State v. Gant

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM
• Citation: State v. Gant, 490 S.W.2d 46 (Mo. 1973)
• Decision Date: 12 February 1973
• Docket Number: No. 2,No. 56964,56964,2
• Parties: STATE of Missouri, Respondent, v. Frederick Tyrone GANT, Appellant

Page 46

490 S.W.2d 46

STATE of Missouri, Respondent, v. Frederick Tyrone GANT, Appellant.

No. 56964.

Supreme Court of Missouri, Division No. 2.

Feb. 12, 1973.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.

Willard B. Bunch, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant; Paul T. Miller, Executive Director, Kansas City, of counsel.

STOCKARD, Commissioner.

Frederick Tyrone Gant was found guilty by a jury of first degree murder and sentenced to life imprisonment. The notice of appeal was filed before January 1, 1972. Appellante jurisdiction is in this court.

A jury reasonably could find from the evidence that about four o'clock of the morning of July 1, 1970, appellant and two companions entered a Clark service station in Kansas City, Missouri, and by use of a gun robbed Herb H. Green and Charles Wright, attendants. After the money was obtained, Green and Wright were ordered to go to a back room, and while they were in a kneeling position both were shot. Wright died from the injuries inflicted.

Prior to trial appellant moved to suppress all evidence of identification. An evidentiary hearing was held, and the motion was overruled. On this appeal it is asserted that the trial court erred because (1) the lineup was the result of an illegal arrest; (2) appellant did not have counsel at the lineup; (3) the lineup was conducted under suggestive circumstances.

We need not in this case rule the issue of whether evidence of identification at a lineup should be suppressed when the lineup follows an unlawful arrest for the reason that we have concluded that in the circumstances of this case there was probable cause for the arrest of appellant.

The money taken in the robbery consisted of bills and coins. In addition two coin changers were taken with their contents. On July 17, one week after the robbery, Police Detective Kenneth Riddell, who was investigating the robbery, was contacted by an informer, well known to Officer Riddell, who frequented the area where the robbery occurred. The informer told Officer Riddell that appellant participated in the robbery and the homicide of Charles Wright, and that appellant had been seen in the area at a market exchanging coins for paper money. Officer Riddell had used this informer on prior occasions and considered him to be reliable source of information. On cross-examination of Officer Riddell pertaining to the reliability of his informer, he stated that another person referred to by the informer as having committed a different homicide was arrested and later admitted his part in the homicide, and that the informer had previously furnished him the name of a person who was later arrested and charged, but he did not know the disposition of that case.

When Officer Riddell received the above information it was his duty as a police officer to continue his investigation and determine whether appellant participated in the robbery and homicide. The next logical step would be to find out whether Mr. Green could identify appellant as the robber. Because the information received was considered to be reliable, Officer Riddell issued what was called a 'pick up order.' It is true that when appellant was 'picked up' an arrest occurred in the sense that he was restrained and taken to the police station. The purpose was for further investigation, and that investigation was to determine whether the only living victim could or could not identify him as the robber. It would be unreasonable and unrealistic to hold that before appellant could be 'picked up' and placed in a lineup that the police had to have such 'probable cause' as would be sufficient to sustain a conviction. In determining the validity of an arrest for a felony, 'we are dealing with the probability, and not the certainty, that an offense has been or is being committed. While probable cause implies that the information which has come either directly or indirectly to the arresting officers' knowledge must rise above mere suspicion of criminal activity, it at the same time need not be tantamount to that quantum of proof which would sustain a conviction of guilt.' Clay v. United States, 8 Cir., 394 F.2d 281. See also State v. Berstein, Mo., 372 S.W.2d 57. The test is whether the arresting officer had 'reasonable ground to suspect that the person arrested has committed a felony.' State v. Bailey, 320 Mo. 271, 8 S.W.2d 57: For additional discussion, see Mueller v. Powell, 8 Cir., 203 F.2d 797. Information from an informer who is reasonably considered by the police officer to be reliable justifies an arrest, and the informer's information need not be first hand. Hawkins v. United States, 8 Cir., 288 F.2d 537. We note with interest that although appellant challenges the right of the police to take him into custody under the above circumstances, in his brief he is highly critical of the police for not taking a person by the name of Byrd into custody and placing him in a lineup when the only basis therefor was that Mr. Green had said that a photograph of Byrd 'looked like or possibly resembled' the robber, but he could not identify him as such.

The trial court determined the arrest of appellant to have been made with probable cause. That determination is supported by the evidence, and is not clearly erroneous.

Appellant's second point is that evidence of his identification at the lineup should have been suppressed because counsel was not present. In an amended brief appellant admits that the lineup was held prior to any charge being filed. In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, it was held that there was no constitutional requirement that counsel be present at such lineup. See also State v. Walters, Mo., 457 S.W.2d 817. However, in his amended brief appellant asserts that the Public Defender Law, House Bill 1314, 1972 Regular Session, effective August 13, 1972, created a statutory right of an indigent to counsel at every lineup regardless of when held. Reliance is placed on § 8, 3 of the Act which sets forth the duties and scope of responsibilities of the Public Defender as follows: 'Representation (of indigents) shall extend to all stages of the proceedings, including interrogation, custody, preliminary hearing, arraignment, trial and appeal, if any, * * *.' Appellant also relies on par. 1 of the same section which provides: 'Each circuit public defender * * *...