*1 Missouri, Respondent, STATE WILKINSON, Appellant. Lee
Robert
No. 52611.
Supreme Missouri, Court of
Division No. 1.
Fеb. Anderson, Atty. Gen., H. Norman Jeffer- Gaertner, Atty. City, Sp.
son R. Carl Asst. Louis, Gen., respondent. St. Bethany, Moulthrop, Roscoe E. pellant.
STORCKMAN, happen. Judge. About 5:30 a.m. he saw the two bag. men return to the car the without Defendant burglary- was convicted of they away As patrol drove highway a car in the degree pro- second and under they followed when sight and were out of visions of the Habitual Criminal Act was Mr. speed up Moore heard the and cars years custody sentenced to nine in the of then the firing cf shots. the Department of Corrections. Sections police the meantime the Trenton had 560.070, 560.095, 556.280, and RSMo Highway patrol- notified the Patrol and two points V.A.M.S. Three are- raised separate men up took near stations appeal: defendant on that he was not ac- parked Pontiac. Lаter other officers corded constitutionally a trial fair started “shake doors” in business counsel; of the misconduct of his district and about the back 5:30 a.m. door that the refusing circuit court erred in of jewelry open. store was found remand magistrate the case to the patrol pur- Patrolman Baker in car C. a for a preliminary .hearing; J. sued the departing Pontiac; the driver lost court errеd in overruling control of the Pontiac it ran off the defendant for a pavement yard patrolman a into and the While sufficiency of the evidence shot right out its rear tire. Pontiac questioned, the conviction is not was then at high speed backed toward Pa- a brief constituting review facts trolman Baker who fired more four shots offense helpful understanding will in from a gun through riot the rear window the impоrt complaints. of the car. When the a Pontiac came to During night stop a slumped defendant was under the jewelry operated store owned Rus- steering in wheel condition. wounded sell City Whisler in the Trenton was He companion were arrested. padlock broken A pried into. off a The to a defendant was first taken Trenton door, rear basement a bar hospital was knocked off thеn to Columbia where was door, an interior and a hole was broken treated. Debris taken clothes through plasterboard top wall near the worn examined defendant was of a basement stairway leading into chemist Highway Patrol Labora- proper. store bagA were tory. tools found expert This witness testified safes, the room in which particles were located two plaster material and insulation the combinations of which had broken taken from trousers the cuffs of defendant’s portion off. The outer of one safe had been were samples material found similar to pried away exposed insulation was in the clothing jewelry store and that fibers and scattered about the mer- room. Some found of the hole hanging edges chandise was found near the stacked rear plasterboard jewelry wall of exit. store the defendant’s matched fibers of testify jacket. The defendant did About question, 1:00 a.m. on the night offer in his behalf. other evidence Olan Moore park saw two men a white com- matters of which two-door Pontiac automobile near home plains part the most appeal on occurred for which was about four or blocks from five circuit сourt. to the men, actual Jewelry Whisler The two Store. filed transcript records one whom Moore identified as stipulation defendant, parties that on disclose left car and toward walked April 23, appeared the men business district. One of Magistrate Court Trenton carrying a one bag similar to the found Grundy County, bond in furnished in the jewelry strange “a store. Since was pre- sum at a for his car”, police by of $4000 Mr. Moore notified the liminary hearing telephone magistrate and waited to see what would Court; by said custody. offer refused May of this was released May Wagner.” defendant failed to and his bond was forfeited. August an information was On *3 that further entered an order recited which Grundy County filed in the Circuit Court of a morning a letter received that burglary charging with City attorney transmit Kansas to purported en- degree Wagner the and second Louis application an and affidavit for continuance. attorney of record tered presence The order further the recited that Kansas September on the first and person required when counsel was City attorney withdrew. On November any and is taken up motion and considered arraigned. the defendant was the May was continued to Wag- person attorney Appearing by and May The to hearing was further continued ner, reading he the waived information the May 28, time and then to at which plea There- guilty. and entered a of not City appeared defendant a Kansas with after, the case was set for presented for application who appli- but continued on was defendant’s he, the a continuance on the ground a member сation because counsel was attorney, member of defendant’s awas the general assembly then in session. assembly By general then in session. days Four before the set on case was June application leave amended the 30, 1966, who an Trenton only to state that attor- his counsel was be- by Mr. filed on Wagner was contacted ney representing the and that application half fоr defendant an actively present such would be its change of The indicated court represent the defendant at trial of application but intention overrule the to application case. The then sustained withheld the to give the hearing July to continued apply prohi- opportunity to a writ for 1965; the bond forfeiture of defendant’s sought and the bition. The writ was not was set aside. apрlication was overruled. July 30, On Louis attor- Wagner, another At at- setting on June ney City, appear- from Kansas entered his torney Joseph appeared from St. with ance as counsel for the defendant. defendant and advised the court City attorney Kansas previously who had discharged Wagner and defendant had Mr. represented the appear. requested defendant did not new a continuance enable to Wagner Mr. filed a application for court prepare defense. “change of venue” enter asserted additional counsel defendant could Wag- not fair im- appearances, have a but Mr. their stated that partial Grundy trial before the magistrate previous ner had talked to court County “by prejudice reason of the gave week time no at which Mr. county.” present inhabitants of said The order he indication that would not overruling ready cited 544.290 Mr. trial. ordered for The court §§ this day, 544.300 concluded state- later in the “Whereupon, Wagner, ment : At- Louis he found to when did not do so he was torney Defendant, for the Court con- contempt states to court. cause was prelim- participate July that he this request will at defendant’s tinued inary Attorney day, еxamination for July as an on Mr. next Defendant; the defend- appeared Defendant ordered before the court with prelim- Court to be ant He advised counsel. de- inary examination. discharged made he been Offer had but Wagner, Attorney De- day setting Court to Louis fendant the before fendant, Ap- prepare to allow him time he the case with that would continue in ac- plication Disqualification Judge The court consent of defendant. cepted Wagner’s apology up, heard, and found he taken evidence was purged had contempt. himself motion was overruled. first contention At July the hearing on the court noted overruling ap court erred in had raised plication September made his counsel whether the defendant had mental disease 23, 1966, for leave to withdraw frоm or defect rendering proceed. him unfit case. this connection On its own motion ordered asserts was not accorded a con a mental examination be made at the State stitutionally long “in fair trial view of a Hospital August 23, in Fulton. On series of extending occurrences over examination, basis of the the court *4 period approximately year during of one capable found the defendant of proceeding which the seeking counsel for the defendant to trial. The set case was for trial on * * permission to withdraw from case September 29, 23, September 1966. On willfully, negligently, improperly un 1966, Wagner Mr. and the defendant ethically conducted himself and in utter peared ad- Wagner before the court. Mr. contempt for the trial court”. Willis vised the court that he had receivеd a letter Hunter, Cir., 721, 10 by cited de 166 F.2d stating longer his client that he no fendant, the nature as states of effective Wagner’s desired Mr. Mr. services and sistance according of counsel con Wagner applied for leave withdraw. by stitutional mandate and objected state if the withdrawal would which it The case holds determined. result another The de- continuance. deprived accused was not of fendant was sworn and examined relative effective counsel. In Lunce assistance of discharge Mr. seeking reasons for Overlade, Cir., 108, 74 7 Wagner. there The court concluded that 1384, A.L.R.2d held the the court evidence any was no assurance invalidity established the of Indiana represent could the defendant in a more repre conviction the accused was where capablе Wagner manner than Mr. or by sented who came into Ohio coopera- more would belatedly case unfamiliar with was tive with another and denied practice. Indiana The defendant also request proper it was not for a Arizona, cites Miranda v. of U.S. defendant, purpose. The court advised 86 S.Ct. 10 A.L.R. L.Ed.2d however, employ that he could additional pertinency 3d but does not indicate its reрresent Mr. counsel to him and to assist and we find of the none since statements Wagner beginning At if he so desired. custody or otherwise are not request trial Mr. renewed his involved. ascertaining After withdraw.
had been
in circumstances since
no
refers us
defendant also
previous
its
denied
ruling,
again
the court
is a
982(8),
Criminal
Law §
C.J.S.
the request.
comprehensive
subject
treatment
for the ac
September
assistance of counsel
began
pages
cused.
975-976 states:
jury,
Out of the
the state
This section at
proved
with broad
burglary.
“Counsel for Accused is vested
convictions
guilty
latitude
defense
jury
conduct
found
incompetent
he
adjudged
is not
punishment.
to be
Mr.
assessed his
represented
his client
denied effective assist
deemed
by
ance of
reason of
commission
filed a
counsel
prepared
thereafter
motion
what,
appear to be
retrospect,
errors
a new
trial. On October
omissions,
errors,
judgment.
Mere
was
appearance.
entered his
tj
a lack
mistakes
do not establish
on October
withdraw
representation
of effective
counsel.
Thereafter,
was
the motion for new trial
unsuccessful,
attorneys into
case
brought the other
though
strategy, even
Trial
purposes. By this means
they suited his
attack on
inadequate
basis for an
ob-
continuances” were
“legislative
has
two
counsel, and this rule
competency of
burglary was committed and
tained. The
refrained
applied where counsel
apprehended
certain
calling
or from
cross-examination
was on
the trial and conviction
witnesses,
decided
or where counsel
year and a
September
almost a
This
accused
not take
stand.”
should
delay
both in
half later. The
quoted
approval
statement is
about
brought
circuit court was
Goodwin,
en banc in
re
attorneys. The defend-
defendant and his
601, certiorari denied 371 U.S.
trial, had
ant,
time of
years
age
83 S.Ct.
sel for leave to withdraw. State v. cause of action to the court for 360, [3]; preliminary 394 hearing S.W.2d 363 State v. at which the defend Ybarra, Mo., 384, [3]; properly represented ant could be 386S.W.2d 386 State coun v. Ross, Mo., Worley, Mo., 375 S.W.2d 371 S.W.2d 182, 221, 185 224 [6]; State [8] ; ing sel”. He asserts that the was a critical stage preliminary proceeding hear Mimms, Mo., 925, during State v. which the rights 349 927 States, [3]; Cir., impartial Reid v. United 9 to a fair and 334 were permanently prejudiced impaired. F.2d [10]. The defendant does not undertake dem After the trial was commenced and three respect in what rights onstrate have examined, witnesses had been prejudiced. He cites Harris v. Wil upon son, D.C., an oral ju- F.Supp. made attack Sig and Bird v. ler, D.C., F.Supp. which involved risdiction of ground the circuit court preliminary examinаtions in California represented by defendant was not Nebraska where the nature counsel at the preliminary hearing before very much different than in Missouri. magistrate. of his oral mo- Wainwright, He also cites Gideon v. tion, defendant’s counsel relied on exhibit U.S. 83 S.Ct. 9 L.Ed.2d 2 which magistrate’s was the July order of A.L.R.2d Escobedo to, previously referred wherein an Illinois, U.S. 84 S.Ct. application by L.Ed.2d controlling which are not ground оf venue on prejudice persuasive on the facts case. The of this county inhabitants of the was overruled. preliminary nature and functions of The order further recites that attorney hearing Missouri are considered in nu Wagner then stated that he par- would not among merous decisions are re ticipate in preliminary examination as *6 Mo., Turley, cent cases v. of State attorney fоr the mag- defendant. The Durham, Mo., State v. S.W.2d S. istrate offered to allow pre- counsel time to Turner, Mo., W.2d v. State S. pare application disqualification question W.2d 602. The need the judge but the offer was refused and the however, ground, not rest on this defendant was ordered to be us, find we from records before as the preliminary examination. did, trial court that defendant was in This exhibit all that was offered in rеpresented by fact time attacking of defendant’s motion preliminary legal hearing. Nor was the jurisdiction. judge The circuit found from representation mockery. a farce In that records had en- stated, previously addition to what has been tered his the record that Mr. shows has preliminary to the that he hearing, did ; lawyer forty years an active trial for over apply not withdraw as counsel оr for leave practice most his has been defense why withdraw and that the reasons cases; he of criminal had handled “hun partici- that stated he would not cases. He was selected and dreds” of such pate hearing in the not were disclosed to retained reason the defendant. The judge court. circuit concluded “participate” refusal in this was, that “the from record Defendаnt record; apparent from the we do is not fact, represented by at the strategy know that of defense counsel preliminary hearing” time of the and over- actively generally is to observe and not attacking jurisdic- ruled the motion preliminary hearing tion. since its contest purpose merely develop probable cause is justify filing holding defendant The defendant now contends that prelimi- erred in “the overruling an information. Sometimes nary hearing; entirely any assistance of than is waived without suggestion impropriety. rights Ineffective claim of violation representation respect in this been of a in a criminal conviction. has not and it the demands of demonstrated does is whether process The contention is due there was the record. denied. met—whether were with- a dеnial fairness of that fundamental agree I stand. out which can no conviction The final contention the trial present case. such not occur in did judge overruling application erred “Fur- opinion, But if statement judge. for a It is change of conceded thermore, as- defendant who convicted filed, timely but was not did not render ade- serts judge urges quate com- legal assistance have еxercise of a sound discretion should mensurate with constitutional disqualifying entered an order himself sustain”, means heavy has a burden to 30.12, Rule S.Ct. V.A.M.R. placed i burden added be some No case is made for such action none parti- this who asserts spite being record. re- right, I constitutionally protected cular faced delaying a series of tactics the with can spectfully believe state I do not judge patience and restraint acted constitutionally be done.1 bespeaks a determination accord fair trial which accom defendant a
plished. overruling err The court did not
the application for a State Crow, Mo., [13]; Shaw,
State v. 357 S.W.2d [2], We parts have examined those KING, Petitioner, Lester subject record to review under Rule S.Ct. 28.02, V.A.M.R., legally and find them sufficient Accordingly and devoid of error. SWENSON, Warden, Harold R. Missouri Respondent. judgment is affirmed. Penitentiary,
No. 52828. HENLEY, *7 J., P. concurs. Supremе Missouri, Court of En Banc. SEILER, J., in separate concurs con- 8, 1968. Jan. curring opinion filed. Rehearing Denied Feb. Opinion
Concurring
SEILER, Judge. concur,
I reservation that I do greater the burden is believe
the defendant in a claim of violation rights pertaining opinion shows, principal quot necessary
1. As the to the decision. Under stated, is based on Reid ed statement v. United facts whether (C.A. 9th) right States defendant Reid denied the opinion, competent As Reid I read the counsel was not a close one. seems all me the statement was not