Turley v. State, No. 38788

CourtCourt of Appeal of Missouri (US)
Writing for the CourtSMITH; McMILLIAN; SMITH; McMILLIAN
Citation571 S.W.2d 465
Docket NumberNo. 38788
Decision Date08 August 1978
PartiesErnest TURLEY, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent. . Louis District, Division One

Page 465

571 S.W.2d 465
Ernest TURLEY, Plaintiff-Appellant,
v.
STATE of Missouri, Defendant-Respondent.
No. 38788.
Missouri Court of Appeals, St. Louis District, Division One.
Aug. 8, 1978.
Motion for Rehearing and/or Transfer Denied Sept. 15, 1978.

John A. Eigel, Warrenton, for plaintiff-appellant.

John D. Ashcroft, Atty. Gen., Carson W. Elliff, Asst. Atty. Gen., Jefferson City, for defendant-respondent.

SMITH, Judge.

Appellant, Ernest Turley, appeals from a judgment entered by the circuit court denying, without an evidentiary hearing, his Rule 27.26 motion for post conviction relief. On October 5, 1972, the circuit court of Warren County entered judgment of conviction upon a jury verdict finding appellant guilty of armed robbery and sentenced him as a second offender to twenty (20) years imprisonment. On appeal we affirmed this conviction. State v. Turley, 518 S.W.2d 207 (Mo.App.1975). In his 27.26 motion, appellant contends that his prior convictions were invalid because he was without assistance of counsel and therefore, he was improperly sentenced as a second offender. He requests to be sentenced without consideration of these allegedly invalid convictions. This would presumably, however, require a new trial on guilt.

The state argues that because the appellant did not raise this issue in the direct appeal of his conviction he is precluded from asserting it in his 27.26 motion.

This case is governed by Gamache v. State, 548 S.W.2d 594 (Mo.App.1977), decided by this court. The facts are almost identical to the present case. Gamache was

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convicted of robbery and sentenced pursuant to the Second Offender Act. In his 27.26 motion he alleged that the Act was inapplicable to him because his previous convictions were without counsel and without a voluntary waiver of counsel. The trial court denied the motion without an evidentiary hearing, because Gamache failed to raise this issue on the direct appeal of his conviction. We affirmed, relying on McCrary v. State, 529 S.W.2d 467 (Mo.App.1975). In McCrary this court stated: ". . . an issue which could have been raised on direct appeal, even though it is a constitutional claim, may not be raised in a post conviction motion, except . . . in rare and exceptional circumstances. . . ." Id. at 472.

There are no such rare and exceptional circumstances set forth in Turley's motion. See also Montgomery v. State, 529 S.W.2d 8 (Mo.App.1975).

Judgment affirmed.

CLEMENS, P. J., concurs.

McMILLIAN, J., dissents in separate opinion.

SMITH, Judge, concurring.

I concur in the majority opinion, which adequately covers the matters raised by movant in his brief. In view, however, of the attack leveled Ex gratia by the dissent against McCrary v. State, 529 S.W.2d 467 (Mo.App.1975) and Gamache v. State, 548 S.W.2d 594 (Mo.App.1977), I believe some expression of my personal reasons for believing those opinions to be sound is warranted.

I start from the basic belief that any sound judicial system must function with rules of procedure and rules of evidence. If these rules are followed, the trial of litigated matters should result in presenting to a jury the evidence and law upon which it must make its factual decision. Our system is an adversary one and, with few exceptions, invocation of the rules of evidence is a responsibility of the litigant acting through his attorney. This is a part of our procedure. The trial judge functions as a neutral arbiter. Again, with few exceptions, it is not the court's function to intervene in the handling or strategy of the trial or to make evidentiary rulings where none are requested. This is for good reason. The lawyer and his client are presumably far more knowledgeable about the strengths and weakness of the litigant's case and are in a far better position to determine the strategy which will be utilized in the trial than is the trial judge.

Our rules of procedure, therefore, require that evidence which is objectionable be objected to. If it is not, it is presumed that the litigant does not desire to prevent its admission in short, the objection is waived. If the rules of evidence and of procedure are followed, it may also be presumed that a fair trial has occurred and that the determination of the fact finder has been made upon a proper consideration of the evidence and law before it. Any sound judicial system must also provide for the termination of litigation. If matters are to be relitigated because a litigant has decided that he should have tried the case differently, then obviously litigation will never end for the possibilities of strategy and tactics are nearly endless. Our judicial system, therefore, has established a basic concept that if a suit has been fairly tried it is not to be tried again simply because a litigant has a new theory or strategy.

However, there must necessarily be exceptional situations where circumstances are such that absolute adherence to the above mentioned precepts will result in injustice. This is particularly true in the criminal law area, where the courts are dealing with the life and freedom of the individual. These are accorded such ultimate priority in our system of government that special rules have been created to insure that injustice does not occur. But, those rules are triggered by exceptional circumstances. Rule 27.26 is such a rule.

The dissent has lifted the language of Rule 27.26(b)(3) from the context of the entire rule and concluded that Rule 27.26 is available anytime a prisoner in custody alleges a trial error having constitutional

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basis. I have several difficulties with this approach.

First, I doubt that a trial Error exists if no objection was made in the trial court. As previously pointed out, trial courts rule on objections and convicting a trial judge of error when no objection is made should be a most unusual occurrence.

Secondly, I question that a "trial error affect(s) constitutional rights" where a defendant has waived his constitutional objection by failing to raise the matter. It is clear that even constitutional claims may be waived. Waiver occurs when a defendant fails to raise the matter.

Thirdly, it is a rare trial error that does not have some constitutional basis. Hearsay evidence denies a litigant the right of confrontation; (State v. Sykes, 569 S.W.2d 258 (Mo.App.1978); confessions almost always have Fifth Amendment implications; physical evidence taken from a defendant normally raises Fourth Amendment considerations; identifications frequently involve due process questions or right to counsel considerations; relevance may raise due process questions; voir dire questioning or failure to excuse a juror can present trial by jury problems; impeachment, enhancement of punishment, or application of the second offender act by prior convictions raise trial by jury, right to counsel, and due process difficulties. The list could go on. I simply do not believe that the last sentence of Rule 27.26(b)(3) was intended to allow post-conviction relief for every non-objected to bit of evidence admitted which might be claimed to be constitutionally offensive. If that is what the sentence means, it is simply a euphemistic method of granting a second trial and/or second appeal contrary to the first sentence of the subparagraph.

Lastly, I believe that the scope of errors covered by Rule 27.26(b)(3) is to be determined by the nature of the relief authorized under that rule. That relief is limited to claims that the sentence imposed was in violation of the Constitution and laws of this State or the United States, or that the court lacked jurisdiction, or the sentence exceeded the maximum authorized by law, or that the sentence is otherwise subject to collateral attack. See Rule 27.26 first paragraph. This is further clarified by paragraph (i) of the rule which limits relief on constitutional claims to those in which a denial or infringement occurred sufficient to render the judgment subject to collateral attack.

It was within this framework that this court decided McCrary and Gamache. There is reference in those cases to the failure to raise the alleged error on appeal. But, the scope of those opinions is broader than that. The established procedure in this state is that litigants, including defendants in criminal cases, are required to raise objections in the trial court, preserve them for review, and raise them on appeal. Relief under Rule 27.26 is not a substitute for these procedures. The teaching of McCrary and Gamache is that trial errors will not be considered in a 27.26 proceeding unless the motion alleges some factually and legally sufficient reason why the matter was not or could not be raised during the trial and appeal. Whether we couch our reasons in terms of bypass, trial strategy, or simply "sandbagging", trial errors which could and should have been raised at trial and on appeal should not constitute proper grounds for Rule 27.26 relief.

The constitutional doctrines which Turley now seeks to invoke were well established at the time of his trial in 1972. As we pointed out in Montgomery v. State, 529 S.W.2d 8 (Mo.App.1975), the question of whether defendant was a second offender was a question of fact to be determined by the trial court and that factual determination was subject to review upon appeal. Turley alleges no reason in his motion why the matter could not have been raised at the trial and on appeal. And, as pointed out in Gamache, supra, he was in the best position of anyone to know whether he had counsel.

Rule 27.26 serves a highly useful function in our system of justice. It provides a reasonable and proper method of...

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4 practice notes
  • Thompson v. State, No. 10739
    • United States
    • Court of Appeal of Missouri (US)
    • October 23, 1978
    ...1 We understand that one member of the court which decided McCrary, supra, has become dissatisfied with the opinion. Turley v. State, 571 S.W.2d 465 (Mo.App.1978) mandate issued October 12, 1978. With deference, we believe the vehemence of the dissent is unjustified. Our Rule 27.26 was fash......
  • Weir v. State, No. 61330
    • United States
    • United States State Supreme Court of Missouri
    • November 14, 1979
    ...they were not raised at trial or on direct appeal. See, E. g., Hemphill v. State, 566 S.W.2d 200, 207 (Mo. banc 1978); Turley v. State, 571 S.W.2d 465 (Mo.App.1978); Thompson v. State, 569 S.W.2d 380 (Mo.App.1978). The following statement of the basis for such results appears in McCrary v. ......
  • Medley v. State, No. 45068
    • United States
    • Court of Appeal of Missouri (US)
    • September 7, 1982
    ...relief except perhaps in "rare and exceptional circumstances." Armbruster v. State, 613 S.W.2d 462, 463 (Mo.App.1981); Turley v. State, 571 S.W.2d 465, 466 (Mo.App.1978). Movant fails to allege "rare and exceptional" circumstances which would necessitate raising this point for the first tim......
  • Armbruster v. State, No. 11918
    • United States
    • Court of Appeal of Missouri (US)
    • March 10, 1981
    ...of counsel cannot be made by a motion for postconviction relief except perhaps in "rare and exceptional circumstances". Turley v. State, 571 S.W.2d 465 (Mo.App. 1978). No such circumstances are shown here. Moreover, there were two convictions considered by the trial judge in determining tha......
4 cases
  • Thompson v. State, No. 10739
    • United States
    • Court of Appeal of Missouri (US)
    • October 23, 1978
    ...1 We understand that one member of the court which decided McCrary, supra, has become dissatisfied with the opinion. Turley v. State, 571 S.W.2d 465 (Mo.App.1978) mandate issued October 12, 1978. With deference, we believe the vehemence of the dissent is unjustified. Our Rule 27.26 was fash......
  • Weir v. State, No. 61330
    • United States
    • United States State Supreme Court of Missouri
    • November 14, 1979
    ...they were not raised at trial or on direct appeal. See, E. g., Hemphill v. State, 566 S.W.2d 200, 207 (Mo. banc 1978); Turley v. State, 571 S.W.2d 465 (Mo.App.1978); Thompson v. State, 569 S.W.2d 380 (Mo.App.1978). The following statement of the basis for such results appears in McCrary v. ......
  • Medley v. State, No. 45068
    • United States
    • Court of Appeal of Missouri (US)
    • September 7, 1982
    ...relief except perhaps in "rare and exceptional circumstances." Armbruster v. State, 613 S.W.2d 462, 463 (Mo.App.1981); Turley v. State, 571 S.W.2d 465, 466 (Mo.App.1978). Movant fails to allege "rare and exceptional" circumstances which would necessitate raising this point for the first tim......
  • Armbruster v. State, No. 11918
    • United States
    • Court of Appeal of Missouri (US)
    • March 10, 1981
    ...of counsel cannot be made by a motion for postconviction relief except perhaps in "rare and exceptional circumstances". Turley v. State, 571 S.W.2d 465 (Mo.App. 1978). No such circumstances are shown here. Moreover, there were two convictions considered by the trial judge in determining tha......

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