Thomas v. State, 56216
| Decision Date | 12 April 1971 |
| Docket Number | No. 56216,No. 1,56216,1 |
| Citation | 465 S.W.2d 513 |
| Parties | Sanford THOMAS, Appellant, v. STATE of Missouri, Respondent |
| Court | Missouri Supreme Court |
Jack M. Chasnoff, Clayton, for movant-appellant.
John C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, for respondent.
HOUSER, Commissioner.
Appeal from a ruling of the Circuit Court of the City of St. Louis denying the amended motion of Sanford Thomas filed under Criminal Rule 27.26, V.A.M.R., to vacate the judgment of conviction entered in that court finding him guilty of murder in the first degree and sentencing him to life imprisonment.
One Frederick Brown, Jr., pleaded guilty to the robbery and murder of John Dougherty, a taxi driver, in his taxicab. During the investigation of his case Brown made a confession implicating movant, who was charged, tried by a jury and convicted of first degree murder. Brown was not called and did not testify at the murder trial. Movant appealed to this Court, which affirmed the judgment of conviction. State v. Thomas, Mo.Sup., 440 S.W.2d 467. While movant and Brown were serving life sentences movant received from Brown a sworn affidavit stating that movant had left the taxicab before the stabbing and robbery took place, and had not participated with Brown in the murder and robbery.
In his motion to vacate movant alleged inter alia that (1) 'The quality of legal representation received by the defendant at his trial was such as to constitute a fraud upon him and the court and to destroy any possibility of his receiving a fair trial,' and (2) that 'The court and the defendant, through his attorney, were substantially misled by false statements made by the prosecuting attorney (naming him), about the lack of availability of the witness, Fredrick Brown.'
The circuit court held an evidentiary hearing. Movant Sanford Thomas, his mother Dorothy Thomas and one Frederick Brown, Jr., testified in support of the motion to vacate. Movant's attorney at the original trial and on the first appeal testified for the State.
Testimony was introduced on behalf of movant in an effort to establish that in a number of respects movant's lawyer at the murder trial was guilty of gross neglect in preparing for trial; that he was derelict in not advising movant of his rights before and at the trial, and in not advising movant that he had previously represented the victim of the crime and the victim's wife, and in sum, that the lawyer's representation deprived movant of a fair trial. The attorney testified at length in justification of his representation. There was evidence that during the trial of the murder case the prosecuting attorney told the court, defendant and defendant's counsel that the witness Frederick Brown, Jr., could not attend the trial because he had hepatitis but that in fact he did not have hepatitis or any other disease and could have been produced at the trial. Brown testified at the 27.26 hearing that movant was not present in the cab at the time of the murder and robbery; that he had left the cab before this occurred; that movant did not participate in the murder and robbery, and undertook to account for his incrimination of movant by explaining that he used Sanford Thomas ; that he was protecting someone else.
At the conclusion of the testimony at the 27.26 hearing the trial judge made a 9-page statement of record. He discussed a number of subjects at some length, including the conduct of the prosecuting attorney in connection with the availability of the witnesses and the conduct of defendant's attorney, at the original trial, but made no specific findings of fact or conclusions of law with respect to either. On the contrary, he limited the scope of his order as follows: '* * * the only thing I'm ruling on, making a finding of fact and ruling of law is, is he entitled to come back and take the second bite at the cherry.' After remarking that movant had had a trial and an appeal, prosecuted 'all the way through' by the same attorney who represented defendant at the trial, he denied the motion to vacate '(o)n the consideration of all of the testimony.'
On this appeal movant assigns 9 errors, (1) in failing to make findings of fact or conclusions of law as required by Supreme Court Rule 27.26(i); in not finding as a fact that movant's attorney (2) had only one interview of approximately 15 minutes' duration with Sanford...
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