Morris v. State

• Decision Date: 09 February 1976
• Docket Number: No. 59042,59042
• Citation: 532 S.W.2d 455
• Parties: Hubert M. MORRIS, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 455

532 S.W.2d 455

Hubert M. MORRIS, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 59042.

Supreme Court of Missouri, En Banc.

Feb. 9, 1976.

Robert E. Heisler, Clayton, for movant-appellant.

John C. Danforth, Atty. Gen., Robert H. House, Asst. Atty. Gen., for respondent.

MORGAN, Judge.

On September 19, 1968, appellant was tried, as a second offender, for the crime of Robbery in the First Degree. The jury returned a verdict of guilty; and, the court assessed punishment at confinement for eighteen years. The judgment was affirmed by this court on June 8, 1970, in an opinion reported at 454 S.W.2d 570 (Mo.).

On September 29, 1970, appellant filed a motion to vacate judgment and sentence pursuant to Supreme Court Rule 27.26. After an evidentiary hearing, the trial court entered findings of fact and conclusions of law and denied relief. While movant's appeal was pending in the Court of Appeals, St. Louis District, we sustained the state's application to transfer, prior to opinion, for the purpose of reexamining the existing law as to the stage of proceedings at which the right to counsel at a lineup attaches. Necessarily, other issues properly preserved for review will be considered.

In the opinion disposing of the original appeal, the facts were summarized as follows, l.c. 570 Defendant Morris does not question the sufficiency of the evidence to support his conviction; * * * Shortly after nine o'clock P.M., on March 7, 1968, two negro men, one armed with a revolver, entered the Quick Shop at 1923 North Hanley Road in St. Louis county, Missouri, pointed the gun at and threatened to shoot Jerome Link, and took from .link and Robert Murphy, employees in charge of the Quick Shop, approximately $200 and thirty cartons of cigarettes, property of their employer. Mr. Murphy identified defendant as one of the two robbers. Defendant was apprehended fleeing from the scene in an automobile a short distance from the Quick Shop and within a few minutes after the robbery.

Defendant did not testify. His witness, Lamar Huston, testified that he met defendant in front of a pool room in Kinloch near seven o'clock P.M., on a date he could not remeber; that he and an acquaintance named Earl agreed to take defendant to St. Louis in Earl's car for $2; that en route to St. Louis they were stopped on St. Charles Rock Road by the police at about 7:15 or 7:30 P.M., and defendant was arrested.

First, we consider the absence of counsel at the lineup held the morning after the arrest--late the night before. From the record made, it is impossible to determine exactly when the complaint was filed and a warrant was issued relative to the lineup. At the evidentiary hearing, appellant was of the opinion the lineup preceded issuance of the warrant. In any event, we must reexamine the existing law and seek to remove any uncertainty created by opinions of this court; and, we quote from a sufficient number to evidence the same.

In State v. Walters, 457 S.W.2d 817 (Mo.1970), the court said, l.c. 818--819:

The facts show that appellant did not have counsel at the lineup, but also that he had not been indicted and no information had been filed against him at that time. A number of other state jurisdictions have expressly held that the cases of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, apply only to post-indictment situations. People v. Palmer, 41 Ill.2d 571, 244 N.E.2d 173, 175(2, 3); People v. Cesarz, 44 Ill.2d 180, 255 N.E.2d 1, 4(2--5); People v. Green, 118 Ill.App.2d 36, 254 N.E.2d 663, 665(5); State v. Thomas, 107 N.J.Super. 128, 257 A.2d 377, 380; State v. Fields, 104 Ariz. 486, 455 P.2d 964, 965(1). See also Commonwealth v. Bumpus, 354 Mass. 494, 238 N.E.2d 343. In the concurring opinion of Hayes v. State, 46 Wis.2d 93, 175 N.W.2d 625, 633, after noting that the rationale of the Wade and Gilbert cases was that a postindictment lineup was a critical stage of the proceedings, it was said, 'At earlier stages the practical difficulties of appointing or arranging for the presence of counsel appears formidable. Thus the limiting of the Wade-Gilbert rule to post-indictment situations has sound reasons to recommend it. Regardless of the reasons, the limitation is stated in the rule. If the rule is to be extended to earlier stages or other situations, the court that authorized the rule should do the extending.' For a court holding contrary to the foregoing cases see People v. Fowler, 1 Cal.3d 335, 82 Cal.Rptr. 363, 461 P.2d 643, 650. For the reason that appellant's lineup identification preceded the filing of the information against him, the Gilbert rule does not apply.

In State v. West, 484 S.W.2d 191 (Mo.1972), the court said, l.c. 192:

The lineup was conducted on May 13, 1970; the information was filed June 29, 1970. The lineup having been conducted prior to the filing of the information the per se exclusionary rule of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, has no application. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (United States Supreme Court, June 7, 1972); State v. Chavez, Mo.Sup., 483 S.W.2d 68 (July 10, 1972).

In Arnold v. State, 484 S.W.2d 68 (Mo. 1972), the court said, l.c. 250:

The trial court's findings here indicate that the lineup in question occurred after the complaint charging movant had been filed and a warrant issued. Although filing of a complaint does not constitute a 'criminal prosecution' (State v. Caffey, Mo.Sup., 438 S.W.2d 167, 171(1, 2)), filing of a complaint is the first step in the institution of a criminal charge under Missouri procedure. State v. Nichols, 330 Mo. 114, 49 S.W.2d 14, 19(8, 11). The filing of a complaint and issuance of a warrant is the initiation of 'adversary judicial proceedings' within the Kirby case. Thereafter, right to counsel attaches, including the right, under Wade, to have counsel present in any planned confrontation with witnesses. The effect of denial of such right is determined, insofar as a witness's at-trial identification is concerned by the Wade requirement that the at-trial identification be based upon observations of the suspect other than the lineup identification. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. At-trial evidence of the lineup identification in the absence of counsel without waiver is subject to the per se exclusionary rule laid down in Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178.

In State v. Petrechko, 486 S.W.2d 217 (Mo.1972), the court said, l.c. 219:

Also, the lineup in this case was held before appellant was charged by indictment or information, and the persence of counsel was not required. Therefore, no advice concerning the right to presence of counsel was required. State v. Walters, Mo., 457 S.W.2d 817; Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411.

See also State v. Chavez, 483 S.W.2d 68, 69 (Mo.1972); State v. Hamilton, 490 S.W.2d 96, 97 (Mo.1973); Brown v. State, 495 S.W.2c 690, 695 (Mo.App.1973); and, State v. Jordan, 506 S.W.2d 74, 80 (Mo.App.1974).

In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the Supreme Court declared, l.c. 688, 689--690, 92 S.Ct. 1881--1883:

In a line of consititutional cases in this Court stemming back to the Court's landmark opinion in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, it has been firmly established that a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. See Powell v. Alabama, supra; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193; Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387.

The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of advsersary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the 'criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable. See Powell v. Alabama, 287 U.S., at 66--71, 53 S.Ct. at 63; Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; Spano v. New York, 360 U.S. 315, 324, 79 S.Ct. 1202, 1207, 3 L.Ed.2d 1265 (Douglas, J., concurring).

In this case we are asked to import into a routine police investigation an absolute constitutional guarantee historically and rationally applicable only after the onset of formal prosecutorial proceedings. We decline to do so. Less than a year after Wade and Gilbert were decided, the Court explained the rule of those decisions as follows: 'The rationale of those cases was that an accused is entitled to counsel at any 'critical stage of the prosecution,' and that a post-indictment lineup is such a 'critical stage. " (Emphasis supplied.) Simmons v. United States, 390 U.S. 377, 382--383, 88 S.Ct. 967, 970, 19 L.Ed.2d 1247. We decline to depart from that rationale today by imposing a per se exclusionary rule upon testimony concerning an identification that took place long before the...