*1 color, line-up persons in the were of as two procedures contending police Young, defendant. Photo- age height similar to photographs showing of line-up and dur- two were sugges- graphs of these unconstitutionally biased introduced pre-trial hearing. ing the hearing court over- After tive. asserts this motion. Defendant ruled record, re- we find no On the above was error. in the action of the trial versible error suppress, apartment overruling court in the motion to her Young returned Mrs. agree do we with defendant’s conten- she nor p. July m. on 1969. at 11:30 Young’s tion that Mrs. identification she two “colored unlocked the door realized so defendant’s motion for porch. uncertain that She boys” were behind her on the acquittal should have been They She sustained. them to leave. refused. asked gas gun, backing them sprayed with a them judgment affirmed. off some shrub- porch. off One broke the other bery Judges flailed her face and All concur. in cash. purse containing over
took her $100 night was moonlit and there was During the light
street across the street.
attack, Young directly at her Mrs. looked able to describe
assailants. She was one front
shorter better because he during gas spraying. of her She Eugene BALL, Appellant, Freddie membered his flat nose and “his cheek and hat, wearing He line his face.” glasses
but not or mustache. Missouri, Respondent. STATE of No. 56651. later, days Young About ten Mrs. se- picture from a stack lected of defendant Missouri, Court of eight police photographs seven or 1. Division No. age black males about the same 13, 1972. March defendant with similar facial features description. chosen on basis her April 10, Rehearing 1972. Denied police did suggest manner En Banc Motion to Transfer photograph she should select. looked She Ordered Sustained Caused at four photographs or five before she April 10, Transfered (cid:127) came picture of defendant. im- She mediately recognized him. Aside, Appellant April 1972 Set Order for Re- Motions to Withdraw Permitted En Banc police or Transfer to Court July Young asked Mrs. May 4, 1972. line-up. to come to the station to view a They informed her that one of appear line-up had been ar- station, At
rested for the offense. police concerning pro- her instructed line-up. They
cedure at a her to cautioned positive making identification. before Young recognized
Mrs. said she line-up plat-
as soon walked on the
form, even before he turned toward her. identified defendant based on
She
height during facial observed features The other commission offense. *2 sentence,
M.R., to set aside conviction and verdict, jury of 10 years’ imprisonment on burglary stealing in years for and five for therewith. connection The conviction arose out of a break-in Creamery County on the Emma in Saline 1, change was tak- venue June County Quimby en to Cole and Mr. C. J. appointed represent appellant- movant, Eugene juryA Freddie Ball. appeal guilty. in a verdict resulted On Ball, judgment was affirmed. State v. 17, Mo.Sup., 408 S.W.2d decided November of Su- 1966. Prior amendment 27.26, V.A.M.R., preme Rule Ball had motion which another under that rule eventually reached The denial this court. Ball, 432 of relief was affirmed. State S.W.2d 265. present proceeding grounds two One,
for relief are considered advanced. original appeal, on refus- relates to the file motion al of Ball’s trial counsel to appeal for new trial on his behalf and to ground the conviction. second prior conviction invoke used Act based Second Offender guilty. coerced issue, court’s first the trial clusion was: appoint The Trial Court’s “1. failure to purpose for him new counsel for filing motion preparing, presenting for trial did movant’s prejudice new did not violate rights and his constitutional Ball, rights. State 408 S.W.2d 21(5). Movant failed to sustain allegations of burden of in his 8(a) Ground motion.” Bond, City, ap- O. for John Jefferson on pellant. jury verdict trial was Ball’s September September turned 1965. On Danforth, Gen., C. Atty. Preston John Quimby wrote Ball and advised Dean, Gen., Atty. City, Asst. for Jefferson new that he would file a motion for respondent. trial because he found no error request He did tell Ball that he would WELBORN, Commissioner. motion filing extension of time for Appeal from denial proceed- of relief in copy Quimby’s attached letter was 27.26, ing under Court Rule V.A. to defendant’s motion for extension pro preparation filed a counsel in time. On October sistance of Pauperis” alleged for “Motion in Forma motion new trial was se to Proceed ground appeal. file a The alle- he set out that he desired to of error gation his counsel grounds for new trial and that of on the appellant had “abandoned the case.” Defendant failed to demonstrate had *3 of a ba- appointment a error on the trial which afford filed also motion for would by appeal. holding, the trial No for relief on In so counsel. action was taken sis 19, Maness, on court on that On October court relied State v. motion. 1965, pro motion for 408 defendant a se S.W.2d 15. filed the provided new trial which the basis for requirement of that a de Maness appeal to this court. fil denied in the fendant counsel to assist 18, appeal on that ing held of an demonstrate December was must On a in on held trial. When there was error the trial was defendant’s for a new federally protected that called, the matter was Ball'stated consistent with Quimby attorney. right indigent of an to counsel like to have an would stages fol- present position proceed at all critical of" was stated his a criminal Swenson, Cir., ing in 385 F. Maness 8th lows: v. Rodriquez 2d United 943. See thing in the only say “The I I said could 1715, 23 L.Ed.2d U.S. 89 S.Ct. 395 me, though impossible It’s for even letter. a trial 340. Inasmuch as motion for new motion, study I haven’t might that I perfecting step process a basic in the of present seen that would to Because it. appeal state, Supreme an in this sense, in proper be insincere not V.A.M.R., 28.02, can Rules 27.20 sense, legal a motion present for tome applied doubt Maness no that rule in which I have no belief. Rodriquez stage of extends to that ‘ proceeding. not “I did write a motion because reads; requires Court Rule now request In view Ball’s continued of errors. specific that we be about appointment for of to him counsel assist ‘shotgun’ anything, motion wouldn’t avail Quimby filing a motion for new trial after IAnd anymore. can’t write (cid:127)and we so, notified Ball that he do would specifically any. couldn’t error obliged give timely trial at was any. I that trial and don’t think there request. Quimby’s “no tention to Ball’s therefore, court, any nor So neither this right Ball’s preclude merit” letter could not court, me procure argument out of can subsequent pro of to assistance counsel mute. on motion for I stand new ceedings in the trial Anders court. See can want “The whatever Courts do California, 18 U.S. me, but I a motion and to about file didn’t L.Ed.2d failure 493. The trial court’s opinion isn’t don’t my there, —I request consider him of his Ball’s denied case, com- prejudice mean but I am crit right representation counsel at a n pelled my-position.” to state' stage ical proceedings. request attor- Ball reiterated his for an argues no there was state him ney to the motion. assist Quimby denial counsel nev because Ball and over- court heard on the motion formally present er relieved when and was repre- appointed ruled it. Counsel was by motion for new heard trial was his appeal. sent Ball on Later another at- right trial court. The to counsel unsuccessfully torney was substituted who right counsel, merely to assistance of appeal. briefed the testimony his presence. Quimby’s From by affirming opinion hearing, As shown upon and statement trial new (408 17), duty conviction the lack as- S.W.2d it is clear that he considered plea on he entered his terminated letter and about week after assist with .to argument accordingly. acted The state’s December has merit. issue voluntariness matters, by these reason of appel- ground for relief is The second court concluded: conviction, escape lant’s used claim that his finding subject basis for movant under which “3. The conditions 556.280, (§ RSMo Second Offender Act while E Hall not such lived coerced V.A.M.S.) was based plea of finding that his require the convic- which rendered escape coerced charge plea of tion contends that void. He involuntary. failed to or was Movant has escape charge guilty to the was the result *4 allega- of sustain 'the burden the placing prison policy by officials of of the of tions of motion.” (8c) Ground his an prison of the committed inmates the solitary in confinement until offense clearly not erro This conclusion is offense charge criminal based such Langdeau neous. In the of v. South case disposed was of. Dakota, Cir., 507, the defend 8th 446 F.2d guilty plea on the sought ant a avoid found, testimony and the The trial court of condi ground it had been the result that official, Major prison appellant of confined. jail tions at the in which he was De- finding, Poiry, supports such that contention, rejecting In stat ap- of partment of time Corrections (446 [1-3]): ed F.2d 508-509 plea guilty to that pellant’s escape and of charged with charge “place did all inmates analysis us “Our of record leads in in confinement committed while crimes petitioner’s conclude that discontent with security they maximum where preconviction his existence in the commu- pending quired charges to remain until nity jail only served as (footnote omitted) This cus- against disposed them were of. circumstance, motivating perhaps at best including inmates, tom was known plead guilty. of timing his decision to treated is appellant That was so movant.” jail food is no Petitioner’s distaste for his testimony, again undisputed. There was obtaining more a factor than interest Ma- appellant and largely consistent from taught Brady reduced sentence. v. secu- jor Poiry, prisoners that maximum 742, 750, United 397 U.S. 90 S.Ct. rity privileges were denied afforded other 1463, 25 (1970), L.Ed.2d 747 such factors in “E prisoners. The confinement was surrounding only serve as ‘but for’ reasons razed, Hall,” facilities since and the cell guilty plea. significant test re- findings Again the were bare. trial court’s plea yet mains answered: whether regard mov- were in accord with guilty intelligent ‘an of was act “done with testimony. ant’s cir- sufficient awareness relevant ’ likely purpose consequences.” of that the cumstances The movant testified Richardson, McMann guilty get “To of soli- 397 U.S. plea was out (1970). 25 anything else. I wanted L.Ed.2d 763 more than possible.” Using He that quick Brady paradigm, as the the fact solitary out quard jail plea he does conditions ‘caused’ that he how testified asked petitioner guard was un- solitary demonstrate get out could surrounding factors and plead aware of all the quickest “said the was consequences.’ ‘likely me their Here escape, and would let unequivocally Appellant’s testimony was record demonstrates solitary.” contrary. Septem- insufficient “solitary” from around facts are escape, invidious dis- until hold as matter of law ber the date of 490 SEILER, J., separate in- dissent- psychological coercion dissents
crimination or ing opinion involuntary plea.” filed. duced represented Langdeau by counsel BARDGETT, sitting. J., not right to plea guilty. Ball waived his to the es counsel when entered However, charge. bene cape Ball had the SEILER, (dissenting). Judge guilty pleas in a experience fit from undisputed facts, understand the un- As I for grand larceny charge in and a 1957 charge- against escape pending til the de- inexperi gery charge in 1960. He was not of, penitentiary fendant was enced in such and in this case- matters him in keep officials made effort claim that his finement,' privileges, without" in a bare intelligent
not “an done with act sufficient cell. awareness of the relevant circumstances likely consequences.” McMann It . does seem to me it is fair for State, Richardson, supra; Mo. Collins v. put pressure the state to this sort of on the Sup., [4, S.W.2d 5]. Certainly, defendant. we would not con- of, say, giving, done a a defendant policy record, the On this conclusion charges against quarter who had him' ra- *5 carry trial court that movant failed to of, tions until the charges or showing plea involun- burden of his darkness, in keeping complete or with- clearly is not erroneous. clothing. pleading guilty A defendant 27.26(j), Court Rule V.A.M.R. . under these circumstances could under- stand full well he would be sentenced on The conclusion reached on the first guilty plea and also thát. he be .would requires appellant’s oppressive relieved of the To conditions. entered judgment and sentence heretofore that extent acting he would be full be and the cause remanded to set aside surrounding awareness of the factors and ap court trial directions to order with likely consequences, but it not seem to does pellant brought the court and to be before me to follow that the thereby is volun- right to file motion there advised of tary. quite It to seems me that it evident trial, for new of coun with assistance would not be. sel, dispose of proceed and thereafter to to if had been jury the cause as verdict Langdeau v. South Dakota case shall appellant returned the date that relied on in opinion (CCA 8), principal Frey, appear before the court. State 446 F.2d the de- facts were that 11,15 [4, 5]. 441 S.W.2d fendant made known to the trial court his dissatisfaction with the conditions. jail with directions. Reversed and remanded fully trial into court went the matter. and give jury offered to defendant It that defendant was after this said HIGGINS, C., concurs. it necessary would not be because he want- Also, plead guilty.
ed to had defendant benefit of these circum- Under counsel. PER CURIAM: so, found,
stances the properly and WELBORN, foregoing opinion by that defendant made a deliberate and vol- C., adopted the court. opinion as the untary plead guilty. choice to
Nothing appears sort in the of this case SMITH, HOLMAN, J., Special counsel P. before us. Defendant did not have hap- Judge, record not show what concur. does guilty plea to except pened guilty plea, time ence did enter into at the this, degree, if I am correct present testified some what defendant to did not it defendant he then cannot be said 27.26 about where he said burden, carry especially when state “mostly get soli- pleaded out of guilty contrary. presented no fact evidence tary.” The court also found as a trial guard asked a the best defendant and would hold respectfully dissent I get solitary and “was told out of guilty plea aside in the es- should be set plead let him out.” guilty case, turn, and, require cape this would days before was in Defendant burglary a new trial in the case where pleaded December guilty on punishment assessed under the second gotten He could not have sooner assumption offender act erroneous on the term, Februrary 1961 which than the the es- valid days another 90 would have meant at least cape case. facts, undisputed solitary. On the engaged in was conduct the state ORDER properly be im- kind which could
posed is presumed defendant on a HOLMAN, Presiding Judge. making up mind and is innocent plead guilty. whether to stand trial or the order appellant, On motion pleading guilty this situation April overruling appellant’s Mo- doing, it right, he is all but knows what sustaining Rehearing appel- tion for being improperly cannot be said is not lant’s Motion en Banc to Transfer influenced. hereby set aside. been held pleading fact it has appellant Motion of withdraw Mo- possibility avoid the the death or, alternative, Rehearing tion for *6 plea involuntary make the penalty does not Banc, Motion to Transfer to Court en is does not meet the raised here. accordingly sustained. motion is Said with- Brady stated in v. United 397 U.S. drawn is ordered issue. mandate 25 L.Ed.2d “mutuality advantage” there is between the state cases, in precluding possibility “the penalty by the maximum authorized
law.” gives up gains Each or side some- thing. us, is no case before there Garbo, John Rachel GARBO and mutuality advantage the solitary Plaintiffs-Appellanis, advantage finement. of the increased pressure is all on the side of state. SYSTEMS, INC., HILLEARY FRANCHISE The trial court found defendant failed al., Defendants-Respondents. et sustain the burden that the soli- 34142. No. policy made confinement Appeals, plea involuntary. my opinion, In Missouri Court St. Louis District. undisput- no support finding for this above, pointed ed April 4, facts before us. As the policy confinement in- has an pres-
herent extra coercion to above inevitably accompanies
sure which
prosecution, awaiting whether defendant is in or out of There confinement. improper it can be said this influ-