State v. Zeitvogel, WD

• Decision Date: 22 March 1983
• Docket Number: No. WD,WD
• Citation: 649 S.W.2d 945
• Parties: STATE of Missouri, Respondent, v. Richard Steven ZEITVOGEL, Appellant. 32980.
• Court: Missouri Court of Appeals

Page 945

649 S.W.2d 945

STATE of Missouri, Respondent, v. Richard Steven ZEITVOGEL, Appellant.

No. WD 32980.

Missouri Court of Appeals Western District.

March 22, 1983.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

May 3, 1983.

Application to Transfer Denied

May 31, 1983.

William M. Barvick, Jefferson City, for appellant.

John Ashcroft, Atty. Gen., Carrie Francke, Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P.J., and PRITCHARD and DIXON, JJ.

SHANGLER, Presiding Judge.

The defendant Zeitvogel, then an inmate of the state penitentiary, was convicted of the class A felony of assault in the first degree [§ 565.050, RSMo 1978] and sentenced to a term of thirty years. The victim was the Day Watch Captain Borghardt. The defendant appealed.

The counsel of record for the defendant on the appeal was Mr. William M. Barvick, a special assistant with the Public Defender for the 19th Judicial Circuit. The appeal was reassigned by the Public Defender to another special assistant in that office, Mr. Paul Allred, who filed a brief on appeal. The redesignation of counsel, however, was not made of record or, it appears, made known to defendant Zeitvogel. The defendant learned that Allred, not Barvick, was on the appeal and wrote to Allred to advise him as to what was done and to request a copy of the brief. The brief was completed and on file with the court of appeals some months before, all, apparently, without consultation or knowledge of defendant Zeitvogel. The defendant then moved this court to order the circuit court reporter to produce a supplemental transcript to facilitate a preparation of a pro se brief on appeal to include matters neglected in the Allred brief. Our clerk informed the appellant that our Special Rule XVI prohibits pro se filings by a litigant represented by counsel, and that the attempted motion was sent on to his attorney of record, Barvick. It will be understood that Mr. Barvick was long since relieved of that duty by the Public Defender, through the reassignment of the appeal to Allred--but that to the defendant client and to the court, Barvick was still counsel of record. [Allred by then was no longer with the office of the Public Defender.] The dispatch of the Zeitvogel motion by our clerk to Barvick, prompted an immediate, courteous and definitive explanation of the contretemps. The cause, however, had already been submitted on briefs and was ready for opinion. Barvick, by formal motion nevertheless, requested the court to delay decision and to order a supplemental transcript to determine whether there be ground to assert prejudice from the final argument of the prosecutor. The prosecution did not object, and the motion was allowed. In due course, a supplemental brief was filed, and to that, a supplemental response by the prosecution.

The original [Allred] brief on appeal asserted five points of error: 1) argument by the prosecutor during voir dire, 2) reference by the prosecutor in opening statement to jury to offenses by defendant other than that charged, 3) evidence by prosecution of offenses by defendant other than that charged, 4) failure of the court to direct a judgment of acquittal for want of evidence of intent to commit the offense, 5) evidence of offenses by defendant other than that charged violated the right to remain silent.

The supplemental [Barvick] brief on appeal asserts four points of error: 1) resubmits point 1 of the original brief [a contention not preserved] as plain error and asserts a more specific context, 2) combines points 2 and 3 of the original brief, 3) that it was plain error for the prosecutor to examine for the inference that defendant Zeitvogel and inmate Guinan were homosexual partners, 4) that it was plain error to allow the prosecutor to examine Zeitvogel about the details of prior convictions.

The supplemental brief was filed with the court and a copy furnished the defendant Zeitvogel. The brief, as formulated, omitted points 4 and 5 of the original [Allred] presentation--[(4) that the failure of the court to direct a judgment of acquittal for failure to prove intent was error and (5) evidence of offenses by defendant other than that charged violated the right to remain silent]. The transmittal by attorney Barvick informed defendant Zeitvogel that the supplemental brief as formulated was all counsel intended to submit on behalf of the defendant on the appeal and, "[i]f you wish to submit anything in addition, you may prepare it pro se and I will request the Court's permission to submit it on your behalf." The advisement of counsel notwithstanding, the defendant Zeitvogel once again moved pro se, this time for "specific performance, order to show cause," to compel attorney Barvick to reword point 1 of the supplemental brief to conform with Rule 84.04 and also to reassert points 4 and 5 of the original brief as plain error. The defendant moved also, in default of compliance, to impose the contempt sanction of jail punishment against counsel Barvick.

The clerk of the court was instructed to accept the pro se motion as an exception to our Special Rule XVI because the contentions amount to an accusation that the refusal of counsel on appeal to include in the supplemental brief the points 4 and 5 of the original [Allred] brief deprived defendant Zeitvogel of competent appellate advocacy. The motion was taken with the case on submission and the contentions are fully documented so as to enable us to enter our rule.

The pronounced standard for effectiveness of counsel is a performance which conforms to the care and skill a reasonably competent lawyer exercises to render a similar service under the circumstances. Seales v. State, 580 S.W.2d 733, 735 (Mo. banc 1979). In terms of appellate advocacy, an appointed counsel owes the duty to an indigent defendant to submit a brief "which defines the legal principles upon which the claims of error are based and which designates and interprets the relevant portions of the trial transcript ...." Swenson v. Bosler, 386 U.S. 258, 259, 87 S.Ct. 996, 997, 18 L.Ed.2d 33 (1967). That duty was defined more explicitly in State v. Gates, 466 S.W.2d 681 (Mo.1971), in terms of the A.B.A. Standards, The Prosecution Function and The Defense Function § 8.3(b) (Approved Draft, 1971). Counsel is bound "to present to the court whatever there is to present, recognizing that in many instances this will amount to a presentation of contentions that are not well founded in any established case law"--provided, however, counsel can do so without compromise with professional standards. Gates, supra, l.c. 683, 684; State v. Barnes, 517 S.W.2d 155, 169 (Mo.App.1974). Counsel thus discharges function by appearance on behalf of the client, preparation of briefs conformable to Rule 84.04--which include claims of error proposed by the client. There may arise occasion when the client insists on a point despite protest by counsel that it is groundless. In such case, counsel need not "brief the unbriefable" nor compromise professional standard [Gates, supra, l.c. 683] to satisfy a caprice, but the court is nevertheless entitled to have the point presented. The course for counsel is to present the point without developed detail and otherwise dissociate from that contention of error. A.B.A. Standards for Criminal Justice, Standard 4-8.3, Counsel on Appeal (Commentary), p. 111 (2d ed. 1982 Supp.). That procedure not only preserves the integrity of the principles of advocacy, but also subserves the sense of our Special Rule XVI that the court looks to counsel, and not to the pro se initiatives of a represented litigant, for the orderly management of an appeal.

The substance of points 4 and 5 of the original brief are before us, albeit not formally asserted by the supplemental brief. The decision by counsel Barvick to dissociate himself from the points as groundless is a valid exercise of professional judgment. The sense of point 4 is that the prosecution failed to prove malice afore-thought to convict of the first degree assault charged. The prosecution was under § 565.050, a section become effective on January 1, 1979, and in effect at the time of the crime charged. The new criminal code discards the malice aforethought terminology, changes the definition of offense, and the elements of proof as well. Section 565.050 delineates that a person commits the crime of assault in the first degree if: "(1) He knowingly causes serious physical injury to another person; or (2) He attempts to kill or to cause serious physical injury to another person ...." The evidence was, as we develop in the course of opinion, that no serious physical injury resulted, therefore the conviction rests on the "attempt to kill or cause serious physical injury" to Captain Borghardt. The state of mind which renders an attempt under § 565.050.1(2) culpable is the act done purposely, knowingly, recklessly or with criminal negligence [§ 562.016]. The malice terminology which point 4 of the original brief asserts must be met by proof to sustain conviction no longer appertains. " 'Purposely' and 'knowingly' refer to what is commonly thought of as intention." The New Missouri Criminal Code: A Manual for Court Related Personnel § 7.3 Culpable Mental State, Comments (1978). There was abundant evidence, as our opinion shows, that Zeitvogel knowingly [intentionally] attempted an armed assault to inflict serious injury upon Borghardt. The insistence by the defendant that counsel assert this contention was to expect a "brief of the unbriefable" and was properly declined by counsel. Point 4 miscegenates the malice contention with yet another, separate, and altogether extraneous contention: that § 216.460 [since repealed]--which constituted it a crime for a prisoner to offer violence to a guard--preempts the prosecution and conviction for first degree assault under § 565.050. The law, however, is authoritatively settled against that...