In May, 1963 Ellis Coney, Jr., was convicted by a jury of first degree murder and sentenced to life imprisonment. In June, 1963 he pleaded guilty to charges of rape, and robbery in the first degree with a dangerous and deadly weapon. He was given life sentences on each of these pleas, the robbery sentence to run consecutively with the murder sentence and the rape sentence to run consecutively with the other two sentences. While serving the sentence for murder and in December, 1968 Coney filed a motion under Criminal Rule 27.26 to vacate and set aside the three judgments of conviction and sentences. The court appointed an attorney for Coney. A supplemental motion was filed. An eviden-tiary hearing was held. The circuit court overruled the motion to vacate. Coney has appealed, rаising seven points in his appellate brief.
In the late evening of December 5, 1962 Mrs. Betty Foster, age 30, was found lying on a parking lot adjacent to her place of employment, with her skull crushed. She died on December 16, 1962 without regaining consciousness. There was medical evidence that she had been raped. About 5 p. m. on December 7, 1962 two city police officers went to the home of appellant, who at that time was 16 years and 5 months of age. After talking with appellant for five minutes in the presence of his mother, during which time they asked his name and age and said they wanted to talk to him about the assault on Mrs. Foster, the officers arrested appellant and took him to a police station. There he was interrogated by two plain-clothes officers in the polygraph room of the police laboratory. He was given a polygraph test, the result of which was not revealed to appellant. The interrogation commenced about 6 p. m. At first appellant denied participation in the assault. After an hour or more of questioning and after he was quizzed in particular about a pair of tweezers found in his trousers (tweezers which he later admitted came from Mrs. Foster’s purse), appellant admitted that he took part in the assault, implicated a companion named Leon Grimm and discussed the details of the crime. He said he suggested the rape and robbery; that he and Grimm laid their plans; that with a knife he took from his mother’s kitchen he punctured the right front tire of the automobile which he had previously seen Mrs. Foster park on the lot adjacent to his home; that they lay in wait until she came onto the parking lot to get
After the making of these first disclosures one of the interrogating officers notified the office of the circuit attorney. Mr. Koster, an assistant in that office, went to homicide headquarters and had a conversation with appellant about 8 p. m. the same night. Mr. Koster informed appellant that he was from the circuit attorney’s office and that it was his duty to prosecute crimes in the City of St. Louis. Appellant related to Mr. Koster what happened on December S. Then Mr. Koster, Officer Jacobsmeyer, Corporal Brown, City Police Juvenile Officer Niemeyer and a photographer took appellant back to his home, where in the presence of his mother and the men appellant reached into a hole in the wall and retrieved Mrs. Foster’s necklace and ring. A photograph was taken showing appellant removing these articles from their place of concealment. The officers took possession of the baseball bat and butcher knife pointed out by appellant as the bat used to strike Mrs. Foster and the knife used to puncture the tire. Appellant was returned to police headquarters for further questioning. There is nothing to indicate that either appellant or his mother asked that she be allowed to accompany him or that she was denied or discouraged from being with her son during the interrogations. At about 9 p. m. Deputy Juvenile Officer Murphy, attached to the Juvenile Court, went to headquarters and spent 25 or 30 minutes there. He talked with appellant about 5 minutes. He asked appellant how he was treated after he was apprehended and “observed his condition.” Appellant indicated that he was not mistreated in any way and that he was not objecting to the way he had been treated. The juvenile officer did not advise appellant of his right to have a lawyer and to remain silent. He discussed with the other officers whether appellant should stay at police headquarters or come over to the Children’s Building. Appellant was not transferred to the Children’s Building.
Upon returning to headquarters Mr. Koster resumed the talks. Appellant told Mr. Koster that he was sixteen years old. The talks continued for about half an hour and then discontinued for another half hour. A lady stenotypist was called to reduce the statements to writing. About 11 р. m. Mr. Koster resumed his conversations
After the question and answer session with the stenotypist was concluded the questioning was discontinued. While the stenotypist was reducing her notes to typewritten form appellant went to sleep. The statement was a 15-page written record of the questions and answers. Mr. Koster testified that before asking appellant to sign it he went over the questions and answers with appellant one by one, reading them to appellant and giving him an opportunity to verify or correct the answers. Some corrections were made. After each page was reread and after appellant rean-swered some of the questions the page was handed to appellant and he signed it, then Officers Brown and Jacobsmeyer initialed the page. Officer Niemeyer and part of the time Circuit Attorney Reardon were present, in addition to Mr. Koster and the above-named officers, when the questions and answers were read back to appellant. Appellant claims that he fell asleep; that he was awakened; that he was real drowsy; that his eyes wouldn’t stay open; that the officers told him three or four times that he couldn’t sleep until after he signed the papers; that he was not wide awake enough to hold the pencil; that one of the officers took his hand and guided it across the paper; that he did not know what he signed; that they did not say it was a confession; that the papers were not read to him, and that he could not read or write. After signing the papers he fell back to sleep. He was awakened and taken to his cell. He says the signing took place after midnight; that the questioning went on until 2 or maybe 3 a. m. The stenotypist testified that it was about 2 a. m. when she finished the statement; that she was not there when it was signed. The first ten questions elicited from appellant his name, address, age, his willingness to give a statement about the attack on Mrs. Betty Foster after being informed that the questioner was Robert Koster, an assistant to the circuit attorney; appellant’s recognition that he did not have to give a statement; that he was doing so of his own free will; that he knew it could be used against him in court and his acknowledgment that no one had threatened or mistreated him.
On the two days following the giving of the statement (Saturday and Sunday, De
“THE COURT: I assume you are leading up to the introduction, or rather, the identification of the confession. Is there any issue to it being voluntary? MR. BANTLE (for the State): No, Your Honor. * * * THE COURT: No question as to whether it was a voluntary confession made without duress ? MR. MANTIA (appellant’s trial counsel) : No, Your Honor, none at all. THE COURT: It is not necessary to have a hearing without the hearing of the jury? MR. MAN-TIA: No, sir.” When the written confession was offered counsel for appellant made no objection to its admission in evidence. After a 4-day jury trial appellant was convicted of murder in the first degree and his punishment was assessed at life imprisonment.
Appellant’s first two points raise the question of the admissibility of the written confession reсeived in evidence at the trial of the murder case.
First, appellant urges that the confession should have been excluded because Coney’s rights under § 211.061
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were violated: that although he was a juvenile he was not taken immediately before the Juvenile Court but was interrogated by the city police, the written confession taken and he was held in police custody for four days before being turned over to the juvenile authorities. Any error in the admission of the confession on this ground would have constituted a trial error which, unless of such a nature as to rise to constitutional proportions, cannot be redressed in a proceeding on a motion to vacate and set aside a judgment of conviction under Criminal Rule 27.26, V.A.M.R. The proper procedure to correct mere trial errors is by motion for new trial and/or appeal. No motion for new trial was filed following the murder trial and no appeal was taken. The posttrial procedure provided for by Criminal Rule 27.26, which is a col
Appellant stresses State v. Arbeiter, Mo.Sup.,
Appellant’s second reason for excluding the confession is that his constitutional rights, under the due process clause of the United States Constitution and that of Missouri, were violated in that he was not afforded the benefit of counsel or friend, parent or attorney to advise him of his rights and protect his interests during the time he was held and interrogated by the city police; that because of his youth, the failure to deliver him immediately to the juvenile authorities, the failure to send for his mother, the failure “to see to it that he had the advice of lawyer or friend,” and his inability to read the statement upon which the conviction may have rested, the confession was obtained in a manner that constituted a denial of due process. In short, appellant is claiming that his oral and written confessions were not voluntary. The record of the original trial shows that there was no hearing prior to the admission of the confessions to determine whether they were voluntary, and that the trial judge made no finding with respect to the question of voluntariness. Nor did the judge at the 27.26 hearing make any findings of fact or conclusions of law with respect thereto. Because the record does not show with unmistakable clarity that the original trial judge or the trial judge at the 27.26 hearing found the confessions to be voluntary, this Court on March 8, 1971, citing Jackson v. Denno,
On January 12, 1973 a transcript of the proceedings held in circuit court pursuant to our order of March 8, 1971 was filed in this Court, together with a copy of the findings and order of the trial court, reciting that pursuant to our order a hearing was had on the limited issue of voluntariness; that movant appeared in person and by attorney Louis Gilden; that testimony and evidence were adduced, including the 3-volume transcript of the original trial and other data, and that after thoroughly reviewing the evidence the court found “that movant’s oral and written statements, admitted into evidence as his confessions, were voluntarily made and were a product of his rational intellect and free will.”
The trial court’s determination that the statements were voluntary is not clearly erroneous. This is the test. Jefferson v.
In this pre-Miranda case the vital question is whether under the totality of the circumstances surrounding appellant’s detention, interrogation and confession appellant’s statements to the officers were freely and voluntarily given, without compulsion or inducement of any sort, or whether appellant’s will was overborne by physical or psychological coercion at the time he confessed. Culombe v. Connecticut,
There is no claim that promises were made or inducements held out to appellant to get him to make a statement. There is no claim of physical abuse; appellant negatives this factor. Appellant does not claim that he confessed through fear. Appellant testified that on one occasion an officer told him that if he did not tell the truth he was going to do “something bad” to him but he did not attribute the confession to this incident and the trial court could have discounted this single exception as vague and indefinite and contrary to the preponderant evidence of humane and considerate treatment accorded appellant by the officers during the period of interrogation. He was not arrested by uniformed policemen but by plain-clothes officers, to whom he made his first disclosures. Neither appellant nor his mother asked for nor were they denied an opportunity to confer with each other or with counsel or friends. There is ample evidence from which the trial court could have found that the interrogations were not oppressive, were not conducted in an intensive, hurried or coercive manner, and were not too prolonged or physically exhausting or that the confession was elicited in an atmosphere or environment which interfered with appellant’s freedom of choice to admit, deny, or refuse to answer. Appellant’s claims that he was not informed that it was a confession he was being asked to sign; that he was told he could not sleep until he signed and that he was so sleepy he could not hold the pencil, and that an officer guided his hand across the paper, are inconsistent with the evidence of the previous treatment accorded appellant and presented to the trial court a question of credibility. Rejection by the trial court of this testimony as untrue would not be clearly erroneous. Approximately 8 hours elapsed between the commencement of interrogation and the signing of the written statement but that period was punctuated by the trip to his home to recover the hidden items of еvidence; by frequent intermissions to give the steno-typist time to arrive and, after the questioning, to reduce her notes to typewritten form; by time out to take food and drink, and several periods during which appellant admits that he was allowed to sleep. As far as age is concerned, the fact that appellant was a minor did not render his confession ipso facto inadmissible, although age is a factor to be considered in determining the question of voluntariness. State v. Thomas,
In the totality of the circumstances revealed by this record we are not left with the conviction that a mistake has been committed; the conclusion of the trial court upholding the voluntary character of the confession is not clearly erroneous, and we find no constitutional objection to the admission of the confession in evidence.
Appellant’s third point is that he was deprived of his Sixth Amendment right to effеctive assistance of counsel at the murder trial because counsel failed to object to the admission of the testimony of several of the State’s witnesses concerning appellant’s oral confessions; failed to object to
Relief may be had on the ground of inadequacy of counsel when the representation has been “so woefully inadequate as to shock the conscience of the court and make the proсeedings a farce and mockery of justice. Holbert v. State, Mo.Sup.,
No such incompetence has been demonstrated. Appellant’s trial counsel testified at the 27.26 hearing that he consulted with Ellis Coney four or five times and talked about the case; that he was in the case for 5 weeks before it went to trial. He talked with Attorney Silas Garner about the case 10 or 12 times. Trial counsel’s failure to object to the evidence of the confessions does not per se demonstrate his ineffectiveness as counsel. He entertained a bona fide belief that the statements were voluntarily given, without the taint of duress. He was justified in believing that any effort to exclude them on the ground of involuntariness would be fruitless and self-defeating; that appellant’s best interests would be served by defending on the ground of insanity and low mentality, of which there was substantial supporting evidence. His judgment in this respect was partially vindicated by the express finding by the circuit court that the confessions were voluntarily made. (That question was thoroughly explored in the two-day hearing in November, 1971, following our order that a special hearing be conducted on this particular issue. The transcript of the testimony at the hearing on voluntariness occupies 297 pages of supplemental transcript.) On the whole record we cannot condemn trial counsel’s judgment as faulty or his representation as ineffective. He prepared the defense with care; cross-examined with vigor; made an effective opening statement; and summoned numerous witnesses both lay and professional in support of the defense of insanity. In the face of a strong plea by the circuit attorney for the infliction of the extreme penalty, counsel vigorously, intelligently and with professional competence pleaded for the life of his client and for his acquittal on the ground of insanity, and saw to it that the jury was fully instructed on that defense.
As to the charge that counsel should have filed a motion for new trial and taken an appeal, it is not outside the realm of reason that in counsel’s judgment saving appellant from the death sentence was the best result possible under the brutal and shocking circumstances of this case and that he did not want to further expose his client to that possibility. “As to thе failure to file a motion for new trial that may have been the result of the exercise of legal judgment on the part of the one person who was present at the trial and had personal knowledge of what occurred and who was in the best position to know and determine whether a motion for new trial should have been filed. The failure to file
For his fourth point appellant attacks the validity of § 211.071, RSMo 1969,
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claiming that it violates the due process clause of the Fourteenth Amendment to the Constitution of the United States in that it is vague and lacks sufficient standards. He argues that the section compels a person “to guess about why and when the Juvenile Court will compel or cause a juvenile person to be tried for an offense as an adult; * * * to guess as to the criminal consequences of his actions”; that under this section a juvenile cannot know with reasonable certainty whether his conduct will be “punished under the Juvenile Code or under adult criminal statutes.” Appellant further asserts that the order of the Juvenile Court reciting that he was not a proper subject to be dealt with under the juvenile code “for the reason of his age, maturity, exрerience and development” is an insufficient certification under Kent v. United States,
Section 211.071 is not void for : vagueness. It vests in the juvenile judge a discretion, after receiving the investigation report and hearing evidence, to determine whether the juvenile before him is a proper subject to be dealt with under the juvenile code under which, by the provisions of § 211.011, RSMo 1969, he would receive “such care, guidance and control, preferably in his own home, as will conduce to the child’s welfare and the best interests of the state,” or whether he should be prosecuted under the general law. See State v. Rutledge,
Appellant’s fifth point challengеs § 211.071 as violative of the equal protection of the laws clause of the Fourteenth Amendment, in that the section allows juvenile offenders to be classified as “proper subjects” and to be dealt with as adults without providing any standards for such classification; that this does not provide a rational basis for allowing one juvenile to be dealt with under the juvenile code, and another, who may have committed the same acts to be prosecuted under the general criminal laws and exposed to the possibility of execution; that a classification cannot constitutionally “be used to give unequal liability for punishment for the same acts because of a difference in age, maturity, experience and development.” This question has been decided adversely to appellant’s contention by Ragland, J., speaking for the Court en banc in State v. Rutledge, supra, 13 S.W.2d l.c. 1066, to which reference is made without quotation or further exposition.
Next, appellant takes exception to the dismissal by the St. Louis Court of Appeals of his appeal from the waiver order of the Juvenile Court and the refusal of the Supreme Court to entertain the question on his petition for a writ of prohibition. He claims that these actions denied him due process of law under the Fourteenth Amendment. Appellant argues that the waiver order was a final order and decision of critical importance to appellant, which he was entitled to appeal in order to have the “fair determination” of the question of waiver referred to in Kent, under § 211.261, RSMo 1969, which provides that an appeal shall be allowed to the child from any final judgment, order or decree made under the provisions of the juvenile code. This point must be disallowed for several reasons. The petition for writ of prohibition in the Supreme Court, filed while the appeal was still pending and before its dismissal by the court of appeals, was premature. After the court of appeals acted appellant made no effort to secure a review of the question by this Court on certiorari under Arti
Appellant’s seventh point is that appellant’s pleas of guilty in the rape and robbery cases were induced by mistake, fear and the unconstitutionally admitted confession. There was no evidence that the pleas were entered by mistake. Appellant offered no evidence that the existence of the confession impelled him to enter the guilty pleas, but in any event “[t]he fact that there was an allegedly inadmissible confession in existencе which might have been used in evidence against appellant is no sufficient reason to vacate the judgment and sentence entered pursuant to a plea of guilty, where the plea was otherwise voluntarily and understandably made.” Maxwell v. State, Mo.Sup.,
The ruling of the circuit court on the motion to vacate was not clearly erroneous and therefore is affirmed.
PER CURIAM:
The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.
Notes
. All seсtion references are to RSMo 1959, Y.A.M.S. Paragraph 1 of § 211.-061 reads: “1. When a child is taken into custody with or without warrant for an offense, the child together with any information concerning him and the personal property found in his possession, shall be taken immediately and directly before the juvenile court or delivered to the juvenile officer or person acting for him.”
. (which held admission of incriminatory statements elicited from a 15-year-old suspect by police interrogation in violation of § 211.061 to be a trial error)
. State v. Arbeiter, Mo.Sup,,
. § 211.071, RSMo 1969: “In the discretion of the judge of the juvenile court, when any petition under sections 211.011 to 211.431 alleges that a child of the age of fourteen years or older has committed an offense which would be a felony if committed by an adult, or that the child has violated a state or municipal traffic law or ordinance or that a minor between the ages of seventeen and twenty-one years over whom the juvenile court has jurisdiction has violated any state law or municipal ordinance, the petition may be dismissed and such child or minor may be prosecuted under the general law, whenever the judge after receiving the report of the investigation required by sections 211.011 to 211.431 and hearing evidence finds that such child or minor is not a proper subject to be dealt with under the provisions of sections 211.011 to 211.431.”
. Section 219.160, V.A.M.S., limits commitment of a male person to the state board of training schools to “[a]ny boy over the age of twelve years and under the age of seventeen years” and § 211.041, V.A.M.S., limits retention of jurisdiction of a child for purposes of Chapter 211 (Juvenile Courts) to his attainment of the age of twenty-one years.