author: PER CURIAM.

text:
    Horace W. BONNER, Jr., Plaintiff-Movant, v. STATE of Missouri, Defendant-Respondent.
    No. 36317.
    Missouri Court of Appeals, St. Louis District.
    March 16, 1976.
    Motion for Rehearing En Banc or for Transfer to Supreme Court Denied April 13, 1976.
    Application to Transfer Denied May 5, 1976.
    See also Mo.App., 535 S.W.2d 297, 301.

      David Uthoff, St. Louis, for plaintiff-movant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Neis C. Moss, Jr., Asst. Circuit Atty., St. Louis, for defendant-respondent.
   PER CURIAM.

Horace W. Bonner, Jr., movant, appeals from the judgment of the trial court denying relief upon a motion filed under Rules 27.26 and 27.25.

Movant, along with his brother, Charles Bonner and Kevin Dean, was charged with two counts of murder arising out of the beating deaths of two boys ages 4 and 6; one count for the rape of Stephanie, Sims also referred to as Stephanie Munns, the mother of one of the boys; and another count of assault with intent to kill with malice, arising out of the shooting of Stephanie Sims. All of the acts were alleged to have occurred on December 19, 1972.

On October 9,1973, the State reduced the charges on the first two counts to murder second degree and the defendant entered a plea of guilty to the four charges pending against him. Upon the recommendation of the Circuit Attorney movant was sentenced to terms of 35 years on each of the two charges of murder in the second degree and on the charge of assault with intent to kill with malice with each of the sentences to run concurrently. He was also sentenced to a term of 5 years on the charge of forcible rape to be served after the termination of the 35 year sentences. The co-defendants who had entered pleas of guilty earlier on the same day received the same sentences.

Some sixteen days after the sentencing the movant filed his “Motion to Set Aside Judgment and Sentence Under Supreme Court Rule 27.26.”

Hon. Lackland Bloom, the judge who accepted the guilty pleas, was disqualified. A full evidentiary hearing was had before the Hon. Daniel T. Tillman who made extensive findings of fact and conclusions of law and entered a judgment denying the motion. The hearing on this motion was held on the same date that the motions of the co-defendants were heard because the testimony of certain witnesses was common to all the motions. Our opinion herein is to be handed down simultaneously with those of the other defendants in the underlying case.

By the motion movant seeks to set aside the conviction and to withdraw his plea of guilty. This is thus a combined motion under rules 27.25 and 27.26. A judgment of conviction under Rule 27.25 may be set aside and the plea of guilty withdrawn only to correct manifest injustice and the burden is upon the movant to make such proof by a preponderance of the evidence. State v. Jackson, 514 S.W.2d 638, 641[1, 2] (Mo.App.1974).

Movant’s Points Relied On give us very little in the way of clues as to his contentions of error. The points do not indicate to us what findings are claimed to be erroneous nor why they are claimed to be erroneous. Rule 84.04(d).

We have, because of the heinousness of the crimes involved and the consequences of the convictions of such crimes upon the movant, reluctantly seined the briefs, including movant’s pro se supplemental brief, his reply brief, and the voluminous transcript including memoranda of law, in search of movant’s contentions. As a consequence we shall undertake to determine whether the court erred in holding that movant had not carried the burden of proving that his plea was not voluntarily made with an understanding of the nature of the charges against him because (1) he was under pressure on the day the plea was entered and as a result he “took four nerve pills, an amount of cocaine, a dosage of heroin and an amount of alcohol;” (2) his plea was equivocal; (3) he was coerced into making the plea because the court threatened to impose four consecutive life sentences if the defendant did not enter a plea; (4) his choice of entering the plea as against trying the case was the result of ineffective assistance of counsel because counsel did not prepare a defense and failed to interview witnesses whose names were supplied by movant and did not proceed to get a change of venue because of pre-trial publicity and because he was advised that he would only serve 7 years of the sentences; (5) he was coerced to enter a plea of guilty because of adverse publicity by way of newspaper coverage and television appearances by the Circuit Attorney; and (6) he was promised by his attorney and thereby misled into believing that he would be paroled after 7 years of a 35 year sentence.

In movant’s argument we also find a procedural question which we rule first.

It is movant’s contention that this proceeding is governed by the Rules of Civil Procedure; that a responsive pleading is required to his motion; and since no responsive pleading was filed, the facts contained in his motion must be taken as admitted and his 27.26 motion should be sustained as a matter of law in accordance with his pro se “Application for Judgment.”

Rule 27.26(a) does provide that Rules of Civil Procedure shall apply insofar as applicable. State v. Edmondson, 438 S.W.2d 237 (Mo.1969). However, the initial pleading required under Rule 27.26 is a motion. The pleadings required under the Rules of Civil Procedure are set out in Rule 55.01. This rule does not require a party to file a responsive pleading to a motion. The rule specifies that no pleadings other than those listed in the rule “shall be required except as ordered by the court.” A responsive pleading is not required under the Rules of Civil Procedure. The movant did not request and the trial court did not order the State to file a responsive pleading. Rule 27.26 does not require a responsive pleading. Movant’s contention is without merit.

We next consider the contention that his plea was not made voluntarily because he was under the influence of drugs and alcohol. Movant testified that while in the jail and prior to going to court he was nervous and “took about four nerve pills . and snorted some coke and heroin . .”

The trial court found that movant was not under the influence of drugs or alcohol at the time defendant entered his plea of guilty. The court as the trier of the facts was the judge of the credibility of the witnesses and was not required to believe movant even if his evidence was uncontra-dicted upon a given issue. Quinn v. State, 515 S.W.2d 603 (Mo.App.1974).

In this case the finding of the court was supported by other witnesses. His trial attorney testified that Mr. Bonner seemed to be himself, his pupils did not appear to be dilated, he spoke coherently and his speech was not slurred. He was very bright and alert. The judge who took the plea testified that he would not have taken the plea of movant and his co-defendants if he had thought that they were not in complete control of their faculties. Although movant’s mother was present with her son at the discussion with respect to the possibility of a plea and was also in the courtroom when movant entered his plea no testimony was elicited from her, at the hearing on this motion with respect to his condition. Movant’s co-defendant, Kevin Dean, testified that he saw Horace Bonner on the day he entered his plea but did not know whether Horace was “high”.

When we consider the clarity with which movant relates his version of the occurrences of October 9, 1973 and the testimony of the witnesses set out above we cannot say that the finding of the trial court on this issue was clearly erroneous.

From movant’s argument we ascertain that he next contends that his plea was equivocal because the “Court merely informed Horace Bonner of what the charge in each of the four counts was, and then inquired as to whether a videotape statement was made by Horace Bonner at the time of his arrest.” Although this issue was not before the trial court we shall discuss this matter.

We cannot agree that the plea was equivocal. Movant advised Judge Tillman that he had some knowledge of criminal law. He had been through the criminal justice system on two prior occasions. While in prison on prior occasions he had assisted other prisoners with appeals and had filed a motion under Rule 27.26.

At the hearing on the plea of guilty the court advised him of the charges then pending against him. His retained counsel announced that after consultation with mov-ant and members of his family and an explanation of the range of punishment, the defense position, and his constitutional rights, movant wished to plead guilty. Movant acknowledged that he was aware of the charges and that he had conferred with counsel of his choice who had explained his rights to him. The court then asked mov-ant to listen to the Assistant Circuit Attorney’s statement of facts. The Assistant Circuit Attorney then made a statement of the facts which he intended to prove. The following then occurred:

“QUESTIONS OF THE DEFENDANT BY THE COURT:
Q. All right, now, you’ve heard what the Assistant Circuit Attorney has had to say?
A. Yes, Sir.
Q. With respect to Count I you’re charged along with Kevin Dean and your brother, Charles—
A. Yes.
Q. That is your brother?
A. Yes, Sir.
Q. —with murdering Leon Rush?
A. Correct.
Q. Specifically they charge that you, acting together with the other two, beat him with a cane until he died. Is that so?
A. Yes, Sir.
Q. In Count II you’re charged with murdering Mario Sims and specifically you’re charged with the other two [of] beating him with a cane until he died. Is that so?
A. Correct, Your Honor.
Q. In Count III you’re charged with making an assault upon Stephanie Sims by throwing a knife at her and shooting at her with the intent to kill her. Is that so?
A. Correct, Your Honor.
Q. And in Count IV you’re charged with raping Stephanie Sims, having sexual intercourse with her against her will. Is that so?
A. Correct, Your Honor.
Q. Did you make a confession with respect to these crimes shortly after them which is on video tape?
A. Yes, Sir.
Q. Were you fully advised at the time you made that confession of your rights?
A. Yes, Sir.”

After ascertaining in detail that he had been given all of his Miranda rights the court explained the range of punishment on each count. All the elements which were lacking in Morris v. State, 482 S.W.2d 459 (Mo.1972) cited by movant were present here. See Fisk v. State, 515 S.W.2d 865 (Mo.App.1974). This was not an equivocal plea.

While movant’s Point IB gives no hint of his contention, in his argument he states:

“Appellant submits that the trial Judge posed the alternative of a forty year sentence if appellant pleaded guilty or a sentence of four consecutive life terms if appellant attempted to prove his innocence by use of a jury trial and failed.”

Movant testified that his attorney told him “he talked to the judge about this and the judge said if we proceed to trial before a jury and found guilty that he was going to give us four consecutive life sentences.”

The attorney who had been retained to represent movant and his brother, the attorney for Kevin Dean and the Assistant Circuit Attorney discussed a disposition of the case upon pleas of guilty. The Assistant Circuit Attorney agreed that he would reduce the charges of first degree murder to murder in the second degree and that he would recommend 35 year sentences on each of the murder charges, 35 years on the charge of assault with intent to kill and 5 years on the rape charge with all sentences to run concurrently. The attorneys then went to Judge Bloom’s chambers and outside the presence of their clients, briefly outlined the evidence and asked the court if he would accept the recommendation. He advised that he would not.

The question of who would assess the punishment in the event of trial was discussed. The defendant’s prior felonies had not been pleaded and thus the court advised that the jury would assess the punishment. The Assistant Circuit Attorney had informed counsel that in the event of trial he would recommend that any sentences assessed by a jury be consecutive. The judge in the conversation indicated that he would run any sentences, which a jury might assess, consecutively.

Subsequently counsel for all the parties sought the court’s position with respect to a recommendation that all three 35 year sentences be run concurrently with a 5 year sentence on the charge of rape to be consecutive to the 35 year sentences. The court advised that he would accept such a recommendation.

Counsel told his clients of the conversations which he had in the judge’s chambers. He advised them that the judge would run any sentences, assessed by the jury, consecutively. He told them that they could be sentenced to four consecutive life sentences. Movant’s mother also testified that counsel told her “. .it was a possibility that they could get four life sentences . .” Charles Bonner pleaded guilty. The mov-ant requested that the case be tried. The parties were ready to proceed with the preliminary motion to suppress movant’s confession when he advised counsel that he wished to enter a plea of guilty.

Confining our opinion to the issue as raised in movant’s argument there was ample evidence from which the trial court could find that Judge Bloom did not pose the sentence of forty years upon a plea of guilty as against four consecutive life sentences should movant attempt to prove his innocence. As Judge Bloom put it, “. I was not negotiating with these attorneys. I was telling them whether I would or would not accept a plea of guilty on the recommendation of the Circuit Attorney’s office.” The movant was not present at the conference which the attorneys had with Judge Bloom. In the course of conversation he emphasized that the jury would be assessing the penalties. He then indicated that any sentences which the jury would impose would, under the facts as they were presented to him, be consecutive. The court was warranted in finding that there was no factual basis for the contention of error.

It is also our view that the actions of Judge Bloom in this case are in accord with the American Bar Association’s “Standards Relating to Pleas of Guilty” 3.3(b) which were approved by the Supreme Court in State v. Tyler, 440 S.W.2d 470 (Mo. banc 1969). See also Brown v. State, 485 S.W.2d 424, 429 (Mo.1972). The judge permitted counsel to reveal to him the tentative agreement which they had reached and advised them that he would accept the plea on that basis. The Court then accepted the pleas and sentenced defendant in accordance with his commitment.

We also find tacit support for this proceeding in Brady v. U. S., 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), where Mr. Justice White speaking for the majority of the court said at 755, 90 S.Ct. at 1472:

“The standard as to the voluntariness of guilty pleas must be essentially that defined by Judge Tuttle of the Court of Appeals for the Fifth Circuit: ‘[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e. g. bribes).’ 242 F.2d [101] at page 115.” (emphasis ours).

The fact that the court indicated to counsel that he would sentence movant to consecutive terms if he was found guilty, under the facts as he then knew them, was an honest expression of his present state of mind. It could only assist movant’s counsel in assessing his client’s position. When movant’s counsel advised movant that he could if found guilty, receive four consecutive life sentences, he was only fulfilling his obligations to his client. It was a possibility which movant faced. Only with such frank appraisal could movant assess his situation and make an intelligent choice. The trial court’s findings with respect to this issue were not erroneous.

Movant next contends that his guilty plea was not voluntarily made with an understanding of the nature of the charges because of ineffective assistance of counsel.

At the time this case was set for trial movant’s retained counsel had practiced law for ten years. One-half of his practice was in the field of criminal law and he had tried hundreds of cases. He had about 10 to 15 conferences with movant and his brother, Charles. He conducted a voluminous correspondence with movant about the case. He filed numerous pre-trial motions through which he obtained a bill of particulars, the laboratory reports, portions of the police reports, the statements made by movant and his co-defendants, and the production of other evidence. His motion for psychiatric examination was sustained. He obtained a severance so that the statements of the co-defendants would not be placed before the jury. He took the depositions of the State’s four principal witnesses.

Movant argues as a basis for his contention that counsel told him that, “in the event of trial an appeal would not lie.”; “that . . . if a jury trial was elected, then an appeal would be hopeless.” In addition to the inconsistency of these contentions movant’s counsel testified that he did not make the statements which movant attributes to him. As we have stated before the credibility of the witnesses is a matter for the trial judge to determine. Quinn v. State, supra.

On this same issue movant contends that his counsel “did not interview defense witnesses nor did his counsel inform him whether he interviewed all the defense witnesses.”

Movant gave his attorney the names of about seven persons. Movant testified that these persons could testify as to the bad character of Stephanie Sims. None of these persons could testify that movant was not at the scene of the crimes or otherwise exonerate him. Movant’s attorney wrote letters to all of these persons for whom he had an address. He received no cooperation from these witnesses. He so advised his clients and wrote to their mother who came into the office and went over the list. He wrote the witnesses once more. He spoke to some of the witnesses by telephone. They were not cooperative and in the opinion of counsel they would have been of no material assistance in the defense of the case.

Movant also argues that he discussed the question of excessive publicity with his attorney but he failed to file a motion for change of venue. Counsel testified that Mr. Bonner made no request for a change of venue; that he had considered the question of a change of venue but concluded that there was no other jurisdiction that would have been more desirable. Counsel also noted that movant had filed more than ten pro se pre-trial motions and would have filed an application for change of venue if he had felt it was in his best interest.

As part of his claim of ineffective assistance of counsel he claims that he was misled by counsel who advised him that he would serve only 8 to 10 years if he received the sentences recommended by the Circuit Attorney. Movant’s counsel testified that he spoke with movant and his mother and told them that he had reviewed the statistics of the Missouri Department of Corrections which indicated that the average time spent under a life sentence is ten years. He denied that he had promised that movant would spend no more than 8 to 10 years in prison or made any promises to movant. There is no indication that statistical information given by counsel was inaccurate. Movant, who had been in the penitentiary, did not profess ignorance respecting the time which a convict could serve under a given sentence.

Once a plea of guilty has been entered the question of effective assistance of counsel is immaterial except to the extent that counsel’s ineffectiveness affected the issue of voluntariness and understanding. Matthews v. State, 501 S.W.2d 44, 47[7] (Mo.1973). The trial court was warranted in finding that movant had failed to carry his burden in this respect. Rather the evidence clearly indicates that counsel was diligent in his representation of movant.

Movant also argues as a separate issue that excessive adverse publicity resulting from the newspaper coverage and television appearances by the Circuit Attorney regarding the charges made against him was a factor resulting in his entering a plea of guilty. As we stated above movant presented no evidence as to the extent and nature of any publicity. We cannot say that the court erred in finding adversely to movant in this regard.

Movant also argues, as a separate issue, that his attorney told him that if he received the sentences recommended a parole would be received in 7 years and that he was also informed by counsel that “the trial judge concurred in the theory of being paroled after only seven years.” Movant’s counsel flatly denied that he had made these statements. This contention is similar to one made above. The question of credibility was determined by the trial court adversely to movant’s contention. State v. Quinn, supra. We cannot say that the court acted erroneously.

Movant tenders the following Point Relied On:

“Appellant’s guilty plea was not made voluntarily and should be withdrawn because at the time of the plea the alternative of trial by jury was unlawfully chilled in violation of Amendments V, VI, XIV of the United States Constitution.”

The point obviously fails to comply with Rule 84.04(d) as it does not point to any finding or conclusion of the court in the 27.26 hearing that was erroneous and wherein and why it is claimed to be erroneous. It does not even tell us what the original trial court did that he claims is erroneous.

Under this point movant argues:

“Appellant was charged by way of a Grand Jury Indictment consisting of four separate counts, and these offenses were joined under Missouri Supreme Court Rule 24.04. This combined with the interrelationship of § 546.480 R.S.Mo. (1969), creates a situation that limits and unduly chills the exercise of the right to a jury trial, and at the same time creates a situation which unlawfully coerces and pressures a person into entering a plea of guilty.”

Even viewing the point as raising an issue it is a matter that was not raised in the motion filed under Rule 27.26 nor was it presented to and ruled upon by the court that heard the motion. This matter is not before us for review. Maggard v. State, 471 S.W.2d 161, 162[1] (Mo.1971).

Movant in this case does not profess to have been ignorant of any of his constitutional rights as of the time he entered his plea of guilty. On the contrary he made it quite clear in his testimony that he was widely read in the field of criminal law. The principal thrust of his argument here is that his plea was not voluntary because he was under the influence of drugs and alcohol. When he failed in his proof of this issue all other issues dissipate into the atmosphere from whence they came.

We have reviewed the extensive interrogation of movant at the time of his plea. We have considered the evidence presented at the hearing with respect to this motion including movant’s letter to counsel two months before the plea asking him to negotiate for life sentences to run concurrently. The movant at the plea hearing admitted facts sufficient to constitute the crimes to which he pleaded guilty. He thus had an understanding of the charges against him. Fisk v. State, supra.

The basic issue in this case was whether movant’s plea was entered voluntarily with an understanding of the nature of the charge, and not whether the judge who accepted the plea followed some particular procedure. As noted we have considered, as we may, the evidence produced at the hearing on this motion in addition to the proceeding at the time the plea was accepted. Flood v. State, 476 S.W.2d 529 (Mo.1972). We cannot say that the court was clearly erroneous in finding that movant’s plea of guilty was voluntarily made with an understanding of the nature of the charges. Movant has not demonstrated that he was the victim of manifest injustice. The judgment of the trial court is affirmed.

All Judges concur.

      . “Pleading Required. There shall be a petition and an answer; and there shall be a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party petition, if leave is given to summon a person who was not an original party; and there shall be a third-party answer, if a third-party petition is served. A defense consisting of an affirmative avoidance to any matter alleged in a preceding pleading must be pleaded. No other pleading shall be required except as ordered by the court.”

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . “Appellant’s guilty plea was not made voluntarily and should be withdrawn since it was induced by fraud or mistake, by misapprehension, fear, persuasion, or the holding out of hopes which proved to be false or ill founded.”

      . “If a tentative plea agreement has been reached which contemplates entry of a plea of guilty * * * in the expectation that other charges before that court will be dismissed or that sentence concessions will be granted, upon request of the parties the trial judge may permit the disclosure to him of the tentative agreement and the reasons therefor in advance of the time for tender of the plea. He may then indicate to the prosecuting attorney and de-íense counsel whether he will concur in the proposed disposition if the information in the presentence report is consistent with the representations made to him. If the trial judge concurs, but later decides that the final disposition should not include the charge or sentence concessions contemplated by the plea agreement, he shall so advise the defendant and then call upon the defendant to either affirm or withdraw his plea of guilty * *

      . “Mr. Murry A. Marks, Attorney at Law. Dear Sir, Once again I’m writing in regard to changing my present plea. Since at this point we do not have any sort of defense, it would be fatal to carry our case before a jury, plus the fact that we are not receiving any outside [sic] from our folks nor my wife. I would like to change my plea from innocent to guilty and would like for you to bargain and see if you can obtain life sentences to run concurrent to each count to total one life sentence. Very truly yours, Horace Bonner.”


source: Caselaw Access Project

license: Public Domain

text:
    Charles A. BONNER, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent.
    No. 36393.
    Missouri Court of Appeals, St. Louis District.
    March 16, 1976.
    Motion for Rehearing En Banc or for Transfer to Supreme Court Denied April 13, 1976.
    Application to Transfer Denied May 5, 1976.
    David Uthoff, St. Louis, for plaintiff-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Neis C. Moss., Jr., Asst. Circuit Atty., St. Louis, for defendant-respondent.
   PER CURIAM.

This is a companion case to Horace W. Bonner, Jr. v. State, 535 S.W.2d 289 (Mo.Ct. of App., St. Louis District) and Kevin Dean v. State, 535 S.W.2d 301 (Mo.Ct. of App., St. Louis District) which are being handed down simultaneously with this opinion. Facts common to all these cases have been more fully set out in the case of Horace W. Bonner, Jr.

Movant, Charles Bonner, his brother, Horace Bonner and Kevin Dean entered pleas of guilty to two counts of murder second degree, one count of assault with intent to kill with malice and one count of forcible rape. Upon the recommendation of the Circuit Attorney the court sentenced movant to terms of 35 years on each of the first three counts to be served concurrently and to a term of 5 years on the charge of rape to be served at the termination of the 35 year sentences. Movant’s co-defendants also pleaded and received the same sentences.

Shortly after his confinement mov-ant filed his, “Motion to Set Aside Judgment and Sentence Under Supreme Court Rule 27.26.” By the motion movant seeks to set aside the conviction and to withdraw his plea of guilty. This is thus a combined motion under Rules 27.25 and 27.26. A judgment of conviction under Rule 27.25 may be set aside and the plea of guilty withdrawn only to correct manifest injustice and the burden is upon the movant to make such proof by a preponderance of the evidence. State v. Jackson, 514 S.W.2d 638, 641[1, 2] (Mo.App.1974).

Movant’s briefs contain the same shortcomings which we noted in the case of Horace W. Bonner, Jr. v. State, supra. For the reasons stated in that case we shall here consider whether the trial court erred in denying movant’s motion because he had not carried the burden of proving that his plea was not voluntarily made with an understanding of the nature of the charges against him because, (1) prior to pleading guilty, he took five valium tablets and felt drowsy and intoxicated; (2) he was coerced into making the plea because the court threatened to impose four consecutive life sentences if the defendant did not enter a plea; (3) his choice of entering the plea as against trying the case was the result of ineffective assistance of counsel because counsel did not prepare a defense and failed to interview witnesses whose names were supplied by movant and did not proceed to get a change of venue because of pre-trial publicity and counsel advised movant that he would only serve 7 years of the sentences; (4) he was coerced to enter a plea of guilty because of adverse publicity by way of newspaper coverage and television appearances by the Circuit Attorney; and (5) he was promised by his attorney and thereby misled into believing that he would be paroled after 7 years of a 35 year sentence.

Movant here tenders the same procedural question which we ruled in Horace W. Bonner, Jr. v. State, supra. By his pro se “Application for Judgment” he sought judgment upon the pleading contending that the allegations of his 27.26 motion stood admitted by the State because the State had failed to file a responsive pleading denying those allegations. As we ruled in Horace W. Bonner, Jr. v. State, supra, neither Rule 27.26 nor Rule 55.01 mandate a responsive pleading to a motion filed under Rules 27.26 or 27.25. The court did not err in denying the “Application for Judgment.”

Movant argues that his pleas “were not voluntary and were made without an understanding of the nature of the charge” because prior to pleading guilty he took five valium tablets and felt drowsy and intoxicated. It is obvious that in ruling this issue against movant the trial court gave no credence to movant’s testimony. Even when the movant’s testimony is the only evidence before the court the court is not bound to accept it as true. Bradley v. State, 494 S.W.2d 45, 48 (Mo.1973). In this case the court had reason to reject this testimony. His testimony on this issue when viewed carefully, lacks conviction. His version of the events and conversations had on the day he entered the plea were most lucid and detailed. On cross-examination Charles Bonner testified that he understood, from his conversation with his attorney that he would probably get 35 years and 5 years consecutive on the last count. The following then occurred:

“Q: (By Mr. Moss) Well, it [valium] didn’t affect your understanding in regard to pleading guilty, did it?
A: Not to where I really, actually, you know, couldn’t hear what he was saying or understand the words he was saying or what he was saying, not to the extent I would have been too asleep or drunk.
Q: And you were neither of those?
A: I said I was somewhat intoxicated;
I didn’t say I was drunk.
Q: But you understood what he was telling you?
A: Yes, I did.”

None of the persons with whom he had associated on that day, including his mother, testified that he appeared to be drowsy or intoxicated or functionally impaired in any manner. Judge Bloom accepted the plea. He saw nothing about movant to cause him to feel that movant was not in full control of his faculties. We cannot say that the finding of the court was clearly erroneous on this issue.

The next issue which we have drawn from movant’s brief is the same as one raised by Horace W. Bonner, Jr.:

“Appellant submits that the trial Judge posed the alternative of a forty year sentence if appellant pleaded guilty or a sentence of four consecutive life terms if appellant attempted to prove his innocence by use of a jury trial and failed.”

Movant testified that his attorney told him that if he went to trial the “judge was going to give me four consecutive life sentences.” As discussed in Horace W. Bonner, Jr. v. State, supra, the judge did not tell counsel that the defendants in that case would get four consecutive life sentences. He did say that the jury would assess the punishment and that he would run the sentences consecutively. This of course was based upon the version of the facts as presented to him by the attorneys for the parties. The attorney for movant advised him that under the charges he was facing he could receive four consecutive life sentences. The testimony of his attorney was corroborated by movant’s mother who testified on behalf of her sons. She stated that when she was with Charles their attorney told them that “it was a possibility that they could get four life sentences.” Within the perimeter of the issue raised here we cannot say that the court erred.

Without repeating our discussion in Horace W. Bonner, Jr. v. State, supra, what we said there concerning the actions of Judge Bloom is also applicable to this case.

The attorney who represented movant’s brother, Horace, was also retained to represent movant. Counsel’s preparation and handling of Charles Bonner’s case was essentially the same as that with respect to Horace. It will serve no useful purpose to reiterate what we have said on this issue in Horace W. Bonner, Jr. v. State, supra. The record reveals that the trial court did not err in finding that the movant failed to carry his burden of proving that this plea of guilty was not voluntarily made with an understanding of the charges because of ineffective assistance of counsel. Matthews v. State, 501 S.W.2d 44, 47[7] (Mo.1973).

As in Horace Bonner, Jr. v. State, supra, movant also argues as a separate issue that excessive adverse publicity resulting from the newspaper coverage and television appearances by the Circuit Attorney regarding the charges made against him was a factor resulting in his entering a plea of guilty. As we stated above movant presented no evidence as to the extent and nature of any publicity. We cannot say that the court erred in finding adversely to movant in this regard.

Movant also argues, as a separate issue, that his attorney told him that if he received the sentences recommended a parole would be received in 7 years and that he was also informed by counsel that “the trial judge concurred in the theory of being paroled after only seven years.” Movant’s counsel flatly denied that he had made these statements. The question of credibility was determined by the trial court adversely to movant’s contention. Quinn v. State, 515 S.W.2d 603 (Mo.App.1974). We cannot say that the court acted erroneously.

Following the format of the brief of his brother, Horace W. Bonner, Jr., movant presents us with the following point:

‘'Appellant's guilty plea was not made voluntarily and should be withdrawn because at the time of the plea the alternative of trial by jury was unlawfully chilled in violation of Amendments V, VI, XIV of the United States Constitution."

This point presents nothing for our review. Horace Bonner, Jr. v. State, supra.

Even if we were to construct an issue from the argument such an issue was not raised in the trial court and thus is not before us. Maggard v. State, 471 S.W.2d 161, 162[1] (Mo. 1971).

The issue here was not whether the judge who accepted the plea followed some particular procedure, but whether movant’s plea was entered voluntarily with an understanding of the nature of the charge. Flood v. State, 476 S.W.2d 529 (Mo.1972). We have reviewed the transcript of the hearing upon the plea of guilty and we have considered the evidence produced at the hearing in this proceeding. Movant was familiar with plea proceedings having previously pleaded guilty to another offense. He made a voluntary confession to the crimes charged and at the hearing on the plea admitted facts sufficient to constitute the crimes to which he entered his plea. In accord with Fisk v. State, 515 S.W.2d 865, 868[3—6] (Mo.App.1974) the plea was made with an understanding of the nature of the charges against him.

The findings and conclusions of the court were not clearly erroneous. The plea was voluntarily and understanding^ made. Movant has suffered no injustice. The judgment is affirmed.

All Judges concur.

      . “Q: How did you feel? [After taking five valium tablets]
      A: [by Mr. Bonner] Drowsy, really intoxicated.
      Q: Pardon?
      A: Somewhat intoxicated.”

      . “Q: Did you make an assault upon one Leon Rush as a result of which he died? Did you participate in that?
      A: Yes Sir.
      Q: Now, what did you particularly do in that instance? Were you present at the occurrence?
      A: Yes, I was present. •
      Q: Were you in the room at the time?
      A: Yes.
      Q: Did you see the boy hit with the cane?
      A: I hit him.
      Q: You hit him?
      A: Yes.
      Q: Now, with respect to Mario Sims. You heard what the State had to say with respect to Mario Sims. Were you present at the time that Mario Sims was hit with a cane?
      A: I hit him, too.
      Q: Now, with respect to the assault upon Stephanie Sims did you together with your brother, Horace, and Kevin Dean shoot at Stephanie Sims?
      A: Well, I shot at her. I shot her — I missed her once and shot at her the second time.
      Q: With respect to Count IV did you together with the other two participants rape Stephanie Sims? Did you have sexual intercourse with her?
      A: I had sexual intercourse with her.
      Q: To your knowledge did your brother Horace and Kevin Dean have sexual intercourse with her?
      A: Not to my knowledge.
      Q: The sexual intercourse you had with her — was that against her will?
      A: Well, I guess you could say it was against her will.
      Q: Well, I don’t want you to tell me what I can say. I want you to tell me what you can say. Was it against her will?
      A: Yes.”


text:
    Kevin DEAN, Plaintiff-Appellant v. STATE of Missouri, Defendant-Respondent.
    No. 36398.
    Missouri Court of Appeals, St. Louis District.
    March 16, 1976.
    Motion for Rehearing En Banc or for Transfer to Supreme Court Denied April 13, 1976.
    Application to Transfer Denied May 5, 1976.
    David Uthoff, St. Louis, for plaintiff-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, J. Brendan Ryan, Circuit Atty., Neis C. Moss, Jr., Asst. Circuit Atty., St. Louis, for defendant-respondent.
   PER CURIAM.

This is the third of three related cases which are being decided at this time. Mov-ant, along with Charles Bonner and Horace W. Bonner, Jr., was charged by indictment, with two counts of murder in the first degree with respect to the deaths of two children, one count of rape and one count of assault with intent to kill with malice.

After the state had reduced the charge on the first two counts to murder in the second degree, the movant withdrew his plea of not guilty and entered a plea of guilty to all charges. The court followed the recommendation of the Circuit Attorney and sentenced movant to terms of 35 years on the two charges of murder in the second degree and on the charge of assault with intent to kill with malice, each sentence to run concurrently with the others, and to a term of 5 years on the charge of rape to be served consecutive to the 35 year sentences.

The sentencing court was disqualified. A full evidentiary hearing was then had before Hon. Daniel T. Tillman, who made extensive findings of fact and conclusions of law in denying the motion.

In this proceeding to set aside the plea of guilty we are governed by the procedure provided in Rule 27.26. Section (j) of that rule provides that our review is “limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous.” After sentence has been imposed upon a plea of guilty a mov-ant may withdraw his plea and have the judgment of conviction set aside only to “correct manifest injustice”. Rule 27.25. State v. Jackson, 514 S.W.2d 638, 641[1, 2] (Mo.App.1974).

Although movant’s brief does not meet the required standards we have gleaned from his argument as best we can the issues which we believe he wishes us to consider. We do this for the reasons set out in Horace W. Bonner, Jr. v. State, 535 S.W.2d 289 (Mo.Ct. of App., St. Louis District). Accordingly, we shall undertake to determine whether the court erred in holding that movant had not carried the burden of proving that his plea was not voluntarily made with an understanding of the nature of the charges against him because (1) he was under the influence of heroin; (2) he was induced to plead guilty because his attorney informed him that if he did so he would serve no more than seven or eight years; (3) he was coerced into making the plea because the court threatened to impose four consecutive life sentences if the defendant did not enter a plea; (4) his choice of entering the plea as against trying the case was the result of ineffective assistance of counsel because counsel did not prepare a defense and failed to contact witnesses whose names were supplied by movant and did not proceed to get a change of venue because of pre-trial publicity; and (5) he was coerced to enter a plea of guilty because of adverse publicity by way of newspaper coverage and television appearances by the Circuit Attorney.

We first consider his contention that a responsive pleading was required to his Rule 27.26 motion, and that since none was filed, the facts pleaded in his motion are admitted. This same contention was made and ruled in the companion case of Horace W. Bonner, Jr. v. State, supra. A responsive pleading is not required by Rule 27.26 nor by Rule 55.01 nor by any Rule of Civil or Criminal Procedure.

Movant testified that this plea was not voluntarily made because he was “on heroin the day before [he] went to court;” that they had been getting heroin regularly in the jail and that he was “high” when he went over to court on the day of his plea.

His sister spoke with him for about one-half hour before he decided to enter the plea. She testified that his speech was coherent. He seemed to know what he was talking about and so far as she could see his eyes were normal. She did not see anything physically wrong with him. Movant’s trial counsel testified that there were no physical manifestations which would lead him to believe that his client was under the influence of drugs or alcohol. The trial judge testified that he would not have accepted the plea if he had thought that the movant was not in complete control of this faculties.

The credibility of the witnesses was for the trial court. The court was not bound to believe the testimony of movant. Quinn v. State, 515 S.W.2d 603 (Mo.App.1974). The court’s finding that movant was not under the influence of narcotics was not erroneous.

Movant testified that his attorney told him that if he entered a plea of guilty “with a sentence of thirty-five or forty years [he] wouldn’t be doing more than seven or eight years in the penitentiary.” Movant’s attorney denied that he had made such a statement. We cannot say that the finding of the trial court was erroneous on this issue. He was in the better position to determine which of the conflicting versions was more believable. Bradley v. State, 494 S.W.2d 45 (Mo.1973).

Movant argues that his plea of guilty was not voluntary because his trial attorney advised him that the trial judge had threatened to sentence him to four consecutive life sentences if he went to trial. He contends that this coerced the plea of guilty.

As background for this subject there was testimony to the effect that the attorney for this defendant, the attorney for his co-defendants and the Assistant Circuit Attorney had a conference in chambers with the trial judge. The Circuit Attorney’s office was prepared to make a recommendation to the court. The attorneys gave the court a summary of the facts which would be presented to the jury. They then asked the court if he would accept a plea based upon a reduction of the murder charges to second degree and a recommendation that the sentences for each of the defendants be 35 years on each of the two counts of murder and the count of assault with intent to kill with malice and 5 years on the charge of rape with the sentences to run concurrently. The court advised that it would not accept the proposed recommendation.

The question of who would assess the punishment came up while in chambers. The court was of the opinion that the jury would be assessing the punishment because the defendant’s prior felony convictions had not been pleaded. The court stated that because of the heinousness of the offenses, if the defendants were found guilty, he “would feel inclined to run the sentences all consecutively.” Whatever the jury assessed he would have run consecutively.

Subsequently counsel for the parties asked the trial judge if upon pleas of guilty he would consider a recommendation by the Circuit Attorney that the three sentences of 35 years each run concurrently with the 5 year term for rape being consecutive. The court advised that he would accept such a recommendation.

Once again the evidence is in conflict. Movant’s counsel testified that he was “sure” that he did not tell movant that the judge had indicated that movant would receive four life sentences to run consecutively if he were found guilty.

Counsel did advise movant that if he did go to trial and if he was found guilty there was great likelihood that the sentences would be consecutive because of the heinousness of the charges. He was also certain that if there was a finding of guilty there would be a “very, very strict sentence involved.”

The crimes charged were most serious. Movant had confessed to the commission of the crimes. At the plea hearing he admitted that the confession had been voluntarily made. Under the circumstances it was incumbent upon movant’s trial counsel to advise movant of the consequences of his decision either to stand trial or to enter a plea. Movant was entitled to know his alternatives to assist him in making an intelligent choice. His counsel merely performed his duty in this regard.

For a further discussion of the role of the judge with respect to the plea process see Horace W. Bonner, Jr. v. State, supra.

We gather from movant’s argument that he claims that he was forced to plead guilty because his attorney failed to prepare a defense to the pending charges and took the position that there was no defense to the charges; that he failed to proceed to obtain a change of venue in view of “the fact that the pre-trial publicity was extremely excessive.”

Movant’s trial counsel had been appointed as a special public defender to defend mov-ant. He had ten years experience in the field of criminal trial work. He had four or five conferences with movant. He sought the names of persons who might be witnesses but was given none by movant. Counsel filed numerous pre-trial motions, obtained the depositions of the prosecuting witnesses, the police report and the transcript of the proceeding in the coroner’s court. Even movant concedes that all of these matters were reviewed with him. Movant, even at this date, does not indicate that there was any substantial evidence available that would have aided or improved any defense to the charge. He now contends that he does not remember where he was at the time the crimes were committed. Movant has failed to carry the burden of demonstrating that his counsel was ineffective in preparation so as to effect his plea. Curry v. State, 504 S.W.2d 97, 99 (Mo.1974). Floyd v. State, 518 S.W.2d 700 (Mo.App.1975).

Movant testified that he had pre-trial publicity in mind at the time of his plea because he and his co-defendants had talked about it. The testimony as to pre-trial publicity was all conclusory; none of it was related to the time of the trial setting which was some ten months after his arrest. His attorney considered the question of change of venue but was of the opinion that the City of St. Louis would be the most favorable venue for the trial of his client’s case. Movant testified that he knew of no place in the state where he would rather have the case tried.

We are unable to say, from this record, that there was undue pre-trial publicity requiring counsel to “proceed to obtain a change of venue.” We cannot convict the trial court of error in finding that movant did not carry his burden in this respect. Floyd v. State, supra at 702[2-4].

Movant tenders the following Point Relied On:

“Appellant’s guilty plea was not made voluntarily and should be withdrawn because at the time of the plea the alternative of trial by jury was unlawfully chilled in violation of Amendments V, VI, and XIV of the United States Constitution.’’

We see no point in attempting to decipher this contention in this opinion. See Horace W. Bonner, Jr. v. State, supra. This was not raised in the motion filed under Rule 27.26 nor was it presented to and ruled upon by the court that heard the motion. This matter is not before us for review. Maggard v. State, 471 S.W.2d 161, 162[1] (Mo.1971).

We have reviewed the extensive interrogation of movant at the time of his plea. We have also considered the evidence presented at the hearing with respect to this motion and the fact that movant had been convicted of two prior felonies and had experience with the criminal justice system. The movant at the plea hearing admitted facts sufficient to constitute the crimes to which he pleaded guilty. He is therefore precluded from withdrawing his plea on the grounds that he did not understand the nature of the charge. Fisk v. State, 515 S.W.2d 865[3-6] (Mo.App.1974).

The issue in this case was whether mov-ant’s plea was entered voluntarily with an understanding of the nature of the charge, and not whether the judge who accepted the plea followed some particular procedure. Flood v. State, 476 S.W.2d 529 (Mo.1972). We cannot say that the court was clearly erroneous in finding that movant’s plea of guilty was voluntarily made with an understanding of the nature of the charges, or that failure to allow withdrawal of the plea would result in manifest injustice. The judgment of the trial court is affirmed.

All Judges concur.


author: GUNN, Judge.

text:
    L. H. Y., Plaintiff-Respondent, v. J. M. Y., Defendant-Appellant.
    No. 37029.
    Missouri Court of Appeals, St. Louis District, Division No. Three.
    March 23, 1976.

      Paul H. Schramm, M. Harvey Pines, Clayton, for defendant-appellant.
    Bahn & Saitz, Robert W. Saitz, St. Louis, for plaintiff-respondent.
   GUNN, Judge.

This is a child custody case whereby the mother appeals the trial court’s ruling sustaining the father’s motion to modify child custody and ordering transfer of an infant child from the mother to the father. The central issue of this case is whether there has been a change of circumstances where the child’s best interest and welfare would be served thereby justifying the change of custody. We find that the order of the trial court was not erroneous and affirm the trial court’s award.

In an appeal of a court tried case, we review the law and the evidence de novo giving deference to the trial court’s findings and its ability to have judged the credibility of the witnesses. Wurtz v. Daniel Hamm Drayage Co., 530 S.W.2d 752 (Mo. App.1975); Brunswick Gorp. v. Briscoe, 523 S.W.2d 115 (Mo.App.1975). On appeal of a court tried case, the appellate court does not function as a judicial second guesser. And where, as here, there is a conflict of testimony between witnesses, the reviewing court should defer to the findings of the trial court unless it is satisfied that they should be otherwise. Brand v. Brand, 534 S.W.2d 628 (Mo.App.1976); Morris v. Holland, 529 S.W.2d 948 (Mo.App.1975). In our review of this case, we proceed on the presumption that the trial court studied all of the evidence thoroughly and decreed custody in the manner it believed would be in the best interests of the child. The basis for this presumption is that the trial court is “in a better position not only to judge the credibility of the witnesses and the persons directly but also their sincerity and character and other trial intangibles which may not be completely revealed by the record.” L. E. S. v. J. A. E., 507 S.W.2d 681, 684 (Mo.App.1974). Of course, our primary concern is the child’s welfare. E. C. S. v. J. D. L., 529 S.W.2d 423 (Mo.App.1975). With the foregoing tenets guiding us, we turn to the facts of the case.

The bonds of the mother’s and father’s ephemeral marriage were riven on November 22, 1972, and pursuant to agreement between the parties, the mother was given custody of the only child of the marriage, a 19 month old boy. The father was faithful in exercising his visitation rights and the parties were extremely cooperative in observing the custody and visitation rights of the other, for which they are to be heartily commended. In 1974, however, the father filed a motion to modify the divorce decree as to the custody of the son. At the hearing on the father’s motion for modification, there was testimony that subsequent to her divorce the mother and her son had lived with another man for a period of four to six months, during which period regular sexual activities took place between the mother and the man. There was also evidence that the mother had engaged in sexual relations with the 17 year old son of her landlady, and at the time of the modification hearing had been participating in sexual activity with a married man. A former paramour of the mother testified that during the four to six month period he lived with her the mother had not provided proper medical care for the boy when he was ill and infected with a skin disease nor did she train him in his toilet habits; she did not tend to her son’s nutritional needs; she shirked her responsibilities to the son; and she left it to the paramour to train, feed, discipline and find medical aid for the boy. The testimony was that it was the father who was generally called upon to arrange for the son’s medical attention. A babysitter for the boy testified that the mother was often late in picking up her son and would leave the boy with the babysitter overnight and on weekends so that she could enjoy excursions with her male friends. There was also testimony that the mother engaged in the use of narcotics (although vociferously denied by the mother) and that the boy, on occasion, had slept in the same bed with the mother and one of her lovers. The boy also spent weekends living in a trailer with the mother and a suitor. A St. Louis County deputy juvenile officer made a study of both the mother’s and father’s homes and concluded that although both homes were adequate, the boy, “would have a more normal and secure home life with his father.” The recommendation of the juvenile officer was that the father be given custody of the boy. The home study emphasized that when the boy was with the mother he was frequently shifted from bed to bed to accommodate the mother’s social engagements. From the record it appears that the son knew at least four people as “Dad” (two of the mother’s boyfriends, the babysitter’s husband, and the boy’s own father).

The father’s fitness was not challenged, and the record supports a finding that he is fit to have custody of his son and provide a stable home life for him. The trial court sustained the father’s motion for modification of custody, granting custody of the child to the father.

In our consideration of this case, we are bound by the following language of § 452.410 RSMo Supp.1974:

“The court shall not modify a child custody decree unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.”

The mother, while admitting at least part of her sexual escapades, argues that her son is presently normal, healthy and happy and that there have been insufficient changes in circumstances whereby the child’s best interests would be promoted by transferring custody to the father. In this latter regard, the mother relies on Blair v. Blair, 505 S.W.2d 444 (Mo.App.1974). The mother also cites R. v. R., 482 S.W.2d 543 (Mo.App.1972), and Klaus v. Klaus, 509 S.W.2d 479 (Mo.App.1974), for the proposition that past moral lapses of sexual misconduct on the part of a parent do not, in themselves, render a parent unfit where the child’s welfare is unaffected. It is the basic thrust of the mother’s argument that the trial court erred in transferring custody of the child to the father since the court was apparently erroneously persuaded that the father’s home would be a “better” home for the boy. She argues that under Klaus v. Klaus, supra, once custody has initially been placed, the question of whether one home or the other is “better” has little significance. The mother also suggests that her conduct has had no detrimental effect upon her son, and until it does there is no legal justification for the transfer.

It is true, of course, that the moving party in a case of this nature has the burden of showing a change of conditions requiring the transfer of custody. Brand v. Brand, supra; Northrup v. Sieve, 517 S.W.2d 470 (Mo.App.1974). And it is a re-buttable presumption that a young child is better placed with its mother. Johnson v. Johnson, 526 S.W.2d 33 (Mo.App.1975). But, certainly, moral fitness of a parent is a vital factor in determining who should have custody of a child. V. M. v. L. M., 526 S.W.2d 947 (Mo.App.1975).

To support the trial court’s ruling for the custody award to the father, there was evidence that the mother had: made use of drugs, been sexually promiscuous, allowed her son to sleep in the same bed with her and another man, failed to adequately care for her son nutritionally and medically, neglected her son in exchange for her own pleasures with other men. While the mother challenges the veridicality of part of the evidence presented against her, we defer to the trial court’s ability to judge the candor and veracity of the witnesses. In so doing, we find substantial basis for the trial court’s findings that a change of circumstances existed and that the welfare of the child would be served by the transfer of his custody to the father.

The mother charges that as a victim of divorce she should not be required to live a pristine life nor be stifled in her search for the pleasures of society. The mother, of course, is entitled to have her own social life. But the mother’s associations with men have not been harmless peccadillos, and we cannot ignore that her conduct may have an ultimate effect on the growth and character of her son. She has permitted her affairs of the heart and body to interfere with her taking care of her own son. While the mother loves her son, the record reveals that a primary concern for her has been in fostering her relationships with various men in conflict with her care for her son. This is evidenced by the fact that the mother has allowed her rendezvous with male friends to interfere with her scheduled fetching of her son from a babysitter on nights and weekends, even when the son was in need of his mother’s attention.

The mother points to current social trends as allowing for greater permissiveness in moral attitudes and suggests that she had been doing no more than living according to accepted mores. It is not our function to indite a revisionary preachment as to moral models. We do recognize that today we have changing standards of morality. Certain conduct once looked upon by society with opprobrium does not carry the social or private stigma it once did a few short years ago. Such conduct may even be socially “approved.” But private personal conduct by a parent which could well have an effect on children during the years in which their character, morality, virtues and values are being formed cannot be ignored or sanctioned by courts. Private conduct of a parent in the presence of a child or even under some other circumstances may well influence his or her young, impressionable life.

We do not pass judgment on private morality in the absence of some societal interest. That is left to others. Our concern here is the best interest of the child. That is the polestar we are duty bound to follow. There was sufficient evidence for the trial court to conclude that the conduct of the mother in this case, under all the circumstances, was not compatible with that ultimate objective. No matter how she or society views the private morality of the situation, we cannot ignore the influence her conduct may well have upon the future of this child and cannot give our judicial cachet to such conduct by etching in the law-books for all to read and follow. We see no salutary effect for the young child in exposing him to the mother’s miasmatic moral standards.

The mother urges that Klaus v, Klaus, supra, serves as this court’s condonation of adultery or, at least, that it is of little concern. The mother’s analysis of Klaus in that regard is wrong. Klaus must be viewed in the light of factual circumstances there present, where there was no indication of exposure of a young child to a mother’s adulterous conduct. That is not the situation here.

We are also unimpressed by the mother’s argument that there can be no custodial change unless there is evidence of some harm to the son. She argues that since the boy is currently normal and healthy no basis exists for the custody modification. We believe that the boy’s present condition is in spite of rather than as a result of the mother’s care, and it is not necessary to wait for manifestations of harmful consequences before action is taken.

We find that there was sufficient basis for the trial court to make the judgment it did; that the modification award was based on a change of circumstances and in the child’s best interest and welfare; and that the judgment was not erroneous. Brand v. Brand, supra; E. C. S. v. J. D. L., supra.

The judgment is affirmed.

SIMEONE, P. J. and KELLY, J., concur.

      . Although the divorce took place in 1972, the provisions of the Dissolution of Marriage Act apply. Section 452.415(3) RSMo Supp.1974.

      . See also, Cook v. Cook, 532 S.W.2d 833 (Mo. App.1975).

      .The mother vigorously denied any use of narcotics.


author: TITUS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. William Nelson HICKS, Defendant-Appellant.
    No. 9929.
    Missouri Court of Appeals, Springfield District.
    March 25, 1976.

      John C. Danforth, Atty. Gen., Robert H. House, Asst. Atty. Gen., Charles L. Howard, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Arthur S. Haseltine, Springfield, for defendant-appellant.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   TITUS, Judge.

Defendant was jury-convicted of first degree robbery (§ 560.120, V.A.M.S.) on a charge that he had feloniously taken money belonging to What-A-Burger, Incorporated, from the person of its employee, Bertha M. Maggard. The jury assessed punishment at seven years in prison; sentence and judgment were rendered accordingly. Prejudicial error committed in the presentation of the state’s case requires reversal and remand for a new trial.

Inter alia, and without objection, the state in its opening statement declared: “Now you will also hear, I expect, evidence of threats made upon witnesses, namely, the witness Sheila McGinnis [fellow employee of Bertha M. Maggard] about testifying against the defendant. This happened — she has been contacted on more than one occasion. ... on one of these occasions . she was threatened to be blown up if she didn’t change her testimony.”

On direct examination while Sheila McGinnis was testifying as a state’s witness, the following occurred: “Q. Now after you testified at the preliminary hearing, and during the time this case has been pending in court, have you had occasion to receive any telephone calls . . . while you were at home? A. Yes, I have. Q. Have you been threatened? A. Yeah. Q. . [T]ell the jury . . about one of the telephone calls you had at home[.] [Defense counsel], . . . I’m going to object to any threats here unless they can be tied in to the defendant. This is only going to prejudice the jury against the defendant. Now if in fact they can tie it in to the defendant, then fine. I’m certain they cannot.”

Following the foregoing a bench conference ensued between court and counsel. Although agreeing defendant was in jail at the time the alleged threats were made, and without assuring the court the state had any evidence associating defendant with the averred threats, the state’s attorney argued that “the jury has a right to know . that the witness has been threatened [because the] rule is that by communicating threats directly or indirectly it is proof of guilty knowledge.” In opposition, defense counsel asseverated that evidence of threats was inadmissible unless defendant was responsible therefor and that such testimony was going to “prejudice the jury against my client.” The court agreed: “Of course, it would prejudice them all right,” and announced to the jury there would be a fifteen-minute recess because “I’m going to have to go over a point of law.”

At the expiration of the recess, the court told the jury: “The objection is sustained. The jury is instructed to disregard the question and also disregard the statement in the opening statement by the prosecuting attorney relative to any threats that were made to the witness McGinnis by some third party. The law on that is that threats are admissible in evidence if they are made by the defendant or made under his direction or supervision. There is no such evidence in this case.” Immediately thereafter defense counsel moved for a mistrial “due to the prejudicial remarks in regard to threats [and because the] question had the effect of making the jury prejudiced against the defendant and no remarks by the judge will erase this from their minds.” The motion was denied. The prosecutor did not subsequently undertake to adduce evidence of threats against other witnesses, as suggested in the opening statement, nor attempt directly or indirectly to implicate defendant in the averred threats.

Defendant now contends the trial court abused its discretion by failing to grant the motion for mistrial because defendant was prejudiced by the opening statement of the prosecutor who, in bad faith, referred to threats made against witnesses which could not be connected to defendant; because defendant was prejudiced by questions and answers anent threats not made by defendant or with his acquiescence; and because the prejudicial effect of the statement, questions and answers could not be undone effectively by the trial court’s sustention of the objection or by its verbal comments and instruction to the jury. The state counters with assertions that defendant cannot here complain of the opening statement because no objection thereto was made when it was uttered; with the anomalous argument that since the state has not found parochial authority on the subject, “facts concerning the threats made here are not plainly inadmissible in Missouri”; and with curial cliches that the extent and scope of a prosecutor’s opening statement [State v. Feger, 340 S.W.2d 716, 724[14] (Mo.1960)] and the declaration of a mistrial over improper statements, questions and answers [State v. Dennison, 428 S.W.2d 573, 577[2] (Mo.1968)] repose largely within the broad discretion of the trial judge which was not abused in this instance.

In the opening statement, a prosecutor should not indicate certain evidence will be adduced if such evidence would be plainly inadmissible upon objection. State v. Stillman, 310 S.W.2d 886, 888[2] (Mo.1958); State v. Fenton, 499 S.W.2d 813, 815[2] (Mo.App.1973). A prosecutor’s obligation is not simply to obtain a conviction, but to see that justice is done [Jackson v. State, 465 S.W.2d 642, 647[7] (Mo.1971); State v. Brooks, 513 S.W.2d 168, 174[11] (Mo.App.1973)], and that the accused gets a fair and impartial trial. State v. Taylor, 508 S.W.2d 506, 514[13] (Mo.App.1974); State v. Heinrich, 492 S.W.2d 109, 114[8] (Mo.App.1973). Moreover, the prosecutor is duty bound to refrain from making statements and asking questions calculated to engender prejudice or excite passion against the defendant. He should carefully avoid injecting into a trial matters not proper for a jury’s consideration which would add to the prejudice which the charge itself has produced in the jury’s mind. State v. Selle, 367 S.W.2d 522, 530[22, 23] (Mo.1963). As often stated, trial courts may properly, and of necessity must, rely upon the good faith of prosecutors in making opening statements to the juries. State v. Feger, supra, 340 S.W.2d at 725. Until it appears such reliance is misplaced, we see no reason why defense counsel should not be afforded the same right as the trial court to rely upon the good faith of the prosecutor, particularly when, as here, the name of the witness who ostensibly can give testimony tending to prove an assertion made in the opening statement is endorsed on the information as a witness for the state, and there is no foreboding the prosecutor will not discharge his duties or that said witness cannot properly testify in support of the prosecutor’s assurances as to what the proof will be. Therefore, defendant may not be charged with erroneously having failed to object to that part of the prosecutor’s opening statement until it became evident the testimony going to prove the statement was improper and inadmissible. State v. Stillman, supra, 310 S.W.2d at 888.

If it be shown that an accused directly, or indirectly through a third person at the urging of the accused or with his knowledge and consent, destroys, suppresses or fabricates evidence, or by any means threatens or persuades a witness to give false testimony, such showing is properly receivable as evidence to establish the accused’s guilt on the original charge and to show consciousness of guilt. State v. Stapleton, 518 S.W.2d 292, 297 (Mo. banc 1975); State v. Seals, 515 S.W.2d 481, 484[1] (Mo. 1974); State v. Mason, 394 S.W.2d 343, 344[2] (Mo.1965); State v. Smith, 355 Mo. 59, 64, 194 S.W.2d 905, 907[6] (Mo.1946); State v. Mathews, 202 Mo. 143, 148, 100 S.W. 420, 421[3] (1907). However, it is extremely elementary that one person is not answerable, civilly or criminally, for the misconduct of another sans a showing of the existence of some relationship or connection between the two which would render the former liable or responsible for the actions of the latter. 21 Am.Jur.2d, Criminal Law, § 131, p. 203. Consequently, if a person other than the accused threatens a witness to induce false testimony, then statements, questions and testimony concerning such threats are clearly improper and inadmissible if it cannot be shown that the threats were made at the request of the accused or with his consent and knowledge. Making statements, asking questions and offering evidence regarding threats against witnesses when the threats, directly or indirectly, cannot be associated with the defendant, may well form the basis for declaring a mistrial instanter, or for granting a new trial, or for reversal on appeal. State v. Smith, 19 N.C.App. 158, 198 S.E.2d 52, 58[1, 2] (1973); People v. Walton, 17 Mich. App. 687, 170 N.W.2d 315, 317 (1969); People v. Perez, 169 Cal.App.2d 473, 337 P.2d 539 (1959); People v. Weiss, 50 Cal.2d 535, 327 P.2d 527, 538[5] (banc 1958); State v. Kosanke, 23 Wash.2d 211, 160 P.2d 541, 543[4] (1945); State v. Rogers, 96 S.C. 350, 80 S.E. 620, 621 (1914); Annot., 62 A.L.R. 133,136; 22A C.J.S. Criminal Law § 633, at pp. 486-488. As we shall see anon, the prosecuting attorney and the state’s counsel are presumed to have known that this is the law.

Many opinions repeat that although the prosecutor “in his opening statement, states facts which are not followed by proof, nevertheless, if he acts in good faith and with reasonable grounds for supposing that he will be able to show the facts stated, the statement is not error.” (Our emphasis). State v. Rowe, 324 Mo. 863, 873, 24 S.W.2d 1032, 1037[5] (1930); State v. Horn, 498 S.W.2d 771, 774[1] (Mo.1973). But perusal of a host of such opinions makes certain the italicized part of the above quotation is most often overlooked or wholly ignored, and that the good faith vel non of the prosecutor is advanced to disproportionate importance with the burden cast upon defendant to prove bad faith before any relief may be forthcoming. It would seem, however, that if improper statements or questions by the prosecutor result in actual and real prejudice to the defendant depriving him of a fair and impartial trial, the issue of whether the prosecutor acted in good faith or bad should be of slight concern in deciding the question of prejudice. Everyone is presumed to know the law. Poe v. Illinois Cent. R. Co., 339 Mo. 1025, 1037, 99 S.W.2d 82, 89[8] (1936); Hartley Realty Company v. Casady, 332 S.W.2d 291, 295[4] (Mo.App.1960). A fortiori, all attorneys, including prosecuting attorneys, are presumed to know the law. Succession of Jones, 172 So.2d 312, 316[8] (La.App. 1965); Ramsey v. Hand, 185 Kan. 350, 343 P.2d 225, 232[5] (1959); 31A C.J.S. Evidence, § 132(1), at p. 253. Also, prosecuting attorneys are presumed to have knowledge of all evidence in their possession. People v. Ya-min, 45 Misc.2d 407, 257 N.Y.S.2d 11, 23[14] (1965). Therefore, even ceding subjective good faith to a prosecuting attorney in making unprovable statements and asking improper questions, yet if that faith be founded on a deliberate disregard of the quantum of the evidence in his possession or on ignorance of the law which he is presumed to know, it should not be concluded that the prosecutor acted on reasonable grounds for supposing he would be able to show the facts stated in his statement or suggested by his questions.

The instant matter is unlike those cases where the prosecuting attorney in his opening statement made a declaration of fact which he later could not or did not undertake to prove. In the present case the prosecutor transmitted improper and prejudicial information to the jury on two separate occasions, once in the opening statement and again when he questioned Sheila McGinnis. The subject matter was the same on both occasions. In the opening statement the jury was told “This happened —[Sheila McGinnis] was threatened to be blown up if she didn’t change her testimony,” and in the state’s case-in-chief the prosecutor elicited testimony from Ms. McGinnis that she had, in fact, received threatening telephone calls. Following this the court called a fifteen-minute recess “to go over a point of law” on the subject of the threats that had been made. Obviously the recess, albeit not intended for that purpose, served to permit the subject of threats to settle firmly into the collective mind of the jury. And while the trial court thereafter sustained the objection and charged the jury to disregard the question and the opening statement as to threats, the court’s admonition, nevertheless, assumed that such threats had actually been made “by some third party.” It seems apparent from the record that when the prosecutor made the opening statement and adduced the testimony of the threats, he was aware that defendant had not personally threatened the witness because he was in jail when the threats were made. Also, the prosecutor knew or should have known no evidence was available to inculpate defendant directly with the threats, and he presumably knew under the law that the statement and evidence of threats were improper and inadmissible without a showing that the threats were made indirectly at defendant’s request or with his consent and knowledge.

The trial commenced with the prosecutor telling the jury, as a matter of fact, that a state witness had been “threatened to be blown up if she didn’t change her testimony.” From this the jury must have entered upon trial with that belief, undoubtedly damaging to defendant in their minds. Then to rekindle that belief and to cement the subject permanently within their knowledge, the jury was exposed to the threat-testimony of Sheila McGinnis, to the soaking-in influence of the 15-minute recess, and to the court’s attention-getting explanation which assumed the reality of the threats. The fact that the evidence failed to show that defendant was the culprit would not remove the impression that some one, with enough interest in defendant to make threats upon state’s witnesses, had knowledge of defendant’s guilt of the robbery charge against him. Cf. State v. Donell, 18 S.W.2d 53, 57 (Mo.1929). All who have been subjected, willingly or unwillingly, to explanations of a jury’s reasoning after the fact, realize how difficult it is for the trial court, by a ruling or explanation, to erase from the memories of the jurors the evil of illegitimate statements and inadmissible evidence, or to assuage a jury’s combined impression that it is being deprived of evidence it should know about on a mere technicality of the law. State v. Fenton, supra, 499 S.W.2d at 816-817.

This tribunal, as it must, recognizes as the state stresses, supra, that the extent and scope of a prosecutor’s opening statement are largely within the broad discretion of the trial judge, and that the same is true in connection with a declaration of a mistrial. However, we likewise take cognizance that in both situations the trial court’s discretion is reviewable on appeal for manifest abuse thereof resulting in prejudice to an accused in a criminal trial, and that the rule of deference is not to be employed as a device to gloss over prejudicial errors committed in discretionary matters. State ex rel. State Highway Commission v. Heim, 483 S.W.2d 410, 414 (Mo.App.1972). It is difficult to conceive of a more harmful assertion than to pronounce, as a fact, that witnesses had been threatened and that one in particular had been threatened to be blown up if she didn’t change her testimony. We are not required to declare what our decision would have been had the prejudice in this case to defendant been confined to the opening statement. Our conclusion that defendant was so prejudiced as to be deprived of a fair and impartial trial and that the court nisi abused its discretion by not declaring a mistrial when moved to do so, is bottomed on the combination of elements and circumstance peculiar to this case and already explained. The present appeal presents another example of an unsatisfied prosecutor who comes by an acceptable case, yet unnecessarily tries to decorate it with statements and testimony which can only serve to excite passion and engender prejudice against the accused. It matters not whether this occurs deliberately or for want of reasonable grounds for supposing he will be able to prove the facts stated or suggested by adduced testimony. The prejudicial result to defendant is the same.

We do not consider defendant’s other points alleging error but suggest the state may well consider the defendant’s brief filed here and govern itself accordingly to avoid the same averred mistakes upon retrial. State v. Aubuchon, 381 S.W.2d 807, 816 (Mo.1964).

For the reasons stated, the judgment is reversed and the cause remanded for a new trial.

All concur.