State v. McMillin

BLACKMAR, Chief Judge,

concurring in part and dissenting in part.

I concur in the portion of the judgment which affirms the conviction and sentence in the direct appeal. I believe, however, that the trial judge should not have dismissed the Rule 29.15 motion, and so would remand the case for further proceedings on that motion.

I. The Direct Appeal

I agree with everything that is said in Parts I, III, IY-A subparts 1, 2, 3, and 4, IY-B (all subparts), and V of the principal opinion. As the opinion points out, most of the errors are not preserved. I see nothing even approaching “plain errors affecting substantial rights” within the meaning of Rule 29.12(b). I have the distinct impression that the defendant received a fair trial, and that he was vigorously defended by competent counsel.

Appellate counsel has fully briefed un-preserved points as though they had been properly preserved. I would not preclude appellate counsel from asserting claims of plain error, but lawyers should realize that plain error will not be found unless something startling appears. See State v. Stuart, 456 S.W.2d 19 (Mo. banc 1970), in which the Court found plain error in a juror’s improper question, despite my efforts to uphold the conviction. Failure to preserve a point properly for appellate review is a procedural default, so that the appellate court may find that the point has been waived.

The principal opinion declines to deal with points of improper closing argument as plain error. This Court has discretion to omit discussion of unpreserved points. We do not have to treat unpreserved points as though they had been preserved properly. I would make the observation, however, that I find nothing in the closing argument which would support a holding of plain error. There is nothing resembling the situation in Newlon v. Armontrout, 885 F.2d 1328 (8th Cir.1989).

II. The Rule 29.15 Motion

I do not believe that the trial judge acted appropriately in dismissing the Rule 29.15 motion, on the basis of the defendant’s notarized request, filed at a time when he was represented by counsel. The record shows the following:

November 15, 1988 — Defendant files “Motion to Vacate, Set Aside or Correct the Judgment or Sentence.”

December 21, 1988 — Appointed counsel for the defendant files “Request for Hearing,” “Request for Extension of Time,” and “Motion and Application for Change of Judge.”

January 5, 1989 — The defendant filed “Motion to Withdraw, Motion 29.15,” signed and notarized January 3, 1989.

January 17, 1989 — Defendant’s appointed counsel filed “Motion for Extension of Time to File Amended Motion for Post-Conviction Relief” and also “Amended motion under Rule 29.15.”

January 31, 1989 — Counsel filed “Suggestions in Opposition to Dismissal” and “Motion for Mental Evaluation.”

February 14, 1989 — The Court, after hearing counsel, but without hearing or *108-130 confronting the defendant, entered an order dismissing the 29.15 motion.

We have consistently held that a defendant has the right to appear in court in person or through counsel, but not both. Defendants not infrequently request permission to dismiss their counsel and to conduct their own defense. It is the invariable practice for the court to conduct an inquiry into these requests, to warn the defendant about the problems of self-representation, and to determine whether the defendant has the capacity to conduct a defense. Requests for joint representation are uniformly rejected, and requests coming during the progress of a trial are frequently rejected. The defendant’s bare assertion of a desire for self-representation is not necessarily accepted.

In the appellate courts a defendant who is represented by counsel is not allowed to file a pro se brief. The defendant is required to appear only through counsel. Here counsel was appropriately appointed for the defendant, in accordance with the terms of 29.15, and proceeded with his assignment. Under these circumstances the court should not accept the-defendant’s pro se filing without further inquiry.

I also believe that it would be the course of wisdom for the court to order a mental examination before accepting the defendant’s request to terminate the 29.15 proceeding. The suggestion that cause need be shown before the examination is ordered is circular. One does not know what the examination might show. Courts should freely accept counsel’s suggestions for examination in death sentence cases. This will save trouble later. See Smith v. Armontrout, 632 F.Supp. 503 (W.D.Mo.1986), affirmed 812 F.2d 1050 (8th Cir.1987).

I would affirm the judgment of conviction but would reverse the dismissal of the 29.15 motion and would remand for further proceedings on that motion.