McCrary v. State

¶1 I

¶2 This is an appeal from an order of the circuit court of the City of St. Louis entered July 19, 1974, denying movant-appellant, Ronald McCrary’s motion to vacate sentence pursuant to Rule 27.26 imposed after appellant was found guilty of the offense of illegal possession of heroin. For reasons hereinafter stated we affirm the order.

¶3 On September 23, 1969, Mr. McCrary was charged with the offense of possessing a certain quantity of heroin. § 195.020, RSMo 1969. 1 The information alleged prior convictions and that on August 18,1969, the defendant did “then and there unlawfully and feloniously have in his possession and under his control a certain quantity of a narcotic drug, to wit: 14.71 grams of HEROIN . . . .” He was arraigned and pleaded not guilty. On June 4, 1970, mov-ant filed a motion to suppress the evidence on the ground that “there existed no proba *469 ble cause for the arrest and the giving of defendant a ticket was an attempt to render validity to an otherwise unlawful arrest.”

¶4 McCrary waived a jury trial and was tried to the court on June 4, 1970. The motion to suppress was taken with the cause.

¶5 At the trial, Patrolman Burleigh Howell of the St. Louis Metropolitan Police Department testified that at about 10:45 p. m. McCrary was operating a motor vehicle without taillights, and the officer stopped him. Officer Gus Kolilis was with Officer Howell. “When he [McCrary] got the automobile to the curb, he got out of the automobile on the left-hand, driver side, he had a piece of paper in his hand and he came back to us and said, here is my license. I [Howell] informed him he was under arrest for no taillights and was starting to write some information down where we were standing there and he started to put his hand in his right rear pocket, at which time I grabbed his arm, put handcuffs on him and I found in his right rear pocket two condums [sic] or prophylactics full of some material and I asked him what it was and he said it was dirt and I said, dirt, and he said, okay, it’s heroin. . . . ” McCrary was then placed under arrest for possession of heroin. No objection was made to the officer’s statement.

¶6 On cross-examination, it was brought out by retained defense counsel that at the time the officer stopped McCrary “for the taillight” he did not know of any other crime the defendant had committed. The officer testified that the defendant was stopped “to give him a ticket for no taillights” and that he handcuffed the defendant when “he put his hand into his [rear] pocket.” Defense counsel referred to the statement made by McCrary as the basis for placing him under arrest for heroin.

¶7 The only other witness at the original trial was Miss Merilyn Ruemmler, a crimi-nalist with the St. Louis Police Department. She analyzed and identified the two vials taken from the defendant as containing heroin.

¶8 The trial court found the defendant guilty of possession. After overruling a motion for new trial, granting allocution and finding prior convictions, the court, on September 18, 1970, sentenced the defendant to ten years in the department of corrections.

¶9 McCrary appealed the conviction to the Supreme Court. On appeal, his only contention was that the search was unlawful. He did not appeal on any other ground. He did not raise the issue of the inculpatory statement as being in violation of his Miranda rights. On appeal, the Supreme Court held that the arrest was lawful and that there was probable cause for the search and seizure incident to the arrest, and affirmed the judgment. State v. McCrary, 478 S.W.2d 349 (Mo.1972).

¶10 Then on January 30, 1973, McCrary filed this motion to vacate. He alleged some eleven grounds only two of which are preserved and which are in issue on this appeal from the denial of the motion to vacate. In his motion he contends that (1) the search and seizure was unlawful and (2) a “failure to advise movant of his constitutional right’s [sic] prior to interrogating him and obtaining an alleged confession was a violation on the security of movant right’s [sic] under the 5th-6th amendments and made applicable to the states . . .” Counsel was appointed. In due time the state moved to dismiss the motion for the reason that movant has failed to state any ground for which the court “can grant him any relief . . .

¶11 On July 19, 1974, at a hearing on the motion to dismiss, the trial court stated: “The State’s Motion to Dismiss the Motion to Vacate as to Specifications 1 through 9 [which included the two points above] will be granted on the grounds those points either were raised on direct appeal or should have been. . . (emphasis added). On the same date, the trial court entered its order sustaining the state’s mo *470 tion to dismiss and denying the motion to vacate. McCrary appeals that order.

¶12 II

¶13 On this appeal, he contends that the motion to vacate should have been granted and the sentence vacated because (1) the “search conducted . . . upon his arrest for a traffic violation was outside the scope of those [searches] permissible under the Fourth and Fifth Amendments to the Constitution of the United States made applicable to the States through the Fourteenth Amendment . . . and (2) “the failure to advise the movant of his rights under the Constitution of the United States made the subsequent use of a confession obtained under such circumstances a violation of movant’s rights under the Fifth and Sixth Amendments to the Constitution of the United States made applicable to the States . . . .” 2

¶14 McCrary argues that the search and seizure was illegal because it was incident to his arrest for a traffic violation. He further alleges that the “confession” was obtained in violation of the principles set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and contends that his statement, “okay, it’s heroin,” was used in the trial although no Miranda warnings were given prior to making the statement. He further contends there was no waiver of his rights.

¶15 The state, on the other hand, contends that the trial court properly denied the motion to vacate because (1) movant is foreclosed from raising the issue of search and seizure on this 27.26 motion since the issue was raised on direct appeal and decided adversely; (2) McCrary did not preserve the Miranda issue by filing a motion to suppress the inculpatory statement or by objecting to it at trial or by raising the issue by motion for new trial or on direct appeal; (3) the statement, “okay, it’s heroin,” was not rendered inadmissible under Miranda since the statement was not the product of “custodial interrogation” and (4) the statement could not in any event have been prejudicial since the nature of the substance found on movant’s person was properly established by the testimony of the criminalist (chemist), Miss Ruemmler.

¶16 We hold (1) that the claim of illegal search and seizure is not cognizable in this 27.26 proceeding; (2) that the admission of the inculpatory statement under the circumstances was not erroneous because Miranda is inapplicable to this situation; no warnings were required to be given; (3) that by not raising the Miranda issue at trial or on direct appeal, movant is foreclosed from raising this issue on his 27.26 motion and (4) that the admission of the statement, even if error, was not, under the circumstances, prejudicial.

¶17 A motion filed under Rule 27.26 is an independent civil action, which is governed, so far as applicable, by the Rules of Civil Procedure. Rule 27.26(a). The burden is on the movant to establish relief by a preponderance of the evidence. Brown v. State, 495 S.W.2d 690, 693 (Mo.App.1973). In a 27.26 review we are limited to a determination of whether the order of the trial court is clearly erroneous. Rule 27.26(j); Lahmann v. State, 509 S.W.2d 791, 794 (Mo.App.1974).

¶18 Ill

¶19 As to appellant’s point concerning an illegal search and seizure, the trial court was clearly correct in denying the motion to vacate. It has long been the law as expounded by our Supreme Court that a claim of illegal search is not cognizable in 27.26 proceedings. Beach v. State, 488 S.W.2d 652, 655 (Mo.1972); Brodkowicz v. State, *471474 S.W.2d 822, 827 (Mo.1972); Fields v. State, 468 S.W.2d 31, 32 (Mo.1971) 3 ; State v. Caffey, 457 S.W.2d 657, 659 (Mo.1970); Lewis v. State, 513 S.W.2d 772, 774 (Mo.App.1974).

¶20 Movant’s claim must be denied on another ground. Under Rule 27.26(b)(3) a “ ‘proceeding under this Rule cannot be used . . . as a substitute for a second appeal.’ We have consistently ruled that provision to mean that where an issue is raised and decided on direct appeal, defendant cannot obtain another review thereof in a 27.26 proceeding.” Sweazea v. State, 515 S.W.2d 499, 501 (Mo.banc 1974). ‘“If issues, apparently finally decided, may be reopened and reviewed simply because a litigant has an additional citation to offer or a different theory to suggest there would never be an end to litigation. . . . ’ ” Sweazea v. State, supra, 515 S.W.2d at 501, quoting from Gailes v. State, 454 S.W.2d 561, 564 (Mo.1970); see also Caffey v. State, 467 S.W.2d 857, 859 (Mo.1971).

¶21 The claim of illegal search and seizure was raised on direct appeal and decided adversely to the movant. State v. McCrary, supra. Therefore, since (1) the validity of the search is not cognizable on a 27.26 motion and (2) the same claim of an illegal search and seizure was raised and disposed of on the direct appeal, this contention must be ruled against appellant.

¶22 IY

¶23 As to appellant’s claim that he was not afforded the Miranda rights prior to making the inculpatory statement, “okay, it’s heroin,” we hold that, under the circumstances of this case, there was a deliberate bypass of an orderly state procedure so that this issue is foreclosed on this 27.26 motion.

¶24 Whether a particular point raised in a post conviction 27.26 motion may be entertained despite the fact that the precise issue might have been raised on a direct appeal has not been fully articulated in this state. Prior to the adoption of present Rule 27.26, in 1967, it was often repeated that the motion to vacate and set aside a judgment and sentence may not be used in lieu of an appeal to review errors committed in the course of a trial even though such errors relate to constitutional rights. State v. Thompson, 324 S.W.2d 133, 135-136 (Mo. banc 1959); State v. Hooper, 399 S.W.2d 115, 117 (Mo.1966); State v. Wiggins, 360 S.W.2d 716, 718 (Mo.1962) (emphasis added).

¶25 Present Rule 27.26(b)(3) now provides that “mere trial errors are to be corrected by direct appeal, but trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal.” State v. Brownridge, 506 S.W.2d 466, 468 (Mo.App.1974). 4

¶26 It is clear that a 27.26 motion cannot be used as a substitute for a direct or second appeal and that mere trial errors or a challenge to the sufficiency of the evidence cannot be raised on a 27.26 motion. Coney v. State, 491 S.W.2d 501, 506 (Mo.1973); O’Neal v. State, 486 S.W.2d 206, 208 (Mo.1972). 5

¶27*472 And it is now settled by numerous decisions in both the federal and state systems that where there is a deliberate bypass, whether for strategic, tactical or other reasons, of orderly state procedure, a mov-ant is precluded from raising a constitutional issue on a post conviction motion. The rule has had a long history in the federal system. 6

¶28 The principles applicable to habeas are also applicable to the federal post conviction procedure under 28 U.S.C.A., § 2255. In Kaufman v. United States, supra, the Supreme Court in holding that a federal prisoner may raise a claim of unlawful search and seizure on a federal post conviction motion, nevertheless recognized that “[t]he § 2255 court may in a proper case deny relief to a federal prisoner who has deliberately bypassed the orderly procedures provided at or before trial and by way of appeal . . . .” 394 U.S. at 227, fn. 8, 89 S.Ct. at 1075.

¶29 Innumerable federal decisions have held that a § 2255 court may deny relief where there is found, and sometimes presumed, to be a deliberate bypass. Grieco v. United States, 435 F.2d 677 (7th Cir. 1970) — mov-ant did not question the voluntariness of statements or move to suppress where federal agents did not advise of rights; Torriente v. United States, 379 F.Supp. 70, 72 (S.D.N.Y.1974) — Miranda; United States v. Haywood, 150 U.S.App.D.C. 247, 464 F.2d 756, 761 (1972); Pope v. Swenson, 395 F.2d 321, 324 (8th Cir. 1968); Curry v. Wilson, 405 F.2d 110, 112-113 (9th Cir. 1968) — failure to object to statements; Mathis v. Colorado, 425 F.2d 1165, 1166 (10th Cir. 1970); see cases collected in 10 A.L.R.Fed. 724 (1972); and in Note, supra, 31 La.L.Rev. 601; White, supra, 58 Va.L.Rev. 67.

¶30 In the various states, the courts have held under their particular post conviction statutes or rules that 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 where fundamental fairness requires otherwise and only in rare and exceptional circumstances. It is the trend in the state courts to reject an issue in a post conviction mo *473 tion where such issue could have but was not raised on direct appeal. 7

¶31 In Fields v. State, supra, 468 S.W.2d 31, our Supreme Court refused to consider a claim of unlawful search and seizure which had not been properly preserved for appeal. In Fields, no motion to suppress had been filed, no objection was made at trial, no mention of the claim was made in the motion for new trial, and the illegal search and seizure claim was rejected on direct appeal. State v. Fields, 442 S.W.2d 30 (Mo.1969). In this posture, the Supreme Court held that the matter was not cognizable in the 27.26 motion. Fields, supra, 468 S.W.2d at 32. 8

¶32 Thereafter, in Vidauri v. State, 515 S.W.2d 562 (Mo.1974), the Supreme Court upheld the trial court’s ruling that the 27.26 movant’s confession was involuntary, even though the state contended that the mov-ant’s failure to preserve the claim operated as a bypass. The Vidauri court distinguished Fields by noting that Vidauri had twice objected on constitutional grounds to the alleged involuntary confession outside the presence of the jury and when the confession was offered before the jury. Fields, said the court, did not establish a “blanket” rule that any and all constitutional objections are forfeited by failure to preserve them in the motion for new trial, but recognized that there could be a deliberate bypass of procedural remedies sufficient to bar consideration of a claim on a 27.26 motion.

¶33 The court in Vidauri recognized Fields as an example of “deliberate bypass of a procedural rule by the defendant.” The court in Vidauri also distinguished Nickens v. State, 506 S.W.2d 381 (Mo.1974). In Nick-ens, the court held that the movant’s alleged trial errors affecting constitutional rights [defective indictment, coerced confession] were not cognizable where he had specifically waived his right to an appeal and where the waiver was clearly made and voluntary.

¶34 The case at bar is a situation more akin to Fields than Vidauri. Fields recognizes that there may be a deliberate bypass of orderly state procedures where there is a total failure to raise a constitutional claim and that such an absence of claiming a constitutional issue precludes the raising of the issue on a 27.26 motion. In the case at bar, movant made no pretrial, trial or post trial objection to the inculpatory statement. He made no effort on the 27.26 motion or on this appeal to explain a failure to object to the admission of the statement or to refute the contention that he should have raised the claim on direct appeal. On cross-examination at the trial, retained and experienced defense counsel examined Officer Howell concerning the statement and the circumstances surrounding the arrest. After the state elicited the movant’s statement on the direct examination of Officer Howell, counsel referred to the statement and the circumstances in an apparent attempt *474 to characterize the search and seizure as unlawful. The circumstances surrounding the statement were an integral part of the search and seizure.

¶35 Under all these circumstances, we believe that there was a bypass of orderly state procedure and that the movant is precluded from raising the Miranda issue on his 27.26 motion. Here the record suggests that the failure to raise the issue was for reasons which can fairly be described as a deliberate bypassing of orderly state procedures so that the issue is not cognizable on 27.26. In view of the circumstances we do not believe that this holding amounts to “the perpetration of injustices of grave constitutional importance” which is one of the purposes of Rule 27.26. Vidauri v. State, supra, 515 S.W.2d at 570.

¶36 We conclude, as did the trial court, that this issue should have been raised on direct appeal.

¶37 V

¶38 Notwithstanding the fact that the Miranda issue should have been raised on direct appeal and the failure to raise the issue at all stages of the proceeding constituted a deliberate bypass of orderly state procedure, the denial of the motion to vacate by the trial court was proper, since we believe that Miranda is not applicable to these facts.

¶39 In Miranda v. Arizona, supra, 9 it was held that the “prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” 384 U.S. at 444, 86 S.Ct. at 1612.

¶40 The whole thrust of Miranda, however, dealt with the subtle forms of psychological pressure which may be brought to bear upon an accused when he is interrogated. After an investigation focuses on an accused, Miranda announced technical standards governing the admission of in-custody statements and held that such statements were inadmissible when warnings were not given.

¶41 But Miranda safeguards were not intended to create a constitutional straightjacket, and volunteered or general on-the-scene questioning was not prohibited by the holding. State v. O’Neal, 436 S.W.2d 241 (Mo.1968); O’Neal v. Swenson, 301 F.Supp. 1105 (W.D.Mo.1969).

¶42 There are a number of situations to which Miranda is inapplicable: (1) There is no requirement that Miranda warnings be given to individuals who are arrested for motor vehicle offenses, State v. Neal, 476 S.W.2d 547, 553 (Mo.1972); State v. Durio, 512 S.W.2d 833, 835 (Mo.App.1974); annot. 25, A.L.R.3d 1076 (1969); (2) where circumstances require, an officer may, when dealing with automobile situations, interrogate without giving Miranda warnings, State v. Bradford, 434 S.W.2d 497, 501 (Mo.1968); State v. Hale, 463 S.W.2d 869, 871 (Mo.1971); and (3) in situations substantially similar to the case at bar, it has been held that no warnings need be given. People v. Hubbard, 9 Cal.App.3d 827, 88 Cal.Rptr. 411 (1970).

¶43 In People v. Hubbard, supra, two police officers saw a vehicle driven by defendant fail to stop for a traffic light. After being stopped, the defendant removed himself from the vehicle and the officer “patted him down.” After seeing a plastic bag protruding from defendant’s pocket, the officer asked if “he had any pills.” Defendant responded, “They’re reds. They belong to my mother.” Defendant was then arrested. On appeal, defendant contended that the statement was inadmissible since no Miranda rights were given, but the California court held that the case arose in a *475 setting not at all comparable to Miranda. “Here we have two police officers . confronting . . . strangers . The simple question which [the] Officer asked defendant presented none of the ‘compelling atmosphere’ with which the Miranda opinion is concerned.” People v. Hubbard, supra, 88 Cal.Rptr. at 417-418. 10

¶44 This, we believe to be persuasive. In the case at bar the defendant was stopped for a traffic offense; the officer had only the intent to give defendant a traffic ticket for such violation; he was stopped for an altogether different reason than that for which he was subsequently charged and tried; it was only after movant reached into his rear pocket that Officer Howell took further action, searched, found the condoms and asked the question. The defendant was restrained not because the officer believed he possessed heroin but because he made a move toward his rear pocket. At this time the investigation for possession of heroin had not focused on the movant. And the totality of the circumstances did not present a compelling police atmosphere with which Miranda was concerned.

¶45 Neither" do we believe that the question by Officer Howell was the result of “custodial interrogation.” Although handcuffed, the handcuffing was for a reason unrelated to his arrest for illegal possession of narcotics. In State v. Williams, 522 S.W.2d 641 (Mo.App.1975), we discussed the issue of “custodial interrogation.” We held that “no hard and fast rule can be established as to when custodial interrogation begins, but it must be determined from the surrounding circumstances, some of which include probable cause to arrest, the subjective intent of the police officer, and who if anyone was the focus of the investigation at the time of the interrogation.” State v. Williams, supra, 522 S.W.2d at 644. See also State v. Bradford, supra, and annot., What Constitutes Custodial Interrogation, 31 A.L. R.3d 565 (1970).

¶46 Under all the facts, we conclude that Miranda is inapplicable and warnings were not, under these circumstances, required to be given.

¶47 VI

¶48 Lastly, we believe that the admission of the statement by the defendant at the scene could not in any sense be prejudicial. The criminalist (chemist), Miss Ruem-mler, testified at the trial that the substance found by Officer Howell on the mov-ant’s person was heroin. Even if, as claimed by movant, the admission of the statement was error, it was nevertheless harmless and nonprejudicial. State v. Gibson, 502 S.W.2d 310, 314 (Mo.1973). The substance found on his person was identified as illegal.

¶49 The Supreme Court of the United States has recently made clear that Miranda did not establish substantive constitutional rights, but expounded a series of prophylactic rules designed to protect a citizen’s Fifth Amendment right to be free from compulsory self-incrimination. Null v. Wainwright, 508 F.2d 340, 342 (5th Cir. 1975), citing Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974). The failure to give such warnings may constitute harmless error. Null v. Wainwright, supra.

¶50 Under the circumstances, failure to give the warnings would not entitle movant to vacation of his sentence.

¶51 VII

¶52 We have read the entire transcripts, the briefs and the authorities relied upon and conclude that the trial court did not err in sustaining the state’s motion to dismiss and *476 denying the movant’s motion to vacate sentence.

¶53 The judgment is affirmed.

¶54*477 APPENDIX*

¶55 I

¶56 The following is a listing of judicial decisions in Missouri dealing with the 27.26 motion. It is not exhaustive but is intended to shew the scope and limitations of a Rule 27.26 motion.

¶57 For general discussions and further reference, see Anderson,

¶58 Five Years Under Amended Rule 27.26, 38 Mo.L.Rev. 1 (1973); Pelofsky and Purdon, A Study in Post-Conviction Remedies, 39 U.M.K.C. L.Rev. 1 (1970); 9B Mo. Digest, Criminal Law, Key 998(2) et seq. and decisions following Rule 27.26, V.A..M.R.

¶59 II

¶60 MATTERS NOT COGNIZABLE IN A 27.26 MOTION TO VACATE SENTENCE

¶61 A.In General

¶62 1. Matters which could have been or were raised on a prior motion.

¶63 Duncan v. State, 524 S.W.2d 140, 143 (Mo.App.1975)

¶64 Harkins v. State, 521 S.W.2d 9, 10 (Mo.App.1975)

¶65 Newman v. State, 481 S.W.2d 3, 5 (Mo.1972)

¶66 2. Matters which have already been decided on direct appeal.

¶67 Mayo v. State, 524 S.W.2d 181, 182 (Mo.App.1975)

¶68 Weaver v. State, 520 S.W.2d 640, 643 (Mo.App.1975)

¶69 Sweazen v. State, 515 S.W.2d 499, 501 (Mo.1974)

¶70 Gailes v. State, 454 S.W.2d 561, 563 (Mo.1970)

¶71 3. Matters not raised as grounds for relief at 27.26 evidentiary hearing and raised on appeal.

¶72 Steward v. State, 499 S.W.2d 830, 832 (Mo.App.1973)

¶73 4.Matters waived by movant's voluntary waiver of right to appeal.

¶74 Nickens v. State, 506 S.W.2d 381, 386 (Mo.1974)

¶75 5.Overruling motion is final judgment.

¶76 Ivy v. State, 509 S.W.2d 148, 152 (Mo.App.1974)

¶77 6.Must allege facts.

¶78 Shields v. State, 491 S.W.2d 6, 8 (Mo.App.1973)

¶79 B.Illegal Arrest

¶80 Jackson v. State, 512 S.W.2d 249, 252 (Mo.App.1974)

¶81 Collins v. State, 454 S.W.2d 917, 919 (Mo.1970)

¶82 C.Unlawful Search and Seizure

¶83 Lewis v. State, 513 S.W.2d 772, 774 (Mo.App.1974)

¶84 Beach v. State, 488 S.W.2d 652, 655 (Mo.1972)

¶85 Smith v. State, 473 S.W.2d 719, 720 (Mo.1971)

¶86 Brodkowicz v. State, 474 S.W.2d 822, 827 (Mo.1972)

¶87 Mahurin v. State, 477 S.W.2d 33, 35 (Mo.1972)

¶88 *Caveat: These cases do not indicate whether federal relief was later sought or what disposition was made.

¶89*478 D. Newly Discovered Evidence

¶90 Thomas v. State, 512 S.W.2d 116, 123 (Mo.banc 1974)

¶91 Agee v. State, 512 S.W.2d 401, 403 (Mo.App.1974)

¶92 State v. Stegall, 485 S.W.2d 414, 416 (Mo.1972)

¶93 But see Duncan v. State, 520 S.W.2d 123, 125 (Mo.App.1975)

¶94 E. Constitutional Rights Antedating a Voluntary Plea of Guilty

¶95 1. Improper identification on lineup when denied right to counsel.

¶96 Johnson v. State, 472 S.W.2d 433, 434 (Mo.1971) — without evidentiary hearing

¶97 2. Lack of speedy trial.

¶98 Rew v. State, 472 S.W.2d 611, 613 (Mo.1971)

¶99 3. Inadmissible confession not affecting voluntariness of plea.

¶100 Coney v. State, 491 S.W.2d 501, 513 (Mo.1973)

¶101 Roberts v. State, 476 S.W.2d 490, 494 (Mo.1972) — detention beyond 20 hours

¶102 Brodkowicz v. State, 474 S.W.2d 322, 827 (Mo.1972)

¶103 Miller v. State, 473 S.W.2d 413, 418 (Mo.1971)

¶104 Floyd v. State, 518 S.W.2d 700, 703 (Mo.App.1975)

¶105 Jefferson v. State, 442 S.W.2d 6, 10 (Mo.1969)

¶106 Ineffective assistance of counsel not affecting voluntariness plea. o •&> Hi •

¶107 Floyd v. State, 518 S.W.2d 700, 703 (Mo.App.1975)

¶108 Brown v. State, 495 S.W.2d 690, 694 (Mo.App.1973)

¶109 Barylski v. State, 473 S.W.2d 399, 402 (Mo.1971)

¶110 Duncan v. Stare, 524 S.W.2d 140, 143 (Mo.App.1975)— ineffective assistance on first 27.26 filed not cognizable

¶111 Harkins v. State, 521 S.W.2d 9, 11 (Mo.App.1975)

¶112 5. Failure of police to give Miranda warnings.

¶113 Clemmons v. State, 520 S.W.2d 623, 624 (Mo.App.1975)

¶114 Meller v. State, 438 S.W.2d 187, 193 (Mo.1969) — no statement used against him

¶115 6. Dissatisfaction with conditions of penal servitude while awaiting trial.

¶116 Beach v. State, 488 S.W.2d 652, 655 (Mo.1972)

¶117 Jackson v. State, 476 S.W.2d 598, 599 (Mo.1972)

¶118 Ivy v. State, 509 S.W.2d 148, 153 (Mo.App.1974)

¶119 7. Irregularities at preliminary hearing.

¶120 Huffman v. State, 451 S.W.2d 21, 26 (Mo.1970)

¶121 Stanfield v. State, 442 S.W.2d 521, 525 (Mo.1969)

¶122 8. Illegal evidence, confession, insanity and entrapment.

¶123 State v. Brown, 449 S.W.2d 664, 666 (Mo.1970)

¶124 9. Defective information.

¶125 Miller v. State, 473 S.W.2d 413, 418 (Mo.1971)

¶126 F. Trial Errors

¶127 1.Failure to instruct on lesser included offense did not show deprivation of constitutional right.

¶128 Brown v. State, 490 S.W.2d 657, 659 (Mo.App.1973)

¶129 Improper argument. 2.

¶130 Booth v. State, 491 S.W.2d 286, 288 (Mo.1973)

¶131*479 3. Question propounded by prosecutor assorted as violation of due process is not sufficient to elevate status of trial error to constitutional standard.

¶132 Mayo v. State, 524 S.W.2d 181, 182 (Mo.App.1975)

¶133 4. Errors in admission of evidehce.

¶134 a. prior crimes

¶135 Booth v. State, 491 S.W.2d 285, 288 (Mo.1973)

¶136 b. inadmissible testimony — alleging deprivation of constitutional right.

¶137 Jones v. State, 504 S.W.2d 231, 232 (Mo.App.1973)

¶138 Thomas v. State, 485 S.W.2d 413, 413 (Mo.1972)

¶139 State v. Warren, 406 S.W.2d 605, 607 (Mo.1966)

¶140 5. Defendant's appearance before jury in rumpled, dirty work clothes.

¶141 Wilwording v. State, 438 S.W.2d 447, 450 (Mo.1969)

¶142 6. Confession taken from juvenile by police before he was taken to juvenile court.

¶143 Coney v. State, 491 S.W.2d 501, 506 (Mo.1973)

¶144 7. Cross-examination by prosecutor.

¶145 Agee v. State, 512 S.W.2d 401, 403 (Mo.App.1974)

¶146 8. Deprivation of peremptory challenges to venireman panel.

¶147 Wilwording v. State, 438 S.W.2d 447, 449 (Mo.1969)

¶148 9. Errors relative to instructions.

¶149 Campbell v. State, 515 S.W.2d 453, 456 (Mo.1974)

¶150 Jewell v. State, 515 S.W.2d 806, 807 (Mo.App.1974)

¶151 Thomas v. State, 485 S.W.2d 413, 413 (Mo.1972)

¶152 State v. Smith, 411 S.W.2d 208, 210 (Mo.1967)

¶153 Sherrill v. State, 515 S.W.2d 611, 612 (Mo.App.1974)

¶154 10. "Biased" juror.

¶155 Selman v. State, 454 S.W.2d 530, 532 (Mo.1970)

¶156 11. Conclusionary allegations that trial errors affected constitutional rights.

¶157 Mayo v. State, 524 S.W.2d 181, 182 (Mo.App.1975)

¶158 Richards v. State, 495 S.W.2d 442, 443 (Mo.1973)

¶159 O'Neal v. State, 486 S.W.2d 206, 208 (Mo.1972)

¶160 Agee v. State, 512 S.W.2d 401, 402 (Mo.App.1974)

¶161 Booth v. State, 491 S.W.2d 286, 288 (Mo.1973)

¶162 G. Excessive c.r Cruel or Harsh or Unusual Sentence (where within statutory range)

¶163 Duncan v. State, 524 S.W.2d 140, 142 (Mo.App.1975)— sentence more severe than others

¶164 Shields v. State, 491 S.W.2d 6, 9-10 (Mo.App.1973)

¶165 Meller v. State, 435 S.W.2d 637, 640 (Mo.1968)

¶166 Bracy v. State, 456 S.W.2d 302, 306 (Mo.1970)

¶167 Griggs v. State, 479 S.W.2d 478, 481 (Mo.1972)

¶168 Garrett v. State, 486 S.W.2d 272, 274 (Mo.1972)

¶169 See also Johnson v. State, 442 S.W.2d 41, 46-47 (Mo.1969)— an excessive sentence may be corrected and is not grounds for vacating sentence

¶170 1. Sentence greater than co-defendant's (absent showing that court was engaged in arbitrary or discriminatory conduct).

¶171 Bradley v. State, 494 S.W.2d 45, 49 (Mo.1973)

¶172 Shields v. State, 491 S.W.2d 6, 9-10 (Mo.App.1973)

¶173 Phillips v. State, 486 S.W.2Ó 237, 239 (Mo.1972)

¶174*480 2. Power of trial court to determine whether sentences are concurrent or consecutive.

¶175 Mullin v. State, 473 S.W.2d 429, 430 (Mo.1971)

¶176 3. Discretion in prosecutor to charge under Second Offender Act.

¶177 Wilwording v. State, 438 S.W.2d 447, 449 (Mo.1969)

¶178 4. Greater sentence on retrial by second jury.

¶179 Spidle V. State, 446 S.W.2d 793, 795 (Mo.1969)

¶180 H. Matters Affecting Parole Revocation (denial of due process — proper remedy is habeas corpus)

¶181 Green v. State, 494 S.W.2d 356, 357 (Mo.banc 1973)

¶182 Jones v. State, 471 S.W.2d 166, 168 (Mo.banc 1971)

¶183 Smith v. State, 517 S.W.2d 148, 150 (Mo.1974)

¶184 I. Perjury

¶185 1. At 27.26 hearing.

¶186 Sallee v. State, 460 S.W.2d 554, 559 (Mo.1970)

¶187 See Duncan v. State, 520 S.W.2d 123 (Mo.App.1975)

¶188 2. Absent showing prosecutor was aware testimony was false at time of trial.

¶189 State v. Statler, 383 S.W.2d 534, 537 (Mo.1964)

¶190 Coles v. State, 495 S.W.2d 685, 687 (Mo.App.1973)

¶191 J. Issues of Credibility

¶192 1. Involving an involuntary confession.

¶193 Jones v. State, 445 S.W.2d 311, 313-314 (Mo.1969)

¶194 2. Involving voluntariness of plea of guilty.

¶195 Daniels v. State, 454 S.W.2d 17, 20 (Mo.1970)

¶196 Peterson v. State, 444 S.W.2d 673, 676 (Mo.1969)

¶197 3. Involving witness' testimony.

¶198 Bledsoe v. State, 456 S.W.2d 4, 6 (Mo.1970)

¶199 Campbell v. State, 515 S.W.2d 453, 456 (Mo.1974)

¶200 Quinn v. State, 515 S.W.2d 603, 607 (Mo.App.1974)

¶201 Byrd v. State, 520 S.W.2d 611, 614 (Mo.App.1975)

¶202 Floyd v. State, 518 S.W.2d 700, 702-703 (Mo.App.1975)

¶203 K. Absence of Counsel

¶204 1. At arraignment (where counsel is appointed or obtained after defendant's plea of not guilty).

¶205 Horn v. State, 498 S.W.2d 771, 774 (Mo.1973)

¶206 McClain v. State, 448 S.W.2d 599, 601 (Mo.1970)

¶207 2. At sentencing (absent prejudice to accused).

¶208 Jones v. State, 494 S.W.2d 659, 661 (Mo.App.1973)

¶209 3. At pretrial photographic display.

¶210 Steward v. State, 499 S.W.2d 830, 833 (Mo.App.1973)

¶211 4. May waive at preliminary hearing absent prejudice to accused.

¶212 Hendrix v. State, 495 S.W.2d 457, 459-460 (Mo.App.1973)

¶213 Horn v. State, 498 S.W.2d 771, 774 (Mo.1973)

¶214 Geren v. State, 473 S.W.2d 704, 707 (Mo.1971)

¶215 Knight v. State, 491 S.W.2d 282, 285 (Mo.1973)

¶216 Fleck v. State, 443 S.W.2d 100, 101 (Mo.1969)

¶217*481 L. Speedy Trial

¶218 1. Absent demand to try case by defendant or his counsel.

¶219 State v. Horn, 498 S.W.2d 771, 774 (Mo.1973)

¶220 2. Because defendant lived in a rural area with fewer terms of court than urban areas.

¶221 Morton v. State, 468 S.W.2d 638, 639-640 (Mo.1971)

¶222 3. Delay of 27.26 hearing.

¶223 Clark v. State, 497 S.W.2d 170, 174-175 (Mo.1973)

¶224 Simpson v. State, 487 S.W.2d 512, 514 (Mo.1972)

¶225 M. Conduct by the Court

¶226 1. Failure to conduct presentence investigation.

¶227 Hamilton v. State, 490 S.W.2d 363, 365 (Mo.App.1973)

¶228 2. Failure to hold or defect in preliminary hearing, absent objection by defendant: before trial.

¶229 Shields v. State, 491 S.W.2d 6, 10 (Mo.App.1973)

¶230 3. No constitutional right to accept guilty plea.

¶231 Steward v. State, 499 S.W.2d 830, 832 (Mo.App.1973)

¶232 4. Consideration of improper prior convictions in sentencing where one of prior convictions is valid.

¶233 Jackson v. State, 476 S.W.2d 598, 599-600 (Mo.1972)

¶234 5. Comments of judge curing trial as deprivation of right to fair trial, absent support from record.

¶235 Meller v. State, 435 S.W.2d 637, 640 (Mo.1968)

¶236 6. Failure to grant continuance.

¶237 Woody v. State, 445 S.W.2d 288, 292 (Mo.1969)

¶238

¶239 O. Phvsical Restraint of Defendant at Hearing on 27.26 Motion

¶240 Russell v. State, 494 S.W.2d 30, 38 (Mo.1973)

¶241 P. Misleading Statements of Prosecutor Regarding Prior Convictions at Tirr.e of Sentencing

¶242 Phillips v. State, 486 S.W.2d 237, 238-239 (Mo.1972)

¶243 Q. Withdrawal of Voluntary Plea of Guilty, Absent Showing of Manifest Injustice

¶244 Beavers v. State, 520 S.W.2d 675, 680 (Mo.App.1975)

¶245 Winford v. State, 485 S.W.2d 43, 49 (Mo.banc 1972) -- failure of transcript to show full compliance with Rule 25.04

¶246 Babcock v. State, 435 S.W.2d 85, 39 (Mo.1972)

¶247 Drew v. State, 436 S.W.2d 727, 729 (Mo.1969)

¶248 1. Longer sentence received than anticipated.

¶249 Abrams v. State, 521 S.W.2d 177, 180 (Mo.App.1975)

¶250 Babcock v. State, 485 S.W.2d 85, 90 (Mo.1972)

¶251 2. Incorrect opinion of attorney that court will accept recommendation.

¶252 State v. Bonds, 521 S.W.2d 18, 21 (Mo.App.1975)

¶253*482 3.Failure of court to explain each technical element of the offense.

¶254 Abrams v. State, 521 S.W.2d 177, 179 (Mo.App.1975)

¶255 State v. Conner, 500 S.W.2d 300, 302 (Mo.App.1973)

¶256 Jones v. State, 471 S.W.2d 223, 228 (Mo.1971) [range of punishment]

¶257 R. Miscellaneous Matters

¶258 1. Verdict not in compliance with the court's instructions or the law of Missouri in failing to -follow form of indictment.

¶259 State v. Stegall, 485 S.W.2d 414, 416 (Mo.1972)

¶260 2. Challenge to sufficiency of medical examination to determine competency to stand trial or to assist in preparation of defense.

¶261 Campbell v. State, 515 S.W.2d 453, 455 (Mo.1974)

¶262 Bledsoe v. State, 456 S.W.2d 4, 6 (Mo.1970) [trial error]

¶263 3. Failure of counsel to brief ar.d argue original appeal.

¶264 Gerberding v. State, 433 S.W.2d 820, 324 (Mo.1968)

¶265 4. Ineffective assistance of counsel.

¶266 See Thomas v. State, 516 S.W.2d 761 (Mo.App.1974)— excellent summary

¶267 5. Inculpatory or exculpatory statement of defendant where no evidence presented in support of allegation pertaining to use of statement.

¶268 Webb v. State, 447 S.W.2d 513, 514 (Mo.1969)

¶269 Nolan v. State, 446 S.W.2d 754, 755 (Mo.1969) [not used by state]

¶270 6. State's use of peremptory challenges to strike all black jurors, absent showing of systematic practice.

¶271 Brown v. State, 470 S.W.2d 543, 544 (Mo.1971)

¶272 7. Validity of extradition proceedings.

¶273 Watson v. State, 475 S.W.2d 8, 12 (Mo.1972)

¶274 State v. Estes, 406 S.W.2d 560, 562 (Mo.1966)

¶275 8. Ineffective assistance of counsel at 27.26 hearing.

¶276 Duncan v. State, 524 S.W.2d 140, 142 (Mo.App.1975)

¶277 Harkins v. State, 521 S.W.2d 9, 11 (Mo.App.1975)

¶278 Williams v. State, 507 S.W.2d 664, 666 (Mo.App.1974)

¶279 McCormick v. State, 502 S.W.2d 324, 326 (Mo.1973)

¶280 9. Failure of state to endorse witness on information.

¶281 State v. Reeble, 399 S.W.2d 118, 121 (Mo.1966)

¶282 10. Plea proceeding voluntarily made.

¶283 Foster v. State, 520 S.W.2d 684, 686 (Mo.App.1975)

¶284 11. Knowing suppression of favorable evidence absent showing that prosecutor was aware of evidence at time of trial.

¶285 Mason v. State, 468 S.W.2d 617, 622 (Mo.1971)

¶286*483 in

¶287 27.26 DECISIONS IN WHICH GROUNDS FOR RELIEF WERE FOUND MERITORIOUS

¶288 A. Guilty Plea, Involuntary/ Failure to Inform/ etc»

¶289 1. Leave to withdraw plea granted.

¶290 Williams v. State, 473 S.W.2d 97 (Mo.1971)

¶291 Doepke v. State, 465 S.W.2d 507 (Mo.1971)

¶292 Burrell v. State, 461 S.W.2d 738 (Mo.1971) [understanding]

¶293 State v. Reese, 457 S.W.2d 713 (Mo.1970)

¶294 State v. Arnold, 419 S.W.2d 59 (Mo.1967)

¶295 State v. Edmonson, 438 S.W.2d 237 (Mo.1969)

¶296 a. Absence of counsel at time of plea alleged to be involuntary.

¶297 Morris v. State, 456 S.W.2d 289 (Mo.1970) [leave to withdraw plea granted]

¶298 b. Ineffective assistance of counsel affecting voluntariness of plea.

¶299 Pedicord v. Swenson, 304 F.Supp. 393 (W.D.Mo.1969) [leave to withdraw plea granted — habeas corpus]

¶300 Miller v. State, 498 S.W.2d 79 (Mo.App.1973) [hearing ordered on issue of defendant's competency or in alternative leave to withdraw plea]

¶301 Hall v. State, 496 S.W.2d 300 (Mo.App.1973) [leave to withdraw plea granted]

¶302 2. Remand for evidentiary hearing on voluntariness.

¶303 State v. Rose, 440 S.W.2d 441 (Mo.1969) — assured of probation

¶304 State v. Sayre, 420 S.W.2d 303 (Mo.1967)

¶305 B. Ineffective Assistance of Counsel

¶306 1. Holbert v. State, 439 S.W.2d 507 (Mo.1969) [remand for hearing]

¶307 State v. Keeble, 427 S.W.2d 404 (Mo.1968) [remand for hearing]

¶308 2. Thomas v. State, 516 S.W.2d 761 (Mo.App.1974) [remand for

¶309 hearing) (excellent summary)

¶310 C. Denial of Right to or Assistance of Counsel at Critical Stage

¶311 1. At time of motion for new trial.

¶312 Nicholson v. State, 524 S.W.2d 106 (Mo.1975) [motion for new trial permitted to be filed]

¶313 Ball v. State, 479 S.W.2d 486 (Mo.1972) [new motion with assistance of counsel permitted to be filed]

¶314 2. At trial.

¶315 Fields v. State, 507 S.W.2d 39 (Mo.App.1974) [new trial granted]

¶316 3. At prior conviction.

¶317 Garrett v. State, 459 S.W.2d 378 (Mo.1970) [remand for evidentiary hearing]

¶318 D. Involuntary Waiver of Trial by Jury

¶319 Barrage v. State, 477 S.W.2d 118 (Mo.1972) [remand for evidentiary hearing]

¶320 E. Denial of Right of Confrontation of Witnesses

¶321 Kern v. State, 507 S.W.2d 8 (Mo.banc 1974) [new trial granted]

¶322 F. Incompetencv to Stand Trial

¶323 Brizendine v. Swenson, 302 F.Supp. 1011 (W.D.Mo.1969) [evidentiary hearing granted]

¶324 Carpenter v. State, 449 S.W.2d 584 (Mo.1970) [remand for evidentiary hearing]

¶325*484 G. Involuntary Confession

¶326 Alewine v. Missouri, 352 F.Supp. 1190 (W.D.Mo.1972) [federal habeas dismissed because Missouri rule was available to afford hearing on issue of voluntariness]

¶327 Vidauri v. State, 515 S.W.2d 562 (Mo.1974) [new’ trial granted]

¶328 H. Conviction Based on Alleged Knowing Use of Perjured Testimony

¶329 Harris v. State, 443 S.W.2d 191 (Mo.1969) [remand for evidentiary hearing]

¶330 State v. Keeble, 427 S.W.2d 404 (Mo.1968) [remand for evidentiary hearing]

¶331 I. Double Jeopardy

¶332 Spidle v. Swenson, 313 F.Supp. 203 (W.D.Mo.1970) [habeas— new trial granted on lesser included offense]

¶333 Durham v. State, 473 S.W.2d 397 (Mo.1971) [remand for findings of fact and conclusions]

¶334 J. Insufficiency of Charge Against Defendant

¶335 1. Denial of right to be informed of nature and cause of accusation

¶336 Taggert v. Swenson, 313 F.Supp. 146 (W.D.Mo.1970) [federal writ dismissed pending state ruling on 27.26 notion]

¶337 2. Defective indictment — failure to allege essential element.

¶338 Bullington v. State, 459 S.W.2d 334 (Mo.1970) [new trial granted — kidnapping]

¶339 3. Defective information.

¶340 Montgomery v. State, 454 S.W.2d 571 (Mo.1970) [felony murder-robbery]

¶341 State v. Nolan, 418 S.W.2d 51 (Mo.1967) [new trial granted]

¶342 State v. Garner, 432 S.W.2d 259 (Mo.1968) [judgment set aside and remanded]

¶343 K. Unconstitutional Identification

¶344 Arnold v. State, 484 S.W.2d 248 (Mo.1972) [remand for evi-dentiary hearing]

¶345 M. Prior Convictions

¶346 1. Finding of prior convictions not in compliance with statute.

¶347 State v. Dixon, 434 S.W.2d 564 (Mo.1968) [remand for evi-dentiary hearing]

¶348 2. Evidence received by jury of alleged void prior cor.victipn.

¶349 Gerberding v. State, 433 S.W.2d 820 (Mo.1968) [remand for evidentiary hearing!

¶350 N. Miscellaneous

¶351 1. Involuntary abandonment of right to appeal.

¶352 Noble v. State, 477 S.W.2d 417 (Mo.1972) [remand for evi-dentiary hearing]

¶353 State v. Frey 441 S.W.2d 11 (Mo.1969) [reser.tence and time for appeal to run from resentence]

¶354 2. Insufficient findings of fact and conclusions of law.

¶355 Thomas v. State, 465 S.W.2d 513 (Mo.1971)

¶356 3. Transcript of prior 27.26 hearing used to avoid new evidentiary

¶357 hearing.

¶358 State v. Brown, 436 S.W.2d 724 (Mo.1969) [remand for evi-dentiary hearing]