Tucker v. State, 57005

• Decision Date: 12 June 1972
• Docket Number: No. 57005,No. 2,57005,2
• Citation: 481 S.W.2d 10
• Parties: Donald Joe TUCKER, Movant-Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 10

481 S.W.2d 10

Donald Joe TUCKER, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 57005.

Supreme Court of Missouri, Division No. 2.

June 12, 1972.

Donald W. Jones, Springfield, Court Appointed Attorney for appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.

HENRY I. EAGER, Special Commissioner.

This is an appeal from an order overruling a motion filed under Rule 27.26 V.A.M.R., to vacate a criminal conviction. Defendant was found guilty on October 11, 1967, of stealing over $50, and a sentence of five years was imposed. The evidence in the original trial was that he threatened the night engineer at a Springfield packing company with a pistol, locked him in a truck and, apparently with an accomplice, looted the safe of approximately $700. Defendant was represented at the trial by Mr. William Moon whom he had employed some two or three weeks before trial, after previously having court-appointed counsel. Upon appeal from the conviction, the judgment was affirmed. State v. Tucker, Mo., 451 S.W.2d 91. The Court there considered in detail the principal question raised in the motion for new trial, namely, the sufficiency of the evidence of identity, but held further that it could not consider matters raised in two amended motions for new trial filed out of time.

In the present motion defendant alleges many things. We shall confine ourselves to the ones which are carried forward in his brief on this appeal. They are (1) that the information was insufficient; (2) that defendant did not receive a fair trial because the Court failed to give an instruction defining the word 'property'; (3) that defendant was denied effective assistance of counsel. The latter was very sketchily alleged, but was supplemented by oral amendment at the hearing to such an extent that we consider it to assert: that counsel did not raise, in his timely filed motion for a new trial, 'legitimate available issues,' and that representation was inadequate in counsel's preparation for trial, particularly in failing to produce a material alibi witness. These things are claimed to have violated substantially all conceivable constitutional provisions. Defendant has obviously had a total of six or seven attorneys in these proceedings, all being appointed except Mr. Moon.

The devious after-trial history of this matter is pointed out in considerable detail at 451 S.W.2d loc.cit. 92. Defendant's trial counsel filed a motion for new trial within a properly extended time. Later, and after the expiration of the proper time, defendant objected that this motion was insufficient, counsel was permitted to withdraw, further time was granted on two or three occasions, and amended, supplemental, and second amended motions were filed, both pro se and by new counsel. These, in the aggregate, raised many things, as indicated in our prior opinion. We are not concerned with the allegations of those motions here. We note, however, that on the hearing of the motions evidence was taken which has, by agreement, been incorporated into our record on the present motion. In our prior opinion the Court said that defendant was not precluded from seeking post-conviction relief; obviously, that could only be permitted upon such grounds as would come within the purview of Rule 27.26, and render the judgment subject to collateral attack.

The Court appointed new counsel for defendant for the hearing on this 27.26 motion. Upon appointment such counsel prepared and furnished the Court with a brief. Defendant was present and participated but did not testify. Certain contentions previously made were waived. The hearing on the motion was unusual in that it consisted merely of argument, agreements, admissions, and the agreed incorporation into the record of the hearing of the evidence above referred to. No witnesses were heard orally. Suffice it to say that defendant was proffered full opportunity to testify and to put on any witnesses whom he chose. He chose to go no further. In fact, it was at the State's insistence that the prior record was incorporated. It was stipulated (with defendant's personal consent) that Mr. Moon had considered the additional grounds which defendant now insists should have been included in the motion for a new trial, and that he was 'apparently' of the opinion that they were 'without merit.' For some reason, whenever the State's attorney suggested calling Mr. Moon in person, defendant and his attorney discouraged it.

We consider briefly the evidence heard on the several motions for new trial, which is now a part of this record, and which, in fact, was in the nature of a hearing on a 27.26 motion. This evidence was heard over the objection of the State as being outside the scope of any timely motion for new trial. We consider it as a substitute for the evidence which could (and except for defendant's insistence) should have been heard on the present motion. We confine our discussion to those matters now briefed and in controversy.

Defendant testified that he asked Mr. Moon to subpoena as alibi witnesses Howard Kyger and Elvira Layton, who was also referred to under two other names and who was apparently living in Kyger's apartment, and that he wanted his mother and brother notified; that no subpoena was issued except one for Elvira on the morning of trial; that she did not appear; that his brother was notified but his mother was not. The brother did not appear but the mother did appear and testified. (The brother's testimony would have been substantially the same as that of the mother.) Defendant had never given any statement to the authorities; he further testified: that Kyger appeared and testified at his trial; that he gave Mr. Moon Elvira's address, and Moon said a subpoena had been issued; that at the beginning of trial Mr. Moon said 'he hadn't been able to reach' her; that he had already asked Moon to get a continuance; that he talked to his mother during the noon hour, but did not then request any further effort to get the brother who was only 55 miles away and could be reached by phone.

William Moon, who had practiced law since 1936, testified: that he was employed in the case rather late, after the preliminary hearing, and perhaps two or three weeks before trial; that he talked with defendant in the jail, and defendant requested that he get Howard Kyger and his 'wife' Elvira as witnesses, giving an address where he 'thought' Mrs. Kyger might be staying; that Kyger was in jail and he talked with him; that he went out to the address given for Mrs. Kyger three or four times, found no one at home, and talked to a neighbor who seemed to know nothing about her; he went to the address twice on one evening and also on two other days; that he learned from Kyger that Elvira's testimony would not be what defendant thought it would be, and that it would not agree with what Kyger would testify to, in that she would say that defendant accompanied them on an all-day trip to look at a farm on Sunday, the day of the crime. (We note that Kyger testified that defendant did not go with them, whereas at the hearing on the motions Elvira testified that he did.) After learning this, Mr. Moon 'more or less abandoned efforts' to produce her, but did, at defendant's insistence, have a subpoena issued for her on the morning of trial. Mr. Moon further testified: that he talked to defendant's brother twice before the trial, told him of the date, reached his mother 'through him to be here,' but that the brother said he was too busy and that nothing he could say would help, and that he wouldn't make the trip. The testimony of the mother was merely to the effect that she and the brother saw defendant up to about midnight on the night in question, approximately three hours before the crime was committed. Mr. Moon also testified that he thought that they were as ready for trial as they could possibly be, and that he tried the case as hard as any case he had ever tried; that he had notified defendant that he could not locate Elvira, and that a subponea would do no good until they could locate her; he did not consult with defendant concerning the grounds for the motion for new trial; he did furnish defendant a copy.

Elvira Estes, also known as 'Layton', was permitted to testify at the hearing, over the objection that an alibi could not then be established; she was allowed to testify essentially as an offer of proof, presumably as to what she would have testified to at the trial. In substance, that was that she and Kyger had come back to their apartment at about midnight on the night in question; that defendant, who had been staying there and sleeping on the couch, was there, and also his mother and brother, who soon left; that the three talked until about 1:00 a.m., when all three went to bed; that when she got up the next morning around 6:30 defendant was asleep on the couch; that all three left about 7:00 a.m. and were gone all day to look at a farm. She further testified: that she was living at the address given to Mr. Moon at the time of trial, although she had lived at several other places since; that she read of the charges against defendant but contacted no law enforcement officers, and that she would have been willing to appear.

As already indicated, this prior evidence was made a part of the present record. The trial court found and ruled on the present motion: (1) that the information was not defective; (2) that there was no error in not further defining 'property'; and (3) that defendant's employed counsel filed a timely motion for new trial as to 'all matters counsel felt proper' and that the Constitution does not protect a defendant against all mistakes of counsel; that the record of the trial and the testimony does not support the claim of ineffectiveness of counsel, either concerning the motion for new trial or the calling of witnesses. The motion was overruled.

There is no merit in the...