Weldin v. State, 21853

• Citation: 973 S.W.2d 107
• Decision Date: 29 May 1998
• Docket Number: No. 21853,21853
• Parties: Paul E. WELDIN, Jr., Appellant, v. STATE of Missouri, Respondent.
• Court: Court of Appeal of Missouri (US)

Page 107

973 S.W.2d 107

Paul E. WELDIN, Jr., Appellant, v. STATE of Missouri, Respondent.

No. 21853.

Missouri Court of Appeals,

Southern District,

Division One.

May 29, 1998.

Amy M. Bartholow, Asst. Public Defender, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Asst. Atty. Gen., Jefferson City, for Respondent.

CROW, Judge.

Appellant, Paul E. Weldin, Jr., was charged with two crimes:

Count I: robbery in the first degree, § 569.020, ¹ a class A felony;

Count II: robbery in the second degree, § 569.030, a class B felony.

Appellant made a bargain with the prosecutor, the terms of which were: (1) Count I would be reduced to robbery in the second degree; (2) Appellant would plead guilty to Count I, as reduced, and guilty to Count II; (3) Appellant would receive a ten-year prison sentence on each count, to run concurrently; ² (4) a "misdemeanor passing bad check charge" would be dismissed.

Appellant pled guilty to Count I, as reduced, and guilty to Count II. Pursuant to the bargain, the plea court sentenced Appellant to concurrent terms of ten years' imprisonment.

After delivery to the Department of Corrections, Appellant filed a motion to vacate the conviction and sentences under Rule 24.035. ³ Counsel appointed to represent Appellant filed an amended motion.

The motion court denied relief after an evidentiary hearing. This appeal followed.

The sole point relied on in Appellant's brief avers the motion court erred in denying relief in that the lawyer who represented Appellant when he pled guilty ("Plea Counsel") rendered ineffective assistance. Specifically, avers Appellant, Plea Counsel was inept in failing to file a motion to suppress "all evidence obtained pursuant to the illegal interrogation of [Appellant] by Detective Bowden while he was in custody in Fordland, Missouri, and further failed to advise [Appellant] of this issue." Appellant proclaims: "[B]ut for [Plea] Counsel's ineffectiveness [Appellant] would not have pleaded guilty, but would have proceeded to trial."

The robberies to which Appellant pled guilty occurred July 22, 1995, in Springfield. Detective David Bowden of the Springfield Police Department was assigned to investigate.

At the evidentiary hearing in the motion court, Bowden revealed that Appellant became a suspect when "an anonymous caller called our front desk and mentioned that he had probably been involved."

On July 24, 1995, Bowden talked to the sheriff of Webster County. Bowden learned from the sheriff that Jack Hall, chief of police at Fordland, Missouri, was "familiar" with Appellant. Bowden testified he asked the sheriff to inform Hall that Springfield police were trying to locate Appellant in order to "ask him some questions." Bowden avowed he told the sheriff he (Bowden) did not have probable cause to arrest Appellant.

Pursuant to Bowden's request, the sheriff phoned Hall, telling him that Springfield police were looking for Appellant "in connection with an armed robbery."

That afternoon (July 24, 1995), Hall saw Appellant walking along Main Street in Fordland. Hall testified he approached Appellant and "told him that I needed him to come with me." Hall recounted he informed Appellant that Springfield police wanted to talk to him "about an armed robbery."

Hall explained that he did not arrest Appellant. Hall did not handcuff Appellant, nor did Hall read Appellant the "Miranda rights." ⁴ According to Hall, Appellant could have walked away "[a]nytime he wanted to."

Hall and Appellant walked to Hall's office, a distance estimated by Hall at 150 to 200 feet. There, Hall called the Springfield Police Department, asking for Bowden. Bowden was gone.

Hall and Appellant had a conversation. Hall recalled Appellant saying he had been in the Army; they "talked about that." Hall had no information about the robberies, hence he did not question Appellant about them.

Bowden phoned Hall while Appellant was there. Bowden spoke to Appellant, but did not "Mirandize" ⁵ him.

According to Bowden, Appellant said he "wasn't involved in any robberies." Appellant "volunteered" that he had been in the Greene County jail "the previous weekend."

Bowden told Hall to release Appellant. Hall did.

The next day (July 25, 1995), Bowden went to the Greene County sheriff's office and learned from a "booking sheet" that Appellant had been placed in the Greene County jail July 23, 1995, after being arrested in Christian County "on a [Greene County] misdemeanor warrant." Appellant had been released later that day (July 23). A Greene County detective gave Bowden a photograph of Appellant taken when he was "booked."

Bowden used the photograph in a photographic lineup shown to persons who witnessed each robbery. A witness to each robbery identified Appellant as the culprit.

Bowden contacted the Christian County sheriff's office, as that was the county where Appellant was arrested on the Greene County warrant. Records there showed Appellant was arrested by an officer of the Missouri State Highway Patrol.

Bowden contacted the arresting officer and learned that the arrest occurred when the officer found Appellant at a bridge where Appellant's automobile was "stuck." A towing company removed Appellant's automobile from the arrest site.

Bowden contacted the tow truck driver and learned he had towed Appellant's automobile to a residence in rural Webster County.

Bowden went to the residence and talked with one of the occupants. She allowed Bowden to photograph the automobile, search it, and remove its license plates. During the search, Bowden seized a knife matching the description of one used in one of the robberies.

A witness to one of the robberies identified the knife seized by Bowden as the one used by the culprit. Bowden showed the witness the photographs Bowden had taken of Appellant's automobile. The witness identified the automobile as the one used by the culprit.

Bowden presented the information he had compiled to the Greene County prosecutor's office. A warrant was issued for Appellant's arrest.

Appellant was arrested on the warrant in Douglas County July 28, 1995. Bowden questioned Appellant at the Douglas County sheriff's office. Bowden read Appellant the "Miranda warnings." Bowden then confronted Appellant with the incriminatory information. Appellant thereupon confessed to both robberies.

Appellant's hypothesis of ineffective assistance, as we grasp it, is based on this rationale: (a) Appellant was arrested July 24, 1995, by Hall in Fordland; (b) there was no probable cause for the arrest; (c) Bowden conducted a custodial interrogation of Appellant by phone while Appellant was under arrest in Hall's office; (d) as this was a custodial interrogation, Bowden should have advised Appellant of his Miranda rights; (e) Bowden failed to do so; (f) because of that, anything Bowden learned from Appellant was unlawfully obtained; (g) Bowden learned from Appellant that Appellant had been jailed July 23, 1995, in Greene County; (h) all of the incriminatory information Bowden thereafter assembled, including Appellant's confession on July 28, 1995, was a direct result of Bowden learning from Appellant that he had been jailed in Greene County.

Prior to Appellant's scheduled trial, Plea Counsel filed a motion to suppress Appellant's confession to Bowden July 28, 1995. We infer from Plea Counsel's testimony in the motion court that Plea Counsel also filed a motion to suppress physical evidence. ⁶

We divine from the testimony of Plea Counsel in the motion court that the motion to suppress Appellant's confession was based on the premise that it was involuntary. Plea Counsel recounted that prior to Appellant's scheduled trial, Counsel advised Appellant that he (Counsel) "thought that the State could prove that it was a voluntary confession." Consequently, explained Plea Counsel: "[M]y thought was that [Appellant] should not go to trial ... I advised him that he should, get the best deal he could."

The agreement under which Appellant pled guilty is set forth at the outset of this opinion. Plea Counsel explained to the motion court that the agreement was "contingent upon [Appellant] pleading guilty before the suppression motions were heard."

During the guilty plea proceeding, this dialogue occurred:

"THE COURT: Are you in here pleading guilty because you did make a confession to the police that you did these two robberies that are outlined in Count 1 and 2?

THE DEFENDANT: Yes, sir."

At the motion court hearing, the lawyer representing Appellant asked Plea Counsel whether he considered the evidence assembled by Bowden after Bowden's July 24, 1995, phone conversation with Appellant "to be a product of the poisonous tree."

Plea Counsel responded:

"When I began to investigate ... how to keep out that confession [of July 28, 1995], I went in it with the idea that I was going to use fruit of the poisonous tree. But I got sidetracked on voluntariness and involuntariness.

... I had spent several hours on voluntariness and involuntariness. And so when I had discovered the answer for that, I didn't think of the fruit of the poisonous tree again.

... as far as fruit of the poisonous tree, as far as making a real legal investigation into it, I did not do that.

And as far as giving cogent advice on the confession as it related to the fruit of the poisonous tree, I did not do that, either.

... After reading your [amended] motion [to vacate] and then looking over the police narrative ... it appeared to me to be an obvious issue to have investigated legally and factually.

....

What I would have done had I caught the issue, is ask ... Bowden what led him to go through the arrest record of [Appellant] for ... July 23rd, and seen ... whether Bowden's conduct in investigating [Appellant's] booking sheet for ... July 23rd for Greene County, whether he had an independent basis for doing that, or whether he relied on [Appellant's] statement to him over the telephone when [...