State v. Worley, 50842

• Citation: 383 S.W.2d 529
• Decision Date: 09 November 1964
• Docket Number: No. 2,No. 50842,50842,2
• Parties: STATE of Missouri, Respondent, v. Earl Vandyne WORLEY, Appellant
• Court: United States State Supreme Court of Missouri

Page 529

383 S.W.2d 529

STATE of Missouri, Respondent, v. Earl Vandyne WORLEY, Appellant.

No. 50842.

Supreme Court of Missouri, Division No. 2.

Nov. 9, 1964.

Thomas F. Eagleton, Atty. Gen., George W. Draper, II, Asst. Atty. Gen., Jefferson City, for respondent.

Earl Vandyne Worley, appellant, pro se.

EAGER, Judge.

On October 19, 1962, defendant was found guilty by a jury of illegal possession of a narcotic drug. Upon a finding by the Court of prior felony convictions, he was sentenced to imprisonment for a term of ten years. The judgment was affirmed upon appeal, the opinion of this Court appearing at 375 S.W.2d 44. On or about May 1, 1964, defendant filed in the Circuit Court his motion to vacate the judgment and sentence, pursuant to our Rule 27.26, V.A.M.R. On May 7, 1964, this motion was denied in an order which will be referred to later. The present appeal is from that order.

By reference to our prior opinion it will be seen that the arresting officer, attracted by suspicious actions of the defendant, ordered five men out of a car, questioned them briefly, and then noticed a 'small brown paper package' on the floor in front of the rear seat of the car; the officer picked it up and asked 'to whom it belonged.' This officer testified at the trial that defendant said that 'it was his' and that he had bought the contents earlier that evening; thereupon he was arrested. The contents proved to be marijuana. Defendant offered no evidence at the trial. The principal questions decided were that the circumstances constituted sufficient evidence of the corpus delicti to justify the admission of defendant's statements, and that these, together with his statements, warranted an inference of possession and supported such a finding. Defendant was represented both at the trial and on appeal by competent appointed counsel, and a brief was filed here on his behalf.

We quote in full the points submitted by defendant in his motion to vacate: '(1) The trial and conviction of this movant was based on a perjured testimony knowingly procured by the prosecuting attorney. (2) Movant was denied the right to have witnesses in his favor. (3) Movant was denied the right to councel at his preliminary hearing. (4) Movant was arrested and detained over twenty (20) hours without a warrent being issued. (5) Prejudice jurors were also used to obtain a conviction against this movant, the same being a relative to the prosecuting attorney.' In his pro se brief filed here defendant alludes to other matters, to which, in so far as they may constitute actual statements of fact, we shall refer.

As stated in the case of State v. Statler, Mo., 383 S.W.2d 534, opinion filed October 12, 1964, we recognize that a judgment obtained by the knowing use of perjured testimony should be vacated upon a proper factual showing, but not upon the statement of mere conclusions. The applicable authorities were cited in that opinion. There would be no point in discussing the cases which defendant now cites, supposedly in support of that rule. The rule also applies where the State, knowing at the trial that material false testimony has come in, fails to correct it. Statler, supra. In the present case defendant states that the arresting officer, Fred Abernathy, testified at his preliminary hearing that he found the package on the ground under the car further, that the transcripts of the preliminary hearing and of the trial 'will substantiate' the allegation. In his brief here defendant also asserts that at the preliminary hearing the officer did not mention any admissions made by the defendant. In the order of the trial court denying this motion (without hearing evidence) the following appears: '* * * the movant states in the application 'the transcript of movants preliminary hearing and the transcript of movants trial will substantiate each and every word of the foregoing allegation and will prove that movant was convicted solely on perjured testimony; and that such testimony was procured knowingly by the prosecuting attorney.' This allegation shows on its face that it's based upon and sought to be proven by the transcript of the records in the preliminary trial and the Circuit Court trial and is not based upon or sought to be proven by any proof outside such transcripts that will be introduced. An examination of these transcripts does not prove or show that the Prosecuting Attorney knowingly used any perjured testimony, or suborned any perjured testimony, or suppressed any testimony in the trial of this cause. * * * In the Eaton case the application showed that the proof of the use of such perjured testimony by the Prosecuting Attorney was to be shown by matters not of record; here the defendant states and shows in his application that he seeks to do it by the transcripts which do not show it.' This order is the equivalent of a finding by the Circuit Court adverse to the assertions of perjury. We so treat it, and the assignment is denied.

The allegation that defendant was denied the right to have witnesses in his favor is elaborated by statements in the argument that defendant supposedly asked his counsel to subpoena the four men who were with him at the time of his arrest and that counsel declined to do so. No action or refusal of the trial court was involved. We decline to rule such a contention by speculating upon the reasons in counsel's mind, and, so long as counsel was competent, we shall not 'second-guess' his decisions.

There is a rather nebulous statement in the brief that defendant asked a different judge at a 'pre-trial' conference (the holding of which is at least questionable) to 'assist him in obtaining witnesses for his defense' and that the judge agreed to do so. Such statements, even if true, would be insufficient to invalidate the judgment where defendant was then and thereafter at all times represented by counsel, upon whom the burden rested to procure those witnesses whom he deemed it advisable to use. A 'pre-trial' judge need not act as defendant's co-counsel.

With this contention there is also presented an argument (in the brief) that defendant was not allowed to 'offer evidence,' in that the trial court 'unofficially' advised him not to take the witness stand. We have examined the original transcript and find the following: defendant's trial counsel, having advised defendant that in his judgment he (defendant) should not testify, and having met with apparent opposition, placed the defendant on the witness stand under oath, out of the presence of the jury; he there repeated his advice with reasons, and defendant first insisted that he wanted to testify, but then relented somewhat; the Court merely informed defendant that he had the right to testify if he wished, but that he knew defendant's counsel and felt that it would be better to follow his advice; and, finally,...