Thomas v. State, KCD
| Decision Date | 02 December 1974 |
| Docket Number | No. KCD,KCD |
| Citation | 516 S.W.2d 761 |
| Parties | Roscoe THOMAS, Appellant, v. STATE of Missouri, Respondent. 27151. |
| Court | Missouri Court of Appeals |
Dale R. Copeland, Raytown, for appellant.
John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.
Before PRITCHARD, P.J., and SWOFFORD and SOMERVILLE, JJ.
Appellant (hereinafter referred to as movant) was found guilty of First Degree Robbery and was sentenced by the court under the Second Offenders Act to fifteen (15) years. His conviction was affirmed on direct appeal. State of Missouri v. Thomas, 491 S.W.2d 328 (Mo.1973). He thereupon filed a pro se motion under Rule 27.26, V.A.M.R., to vacate and set aside this conviction, in which he alleged that his constitutional rights had been violated and he had not been afforded a fair trial because (among other grounds asserted but not pertinent here) he was deprived of effective assistance of counsel. New counsel was appointed for movant and an evidentiary hearing was held in the court below, at the conclusion of which the trial court made findings of fact and conclusions of law and denied post conviction relief. This appeal followed in due course and in proper form.
The transcript of the trial in the criminal case was offered as an exhibit in the evidentiary hearing on the Rule 27.26 motion and is before this court. It has been carefully studied and it is necessary to the determination of this matter that some of the facts there disclosed be reviewed.
On March 29, 1971, at 12:45 p.m., two black males, one armed with a shotgun and one with a handgun, entered the Regal Pharmacy at 2462 Brooklyn, Kansas City, Missouri, and held up the owner, James Neal, and the clerk, Sarah Harris. During the course of the robbery, a Dr. Marion Jones entered the store and was also restrained by the robbers. The two men secured the contents of the cash register, Mr. Neal's personal funds, a check protector, a .32 caliber revolver, an amount of narcotics and other drugs, Doctor Jones' personal funds and his watch, and fled the store on foot.
On April 8, 1971, the movant was arrested in connection with a homicide and thereafter confined in jail. No homicide charge was ever filed against him, but during his confinement he was identified in a lineup by Neal, Harris and Jones as one of the robbers of the Regal Pharmacy, and on May 4, 1971, he was charged by information with first degree robbery, which information was amended before trial to bring the charge under the Second Offenders Act.
On the day of his arrest, he was in contact with counsel, a member of the Legal Aid and Public Defenders staff, who represented him throughout the course of the criminal proceedings and subsequent appeal. Part of this representation consisted of filing a Motion to Suppress the lineup and in-court identification by the state's witnesses. Also, movant's counsel filed a Motion to Suppress Illegally Obtained Evidence from an Unlawful Arrest. In this latter connection, an officer testified that when movant was arrested, while operating a borrowed automobile, he observed in 'plain view' a shotgun and a handgun in the automobile movant was driving. Although the record is unclear on this point, apparently the police also found a quantity of heroin as an incident to the arrest. 1
Hearings were had in the court below before the commencement of the trial on both of these motions, and both were overruled.
The record of the trial of the robbery charge clearly demonstrates that the state's whole case hinged upon the identification of the movant by witnesses Neal, Harris and Jones as one of the robbers of the Regal Pharmacy on March 29, 1971, and the sole defense presented was the vigorous efforts of movant's counsel to discredit this identification. Upon appeal from the conviction, the grounds urged as error were the trial court's action in overruling movant's motion to suppress ; that the arrest was without probable cause and that, therefore, the identification of appellant (movant) at the lineup and 'all the evidence that appellant had committed the robbery was the fruit of the arrest and should have been suppressed.' State v. Thomas, supra, at l.c. 329. In affirming the conviction, the Supreme Court held, even though the officers did not have probable cause to arrest movant for homicide, that the identification of the movant by Neal, Harris and Jones emanated from a source independent of the arrest by means sufficiently distinguishable to purge such identification from any taint. State v. Thomas, supra, at l.c. 330--331. Such determination effectively disposes of all of movant's points in his Rule 27.26 motion, except that which asserts deprivation of his constitutional right to effective assistance of counsel.
Movant testified at the evidentiary hearing on his amended motion under Rule 27.26 that on March 29, 1971, the date of the armed robbery of the Regal Pharmacy, for which he was convicted, he was employed as a driver by the Palace Cab Company, which company was 'leased' by one Webster Drummond. He stated that on March 29, 1971, he was working at his job and that at about noon on that day, he secured a fare for transportation from Kansas City to Leavenworth, Kansas, whose name was Charlotte Ann DeGraffenreid. He returned to Kansas City from this trip at 2:15 p.m. He further testified that he gave his trial counsel the names of Mr. Drummond and one David Lloyd, also connected with the Palace Cab Company, as persons who would be helpful in his defense, obviously because if the trip to Leavenworth and the times could be established, he could not have participated in the robbery at 12:45--1:00 p.m. Although he did not specifically so state, it would be reasonable to assume that he also gave his counsel the name of his fare, DeGraffenreid, or (since movant knew her identity) that counsel could have obtained her name by minimal inquiry. Movant testified that to his knowledge, his trial counsel made no attempt to contact these individuals.
The movant further testified that his counsel had advised him of his right to testify and he had expressed his desire to do so. His counsel 'explained' that he was being tried under the 'Habitual Criminal Act' and if he testified 'they would be able to bring up my prior convictions' and 'if I was found guilty, then that would give the jury, you know, grounds to impose sentence'. Movant stated that his counsel told him that if movant testified 'he (counsel) wouldn't be able to try it (the case) as he had planned to'. There was no agreement between him and his attorney as to whether or not he would testify. 2
Movant testified on the Rule 27.26 motion that his then counsel was first seen the day of his arrest on April 8, 1971, and the record discloses that he continued to represent the movant throughout the trial and appeal of the underlying case; that between the time of his arrest until trial, he conferred with his counsel 'at least six' times; and that most of their discussions were relative to 'the motion that he was going to file to get the case dismissed.'.
Movant's counsel testified at the Rule 27.26 hearing that movant had advised him that he was working on the date of the robbery for 'some cab company'; that movant gave him the names of a 'cab driver' and 'somebody else'; but that he made no effort to contact these persons. Counsel gave as his reason for failing to do so, the fact that at the time the movant was also charged with the possession of heroin which was found in the car at the time of his arrest on April 8, 1971. Counsel had filed a motion to suppress this evidence on the grounds of an unlawful arrest and search and seizure; that such motion was filed and heard by another division of the Circuit Court of Jackson County, Missouri before any hearings in the case here involved and that division sustained the motion and dismissed the narcotics charge. Counsel stated that he thought the arrest was unlawful and made with no probable cause, and that therefore, the subsequent search and seizure, subsequent lineup and identification, were illegal and 'that is the reason I didn't contact those other two people.'.
'Q. There was no effort by you or your investigative staff, the Public Defender's office, to contact these persons?
A. No.'
He further testified that he had advised the movant of his right to take the witness stand, but that in his best professional judgment, movant should not do so. The only witness he used in defense was a member of the Sheriff's staff, William Turner. 3
The court below in overruling movant's amended Rule 27.26 motion made Findings of Fact pertinent to this proceeding, which may be summarized as follows: that movant testified he was employed as a cab driver on March 29, 1971; that he gave his counsel the names of two witnesses who movant argues would have supported an alibi defense; that movant's counsel made no attempt to contact these witnesses nor were they contacted or interviewed prior to trial; that counsel made no attempt to establish an alibi defense; and that no evidence was presented on the motion to vacate as to the whereabouts or availability of these witnesses, or the knowledge any of them might have. As pointed out above, all of these findings of fact were supported by the evidence and were proper.
The court below, however, made Conclusions of Law upon these facts which bear close scrutiny under the present state of the law namely:
'1. Movant has not sustained the burden of showing that on a retrial there would be evidence which is substantial and which was not available at the original trial because of any failure to interview witnesses or to properly investigate. Jones v. State (Mo.), 491 S.W.2d 233; McQueen v. State (Mo. en banc), 475 S.W.2d 111; Mace v. State (Mo.), 452 S.W.2d 130, 136.
2. Movant...
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