Lowe v. State, 56139
| Decision Date | 28 June 1971 |
| Docket Number | No. 56139,No. 2,56139,2 |
| Citation | 468 S.W.2d 644 |
| Parties | John Charles LOWE, Movant-Appellant, v. STATE of Missouri, Respondent |
| Court | Missouri Supreme Court |
Lawrence W. Cullen, St. Louis, for movant-appellant.
John C. Danforth, Atty. Gen., Jefferson City, for respondent.
BARRETT, Commissioner.
After a two-day trial in July 1968, John Charles Lowe was found guilty of burglary and stealing. He was sentenced to seven years' imprisonment for the burglary and four years for stealing, the sentences to run concurrently. The judgment and sentences were affirmed upon direct appeal in State v. Lowe, Mo., 442 S.W.2d 525. In 1970 Lowe instituted a 27.26, V.A.M.R., proceeding, there was a hearing in that proceeding on June 17, 1970, and the court after making findings of fact and conclusions of law denied relief and he has appealed, represented here by court-appointed counsel as he was upon the original trial and appeal.
Upon this appeal there is the single claim that in his original trial he was denied effective assistance of counsel and therefore should now be discharged. The charge of ineffective counsel arose in these circumstances: In Phil's Hotel, 700 S. Broadway, there is a tavern, and restaurant in addition, of course, to hotel rooms. On May 17, 1968, Lowe rented and was assigned room 35. Lowe and a friend, known in this record only as 'Robert,' spent most of the day in the tavern. The following morning, about 6 o'clock, it was discovered that the tavern door was broken, that the tavern had been entered and a quantity of cigarettes stolen, the cigarette machine broken into, some chewing gum and money taken. Police officers were admitted to room 35 and only Robert was in the room. Police searched the room, however, and found some cigarettes and other property that had been removed from Phil's Tavern. The cigarettes were identified by tax numbers identical with the numbers on the packages remaining in the cigarette machine and those found in room 35 in Phil's Hotel. Also on the morning of May 18 Lowe was arrested in his room in the St. Regis Hotel and, after Miranda and other warnings, that room was searched and cigarettes and other property from Phil's Tavern were found in that room. Upon Lowe's trial all these objects were offered and admitted in evidence. In these circumstances it is claimed that the search and seizure in room 35 of Phil's Hotel were illegal, that Lowe's arrest was illegal and the admissions or confession to police were illegal and that he was denied effective assistance of counsel because his lawyer did not file a motion to suppress both the evidence seized and the confession. In the noted background it is the appellant's claim that his cause falls within the unlawful search and seizure in the hotel room in Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856, and the 'fruit of the poisonous tree' doctrine of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.
Appellant's lawyer in his original trial was as the court found a highly respected, experienced lawyer. He was admitted to the Missouri bar in 1941, had tried about fifty jury cases, and from 1951 through 1953 had been an assistant United States District Attorney and had tried some criminal cases for the government although from 1953 to 1968 he had tried no criminal jury cases. In the hearing of this motion the transcript of the original trial was admitted in evidence and there were but two witnesses, Lowe and his trial lawyer. The lawyer had at least two conferences with Lowe before trial. He talked to the assistant prosecutor in charge of the case, went to the scene of the burglary and stealing and talked to the witnesses there. In addition he filed a motion for the production of any statements and admissions and he made an oral motion to suppress the confession and that motion was heard and overruled. In this connection he as well as the trial...
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Tidwell v. State
...failure of defense counsel to file a motion to suppress does not necessarily constitute ineffective assistance of counsel. Lowe v. State, 468 S.W.2d 644, 646 (Mo.1971). Also, the failure to object to testimony or evidence is often described as trial error not warranting relief, and the matt......
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Merrick v. Bowersox
...that states that the failure of "counsel to file motions to suppress does not of itself establish ineffective counsel." Lowe v. State, 468 S.W.2d 644, 646 (Mo. 1971). Because the Motion Court found no deficient performance, it did not address whether the alleged ineffective assistance was p......
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Cook v. State, 35333
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Brown v. State
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