text:
    STATE of Missouri, Respondent, v. Joyce CONNOR, Appellant.
    No. KCD 29938.
    Missouri Court of Appeals, Western District.
    July 31, 1979.

      James L. McMullin, McMullin, Wilson & Schwarz, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., John M. Morris, III, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   SWOFFORD, Chief Judge.

The defendant was convicted, after jury trial, with violation of Section 563.010 RSMo 1969, the so-called pandering statute, a felony, and her punishment was assessed at a fine of $1,000.00. This appeal from the resultant judgment followed.

The appellant raises two points upon which she asks that this cause be reversed and remanded.

In her Point I, she asserts that the trial court erred in permitting the prosecution to introduce the testimony of Police Officer Michael McKee, over objections of defendant, that several weeks prior to the date upon which this charge is based the defendant solicited him for the purpose of prostitution, this being evidence of another crime.

In Point II, she asserts error in refusing to declare a mistrial after Police Officer Rebecca Rishel testified that the defendant was arrested under two warrants, one based upon this charge of pandering, and the other for possession of narcotics, thus erroneously permitting evidence of another crime, to her prejudice. While neither of these points directly attack the sufficiency of the evidence, a detailed review of the record is necessary for their proper resolution.

The statute under which this prosecution was instituted, Section 563.010 RSMo 1969, part of the chapter applicable to Offenses Against Morals, since repealed by the present Criminal Code, effective January 1, 1979, provided, in pari materia, pertinent to this case:

“Prostitution — traffic for house of — prohibition — pandering—penalty
That any person * * * who shall induce, persuade, encourage, inveigle or entice a female person to become a prostitute * * * shan be guilty of pandering * * * ” (Emphasis supplied)

The information herein follows the above terminology of the statute. The state’s verdict directing instruction required the finding that “on or about April 18, 1977, in the County of Jackson, State of Missouri, the defendant encouraged a female person: to-wit, Rebecca Rishel, also known as Barbara Hughes, to become a prostitute”. (Emphasis supplied).

The evidence and record in this case, viewed in the light most supportive of the judgment, may be thus summarized:

In 1977, the defendant held an occupation license from the City of Kansas City, Missouri as the owner and operator of a dating service under the name of “Dateline” at 4620 Summit, Suite 23, Kansas City, Missouri. This business advertised in the Kansas City newspaper in the want ads. A copy of the ad for April 20, 1977 is an exhibit in the case and reads:

“ALONE-BORED? For an exciting date with an attractive girl, call Dateline, 531-7724”

Another exhibit in evidence is an ad which appeared in Key Magazine, April, 1977, at the top of which is a head and shoulder photo of an exotic young woman, below which appears:

“531-7724
For an
Exciting Date with an
Attractive Girl DATELINE”

In the early spring of 1977, the Vice Unit of the Kansas City, Missouri Police Department began an investigation of the dating services operating in the city. This investigation was apparently engendered, at least in part, by complaints from operators of major hotels. The dating services under investigation included “Dateline”.

On\March 24, 1977, Michael McKee, an officer assigned to the Vice Unit, accompanied by another officer, Jeff Liss, went to the Alameda Plaza Hotel at 11:15 p. m. after being contacted by the hotel management. They were assigned a room, and after consulting the newspaper obtained the telephone number of Dateline and placed a call there. This call was answered by a recorded tape. He left a name of Lawrence Williams and the room number. In about 30 minutes, he received a response on the telephone from a female. This person advised him that “the dating service would cost $60.00” and “an additional $20.00 tip”. As a result of this telephone exchange, the defendant came to the room. McKee testified that he recognized defendant’s voice as the person with whom he had the telephone conversation a short time before. He had not told her on the telephone that there were two men (Officer Liss) in the room and she remarked upon this fact. During the conversation the defendant stated that they could have sex for $60.00 each or she would give them a “blow job” for $75.00 each. She was placed under arrest and taken to police headquarters and charged with city ordinance violations.

Rebecca Rishel, an undercover officer of the Vice Unit, is the person who the State claims was encouraged to become a prostitute by the defendant, in violation of the statute upon which this charge is based. Her first direct contact with “Dateline” and defendant was on April 18, 1977. On that date, she went to the home of one Debbie Medina in Kansas City. Medina, who had formerly been employed by “Dateline” called the defendant on behalf of Rishel and recalled to defendant that one Sharon, another former employee, had spoken previously to defendant about Rishel. The defendant agreed to talk to Rishel, who then got on the telephone. She told defendant that her name was Barbara Hughes and that she had recently “busted” up with her husband, was in a financial bind, needed money, and that Sharon had said the defendant might be able to help her. In response the defendant told Rishel that she ran a dating service; that she advertised in the newspaper and in the Key Magazine which was in the motels and that the charge for the service was $60.00, of which the “company” gets half and the girl half. When Rishel asked if the arrangement involved just escort, the defendant responded that “it all depends on what you want to do”; that if something of a more personal nature was involved like sex, there should be at least a $20.00 tip in addition to the regular fee, which “tip” the girl retained. The defendant advised Rishel that she could bet on the fact that most of the “guys” that called were looking for sex; that when the guys called, most of the time she told them the fee was $60.00 and if they wanted something of a more personal nature, it would cost them an additional $20.00 tip; that it is mostly “squared away” as to “what they expect" before the girl goes over there; and, that “you want to be very careful, make ‘em show I.D.s or, you know, if you think that they might be a cop.” A discussion followed as to the different kinds of sex that might be involved, in words of the vernacular which need not be repeated here, and Rishel was advised in that event “just say straight $80.00” which includes “whatever they want, generally, you know” —“I don’t want to haggle about prices with them”; if it is a “straight date", “which you won’t run into very often” Rishel was to charge $60.00. The defendant also told Rishel that she would have to sign a contract that she was responsible for her own income and Social Security taxes as an independent contractor before she went to work, and she advised Rishel that the money due defendant could be brought to her home by Rishel.

This conversation was recorded and a transcript consisting of over three single-spaced typewritten pages was offered and received in evidence.

On the following day, April 19, 1977, Officer Rishel went to defendant’s apartment at 4620 Summit and signed a form accepting the status of independent contractor and relieving the defendant from any tax liability. This form was in a red loose-leaf notebook containing other such forms executed by others and was taken under warrant at the time of defendant’s arrest and introduced as evidence at the trial, but is not on file in this Court in accordance with the Rules. However, there is no dispute about the contents of such document and it was read in its entirety into the record and to the jury. In substance, it was an agreement that during her connection with Dateline, Hughes would “be an independent contractor”; that she would be solely responsible for reporting, and paying any taxes on income received by her as an escort; that Dateline’s only obligation was to arrange introductions between those seeking dates and the independent contractor, who was given the right to decline any date proposed by Dateline; and, relieving Dateline from any responsibility for the conduct of “the other (sic either) party” once a date was accepted by the independent contractor. While the body of the form described the independent contractor as “Barbara C. Hughes”, Officer Rishel inadvertently signed her real name, Rebecca K. Rishel, to the document.

Following the signing, the defendant handed Rishel a slip of paper on which was written “Buzz Vincent, 474-4400-1118” which was to be Rishel’s first date. The defendant wrote these notations and told Rishel that Vincent was at the Crown Center Hotel. Rishel went to the Crown Center, knocked on the door of Room 1118 and found it to be occupied by a male, whom she described. She had a conversation with him for 15-20 minutes. She then told him she had left her car parked on the street and that she had to go move it and park it legally. She then left the room and did not return. This man was not a police officer.

On this same day, April 19, 1977, an Investigator Stark connected with the Vice Unit went to the Travel Lodge in Kansas City, obtained a room, called Dateline, posed as one Ralph Turner, and made arrangements with the defendant for an “exciting” date with an attractive girl to “go to bed” with him for $60.00 plus a $20.00 tip. He was told by the defendant that if “you don’t like the girl that I’ve chosen to send up there, you let me know, I’ll get you another girl or you can keep your money”. He confirmed the fact that the $20.00 extra “will get me laid” with no time limit. Ten minutes later, the defendant called back and told Stark that she thought she might come down herself, gave him her description, and in response to his query “I’ll definitely get laid” she indicated her understanding that he just wanted “to get laid in a hurry” and “I’ll see you in a little bit”. He then left the hotel and did not keep the “date". The tape of this conversation and the transcription thereof is part of the record.

On April 20, 1977, Rishel called the defendant and told her that she had been told to leave the hotel premises by the hotel security people when she tried to keep her date with Buzz Vincent the evening before, the details of this encounter and how this had affected her, but that she was hopeful that if the defendant got “something lined up” she, Rishel, would be kept in mind. On that same date, Sgt. James D. Johnson of the Vice Unit checked into the Continental Hotel, called Dateline, talked to the defendant, was quoted terms and prices upon the basis that he would expect the girl “to go to bed with me” and was told by defendant that this presented “no problem”. Then the officer called the defendant and told her his plans had been altered and that he had only until 5:00 o’clock that afternoon (a matter of a short time). The defendant said she had experienced trouble in getting another girl, that she wanted to make one more call or she would come down herself. She called “Steve” in a few minutes and told him she would be down in 15-20 minutes, but when learning her age, he asked for a younger girl. She said she would call this other “gal” for him and that her name was Barbara. The defendant then called Rishel and told her “I got something for you” and gave her the name of Steve Dunlap, Continental Hotel, Room 2114, and told Rishel “he wants to be screwed”. The “arrangement” was made. These conversations of Defendant-Sgt. Johnson-Officer Rishel were all taped, transcribed and placed in evidence.

A similar arrangement was made by Officer O’Donnell of the Vice Unit, under the name of Jerry Nelson from Room 735, Muehlebach Hotel, on April 20, 1977, in conversations with the defendant at Dateline wherein he made it plain that he was interested in a girl who was “open minded about sex” and “willing to go to bed”. Prices were quoted by defendant and she stated “I’ll have a girl in touch with you”. She called back and said “I will come down myself” and the arrangements were complete. The conversations were recorded, transcribed and placed in evidence.

On April 21, 1977, Rishel and other officers of the Vice Unit went to the defendant’s apartment and placed her under arrest. The following appears in the direct examination of Officer Rishel:

“Q. . (Mr. Turner, Prosecutor) What were the circumstances under which you recovered it (the loose-leaf notebook containing the employment contracts) on 4-21-77?
A. We had responded to her apartment—
Q. Who is ‘we’?
A. Myself, Investigator Hicks, and Sergeant J. D. Johnson.
Q. All right. And where was it that you went?
A. We responded back to her apartment to place her under arrest on a State warrant for possession of narcotics.”

Thereupon, the defense counsel moved for a mistrial since the response elicited evidence of a crime other than the charge for which the defendant was being tried, to the hopeless prejudice of the defendant.

There followed a lengthy argument and colloquy between Court and counsel, during which the witness Rishel was interrogated out of the hearing and presence of the jury. During the course of these proceedings it was developed that when Rishel and the other vice officers were going to defendant’s home to arrest her on the charge of pandering, the Narcotics Unit asked them to also serve defendant with a warrant for possession of narcotics since they (Vice Unit) would have the defendant in custody. It was further developed and agreed that the narcotic charge was based upon certain containers of drugs found in the defendant’s possession when she was arrested on March 24, 1977, at the Alameda Plaza Hotel. These were found to be prescription medicines of no criminal significance, and the State dismissed that charge.

The trial court, out of the presence of the jury, stated that upon request of defense counsel the jury would be admonished to disregard the statement of the witness with reference to the narcotic warrant and would be specifically advised that this charge was dismissed by the State; that the drugs were prescribed to the defendant by a licensed physician; and, any other matters or facts that would be reasonable that defense counsel requested. Defense counsel, however, repeatedly and positively stated that they were not requesting that type of action but were standing solely upon the request for a mistrial. Thereupon, the Court overruled the motion for a mistrial.

The defendant did not testify and the only evidence offered in her defense was the testimony of the Commissioner of Revenue of Kansas City, who identified the defendant’s application for an Occupational License and the license issued pursuant thereto, under the name “Dateline” for the year 1977. He stated that no detailed investigation was made of the applicants or of the nature of the business conducted, other than a broad category which controlled the fee to be charged for the license.

The resolution of this appeal requires the recognition of the basic purposes of statutes, such as Section 563.010 RSMo 1969 and the application of those principles to the facts of the case before this Court. This statutory proscription against pandering has its genesis in public policy and public welfare in that it is intended to protect persons from compulsory prostitution and to protect the public generally from commercialized vice and its attendant social evils. Its target is procurers and panderers commonly known as “pimps”— those who profit from prostitution and commercialized vice to the detriment of the public generally. It is not aimed at individual or isolated acts of prostitution. 73 C.J.S. Prostitution § 7a, c, pp. 232-234; State v. McGehee, 308 Mo. 560, 274 S.W. 70, 71-72 [1] (1925); City of St. Louis v. Wyatt, 189 S.W.2d 129, 131 [6] (Mo.App.1945); City of St. Louis v. Green, 190 S.W.2d 634, 635-636 [2, 3] (Mo.App.1945).

Commercialized vice, by its very designation, comprehends some sort of organization, a continuing and ongoing business for financial gain operating under commercial standards of sales. Section 563.010 is significantly operative in this context for the reason that those engaged in the venture must “stock their shelves”, even as the corner grocer.

Directing attention specifically to defendant’s Point I, it is, of course, true that proof of the commission of separate and distinct crimes is not admissible in a criminal prosecution. There are, however, certain well-defined and salutary exceptions to this rule. These have been often stated to be that evidence of other crimes is competent where it tends to establish “ * * * (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; (5)the identity of the person charged with the commission of the crime on trial”. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307 [1] (banc 1954); State v. Hamell, 561 S.W.2d 357, 359 [4] (Mo.App.1977), and cases cited therein.

While the briefs herein and independent research have failed to disclose a Missouri decision involving the above-noted exceptions to the exclusionary rule as to the admissibility of separate crimes to this or closely analogous factual situations, two decisions are worthy of note.

In State v. Armstead, 283 S.W.2d 577 (Mo.1955) the defendant was convicted of knowingly receiving money, without any consideration, from the earnings of a woman engaged in prostitution under a statute included in Chapter 563, Offenses Against Morals, the same source from whence the statute here stems. The defendant was a bellboy in a hotel and was charged with procuring the prostitute upon a certain midnight to service a hotel guest and taking part of the fee. In holding that the evidence was sufficient to support the jury’s finding of guilt, the court commented without criticism that the trial court had admitted evidence of two other incidents earlier that night where the same procedures were followed “acting on the theory that the evidence tended to show a common plan”. 1. c. 579 [1],

In State v. Smith, 431 S.W.2d 74 (Mo. 1968), the defendant was found guilty of transporting a female “through” the state (from City of St. Louis to St. Louis County) for the purpose of prostitution, in violation of another section of Offenses Against Morals. The defendant was a taxi driver and the charge was as to a specific act of transportation. The state offered evidence of other acts of transportation by the defendant of the prosecuting witness over a six-day period. The court held such evidence to be admissible under the exceptions above noted as tending to show “a common scheme or plan embracing the commission of separate similar offenses”. 1. c. 80 [13].

For a well-reasoned case presenting an almost identical factual situation (but not the evidentiary problem as in the case at bar) see Edwards v. Commonwealth of Virginia, 218 Va. 994, 243 S.E.2d 834 (1978).

Only one logical conclusion may be reached from a review of this record. Dateline was a business venture carried on by the defendant for financial gain, the principal purpose of which was to aid and abet persons desiring the services of a prostitute and to procure and assist persons willing to provide such services. Under this theory at least three of the above-noted exceptions to the exclusionary rule of evidence as to separate crimes, namely, to show motive, intent and a common scheme or plan embracing two or more crimes so related to each other that proof of one established the other. State v. Reese, supra; State v. Hamell, supra. The evidence as to the March 24, 1977 incident at the Alameda Plaza Hotel (and all other incidents shown by the evidence) was admissible.

While the sufficiency of the evidence to support the conviction of encouraging Rish-el to become a prostitute working through Dateline is not challenged, it is worthy to note that recruitment of persons to “date” through Dateline was necessarily an integral part of the modus operandi of the business. There is no merit to defendant’s Point I and it is ruled against her.

Point II, the remaining assignment of error, raised basically the same arguments as Point I, and defendant relies upon the same authorities. It deals with the statement of Officer Richel regarding the arrest of defendant on April 21, 1977 where she made an answer obviously unresponsive to any question regarding the service of a warrant on the defendant “for possession of narcotics” incident to defendant’s arrest by Rishel and others on the Vice Unit, as set forth above. The defendant made timely objection and preserves and presents the point here as being prejudicial evidence of another crime and not within any of the exceptions to the rule excluding such evidence, as hereinabove discussed with reference to Point I. It may be conceded that the statement of Rishel as to a narcotics charge does not, standing alone, fall within those exceptions, but nevertheless defendant is not entitled to relief on this Point for numerous reasons.

In the first place, it was conceded by Court and counsel when the subject was explored outside the presence and hearing of the jury that the statement of Officer Rishel complained of was not responsive to any question, was inadvertent and was not made for any ulterior or bad motive. Further, the Court offered to strike the answer, advise the jury to disregard it, explain in detail the fact that the narcotics charge had been dismissed because the drugs involved were found to be legitimate prescriptions by defendant’s doctor, a duly licensed physician, or “any other matters or facts that would be reasonable that you (defense counsel) would want to add to it.” Also, the trial court stated:

“ * * * I sincerely and firmly believed that such an instruction would eliminate any prejudice and that it would not be a question of speculating that they (the jury) would eliminate it. I would feel confident that with an instruction as I have outlined to you, to the jury, that they would in fact not consider the very brief and unexpected answer given by the officer, and that in my opinion, it would then be fair to the defendant, or I wouldn’t be doing it.”

In response to this offer by the Court, defense counsel stated, “ * * * we would just renew our motion for a mistrial”. For over 20 pages of this record appear repeated statements by defense counsel, such as: “We can’t agree to that”; “Judge, we will have to stand on the motion for a mistrial. We can’t agree to anything”; “the only remedy is a mistrial”; “we do not waive our request for a mistrial”; (the proposed admonition and explanation to the jury) “will not be with our consent”; “the defendant * * * wants a mistrial in this case”; and “we are asking purely and simply for a mistrial in this case, sir, and for nothing else ”. (Emphasis in last quotation supplied).

Of course, it is a principle of Missouri law so firmly established that citation of authorities seems unnecessary that the declaration of a mistrial is an extreme and drastic remedy and should only be resorted to when prejudice can be removed in no other way. The granting or refusal of a mistrial usually rests “necessarily and properly” within the sound discretion of a trial court who is in a better position to judge any prejudicial effect of the evidence or trial incident complained of and the possibility of the removal of any prejudice that may have been engendered by action short of mistrial. State v. Camper, 391 S.W.2d 926, 928 [2, 3] (Mo.1965); State v. Minor, 556 S.W.2d 35, 39 [5] (Mo. banc 1977).

It is only where the trial court has obviously abused its discretion that this Court will interfere with the exercise thereof. This restraint is particularly applicable where the only relief sought by the defendant is a mistrial and insists that only this action be taken. State v. Cuckovich, 485 S.W.2d 16, 24 [13] (Mo. banc 1972).

In Cuckovich, it was said at 1. c. 24: “We think it is significant that the only relief defendant sought was a mistrial. It is our view that he should have asked also that the statement be stricken and the jury ordered to disregard it. In that way the court could have considered corrective action short of mistrial * * *”

In the opinion this Court in State v. Tygart, 531 S.W.2d 47 (Mo.App.1975) followed the principle above quoted from Cuckovich and said, at 1. c. 49 [1]:

“ * * * In the instant case the trial court obviously concluded that it was inappropriate to declare a mistrial because expurgatory relief existed * * *. In view of the nature of the matter complained of and defense counsel’s declination to countenance any curative relief short of a mistrial, this court is unwilling to hold that the trial court abused its discretion in refusing to declare a mistrial

In the case now under consideration the trial court suggested curative and ex-purgatory relief far beyond either the importance of the testimonial incident claimed to have resulted in prejudice and greatly exceeded the defendant’s rights to relief from the claimed prejudice of Officer Rish-el’s voluntary and inadvertent reference to a narcotics warrant. In doing so, it afforded the defendant relief which could have inured to her ultimate benefit and showed an exercise of fine and liberal judicial discretion. This Court cannot and will not find any abuse of discretion under the circumstances. Point II is ruled against appellant.

The judgment is affirmed.

All concur.

      . Prior to the effective date of the new Criminal Code.

      . As heretofore noted, this statute was part of the chapter covering “Offenses Against Morals”. While repealed by the present Criminal Code, effective January 1, 1979, such Code covers the same class of crimes and the principles here discussed are presently valid and applicable thereunder.


source: Caselaw Access Project

author: KENNEDY, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Christopher D. POWELL, Defendant-Appellant.
    No. KCD 30037.
    Missouri Court of Appeals, Western District.
    July 31, 1979.
    Clifford A. Cohen, Lee M. Nation, Kansas City, for defendant-appellant.
    John D. Ashcroft, Jefferson City, Earl W. Brown, III, Kansas City, for plaintiff-respondent.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   KENNEDY, Judge.

Defendant Christopher Powell was convicted in the Circuit Court of Jackson County, by jury trial, of second-degree murder and of assault with intent to kill with malice. Punishment was assessed at 99 years’ imprisonment on each count, to be served consecutively.

Defendant has appealed to this court with a single claim of error, that the court erred in denying his offer of proof in support of a pre-trial motion to quash the jury panel. The motion to quash the jury panel alleged that women were underrepresented on the panel and that defendant’s rights under the Sixth and Fourteenth Amendments to the United States Constitution were thereby violated.

Defendant offered in specific terms to prove, in support of the motion, the proportions of women in the population, the much smaller ratio of women who were selected for the Jackson County jury wheel and the yet smaller percentage ultimately finding their way on to jury panels. The offer also included proof of the Jackson County system by which a disproportionate number of women were eliminated from jury panels in the county.

It was this offer of proof which was denied by the court, which ruling is the object of defendant’s attack upon appeal.

The judgment must be reversed and the . case remanded for a new trial.

Since the time of the trial, December 5, 1977, the case of Duren v. State of Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), has been handed down, which held that the Jackson County system of venire selection resulted in an underrepresentation of women on venires in violation of defendant Duren’s rights under the Sixth and Fourteenth Amendments to the United States Constitution. The case was held to be retroactive in effect to January 21, 1975, Lee v. Missouri, 439 U.S. 461, 99 S.Ct. 710, 58 L.Ed.2d 736 (1979), and is therefore applicable to the case before us.

Defendant’s offer of proof in support of his motion to quash the jury panel was therefore relevant and admissible.

The attorney general disputes the sufficiency of defendant’s offer of proof, arguing that the offered proof would not support defendant’s motion to quash the jury panel. Our cases hold, however, that in 1977 Jackson County criminal trials, where a defendant has filed a pre-trial motion to quash the jury panel on the ground of un-derrepresentation of women on the venire, no further proof is necessary. State v. Coleman, 582 S.W.2d 335 (Mo.App.1979) (No. WD 30,043); State v. Barnett, 584 S.W.2d 617 (Mo.App.1979) (No. WD 29,767). It is therefore not necessary for us closely to examine the offer of proof as against the attorney general’s criticisms of it.

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

All concur.


author: SWOFFORD, Chief Judge.

text:
    STATE of Missouri, Respondent, v. Michael Lee FARRIS, Appellant.
    No. KCD 30138.
    Missouri Court of Appeals, Western District.
    July 31, 1979.
    Fred L. Slough, Wells, Eisberg, Slough & Connealy, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Jefferson City, Earl W. Brown, III, Sp. Asst. Atty. Gen., Kansas City, for respondent.

      Before HIGGINS, Special Judge, P. J., WELBORN, Special Judge and SWOF-FORD, C. J.
   SWOFFORD, Chief Judge.

The appellant was tried under a multi-count indictment before a jury. The trial commenced on January 9, 1978 and the jury found him guilty on all counts by its verdicts returned January 12, 1978. After an unavailing motion for a new trial, he perfected this appeal. He raises four points on appeal, but in view of the fact that this case must be reversed and remanded for a new trial, only Point IV need be here considered.

Under this point he charges the trial court with error in overruling his motions to quash the petit jury panel and for a new trial and thus denying his claim that the method employed in Jackson County, Missouri of selecting jurors under the constitutional and statutory provisions of Missouri law denied him his federal constitutional right to be tried by a jury of his peers drawn from a fair cross-section of the community, in that the automatic exemption granted to prospective women jurors, upon request, resulted in a constitutionally impermissible and disproportionate number of women being available to sit upon his jury.

The record discloses that the defendant first raised this constitutional issue on December 16,1977 in his motion to quash “any jury panel” that was drawn as the venire of prospective jurors in his trial. This was approximately three weeks before his trial. He again raised the objection in his motion to quash the prospective petit jury panel on January 4, 1978. This motion to quash was supported by evidence in the form of a written stipulation with the State covering the method for selecting jury panels in 1976 and the policy and method employed by Jackson County with reference to the automatic exclusion of women and the results of such method as it affected the composition of jury panels in that year. This motion to quash was denied by the trial court on January 5, 1978. The morning of the start of the trial, January 9, 1978, the defendant renewed his motion to quash the jury panel summoned for his trial; he preserved this objection throughout the trial, in his motion for a new trial, and, here on appeal under Point IV of his brief. In denying this relief the trial court followed and applied the then controlling decision of the Supreme Court of Missouri in State v. Duren, 556 S.W.2d 11 (Mo. banc 1977), which held that the method employed in Jackson County with regard to the automatic exemption of prospective women jurors upon request was constitutionally permissible. This Missouri decision in Duren was thereafter set aside and reversed by the Supreme Court of the United States, on certiorari, in Duren v. State of Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579, 1979. On January 15, 1979, the Supreme Court of the United States held that its holding in Duren as to the unconstitutionality of the pertinent Missouri statutes and method employed thereunder permitting women automatic exemption from jury service based solely upon gender was to be given retroactive application to the date of its decision in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). Lee v. State of Missouri, 439 U.S. 461, 99 S.Ct. 710, 58 L.Ed.2d 736 (1979).

Since the decisions in Duren and Lee, supra, this Court has recalled mandates of affirmance and reversed and remanded convictions for new trials in numerous cases where the jury was clouded by the unconstitutional method employed in jury selection as pertaining to service by women. See State of Missouri v. Clark, 583 S.W.2d 300 (1979), and cases cited therein. Indeed, many appeals came before this Court where the constitutional objection was made, preserved and presented on appeal before the matter was finally concluded by Duren and Lee, supra. The bulwark of many of these cases at the trial level was the same written stipulation, made a part of the record here, entered into by the State as to the methods employed by Jackson County in the selection of the yearly jury wheels, the drawing of names for the panels of prospective jurors for the various cases, the resulting proportion of women representatives on such panels, and the various forms used for obtaining information and expression of a woman’s desire not to serve. This stipulation was confined to the year 1976. However, by oral stipulations by the prosecutor in the records and, in some cases, by written stipulations, all on file in this Court, the fact is clear that the same process of selection (condemned and declared unconstitutional in Duren) was employed in the year 1977. This Court has therefore applied the Duren rule in 1977 cases, with only one exception. That exception is where the constitutional question was neither raised nor any proof in support thereof offered at the trial level, but raised for the first time on appeal. See: State of Missouri v. William J. Williamson, 584 S.W.2d 628 case No. KCD 30,342, decided June 11, 1979.

For opinions of this Court (other than those cited in State of Missouri v. Clark, supra) in which the stipulation and facts shown as to the method of jury selection and the results of the application of such methods as it applies to the availability or service of women as jurors where held to apply under Duren to 1977 jurors see: cases cited above and State of Missouri v. Jasper Madison, Jr., KCD 29,639, decided December 27, 1978; and State of Missouri v. Brown, 577 S.W.2d 163 (1979).

Since the jury involved in the case at bar was drawn from the 1977 jury wheel of Jackson County, Missouri, as conceded by both parties in their briefs, the authority of the foregoing cases is applicable and binding here. Further exposition or reiteration of this Court’s oft stated position as thus expressed would be of no value.

The remaining points on appeal raised by appellant raise the sufficiency of the indictment to afford jurisdiction to submit to the jury the charge of assault with intent to rape (Point I); error in the submission of the charge of sodomy (Point II); and, error in Instruction No. 14,. on the matter of common intent of coactors or those acting with common purpose alleged to have deviated from MAI-CR 2.12. It is unnecessary to rule these points on this appeal since upon retrial such may not again arise.

The judgment below is reversed and the cause is remanded for a new trial.

All concur.


author: MANFORD, Judge.

text:
    Donald E. BRANICK, Appellant, v. NATIONAL SITE ACQUISITION, INC. et al., Respondents.
    No. 30146.
    Missouri Court of Appeals, Western District.
    July 31, 1979.

      Thomas J. Walsh, Lee’s Summit, for appellant.
    Martin B. Dickinson, Kansas City (Dietrich, Davis, Dicus, Rowlands & Schmitt, Kansas City, of counsel), for respondents.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

Appeal from summary judgment which denied appellant an equitable lien upon a certain parcel of land; which granted to respondent, Markland Development, Inc. (hereinafter referred to as Markland) title free and clear of all claims by appellant; which further granted to respondents, Gould and Kupin a superior lien upon said parcel and which dismissed appellant’s claim against respondent, McDaniel Title Co. for failure to state a cause of action.

Appellant and National Site Acquisition, Inc., Kenneth L. Morse and Clayton Ross, the latter three being hereinafter referred to as National, entered into a written agreement dated January 29, 1971 whereby appellant was to receive an undivided one-half interest in a part of land. Appellant was to receive land consisting of a total of 20,000 square feet within Lot 26. For this interest, appellant was to advance the sum of $50,000.00.

The agreement also provided the size and shape of the tract, along with the ownership interest of appellant, was to be agreed upon within a reasonable, but future, time. The agreement also contemplated additional development and sale of parts of Lot 26 to (as yet unknown) future purchasers. National was to remain the owner of record of the entire Lot 26. Further, the agreement contained the provision that upon sale of the parcel in which appellant was to have his interest, appellant was to receive the return of his $50,000, plus one-half the net profit from such sale. This agreement was recorded at the Office of the Recorder of Deeds, Jackson County, Missouri on June 6, 1973.

On June 18, 1973, Markland purchased a part of Lot 26 and duly recorded the deed. On the same day, respondents Gould and Kupin duly filed their deed of trust. Mark-land entered upon the land to make use thereof. Respondent, McDaniel Title Company, issued a title policy to the favor of Markland. Appellant and National came to a parting of the ways and this action was filed. Appellant filed a four count petition, summarized as follows:

I Establishment of an equitable lien (against National, Kupin and Gould)
II Fraud (against National)
III Trespass (against Markland)
IV Damages (against McDaniel Title)

Respondents filed their pleadings in answer to the petition and asserted cross-claims and counterclaims between themselves and against appellant. The issue was joined and while the case was pending, appellant dismissed without prejudice his claims against National pursuant to a covenant not to sue dated November 6, 1974. The consideration for the covenant was the transfer by deed of a part of Lot 26 to appellant from National. National dismissed its counterclaims against appellant.

Trial was had upon a stipulation of facts. The Honorable Forest Hanna sustained respondents’ (Markland and McDaniel Title Co.’s) motion for summary judgment on appellant’s petition. Following Judge Hanna’s ruling, appellant filed a notice of appeal which was dismissed under order of this court for failure to follow the requisite procedural rules.

Respondents Kupin and Gould filed a motion for summary judgment on their counterclaims and by reason of transfer to another division within the 16th Judicial Circuit, this motion was taken up by the Honorable Laurence Smith. Judge Smith sustained respondents’ motion. This appeal followed.

In sustaining the first motion for summary judgment, Judge Hanna ruled the petition (Count III) failed to state a cause of action against respondent, McDaniel Title Co. In addition, he ruled by virtue of appellant’s execution of the covenant not to sue based upon the consideration of the transfer of a part of Lot 26 to appellant, that no lien would lie because the debt was extinguished ipso facto as between appellant and National. It was further concluded that since no lien existed, the remaining counts against respondents Kupin and Gould failed.

In the second motion for summary judgment, Judge Smith, in sustaining the motion, concluded that since appellant was denied relief under the first motion for summary judgment, respondent Markland was entitled to its claim for title free and clear of all claims by appellant and that respondents Kupin and Gould were owners of indebtedness under a deed of trust from Markland and that their claims therefore were to be free and clear of all claims of appellant.

This appeal followed and all parties, except National, are parties to the appeal.

Because judgment was summarily entered which declares there to be no issue of fact, but rather that by operation of law the claims between the parties are resolved, this court has the duty to review both the facts and law of the case.

The reasoning of the trial court as to disposition of all the claims, if it be found there was no equitable lien, is absolutely correct. The task that befalls this court is twofold. First, it must be determined whether in fact there was a lien, and secondly, if so, did events which later occurred invalidate that lien?

This case, by its very nature, comes within the purview of our principles in equity. Equitable liens upon real estate are reorganized as a viable interest, independent of a prerequisite proprietary interest in the land.

By the agreement of January 29, 1971 as between appellant and National, there is no doubt appellant acquired an equitable lien interest in an undefined 20,-000 square feet of Lot 26. The agreement, being a binding contract as between these parties, acknowledged mutual obligations. Thus, did this equitable lien continue over to and against the remaining parties herein? It is concluded said lien did not and the basis for that conclusion is when appellant, under date of November 6, 1974, executed his covenant not to sue to National and dismissed his claims against National, and National in turn dismissed its claims against appellant, the lien interest was extinguished. In addition to mutual dismissal of claims against each other, National, as further consideration for the covenant, conveyed a part of Lot 26 to appellant. This parcel was not the same as purchased by Markland.

To be valid, an equitable lien must be based upon a debt or obligation. Jackson v. Engert, 453 S.W.2d 615 (Mo.App. 1970). Any debt or obligation due National by appellant was thus eliminated by the covenant not to sue. The debt being extinguished, appellant urges the court to hold that he (the appellant) still has an equitable lien by virtue of the agreement of January 29, 1971 with National.

Normally, a covenant not to sue is a valid way to remove one or more parties from further participation in the dispute without abandonment of a claimed right as against any party not a signatory to the covenant. It does, however, bring to a close the dispute as between the parties to the covenant under the provision of circuity of actions. It is not a release of all claims, and a reservation of rights over and against remaining parties can be and are preserved. This provision in the law allows for contribution among wrongdoers. A covenant with an individual wrongdoer, however, amounts to a release or discharge. McDonald v. Goddard Grocery Co., 184 Mo. App. 432, 171 S.W. 650 (1914).

Upon consideration of all the facts herein and with the application of the principle that an equitable lien must be based upon a debt or obligation, the conclusion is inescapable that appellant extinguished his lien interest upon the execution of the covenant not to sue and by virtue of that action, there could remain no further claim over and against the respondents.

Under the facts herein or similarities thereto, in the absence of duress, mistake, failure of consideration, misunderstanding, consent or fraud, a covenant not to sue, although the same may contain an express reservation over as against others, when same is exchanged between an obligor and his lienor, said covenant shall extinguish all interests or claims for an equitable lien in the lienor as to lands and parts thereof as against all other parties interested in said lands or parts thereof who are not expressly or impliedly by law or equity an obligor or the obligors of the lienor.

For the reasons set forth, the judgment herein is in all respects affirmed.

All concur.


author: PRITCHARD, Judge.

text:
    Ralph L. EPLEY, Donald W. Epley, Hazel Rose McCloud, Nelda Edstron, and Irene Littleton, Respondents, v. Eleanor EPLEY, Appellant.
    No. WD 30155.
    Missouri Court of Appeals, Western District.
    July 31, 1979.

      David M. Swiss, Kansas City (Mann, Pink & Swiss, Kansas City, of counsel), for appellant.
    James E. Thompson, Jr., Harrisonville (Crouch, Crouch, Spangler & Douglas, Har-risonville, of counsel), for respondents.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   PRITCHARD, Judge.

The issue is whether an October 19, 1957 quit-claim deed given by four children of a testator to testator’s grandson, to whom there was previously devised 100 acres of land in fee tail, was effective to convey the future interests in reversion of the four grantors upon death of the devisee without heirs of his body. The trial court held the quit-claim deed to be ineffective; that the heirs of the testator could not be determined until the death of the life tenant on April 22, 1976; that respondents (the surviving children of one of testator’s children, Chester C. Epley), together owned an undivided one-third interest in the property, and appellant, the widow of the life tenant, owned an undivided two-thirds interest in the property, apparently derived from the October 19, 1957 quit-claim deed of two of testator’s heirs who did not contest the suit (apparently resting content), and who were found to have no interest in the property.

The factual sequence is this: J. J. Epley died April 4, 1955, and by his will, duly admitted to probate in Bates County, Missouri, he devised to grandson, Glen Epley, the land in question by Article V of the will “for and during his natural life and at his death to go to the heirs of his body but should my said grandson go without leaving bodily heirs, then said real estate shall revert to my heirs at law.”

At the time of death, J. J. Epley was survived by four children: Ray T. Epley, Chester C. Epley, Richard W. Epley and Nettie Black. There was another son, Cleve Epley, who died in 1937, and who was the father of Glen Epley, his only child, who also survived J. J. Epley in 1955.

The quit-claim deed in question was executed to Glen Epley and Eleanor P. Epley, his wife, with full rights of survivorship, by Ray T. Epley, single; by Chester C. Epley and Crystenia C. Epley, his wife; Nettie Black and Jesse Black, her husband; and Richard W. Epley, a single man. Ray T. Epley died April 19, 1966, single and not survived by any children, natural or adopted, nor by father or mother.

Chester C. Epley died October 24, 1973, survived by five children who are the respondents herein. Their claimed interest turns upon whether Chester C. Epley’s 1957 quit-claim deed was effective to foreclose their interests, the dispositive issue in this case. Respondents attach great significance to testator’s use of the words “then said real estate shall revert to my heirs at law” (italics added) as showing his intent that the remaindermen should be determined as of the date of death of the life tenant without bodily heirs.

Glen Epley died October 22,1976, without heirs of his body, not being survived by children, naturally born or adopted, but he was survived by his spouse, the appellant. Richard W. Epley and Nettie Black (two of J. J. Epley’s heirs) both survived Glen and were named as defendants in this ease. They, however, filed no answer or other pleading, and were held to be in default by the trial court.

Respondents cite and rely upon Tevis v. Tevis, 259 Mo. 19, 167 S.W. 1003 (1914). There, as a part of his will, testator made this provision: “ ‘Upon the death of my son John Tevis, my son Nestor C. Tevis, or his heirs shall have the right to purchase said undivided half of the aforesaid land for the sum of twenty-four hundred ($2,400.00) dollars, which sum of money or in case said Nestor C. Tevis or his heirs shall elect not to purchase the land, then said undivided half interest shall vest in the heirs of the body of said John Tevis, and if there shall be no heirs of his body then living, the money or the undivided interest in the land shall pass to and vest in my heirs at law.’ ” There was one daughter of testator, Anna McCrosky, who died testate in 1899, without children surviving her, making her husband the sole beneficiary under her will. John Tevis died in 1910, after his sister, Anna, and without leaving heirs of his body. The issue was whether Anna McCrosky had a vested interest which she could devise, or only a contingent interest — the chance of having a share of the happening of the contingency that John Tevis died without heirs of his body. The court said, page 1008, “We can make nothing out of it except that the heirs at law had the mere chance of having on the happening of the mentioned contingency. The persons who were to take on that contingency could not be determined until John’s death without heirs of his body. Such interest was therefore a contingent interest and not devisable prior to the death of John, and we so hold. * * * It follows that, Anna McCrosky having died prior to the event determining the takers and leaving no children surviving her, she took nothing; hence Bledsoe, her husband, took nothing under her will.” Cited in Tevis is Eckle v. Ryland, 256 Mo. 424, 165 S.W. 1035 (1914), in which the question was whether a remainderman must survive the life tenant in order for title to vest in the remainderman. There, Eusebia Buford conveyed property in trust for her son, William M. Buford, and herself, or survivor.

She further provided that upon the death of the survivor of the two of them the property “shall go to and vest in my two other children, Legrand G. Buford and Florence I. Banks, one-third each, or to their heirs, should they or either of them be dead, * * Eusebia died first, and Legrand G. Buford died before his brother. Legrand made a will purporting to cut off his son, Coleman G. Buford, who survived William M. Buford. The court held Legrand’s will was ineffective as he failed to survive the life tenant, William M. Buford, because the title was to vest upon the happening of a contingency — the death of the survivor of William M. and Eusebia Buford, and “then, and not until then, was the estate in remainder to vest. Our conclusion is also that then it was to vest on the happening of a contingency and in the alternative. The contingency was that Legrand G. Buford should then be alive. The alternative was that, if he be dead, it should vest in his heirs, and that the grantor meant to use the word ‘heirs’ in the sense of children, and not in the artistic or technical sense.” (165 S.W. 1042[9].)

In Norman v. Horton, 344 Mo. 290, 126 S.W.2d 187 (1939), there was a deed which granted the title to “ ‘Celeste B. Curd, wife of William B. Curd during her natural life, and at her death, Remainder to the heirs of her Body, legally begotten, * * ” The object and intention of grantors was recited in the deed' that if the life tenant, Celeste, die without bodily heirs, then the title to the real estate shall revert and vest absolutely in the heirs of the grantor. The court said, page 192[12], “The instant grant employs the words ‘then’ ‘at her death.’ If they are to be given their natural effect when read with the other provisions of the grant, they refer (as in the Eckle case) [supra] to the ‘title’ vesting in the ‘heirs at law’ ‘at her death.’ ” See also Irvine v. Ross, 339 Mo. 692, 98 S.W.2d 763 (1936), where a will devised land to an executor to hold until testator’s daughter should remarry, at which time he should convey to the daughter for life and after her death to the heirs of her body, but if there be none “then to the heirs of this testator.” It was held that the testator intended to designate the persons answering the description of his heirs at the time of his daughter’s death, and not at the time of his own death. Compare also Knox College v. Jones Store Co., 406 S.W.2d 675, 687 (Mo.1966); Brittin v. Karrenbrock, 186 S.W.2d 35, 37[1 — 3] (Mo. App.1945); and Mizell v. Osmon, 354 Mo. 321, 189 S.W.2d 306, 313[17, 18] (1945).

Hyde v. Hopkins, 317 Mo. 587, 296 S.W. 382 (1927), cited by appellant, may be distinguished. There the will devised the remainder of the real estate to specifically named persons, not to a contingent class of persons who would be then “heirs at law” at the time of the death of the life tenant without leaving bodily heirs. Thus, in the Hyde case, there was only one contingency — that of the death of the life tenant without bodily heirs. Here, the additional contingency is present that the remainder-men, heirs of the testator as a class must survive the life tenant (tenant in fee tail) in order to have the remainder vest. Chester C. Epley died prior to Glen Epley, the life tenant. At the time of the execution of the quit-claim deed, October 19, 1957, Chester C. Epley had nothing to convey because he did not survive Glen so as to become a member of the class of heirs entitled to take as designated reversioners upon the happening of both contingencies. Instead, respondents became the ascertained members of the class of heirs whose interest vested upon the death of Glen without bodily heirs, respondents having survived him and taking as descendants of testator through and standing in the place of their deceased father, Chester C. Epley. In the also cited case of Lewis v. Lewis, 345 Mo. 816, 136 S.W.2d 66 (1940), the court held (as in the Hyde case, supra) that a devise to a daughter for her life and at her death to her bodily heirs created an interest contingent upon her having bodily heirs, but that a residuary clause of the will transferred the reversionary interest to testator’s widow, which was then a “vested contingent interest” (subject to being divested upon the daughter being survived by heirs of her body), which vested interest could be conveyed by the widow to the daughter, as was done, creating, in effect, a fee simple title which she could convey by deed or will, or which would pass by descent, defeasible only if she was survived by bodily heirs. In Hobbs v. Yeager, 263 S.W. 225 (Mo.1924), grantor reserved to himself the reversion, after granting to Robert and Margaret Yeager life estates, and upon their death to their children. No children were both of the Yeagers, who died in 1909 and 1922. Grantor made a will in 1888 devising the residue of his estate to certain persons, including plaintiffs. He died in 1888. Thereafter, the plaintiffs, among others, executed deeds to the defendants, held to convey their devised reversionary interests. In Grimes v. Rush, 355 Mo. 573,197 S.W.2d 310 (1946), the deed to Rush was joined in by the life tenant, and her then apparent bodily heirs, who were her children who in fact survived her. It was held that they derived their title as purchasers from the original grantor, Fountain Hale, and that they held title contingently after that deed subject to it being defeated by their predeceasing their mother or by being defeated in part by the birth of other children who would qualify as heirs of the body. No contingent class was created by the grantor’s original deed. All these cases cited by appellants are distinguishable for reasons stated.

Appellant further contends that the trial court erred in adjudging that respondent had a one-third interest, it being argued that the heirs of J. J. Epley must be determined as of the date of his death, April 4, 1955, and those heirs included Glen Epley, who was deeded the life estate, making five intestate shares. It is true that “heirs” are determined ordinarily as of the date of death of an intestate. Morris v. Uibright, 558 S.W.2d 660, 663 (Mo. banc 1977) [dissenting opinion]. It is above held, however, by the terms of J. J. Epley’s will that it was intended by him that the class of his heirs entitled to take his devised reversion was to be determined as of the death of the life tenant, Glen Epley. Glen Epley, whose death was to determine the class to take the reversion, could not then be counted as an “heir”. Nor could Ray T. Epley be counted as a then “heir”, he having predeceased Glen, without children or descendants, thus lessening the numbers of the class. The trial court correctly determined that the interests of the heirs in existence at the time of Glen’s death was divisible into three parts. Respondents were thus entitled to a one-third interest, and appellant Eleanor Epley, having acquired deeds from the heirs, Richard W. Epley and Nettie Black, which were not challenged, is entitled to two-thirds interest.

The judgment is affirmed.

All concur.


author: WASSERSTROM, Chief Judge.

text:
    Mary SYBERT, Plaintiff-Appellant, v. Michael Duane IRVINE et al., Defendants-Respondents.
    No. KCD 30163.
    Missouri Court of Appeals, Western District.
    July 31, 1979.
    Harold L. Holliday, Jr., Holliday & Bryant, P. C., Kansas City, for plaintiff-appellant.

      Clyde G. Meise, W. Edward Coen, Jr., Meise, Cope & Coen, Kansas City, for defendants-respondents.
    Before SHANGLER, P. J., WASSER-STROM, C. J., and CLARK, J.
   WASSERSTROM, Chief Judge.

This is a suit for the wrongful death of Donald Sybert, an unmarried young man 19 years of age. His mother, Mary Sybert, brought this suit against the driver of the truck which collided with Donald’s motorcycle and the truck driver’s employer.

The jury brought in a verdict against the employer, but in favor of the driver. The employer moved to set aside the judgment against it because of the inconsistent verdict in favor of its agent. The trial court granted that motion. The plaintiff mother then moved to dismiss for lack of jurisdiction on the ground that the mother was not the proper party plaintiff. The trial court overruled that motion, from which ruling plaintiff pursues this appeal.

Plaintiff’s Sole Point Relied On is as follows: “The Court Erred in Failing to Sustain Plaintiff-Appellant’s Motion to Dismiss for Lack of Jurisdiction Over the Subject Matter and/or Person.” That point fails to comply with the requirements of Rule 84.04(e). Thummel v. King, 570 S.W.2d 679 (Mo. banc 1978). However, even if the point be filled out by reference to the argument portion of plaintiff’s brief, and affording the point review as a matter of grace, it contains no merit.

Plaintiff’s argument starts by asserting that Donald Sybert was an adult at the time of his death because he was more than 18 years of age. That contention is sharply challenged by defendants. We will assume, without deciding, that the deceased was an adult for the purpose of determining the proper party plaintiff under Section 537.080 RSMo 1978.

Plaintiff then proceeds to argue that the proper party to sue for the death of an unmarried adult who leaves no children is the administrator of his estate, not his parent. That was indeed the ruling in Rogers v. Fiandaca, 491 S.W.2d 560 (Mo.1973), upon which the plaintiff relies. However, the very recent case of Cannada v. Moore, 578 S.W.2d 597 (Mo. banc 1979), overrules Rogers and holds that the proper party plaintiff is the parent, not the administrator.

Affirmed.

All concur.


text:
    KEYSTONE AGENCY, INC., Plaintiff-Appellant, v. Bobby HERRIN, Defendant-Respondent.
    No. 30184.
    Missouri Court of Appeals, Western District.
    July 31, 1979.

      Steven E. Emke, Jones, McDaniel & Frankum, Kansas City, for plaintiff-appellant.
    Edgar S. Carroll, Warrensburg, for defendant-respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

Action on promissory note. Trial court entered judgment for maker of note, concluding failure of holder of note to prove lawful ownership of note and that holder was not real party in interest. Reversed and remanded.

In 1957, respondent purchased a mobile home through Chambers-Dobson Agency (hereinafter referred to as Dobson) of Nebraska. Dobson was then a partnership and later was incorporated under the laws of the state of Nebraska. Appellant purchased the Dobson corporation and incorporated itself under Nebraska law. As part of said purchase, the account of respondent was obtained.

Respondent defaulted on payment. There was no dispute as to the following facts.

Respondent made the original purchase from Dobson. The mobile home was moved to Mississippi, where at a later time upon default, it was repossessed and sold for $900.00. In 1968, appellant secured respondent’s signature upon a promissory note for the deficiency balance, the consideration for same being forebearance. Payments were made sporadically upon the note and respondent then defaulted. This action followed.

The record indicates appellant corporation underwent a dissolution, but the record is incomplete as to the times and dates thereof. The controlling law on such dissolution is the Nebraska Business Corporations Act, Neb.Rev.Stat., § 21-2001 to 21-20,134 (1943). Appellant is a foreign corporation not doing business in Missouri and not subject to the business laws of Missouri. Consult § 351.570(2), RSMo 1978. Also, see Riley v. Best Truck Lines, Inc., 510 S.W.2d 229 (Mo.App.1974) wherein reference is made to 20 C.J.S. Corporations § 1802, p. 22. This section states, “ ‘. . .a corporation’s charter and the laws of its domicile govern with respect to the fact and duration of the existence of the corporation .’ See also Morgan v. New York Nat. Building & Loan Assn., 73 Conn. 151, 46 A. 877, 878 (1900).”

The pertinent sections of the Nebraska Act applicable herein read as follows:

Neb.Rev.Stat., § 21-2085 (1943):

“. . . the corporation shall cease to carry on its business [after filing voluntary dissolution with the Secretary of State] except insofar as it may be necessary for the winding up thereof, but its corporate existence shall continue until a certificate of dissolution has been issued by the Secretary of State . . . ”

and Neb.Rev.Stat., § 21-2092 (1943):

“Upon filing and recording in the office of the Secretary of State of the original of the articles of dissolution the existenes of the corporation shall cease, except for the purpose of suits, other proceedings and appropriate corporate action by shareholders, directors and officers as provided in sections 21-2001 to 21-20, 134.” (the whole of Article 20, that is, the Nebraska Business Corporations Act)

and Neb.Rev.Stat., § 21-20, 104 (1943):

“The dissolution of a corporation either (1) by the issuance of a certificate of dissolution by the Secretary of State, (2) by a decree of court when the court has not liquidated the assets and business of the corporation as provided in sections 21-2001 to 21-20,134, or (3) by expiration of its period of duration, shall not take away or impair any remedy available to or against such corporation, its directors, officers, or shareholders, for any right or claim existing, or any liability incurred, prior to such dissolution if action or other proceeding thereon is commenced within two years after the date of such dissolution. Any such action or proceeding by or against the corporation may be prosecuted or defended by the corporation in its corporate name. The shareholders, directors and officers shall have power to take such corporate or other action as shall be appropriate'- to protect such remedy, right or claim . . . ”

The issue of appellant’s corporate standing must be resolved before full determination of the parties’ claims and defenses can be concluded. Appellant, through its agent, testified about the details concerning execution of the note, the corporate purchase and transfer of records, collection attempts, default by respondent and the amount allegedly due. Respondent offered no evidence.

The trial court, holding appellant failed to establish it was the lawful owner or possessor of the note, was in error in that such ruling was not supported by the evidence. This, coupled with lack of any defense on this issue, violated § 400.3-307, RSMo 1978, § 400.1-201(20), RSMo 1978 and § 400.3-104, RSMo 1978.

The evidence supports appellant was the proper holder of the note in question, had proper standing to sue and was the real party in interest, provided appellant was a corporation in good standing pursuant to the laws of Nebraska. In absence of proper evidence to answer this question, it was error for the court to enter its form of judgment.

Because disposition of this cause has been made upon other bases, it is not requisite that respondent’s contention of a defense upon usury be resolved; however, upon retrial of this cause, the parties are urged to consult the applicable statutory provisions regarding usury in our state and the procedural requirements as to the timely raising of such defense.

Without further reference to other points raised, this cause is reversed and remanded for the reasons set forth herein.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    Hubert WHITNEY, Appellant, v. STATE of Missouri, Respondent.
    No. 30282.
    Missouri Court of Appeals, Western District.
    July 31, 1979.

      James L. McMullin, McMullin, Wilson & Schwarz, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Earl W. Brown, III, Special Asst. Atty. Gen., Kansas City, for respondent:
    Before HIGGINS, Special Judge, Presiding, SWOFFORD, J., and WELBORN, Special Judge.
   ROBERT R. WELBORN, Special Judge.

Appeal from denial of relief in proceeding under Rule 27.26 to set aside conviction and five-year sentence for receiving stolen property of a value of more than $50.00.

Hubert E. Whitney filed a pro se motion under Rule 27.26 in the Jackson County Circuit Court. The judge found that the files and records of the sentencing court showed conclusively that the movant was entitled to no relief and denied the motion, without a hearing. Movant appealed.

In this court, appointed counsel first assert that the trial court erred in denying appellant a hearing on his 27.26 motion. The grounds for relief asserted by the motion were:

1. Public defender representing appellant in circuit court failed to bring issue of an illegal search and seizure to the trial court’s attention, although appellant requested him to do so.

2. The television set, the stolen property which appellant was charged with receiving, had been taken from appellant’s apartment illegally.

3.Plea was result of misapprehension on part of appellant about his right to bring these matters to trial court’s attention.

The appellant’s brief here restates the grounds for relief alleged in the motion and asserts, without argument or authority, that appellant was denied “his day in Court” and “due process.”

Subparagraph (e) of Rule 27.26 provides that a movant is entitled to a hearing unless the files and records of the case conclusively show that the movant is entitled to no relief. In this case, the trial court so concluded and made findings of fact and conclusions of law in support of his decision.

If appellant is to succeed on his contention of error in failing to accord him a hearing, he must first demonstrate that the trial court’s conclusions regarding the effect of the court files and records are erroneous. The appellant has completely ignored such findings.

Having failed to demonstrate that the conclusions upon which the trial court based its denial of relief are erroneous, appellant has presented nothing for appellate review on the claim that he was improperly denied a hearing on his motion.

The second point of appellant’s brief alleges that the factual basis presented to the trial court for his plea of guilty did not show that he was in fact guilty of the offense. The motion before the trial court in no manner raised this issue. It will not be considered when raised in this court for the first time. Johnson v. State, 561 S.W.2d 704, 706[5] (Mo.App.1978).

Judgment affirmed.

All concur.


text:
    In re the MARRIAGE OF Virginia R. HOLT, Petitioner-Respondent, and Junior L. Holt, Respondent-Appellant.
    No. 30450.
    Missouri Court of Appeals, Western District.
    July 31, 1979.
    P. Wayne Kuhlman, Liberty, for respondent-appellant.
    Richard E. McFadin, North Kansas City, for petitioner-respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

Direct appeal from final order partially overruling appellant’s motion to modify decree of dissolution. Appellant sought reduction of child support payments from $400.00 per month to $800.00 per month and the change of date within the month for payment upon a claim of a substantial change of conditions. The trial court approved change of date of payment and denied reduction in the amount of the monthly payment.

The record confirms this to be a case reviewable under Rule 73.01 and that the trial court’s ruling was supported by substantial evidence. The trial court heard evidence on the respective monthly income and expenses of both parties and the job change of appellant. The trial court correctly denied appellant’s claim of reduction in monthly child support payments. The trial court did not erroneously declare or apply the law. See Murphy v. Carrón, 536 S.W.2d 30 (Mo.banc 1976).

The record in this matter leads to the conclusion that this cause has no preceden-tial value and disposition of same is made under Rule 84.16(b). The action of the trial court is in all respects affirmed.

All concur.


author: DIXON, Presiding Judge.

text:
    James LaFRANCE, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. KCD 30588.
    Missouri Court of Appeals, Western District.
    July 31, 1979.

      John H. Lake, Goller, Hedrick & Lake, Jefferson City, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.
   DIXON, Presiding Judge.

Movant appeals the denial of his motion under Rule 27.26 to set aside his plea of guilty and subsequent conviction for manslaughter resulting in a sentence of eight years in the penitentiary.

A single issue is presented by movant on this appeal. That issue is whether the knowing and voluntary nature of the appellant’s plea was rendered involuntary because of an alleged conflict of interest on the part of movant’s attorney.

The State meets that claim by asserting, first, that no conflict of interest existed under the facts of this case and, secondly, that even if such a conflict of interest existed, it did not affect the voluntary nature of the defendant’s plea.

In order to resolve the issue, a full review of the evidence presented is necessary. The underlying charge arose from an altercation among five inmates of the Missouri State Penitentiary, the movant being one of those inmates. There is no dispute that one of the inmates, Patterson, died as a result of the altercation and, more specifically as indicated by the coroner’s autopsy report, his death resulted from a stab wound in the neck. It is likewise conceded that all four of the other inmates involved in the altercation were separately charged with second degree murder for the death of Patterson. Howard McFadden, the Public Defender, was appointed to represent all four of the defendants. It is further conceded that charges against the other three potential defendants were dismissed after the mov-ant pled guilty to a reduced charge of manslaughter and was sentenced to eight years to be served consecutively to the sentence he was serving at the time the altercation occurred.

The three inmates involved in the altercation, besides the movant, were Samuel Cook, James Irving Duncan, and Major Lang, Jr. At the hearing on the 27.26 motion, the statements made by the movant and the other three inmates were offered in evidence. These statements were taken and tape recorded in some way by prison officials immediately after the altercation and were subsequently transcribed. A resume of those individual statements is necessary for understanding of the issue presented in this appeal.

Lang stated that he and the movant were approached by the deceased, and an argument ensued. The deceased pulled two knives from a towel he was holding and struck Lang with a knife. Patterson, the deceased, then struck the movant in the leg with a knife. The movant attempted to escape. At that point, inmate Duncan arrived and hit the deceased on the arm with a golf club causing the deceased to drop one of the knives. Lang said Duncan recovered the knife and stabbed the deceased.

Duncan stated he ran to the scene when he heard of the altercation and struck the deceased on the arm with the golf club, causing the deceased to drop a knife. Duncan admitted he recovered the knife and stabbed the deceased in the neck. Duncan then admitted he stabbed the deceased in the chest and fell on top of the deceased.

Another inmate, Cook, said he went to the scene and observed the deceased with two knives. Cook states that he did not stab anyone but admits he struck the deceased in the face with a broken mop handle. He claimed he did not observe any other stabbing.

The movant’s statement is that the deceased stabbed Lang in the side. When Duncan arrived and hit the deceased with the golf club, the movant obtained possession of one of the knives. He said that he did not recall stabbing the deceased with a knife but did swing at him with it.

All four inmates were separately charged with second degree murder, but each of the charges asserted that all acted in concert in the death of Patterson. After Mr. McFadden was appointed to represent the four defendants, he met with the four in a group at various times to discuss the case. He never met individually with the movant.

It is conceded by the prosecuting attorney that sometime after the preliminary hearings the prosecuting attorney made a plea bargain offer to Mr. Howard McFadden to dismiss the charges against any three of the four inmates if any one of them would plead guilty. The movant testified at the 27.26 hearing that he had heard of this offer from the other defendants but that this arrangement had never been explained to him by Mr. McFadden. The movant testified that when he was brought to court on December 15, 1975, which was the day of the entry of his plea to the manslaughter charge, he discussed with Mr. McHenry, the prosecutor, the entry of a plea and a recommendation of eight years. The movant asserts without contradiction that Mr. McFadden was not present at the time of those discussions. The mov-ant further testified that he was “celling with” the other three defendants, and there was constant pressure asserted amongst them for one person to plead in accordance with the prosecutor’s offer to dismiss as to three if one pleaded guilty.

Mr. McFadden testified at the 27.26 hearing and indicated he had no independent recollection of meeting separately with the movant. He confirmed that the prosecution had made the offer to dismiss as to three if one pleaded guilty. He further said his file reflected that on the 15th of December, the case against Duncan was dismissed and he presumed that the other two charges were likewise dismissed. When questioned specifically as to whether he had ever discussed the possibility of a conflict in his representation of the movant, his answer was that he did not recall. Mr. McFadden stated that he had in his possession at the time the plea was entered the transcripts from the four inmates which have been previously summarized. Mr. McFadden was asked if he considered whether there was any conflict at the time he was representing all four of the defendants, and he said that he did not recall having any thoughts of conflict. He characterized the movant’s statement as “his confession.”

Also included in the transcript of the 27.26 hearing is considerable testimony concerning a letter dated December 16, 1975, the day after the plea hearing. Mr. McFadden’s testimony indicates he relied heavily on this letter in permitting the defendant to enter his plea of guilty. However, when questioned about the time of its receipt, he was unable to explain the discrepancy in the date. Because of the bizarre nature of the letter, it is reproduced in full as follows:

MISSOURI STATE PENITENTIARY JEFFERSON CITY, MISSOURI
DECEMBER 16, 1975
TO WHOM IT MAY CONCERN:
On this date December 16, 1975,1 do solemnly swear that the following statement in the truth, the whole truth, nothing but the truth, so help me God.
I, James LaFrance reg. no. 20266, on the evening of July 3, 1975, did take the life of one inmate Dewitt Patterson, acting alone and not in concert with three (3) of my fellow associates, who have also been charged with the same offense, of acting in concert in the taking of the life of the above named inmate, Dewitt Patterson.
Under the circumstances, inmate Patterson did on the third (3rd) day of July, 1975, force me to take his life with one of two (2) weapons, which moments earlier, prior to his death, he made an attempt to take my life, with the same weapon.
This statement is merely a request to all concerned, that charges be dismissed against the following three (3) named inmates, Samuel Cook, James Duncan and Major Lane. To be frank in speaking, Major Lane was not even at the scene of the crime when it occurred. Cook and Duncan were there, but did not play a part in being responsible in any way. For the death of inmate Patterson, I will testify too to any court in the land. So I, James LaFrance, on this date December 16, 1975, have requested that all charges be dismissed against the remaining three (3) inmates charged, Samuel Cook, James Duncan and Major Lane . . .
I killed (The Fool) Dewitt Patterson, but only because he forced me to do so, simply by making an attempt to try and kill me . . .
Respectfully yours,
James LaFrance # 20266
(s) James LaFrance 20266
cc: HOWARD McFADDEN/ATTORNEY
JAMES McHENRY/DISTRICT ATTORNEY
SAMUEL COOK/DEFENDANT
JAMES DUNCAN/DEFENDANT
MAJOR LANE/DEFENDANT
JAMES LaFRANCE/DEFENDANT

It is to be noted that the movant’s transcribed statement, which has been examined in full, demonstrates an almost complete incapability of expression in any grammatical sense. The transcript of mov-ant’s oral statement has been compared with the letter set forth above. That comparison demonstrates the possibility of mov-ant’s composition of the letter is extremely unlikely.

Based on the foregoing evidence and the transcript of the plea proceedings, the trial court found that movant did not present any evidence to show any ineffectiveness of the public defender in his representation of the movant. The reasoning of the trial court in making this determination is made clear by the colloquy between the movant’s counsel and the court at the conclusion of the hearing. Movant’s counsel asserted lack of effective representation due to the conflict and the court said:

“THE COURT: At the time I didn’t know there were any other persons involved.
MR. LAKE: I understand that.”

Subsequently, responding to the continued argument of movant’s counsel that a conflict existed, the court made the following comment:

“MR. LAKE: That’s the point I’m getting at.
THE COURT: —I don’t see the conflict. The fact that three out of the four were treated differently doesn’t make a conflict. Now, if he is wanting to get up here and say, ‘No, I didn’t do it, one of the other four did,’ then that would be a conflict, because plainly one lawyer couldn’t be expected to represent two or more different people when they were blaming it on each other rather than admitting it themselves. There is no conflict where the interest of the four are all the same, without any attempt to blame it on anybody else.” (Emphasis supplied).

It is thus clear that that the finding of the trial court that the movant did not prove any ineffectiveness of counsel was based upon the court’s belief that no conflict existed with respect to the representation of the movant.

The State in its brief in this court has, with commendable candor, conceded that a defendant is denied his constitutional right to the effective assistance of counsel if his attorney represents conflicting interests. Ciarelli v. State, 441 S.W.2d 695, 697 (Mo.1969); State v. Johnson, 549 S.W.2d 348, 850 (Mo.App.1977). The State further concedes that once the existence of a conflict of interest has been established a showing of actual prejudice to the accused is not necessary since the right to counsel is too fundamental and absolute to allow courts to indulge in nice calculations arising from its denial. Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); Glasser v. United States, 315 U.S. 60, 75-76, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Mason v. State, 468 S.W.2d 617 (Mo.1971); Ciarelli v. State, supra; State v. Johnson, supra. The State, while conceding the above principles, argues that under Mason and Johnson, supra, there must be evidence indicating a conflict of interest. The State argues that, in order to meet the burden of proof, the evidence must show that something was done by counsel or foregone by counsel and lost to the defendant which was detrimental to the defendant and which was advantageous to a co-defendant. Mooring v. State, 501 S.W.2d 7 (Mo.1973). Based upon this last-stated principle, the State argues that this record does not show that the movant’s attorney refrained from doing anything on behalf of movant that he otherwise would have done if he had not been representing the three co-defendants.

Ciarelli, Mason, Johnson, and Mooring, supra, are all cases where the issue of ineffectiveness arose after trial and the alleged conflict of interest could be examined in the light of counsel’s performance at trial. Ciarelli is based on knowledge of conflict and waiver by the defendant. Mason, Johnson, and Mooring were all cases of a full trial and an opportunity to weigh the conduct of counsel on the basis of the record made at the trial. When the claim as it is here consists of ineffectiveness of counsel insofar as it affects the voluntariness of the plea, the concept of proof of forebearance of a defense or the doing of an act detrimental to the defendant is not capable of review on the record. The advice of counsel and its effect on the defendant insofar as that advice affects the voluntary nature of his plea are not as easily determined absent the record which exists at a trial.

This is precisely what the Supreme Court of the United States addressed in Holloway v. Arkansas, supra at 490, 98 S.Ct. at 1182, 55 L.Ed.2d 426. The Supreme Court pointed out that when the conflict occurs in the context of plea negotiations and proceedings or a plea of guilty, no rational examination of the actual conduct of the attorney is possible. The court said:

“. . . but even with a record of the sentencing hearing available it would be difficult to judge intelligently the impact of a conflict on the attorney’s representation of a client. And to assess the impact of a conflict of interests on the attorney’s options, tactics and decisions in plea negotiations would be virtually impossible. Thus, an inquiry into a claim of harmless error here would require, unlike most cases, unguided speculation.”

In the recent case of Seales v. State, 580 S.W.2d 733 (Mo.banc 1979), the majority opinion reflects an acceptance by our court of a per se rule in conflict of interest situations. Seales v. State, supra at 736.

The advice of counsel to a defendant with respect to the entry of a guilty plea must necessarily be unhampered by a potential conflict with other representation. Only if counsel’s advice, tactics, and attitude during the plea bargaining process are free of any taint of conflict can the voluntary nature of the defendant’s plea be assured.

On the record of the instant case, however, the conflict and prejudice affirmatively appears. It seems too clear for argument that there was an obvious and viable claim of self-defense in this case. Further, based upon the statement of the four participants in the affray, the fatal blow was actually struck by Duncan.

It is difficult to apprehend how the mov-ant’s claim of self-defense could be vigorously pursued without his counsel developing the fact that Duncan had actually struck the fatal blow. Put another way, the active representation of the movant in a claim of self-defense would have necessarily made it likely that his counsel develop the testimony as presented in the transcripts summarized above. That testimony, if available, would have been detrimental to the interests of the other three inmates. How counsel, faced with that potential conflict, could have given independent advice to the four defendants is impossible to discern.

Even more compelling is the conflict posed by the bizarre offer of the State to discharge three defendants if the remaining defendant pleaded. A lawyer representing any one of the defendants would have had the duty to advise the individual he represented as to which of the potential defendants was most likely to be convicted and thus would be the individual most apt to accept the so-called plea bargain. A lawyer representing this movant would have had to assert the relative lack of involvement in the plea negotiations which obviously was not done. At the very least, a lawyer should have asserted, in mitigation to the sentencing judge, the fact of his client’s lesser involvement. This would unquestionably require him to assert facts detrimental to his concurrent representation of the other defendants. How one lawyer could perform that duty for the four individuals in the face of this evidence is likewise impossible to discern.

The purported plea bargain is even more astonishing in the light of the theory of the State’s case and the “evidence” presented at the time of the plea. When the plea was taken, the court quite properly attempted to establish a factual basis for the plea. The entire proceeding relative to that issue is as follows:

“Q. Well, on the third day of July, 1975, did you make an assault on one DeWitt Patterson? A. Yes, sir.
MR. McFADDEN: Your Honor, the defendant by entering his plea of guilty wishes to admit the allegations — •
THE COURT: Well, let me hear him admit it.
MR. McFADDEN: Well, the facts, as the incident occurred, were that La-France and three other inmates, Duncan, Lang, and Cook, were engaged in this altercation with a fifth inmate, who subsequently died, that inmate initially assaulted one of these four, and as a result the altercation ensued, and during the altercation the fifth inmate, Patterson, was stabbed and died as a result thereof.
BY THE COURT:
Q. Well, were you involved with these other three people in the killing of this Patterson? A. Yes, sir.
Q. The four of you were acting together?
A. Yes, sir.
Q. Well, you understand in the eyes of the law what one of you did, why all four of you did? A. Yes, sir.
Q. Any time two or more persons are acting together, why, you are equally guilty; do you understand that?
A. Yes, sir.
Q. Are you now telling the Court that you acting with three other people did actually kill this DeWitt Patterson by stabbing him? A. Yes, sir.
Q. You’ll have to speak up. A. Yes, sir.
THE COURT: What are the facts, Mr. McHenry?
BY THE COURT:
Q. One other thing, you understand that whatever sentence you get in this case won’t begin to run until you have served the sentence that you already have.
A. Yes, sir.
Q. How much time are you pulling?
A. Ten.
Q. Is that the only sentence you have?
A. Yes, sir.
THE COURT: All right.
MR. McHENRY: The facts are about, I think, what the Public Defender said they were, Your Honor, except for this: The State has information regarding the involvement of four people in this incident which resulted in the death of Patterson. The facts, if they are to be called that, have to be established by the State; and as a result of the process here, bringing charges against these four people, other facts have come to light, and one of those is that this defendant did participate in the stabbing.
BY THE COURT:
Q. Do you have anything to say, La-France?
A. No, sir.
Q. Are the facts as Mr. McHenry has stated them?
A. Yes, sir.” (Emphasis supplied).

Thus, the factual basis presented to the trial court was directly contrary to the theory of the so-called plea bargain. There is absolutely nothing to indicate that the trial court had any notion that defendant was accepting sole responsibility for the killing. The colloquy above indicates the trial court believed he was accepting a plea from one of four persons acting together in the homicide, all of whom were jointly responsible. In fact, the only possible basis for the State’s offer to take a plea from one of the defendants is that the defendants were not acting in concert but that only one of the defendants was, in fact, guilty. If that had been disclosed to the trial court, the factual basis for the plea would have been in doubt.

Those facts may well explain the carefully drafted letter of the next day which purports to place all of the onus on a defendant who had already pleaded guilty. Movant denies he signed the letter. There was no proof that he had signed it except for the erstwhile counsel for the defendant who, when presented the letter for identification and without any question being addressed to him made the following gratuitous remark:

“A. Now, how about the letter from Mr. LaFrance to me, a copy of which I have, and which bears his pencil written signature; and, although I am not a handwriting expert, I think anybody, a second grade student could compare that signature with any other exemplar and tell that it is his signature.
THE COURT: What does the letter say?
A. It says: I was acting alone when I killed this man.”

The trial court’s conclusion that there was no conflict of interest and, therefore, no ineffective assistance of counsel, is clearly erroneous. The cause is reversed and remanded to the trial court with directions to vacate the sentence and conviction and restore the cause to the court’s docket for further proceedings.

All concur.


text:
    Paul Bunker BUCK, Appellant, v. STATE of Missouri, Respondent.
    No. 30625.
    Missouri Court of Appeals, Western District.
    July 31, 1979.
    Thomas M. Dunlap, Fulton, for appellant.
    John D. Ashcroft, Atty. Gen., Jefferson City, Earl W. Brown, III, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
   MANFORD, Judge.

Appeal from trial court order denying motion to vacate sentence pursuant to Rule 27.26. Affirmed.

Three points of error are alleged on this appeal. First, it is contended appellant was convicted and sentenced twice for the same offense and hence, his constitutional rights were denied by violation of the prohibition against double jeopardy. As a second point, appellant contends ineffective assistance of counsel for failure of counsel to investigate appellant’s driving record relative to Missouri statutes dealing with punishment for driving while intoxicated. Finally, appellant contends ineffective assistance of counsel alleging counsel did not adequately consult with appellant prior to appellant’s entry of a guilty plea to driving while intoxicated, third offense. A hearing was conducted upon appellant’s motion, and the trial court entered of record its memorandum of said proceedings, along with the order denying relief.

The record shows appellant was involved in a motor vehicle collision April 18, 1977, and was arrested in conjunction therewith. On April 19, 1977, appellant pled guilty to driving a motor vehicle while his license was revoked, and received a 30-day sentence. On April 19, 1977, appellant was charged with driving while intoxicated, third offense, a felony under § 564.440, RSMo 1969. On April 19, 1977, a preliminary hearing was held on the felony charge. Appellant’s counsel appeared and conducted the inquiry, including examination of witnesses.

Appellant was bound over for trial and the trial was set for September 7, 1977.

In the intervening period, from preliminary hearing to trial date, appellant moved to Louisiana, Missouri. The record shows appellant’s counsel made effort by mail and phone to contact appellant for purposes of discussing the forthcoming trial. The record further shows, by appellant’s own admission, that he made no effort to make himself available to his counsel and did not contact counsel.

Appellant was on bond and the morning of trial, appeared at the courthouse. A conference was held between appellant and his counsel relative to the proceeding with trial, or in the alternative, the entry of a plea of guilty.

Appellant’s counsel testified at the hearing on the 27.26 motion and stated he was at all times prepared to try the case, advised appellant of his thoughts on appellant’s chances with a jury and left the final decision to entry of the plea of guilty to appellant. Counsel also testified he was never requested, by appellant, to review appellant’s driving record or the law on driving while intoxicated. Appellant testified he never requested counsel to check on the Magistrate Court record concerning his other offense.

Appellant elected to enter a plea of guilty. He testified under oath at the time of his plea that his counsel had done all that was requested of him and that he (the appellant) did not know of anything further his counsel could have done for him.

Following his sentencing and incarceration, appellant, in this proceeding, alleges he was denied effective assistance of counsel for failure of counsel to consult with him and for counsel’s failure to review appellant’s driving record.

The evidence herein fails to lend any credibility to appellant’s contention.

The evidence further revealed that appellant’s motion herein had been prepared by a fellow inmate and appellant never read the motion prior to its being filed.

All points raised by appellant are ruled against him. As to the matter of double jeopardy, the record clearly shows appellant pled guilty to two separate and distinct offenses which, by no stretch of the imagination, could premise the allegation of double jeopardy.

On the question of ineffective assistance of counsel, the record clearly establishes that the nonavailability of appellant prevented his counsel from meeting with appellant and that appellant did not respond to inquiries of counsel for a conference preparatory to trial of the offense with which appellant was charged.

On the question of counsel’s failure to review appellant’s driving record and the law regarding punishment relative to the offense of driving under the influence, appellant’s own testimony fails to support such a contention.

The order of the trial court is in all respects affirmed.

All concur.

      . The court is mindful of the rule adopted in Seales v. State, 580 S.W.2d 733 (Mo.banc 1979) and notes that this rule is prospective only and hence not technically applicable to the case herein. In addition, however, even if applied, the rule in Seales v. State, supra, would not establish ineffective assistance of counsel herein because of the total lack of evidence.


author: CRIST, Judge.

text:
    June Aaron SANDERS, Prison No. 32932, Movant, v. STATE of Missouri, Respondent.
    No. 40832.
    Missouri Court of Appeals, Eastern District, Division Three.
    July 31, 1979.
    William J. Shaw, Public Defender, Joseph W. Downey, Asst. Public Defender, Clayton, for movant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Clayton, for respondent.
   CRIST, Judge.

Rule 27.26 motion.

The trial court held an evidentiary hearing as to the effectiveness of movant’s counsel in the case of State v. Sanders, 556 S.W.2d 75 (Mo.App.1977). It found in favor of the state after hearing testimony of movant and his original trial counsel.

The judgment of the trial court is based on findings of fact which are not clearly erroneous. No error of law appears and an opinion would have no precedential value.

The judgment is affirmed in compliance with Rule 84.16(b).

REINHARD, P. J., and GUNN, J., concur.