# Thomas v. State

> Supreme Court of Missouri · June 24, 1974 · 512 S.W.2d 116

URL: https://www.frixlaw.com/law-library/cases/9680209

## Case

- **Full name:** Sanford THOMAS, (Movant) Appellant, v. STATE of Missouri, Respondent
- **Court:** Supreme Court of Missouri
- **Decided:** June 24, 1974
- **Citations:** 512 S.W.2d 116; 1974 Mo. LEXIS 642
- **Precedential status:** Published
- **Opinion:** Dissent by Seiler
- **Judges:** Morgan, Holman, Henley, Finch, Donnelly, Bardgett, Seiler
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

SEILER, Judge
(dissenting).
I must respectfully dissent. After a review of all the evidence I am left “with the definite and firm conviction that a mistake has been committed.” Crosswhite v. State, 426 S.W.2d 67, 71 (Mo.1968).
Unlike McQueen v. State, 475 S.W.2d 111 (Mo.1971), this is not a case where all defendant can offer is that had proper investigation been made or had the state not made a false statement as to the availability of an important witness, it “might well be” that substantial helpful evidence would have been available to defendant. In the case before us, the witness Frederick Brown, Jr., who unquestionably had firsthand, personal knowledge, would have testified, had he been called as a trial witness, that defendant was not a participant in the stabbing and robbing of the cab driver; that, on the contrary, defendant left the taxicab before the crime took place. The trial court at the 27.26 hearing, in considering the testimony of Brown, did not find that Brown would not so testify, but rather that he was not a credible witness. Despite this opinion of the trial court, it does not follow that Brown would not be a credible witness to a jury, which would be the body finding the facts in a new trial where Brown would be a witness. It is not unusual for a jury to believe a witness whom a judge would not believe and vice versa. In fact, one assumption in our widespread use of juries is that juries are more likely to reach a truthful result than a single trier of the fact. As has been said before, no one can say what a jury will do with a case, McQueen v. State, supra, 1. c. 118, 123, and there is no way we as judges can be sure what a jury would do with Brown’s testimony.
We do not know what Brown would have told defendant’s original trial counsel had he (Mr. Harris) interviewed Brown prior to the first trial. The record shows that Brown had already pleaded guilty to first degree murder and robbery before defendant Sanford Thomas came to trial, so Brown had nothing to fear with respect to self-incrimination in telling the truth as to the nonparticipation of Thomas. Interestingly, Lonnie Anderson, 1 one of the state’s witnesses at the original murder trial, testified that when he talked to Frederick Brown the day after the crime and Brown told him about stabbing the cab driver and taking his watch, Brown made no mention whatever of Sanford Thomas being with him in the crime. Yet, as is conceded, defense counsel made no effort to interview Brown, the one person who knew all the facts.
In fact, Mr. Harris interviewed none of the witnesses, although the state listed sixteen witnesses with their addresses and *125 called fourteen witnesses at the trial. Granted that some of these witnesses went to matters about which there was no real dispute, this is not the case, in my opinion, with respect to witnesses Lonnie Anderson and Frederick Brown. Mr. Harris testified his policy was not to interview state witnesses, that the “line is so thin between tampering with state’s witnesses”.
Although he testified that the witness whom both defendant and his parent’s “dwelt on” was Frederick Brown and that Brown was “the one we had to decide what role he would play in our defense”, Harris did not interview Brown. The facts are that Brown pleaded guilty on October 17, 1967, and remained in the city jail until November 9, 1967, when he entered the penitentiary. The trial of defendant Thomas did not commence until November 13, 1967, so Harris had ample time in which to interview Brown and find out whether Brown was really going to stand by his statement that Sanford Thomas was involved, which is the only way it could be determined if Brown should be used as a witness in Thomas’ behalf despite the statement. But Harris did nothing of the sort. He testified, in response to a question as to whether he interviewed Brown in the city jail: “No. The only thing we could have done possibly was to take his deposition and I was scared to do that for fear I would hurt the defendant more than help him.”
Of course, it is not correct that the only thing Harris could have done was to take Brown’s deposition. He could have talked to Brown directly, without taking his deposition, the same as with any witness. Harris’ professed explanation for not interviewing Brown is not convincing. The real explanation probably is found in his stated policy of never interviewing the state’s witnesses, a policy which was described in McQueen v. Swenson, 498 F.2d 207, 216 (8th Cir., 1974) as follows: “[Counsel’s] assertion that he never interviews prosecution witnesses is an absurd and dangerous policy which can only be viewed as an abdication — not an exercise — of his professional judgment.”
In the McQueen case, counsel had not interviewed any' of the state’s witnesses. Counsel there also said it was his policy never to interview the state’s witnesses and he, too, professed that to do so would put him in a bad light and it would “[look] like you are tampering with the State’s witnesses when you [try to] talk to them”, but, as said, the court was not impressed.
In the McQueen case, the court went into the matter of whether failure to investigate amounts to ineffective assistance of counsel and held that in the circumstances there present it did. The court quoted with approval ( 498 F.2d at 217 ) from Goodwin v. Swenson, 287 F.Supp. 166, 182-183 (W.D.Mo.1968), where it was said: “The most able and competent lawyer in the world can not render effective assistance in the defense of his client if his lack of preparation for trial results in his failure to learn of readily available facts which might have afforded his client a legitimate justiciable defense”.
In the McQueen case, after holding there was ineffective assistance of counsel, the court remanded the case for the district court to determine whether the failure to investigate prejudiced the defense. The court cautioned, however ( 498 F.2d at 220 ): “But this is not to say that, on remand, petitioner must prove his innocence even by so much as a preponderance of the evidence; nor should we be understood to suggest that the Court may trespass upon what properly would have been the jury’s province of weighing the truth or falsity of this evidence at the original trial. What we are saying is that, here, the petitioner must shoulder an initial burden of showing the existence of admissible evidence which could have been uncovered by reasonable investigation and which would have proved helpful to the defendant either on cross-examination or in his case-in-chief at the original trial. Once this showing is made, a new trial is warranted unless the court is able to declare a belief that the *126 omission of such evidence was harmless beyond a reasonable doubt. Cf. Chapman v. California [ 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967)]”.
In our case, Brown’s testimony that defendant was not involved in the crime, that defendant had left the taxicab, would have been admissible, it could have been discovered by reasonable investigation, and it could have proved helpful to the defendant in the original trial. It cannot be said the omission of this evidence was harmless beyond a reasonable doubt and a new trial is in order.
It is said that even had counsel interviewed Brown and learned that Browri would exonerate defendant Thomas, Brown would have been subject to impeachment by his former confession, which would disclose the fact that originally he had said defendant Thomas was present and participating. This is true, but again we cannot say with any certainty how the jury would have viewed Brown’s testimony, and we do know that the way the case was tried did not work out very well, either — the only defense offered for defendant was defendant himself and the outcome, despite the fact defendant had a clean record and was only 17 years of age, was a conviction and a life sentence by the jury. 2
Additionally, since the administration of justice should be above reproach if the moral force of the law is to be maintained, I do not believe the false statement made by the state as to why the state was not going to call Brown as a witness can be overlooked or treated as of no consequence. The reason given — that Brown was unavailable because he had hepatitis and was in quarantine — leaves the impression the state would otherwise have used' him as a witness. In view of what Brown has said in the two 27.26 hearings in this case, it is quite clear the state would not have wanted him as a witness. The state correctly concluded it did not need Brown in order to convict Thomas and the state no doubt was aware that defense counsel had not interviewed Brown. We will never know whether the state knew that Brown would recant his confession as to the participation of Thomas if Brown were to testify in the Thomas trial, but we do know the state did not see fit to call as a witness at the 27.26 hearings any of the persons who handled its case at the original trial. We also know that the way the state handled its decision not to use or produce Brown eliminated any chance that Brown would be physically present in St. Louis during the trial and available to the defense for interviewing and questioning.
In my opinion, when we consider whether defendant Sanford Thomas had a fair trial we necessarily have to consider the question in light of what we know could have been presented to the jury had Brown been available and interviewed. So considered, Thomas did not have a fair trial. Brown was the ringleader and had he testified, defendant’s protestations of innocence would not have rested on defendant’s word alone. Perhaps the jury would not have believed Brown, but it is an impossible burden for any defendant to prove that the evidence which should have been uncovered and used would have acquitted him and we should not require this. It is clear, however, that the way defendant’s case was prepared and tried, combined with the untrue representation by the state as to Brown’s unavailability and why the state was not going to call him as a witness, deprived defendant of critical and possibly decisive evidence. A fortiori, he did not have a fair trial.
I would vacate the judgment and remand the case for a new trial.
. Lonnie Anderson was one of the group of young men who were together on the Sunday evening of the crime. He went to the bus station with the others and was present at Frederick Brown’s house later in the evening. Lonnie Anderson was also one of the witnesses whom defense counsel made no effort to interview or investigate.
. The jury did not give the defendant the death penalty, but this is hardly surprising and is not of major significance on the ineffective v assistance of counsel point, as the record shows the prosecution was willing to recommend a sentence of ten years if defendant would plead guilty, a clear indication of what the state thought of the chances of getting a death penalty.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9680209. Public record. Not legal advice.