Thomas v. State, 57819

• Decision Date: 24 June 1974
• Docket Number: No. 57819,57819
• Citation: 512 S.W.2d 116
• Parties: Sanford THOMAS, (Movant) Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 116

512 S.W.2d 116

Sanford THOMAS, (Movant) Appellant, v. STATE of Missouri, Respondent.

No. 57819.

Supreme Court of Missouri, En Banc.

June 24, 1974.

Rehearing Denied July 22, 1974.

Jack M. Chasnoff, Clayton, for movant-appellant.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.

HOLMAN, Judge.

In 1967, Sanford Thomas was found guilty of the first degree murder of John Dougherty and his punishment was fixed at life imprisonment. Upon appeal to this court the judgment was affirmed. State v. Thomas, 440 S.W.2d 467 (Mo.1969). In 1970, Thomas filed a motion to vacate under S.Ct. Rule 27.26, V.A.M.R. After an evidentiary hearing the motion was denied. An appeal was taken from that judgment to this court and we reversed and remanded for a new hearing. This for the reason that we concluded that the findings of fact and conclusions of law were insufficient to enable us to appropriately review the matter and, since the trial judge had retired, we considered a new hearing essential. Thomas v. State, 465 S.W.2d 513 (Mo.1971). After the second evidentiary hearing the trial court, on March 20, 1972, entered a judgment overruling the motion. Thomas (hereinafter referred to as defendant) duly appealed to this court. We have jurisdiction because the case involves a conviction for first degree murder, and the appeal was pending here at the time of our order of April 9, 1973, retaining jurisdiction in such cases. See Parks v. State, Mo., 492 S.W.2d 746. We affirm.

It was stipulated at the hearing that the transcript of the original trial and the transcript of the first 27.26 hearing would be considered as a part of the record in the second hearing. In our determination of this appeal we have read and considered all these transcripts (totaling 628 pages).

We think it helpful at the outset to briefly state the facts developed at the original trial. On Sunday evening, November 27, 1966, defendant had been riding around the North Florissant and Cass Avenue neighborhood in St. Louis with a number of other youths. About 8 p.m., they went to the Greyhound Bus Station. At the station one Frederick Brown and defendant got into a taxicab, driven by John Dougherty, and the cab proceeded south on Broadway. One of the youths who had been with Brown and defendant at the bus terminal came back to where the others were parked and reported that Brown and defendant were going to 16th and Mullanphy. The others tried to follow the cab but lost it in the traffic and then drove to Brown's house. Sometime later, Dougherty was found in the front seat of his cab at 16th and Mullanphy unconscious. A tooth was knocked out and he was bleeding from two stab wounds in his chest, which wounds proved fatal.

There was further testimony that Brown and defendant later went to Brown's house and entered the back door into the kitchen where the other boys were assembled, and that they threw a watch and wallet on the table and said 'that was all they got, they robbed the cab driver.' The watch and wallet were later identified as having belonged to Dougherty. One of the youths told his father something about what had occurred and his father reported the matter to the police.

Brown was arrested the next day and pointed out to officers a garbage can in which they found portions of the partially burned wallet and pieces of charred paper that had been in it. The knife used in the murder was given to Niles Pursley by Brown's girl friend and was recovered by the police.

Defendant, who apparently had no previous criminal record, was the only witness for the defense. He stated that after he and Brown entered the cab Brown whispered, 'Let's rob the cab driver,' but that he refused to go along with that plan and got out of the cab at 14th and Cass. He further stated that he later got another cab and went to 18th and Cass to see if Brown was at his mother-in-law's house; that about that time he saw Brown walking up the street so they both got into another cab and went to Brown's house, where they went inside. Defendant denied participating in the crime and denied that he and Brown walked into the kitchen and threw the watch and wallet on the table and said, 'That's all we got out of the robbery.'

The grounds alleged in the amended motion to vacate which are relevant to this appeal are:

'(a) New evidence which proves that this defendant is innocent of first degree murder of John Dougherty. (See exhibit 'A' attached to the original petition.) The trial court erred in failing to direct a verdict for defendant, or, for the same reason, failing to set the verdict aside;

'(d) 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.

'(e) The court and the defendant, through his attorney, were substantially misled by false statements made by the prosecuting attorney, Mr. Fredericks, about the lack of availability of the witness, Frederick Brown.'

The evidence adduced at the hearings on the motion is as follows: During the original trial the assistant circuit attorney asked leave to strike the name of Frederick Brown from the list of State's witnesses and such was granted. He announced at that time that Brown had hepatitis, was quarantined, and would not be available as a witness. At the beginning of the hearing on the motion to vacate, it was stipulated that said statement was erroneous and that Brown did not have hepatitis at that time. The manner in which the error occurred was not made clear, although there was some indication that perhaps this Brown had been confused with another prisoner by the same name.

Frederick Brown testified that he had entered pleas of guilty to charges of murder and robbery of John Dougherty and had received two life sentences which he was then serving in the Missouri penitentiary. He stated that he had previously made a confession to the police in which he stated that defendant was a participant in those crimes; that defendant did not participate in the crimes and that he implicated him in order to 'cover up' for two other persons who did participate; that he was actually assisted by Walter Williams who was in the cab (and is now deceased), and by Lonnie Anderson who drove up behind the cab in a car; that after he had been in the penitentiary quite a while, and Williams and Anderson had done nothing to help him, he decided he should try to help defendant because defendant was innocent, and that he (Brown) had helped put him in the penitentiary; that he then made an affidavit stating the true facts and delivered it to defendant; that if defendant is granted a new trial he is willing to testify at the trial and to state that defendant had nothing to do with the crimes in question. He further testified that he had known Dougherty previously and had participated with him in the commission of at least two crimes.

Mrs. Dorothy Thomas, defendant's mother, testified that she had employed Alfred Harris to represent defendant in his trial and had paid him sums of money from time to time for his services; that she had difficulty getting to see him at his office, and had waited in the corridor of the courthouse from time to time in an effort to see him; that she could only get to see him briefly when she went to the office to pay money; that she requested that he go see defendant but that he did not do so except on one occasion; that she later told Mr. Harris that she wanted him to pay her money back so she could get someone else to represent defendant but he would not refund the money; that he did not tell her that he had previously known Mr. and Mrs. Dougherty.

Defendant testified that after he heard that the police were looking for him he left town and stayed away about a month; that he returned the last of December 1966, and surrendered to the police; that Mr. Harris came to see him in February 1967 while he was in jail and talked with him about the case; that he did not see him again until the day his trial started, which was in November of that year; that on the morning of the trial Mr. Harris told him that if he would enter a plea of guilty to a reduced charge his sentence would be ten years, but that he had refused to do so; that he learned for the first time during the trial that Harris had at one time represented either Mr. Dougherty or his wife, and that if he had known that before he would not have wanted Harris as his attorney. He stated that he had wanted Harris to have Frederick Brown as a witness, although if he had known that Brown had made a statement implicating him, he would not have wanted him to testify. Defendant further complained in his testimony that Mr. Harris did not discuss with him whether he should testify and did not tell him that he could refuse to testify; that he first learned that he would be a witness when Harris, during the trial, told him to pay attention to the evidence because he would later testify.

Alfred Harris testified that he had been an attorney for 30 years and had specialized in the criminal practice; that he had tried hundreds of criminal cases; that after he was employed by Mrs. Thomas he discussed the case with Mr. Fredericks, the assistant circuit attorney handling the case, and that Fredericks discussed what the State's evidence would be; that he then discussed the case at length with the defendant and developed a theory of defense that he should use defendant as a witness because he had a clean record and was emphatic in his position that he was innocent, and that he had reason to hope that defendant could convince the jury of his innocence; that he learned of the confession that Frederick Brown had made which implicated the defendant and, for that reason, did not want to use Brown as a witness because the facts in the confession implicating defendant could be brought out in impeaching Brown's...