wagner, another attorney from Kansas City, entered his appearance as counsel for the defendant. The Kansas City attorney who had previously represented the defendant did not appear. Mr. Wagner filed an application for a 'change of venue' which asserted that the defendant could not have a fair and impartial trial before the magistrate of Grundy County 'by reason of the prejudice of the inhabitants of said county.' The order overruling the application cited §§ 544.290 and 544.300 and concluded with this statement:
On August 2, 1965, an information was filed in the Circuit Court of Grundy County charging the defendant with burglary in the second degree and Louis Wagner entered his appearance as attorney of record on September 14, 1965, and the first Kansas City attorney withdrew. On November 22, 1965, the defendant was arraigned. Appearing in person and by attorney Wagner, he waived reading of the information and entered a plea of not guilty. Thereafter, the case was set for trial in April 1966 but was continued on defendant's application because his counsel was a member of the general assembly then in session. Four days before the case was set on June 30, 1966, an attorney from Trenton who was contacted by Mr. Wagner filed on behalf of the defendant an application for change of judge. The court indicated its intention to overrule the application but withheld the ruling to give the defendant an opportunity to apply for a writ of prohibition. The writ was not sought and the application was overruled.
At the setting on June 30, 1966, an attorney from St. Joseph appeared with the defendant and advised the court that the defendant had discharged Mr. Wagner and requested a continuance to enable new counsel to prepare a defense. The court permitted the additional counsel to enter their appearances, but stated that Mr. Wagner had talked to the court the previous week at which time Mr. Wagner gave no indication that he would not be present and ready for trial. The court ordered Mr. Wagner to appear later in the day, and when he did not do so he was found to be in contempt of court. The cause was continued at defendant's request to July 18, 1966. The next day, on July 1, Mr. Wagner appeared before the court with the defendant and other counsel. He advised the court he had been discharged by the defendant the day before the trial setting but that he would continue in the case with the consent of the defendant. The court accepted Mr. Wagner's apology and found he had purged himself of contempt.
At the hearing on July 1, the court noted that a question had been raised by counsel whether the defendant had a mental disease or defect rendering him unfit to proceed. On its own motion the court ordered that a mental examination be made at the State Hospital in Fulton. On August 23, 1966, on the basis of the examination, the court found the defendant capable of proceeding to trial. The case was set for trial on September 29, 1966. On September 23, 1966, Mr. Wagner and the defendant appeared before the court. Mr. Wagner advised the court that he had received a letter from his client stating that he no longer desired Mr. Wagner's services and Mr. Wagner applied for leave to withdraw. The state objected if the withdrawal would result in another continuance. The defendant was sworn and examined relative to his reasons for seeking to discharge Mr. Wagner. The court concluded that there was no assurance that any other attorney could represent the defendant in a more capable manner than Mr. Wagner or that the defendant would be any more cooperative with another attorney and denied the request because it was not for a proper purpose. The court advised the defendant, however, that he could employ additional counsel to represent him and to assist Mr. Wagner if he so desired. At the beginning of the trial Mr. Wagner renewed his request to withdraw. After ascertaining that there had been no change in circumstances since its previous ruling, the court again denied the request.
The trial began on September 29, 1966. Out of the hearing of the jury, the state proved prior convictions...
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Tucker v. State, 57005
...because of some error or mistake in trial strategy or judgment nor because some action of counsel proved unsuccessful. State v. Wilkinson, Mo., 423 S.W.2d 693; Gaitan v. State, Mo., 464 S.W.2d 33; State v. Cook, Mo., 440 S.W.2d 461; State v. Worley, Mo., 371 S.W.2d 221; State v. Brown, Mo.,......
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Wilkinson v. Haynes, 19085-4.
...to commence on November 2, 1966. He appealed the judgment of conviction, but his appeal was unsuccessful. See: State v. Wilkinson, 423 S.W.2d 693 (Mo.1968). Petitioner states that the sole ground he desires to present to this Court is that he was "tried, convicted, sentenced, and is confine......
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Wilkinson v. State
...his conviction of second degree burglary, with a sentence of nine years. Judgment was affirmed on the original appeal, State v. Wilkinson (Mo.Sup.), 423 S.W.2d 693. In the present appeal, defendant makes the following contentions: (1) the information on which he was tried was defective; (2)......
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Brown v. State
...a lack of effective representation. Trial strategy is an inadequate basis for an attack on the competency of counsel. State v. Wilkinson, 423 S.W.2d 693, 696--697 (Mo.1968). Numerous phrases have been used to measure the ineffectiveness of counsel's conduct. Gaitan v. State, 464 S.W.2d 33, ......