Thompson v. State, 10739

• Decision Date: 23 October 1978
• Docket Number: No. 10739,10739
• Citation: 576 S.W.2d 541
• Parties: Douglas Wayne THOMPSON, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 541

576 S.W.2d 541

Douglas Wayne THOMPSON, Appellant, v. STATE of Missouri, Respondent.

No. 10739.

Missouri Court of Appeals, Springfield District.

Oct. 23, 1978.

Motion for Rehearing or Transfer Denied Nov. 8, 1978.

Application to Transfer Denied Dec. 18, 1978.

Gerald H. Johnson, Downs & Johnson, Cape Girardeau, for appellant.

John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.

Before BILLINGS, C. J., and HOGAN and TITUS, JJ.

HOGAN, Judge.

This is a proceeding for postconviction relief under our Rule 27.26, V.A.M.R. Petitioner Douglas W. Thompson seeks to vacate a life sentence imposed by the Circuit Court of Mississippi County on December 23, 1966, after a jury had found him guilty of first-degree murder. The trial court denied an evidentiary hearing and dismissed the proceeding upon the State's motion. Thompson appeals.

Thompson was convicted of first-degree murder in the Circuit Court of Bollinger County in December 1961, and a death sentence was imposed. On direct appeal, the judgment and sentence were affirmed. State v. Thompson, 363 S.W.2d 711 (Mo. banc 1963). In January 1964, petitioner filed a motion to vacate the sentence pursuant to Rule 27.26. The trial court denied the motion without a hearing. An evidentiary hearing was ordered and was held. The trial court denied relief. On appeal our Supreme Court reversed, vacating the sentence and judgment on the grounds that the State had suppressed material evidence and had compounded the error with a misleading closing argument. Upon retrial in 1966 in the Circuit Court of Mississippi County, petitioner was again found guilty; his punishment was assessed at life imprisonment.

The proceeding now before this court was begun on September 10, 1975, nearly nine years after Thompson was sentenced for the second time. The original petition was apparently drawn pro se. Much of the matter alleged is simple diatribe and invective, and might well have been stricken as scurrilous by the trial court. The allegations of the petition are: (1) that petitioner's conviction was obtained by the "deliberate" use of false and perjured testimony; (2) that petitioner's conviction violates the constitutional prohibition against "double jeopardy"; (3) that petitioner was deprived of his right to trial by a jury composed of a true cross-section of the community, and was thus denied ". . . an impartial trial, due process and equal protection of the law in violation of the Sixth and Fourteenth Amendments . . ."; (4) that the jury was not instructed upon the law of the case, in violation of the "due process clause of the Fourteenth Amendment to the United States Constitution," petitioner further alleging that the instructions shifted the burden of proof to the defendant; and (5) that the trial court denied petitioner equal protection of the laws by refusing to furnish him a copy of the instructions given at the trial.

Counsel was appointed for the petitioner, and this proceeding lay dormant for some time. Thompson then filed a petition for a writ of habeas corpus in the Supreme Court of Missouri; the petition was denied without prejudice and another such petition was filed March 1, 1977, in the Circuit Court of Mississippi County. The second petition for the writ alleges some of the matter averred in the petition to vacate, and further avers that the hearing on the present motion under Rule 27.26 has been deliberately delayed. The petitioner also requested and was granted leave to amend his petition to vacate so as to include the allegation that the "keyman" system of jury selection was used in Mississippi County when he was tried, thus denying him due process.

On June 14, 1977, counsel for the State and appointed counsel for the petitioner appeared in the Circuit Court of Mississippi County, principally to argue the State's motion to dismiss the petition. The State moved and was granted leave to file: (1) the trial transcript prepared after the petitioner's original trial, and (2) an excerpt from the proceedings had upon petitioner's second trial. The State then argued that the petition was insufficient as a pleading. Petitioner's counsel responded by saying he had a letter from the petitioner, stating that petitioner had recently obtained a photograph which proved the State's witnesses had perjured themselves upon the second trial. Attention was called to several other aspects of the petitioner's motion to vacate. The general thrust of the argument made by petitioner's counsel was that an evidentiary hearing should be had. At the close of the arguments, the trial court took the case under advisement. Counsel for both parties were told "(W)hatever you desire to submit you submit." Apparently, nothing further was forthcoming and on June 22, the trial court entered findings, denied an evidentiary hearing, and dismissed the petition or motion for postconviction relief upon the State's motion. This appeal followed.

The State and the petitioner have, for the most part, briefed the appeal in procedural terms. There is no doubt that a proceeding under Rule 27.26 is a Civil proceeding; Rule 27.26(a) in terms so provides. The general rules of good pleading apply to a motion or petition for postconviction relief under Rule 27.26, and an application for relief may be held insufficient if the averments consist of abstract conclusions only, leaving both the trial and appellate courts to speculate what the petitioner's real contentions are. Smith v. State, 513 S.W.2d 407, 410-411(1) (Mo. banc 1974), cert. denied 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975); Hogshooter v. State, 514 S.W.2d 109, 113 (Mo.App.1974). The petition in this case is couched in such conclusory, argumentative and epithetical language that the appeal might be disposed of on the ground that petitioner's motion is insufficient as a pleading, but we prefer to consider it upon its merits, at least to the extent we can ascertain what the nature of the petitioner's assertions are.

To begin with, notice must be taken of petitioner's conduct when he was sentenced in 1966. A partial transcript of the record shows that the petitioner appeared in person and with counsel before the trial court for sentencing on December 23, 1966. The following proceedings were had: (our emphasis)

"THE COURT: . . . By reason of the responsibility that is placed on me in this position where the jury has found you guilty of murder in the first degree, it becomes my duty, as I said, to fix the punishment, and that punishment will be fixed at a life term in the penitentiary. You may have a seat and I will consult with your lawyers.

THE COURT: Now, Mr. Thompson, you and your attorney in the presence of the court now, the statute provides, of course, that a motion for a new trial may be filed, and if you desire, the Court will give you a definite number of days to file that motion for new trial. We will give you such time as you want. Do you at this time feel that you would like to have additional time to file a motion for a new trial?

MR. HERD: Your Honor, speaking in behalf of the defendant, we don't want any time for a motion for a new trial.

THE COURT: Is that your understanding, Mr. Thompson?

THE DEFENDANT: Yes, sir.

THE COURT: Your lawyer has indicated that you do not desire to file a motion for new trial or for additional time or time within which to file a motion for new trial. You understand that if we have what we call allocation and sentence then under the strict rules of the Court and of the law you would not then be permitted to file a motion for new trial. Strictly within our rules a motion for new trial cannot be filed after we have such an allocution.

MR. HERD: If the Court please, I think the record should indicate that I have discussed this matter with the defendant and that the defendant is aware of his rights in this area, and I have made that quite clear in this area, and I am sure he understands that, is that correct?

THE DEFENDANT: Yes.

THE COURT: You understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Since the jury has returned a verdict and the court has indicated the punishment, has anyone in any ways mistreated you in any way?

THE DEFENDANT: No, sir.

THE COURT: Threatened you in any way?

THE DEFENDANT: No, sir.

THE COURT: Made you any promises?

THE DEFENDANT: No, sir.

THE COURT: No one has made you any promise that would lead you to desire to waive your right or to deny your right to file a motion for new trial?

THE DEFENDANT: No, sir.

THE COURT: You fully understand your rights?

THE DEFENDANT: Yes, sir.

THE COURT: And you have discussed them with your lawyer?

THE DEFENDANT: Yes, sir.

THE COURT: Your desire is that you do not file a motion for new trial?

THE DEFENDANT: Yes, sir.

THE COURT: Your desire is that you do not file a motion for new trial?

THE DEFENDANT: That is right, Your Honor.

THE COURT: Then you may stand. Now, having had the verdict of the jury, having had the Court indicate the punishment as being a sentence to a penal institution in Missouri, that is, the custody of the Department of Corrections for your natural life, do you now have anything to say or any lawful or legal reason to give why sentence should not be pronounced?

THE DEFENDANT: No, sir.

MR. HERD: There is no reason, Your Honor.

THE COURT: All right. The defendant having been asked if he had any lawful or legal reason to give why sentence should not be pronounced, and having given none, and in accordance with the findings of the verdict of the jury, and the indication of the Court, you are hereby sentenced to the penitentiary for your natural life and ordered committed to the custody of the Department of Corrections for your natural life. All right. You may be seated. Now there will be the further order that the defendant be forthwith placed in the custody of the warden of the penitentiary for safekeeping under his prior sentence and for the carrying out of the sentence of ...