State v. Gates, 55989

Decision Date10 May 1971
Docket NumberNo. 2,No. 55989,55989,2
PartiesSTATE of Missouri, Respondent, v. Larry Raymond GATES, Appellant
CourtMissouri Supreme Court

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

John P. Haley, Jr., Kansas City, for appellant.

DONNELLY, Presiding Judge.

Appellant, Larry Raymond Gates, was convicted of robbery in the first degree in the Circuit Court of Jackson County, Missouri, and his punishment was assessed at imprisonment for a term of forty years. Following rendition of judgment and imposition of sentence, an appeal was perfected to this Court.

The question directly presented on this appeal is: What are the duties and responsibilities of appellate counsel, employed and appointed, in criminal cases? The Supreme Court of the United States spoke on the question in two cases decided in 1967.

In Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 (decided March 13, 1967), the Court declared invalid our former practice of (1) not requiring counsel on appeal and (2) of considering on appeal the questions raised in the trial court by the motion for new trial on the basis of pro se briefs or on the basis of no briefs at all. The Court was of the opinion that indigent defendants are entitled to the 'assistance of appellate counsel in preparing and submitting a brief to the appellate court which defines the legal principles upon which the claims of error are based and which designates and interprets the relevant portions of the trial transcript * * *.'

In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (decided May 8, 1967), the Court was 'concerned with the extent of the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent's appeal.' The Court said (386 U.S. 738, 744--745, 87 S.Ct. 1396, 1400): 'The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client's appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court--not counsel--then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.

'This requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a nonindigent defendant is able to obtain. It would also induce the court to pursue all the more vigorously its own review because of the ready references not only to the record, but also to the legal authorities as furnished it by counsel. The no-merit letter, on the other hand, affords neither the client nor the court any aid. The former must shift entirely for himself while the court has only the cold record which it must review without the help of an advocate. Moreover, such handling would tend to protect counsel from the constantly increasing charge that he was ineffective and had not handled the case with that diligence to which an indigent defendant is entitled. This procedure will assure penniless defendants the same rights and opportunities on appeal--as nearly as is practicable--as are enjoyed by those persons who are in a similar situation but who are able to afford the retention of private counsel.'

In the 1970 tentative draft of ABA Standards, The Prosecution Function and The Defense Function, the Advisory Committee noted (p. 298) that the Court, in Anders, (1) 'wanted to prevent withdrawing counsel from filing a brief against the appellant's position in order to demonstrate frivolity,' and (2) 'believed that the brief of withdrawing counsel for the appellant could be quite useful to the appellate court.' The Advisory Committee also observed that '(n)either of these laudable purposes solves the dilemma posed for counsel who is required to brief the unbriefable.'

The position taken by the Advisory Committee in an attempt to solve this 'dilemma' is as follows (pp. 300--302):

'On the premise that the lawyer is of greater aid to the court by remaining with a weak or groundless appeal than by withdrawing, the preferable position is for him to remain even at some cost to the concept of professional independence of the lawyer. The lawyer cannot properly engage in advocacy calculated to mislead or deceive the court, and no lawyer should do so. But, in this situation, appearance of counsel is not an implicit representation to the court that he believes in the legal substantiality of the contentions advanced. The court should not take an absence of a request to withdraw as an indication of the...

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  • Gum v. Dudley, 23845.
    • United States
    • West Virginia Supreme Court
    • December 8, 1997
    ...cannot properly engage in advocacy calculated to mislead or deceive the court, and no lawyer should do so.'" Quoting State v. Gates, 466 S.W.2d 681, 683 (Mo.1971)); Williams v. Superior Court, 46 Cal. App.4th 320, 330, 53 Cal.Rptr.2d 832, 838 (1996) ("`Honesty in dealing with the courts is ......
  • State v. Horine
    • United States
    • Oregon Court of Appeals
    • November 25, 1983
    ...the Supreme Court's position in Anders." ABA Standards Relating to the Defense Function, Commentary at 299-300 (T.D.1970). State v. Gates, 466 S.W.2d 681 (Mo.1971) (adopting ABA approach). North Dakota has adopted the converse approach in State v. Lewis, 291 N.W.2d 735 (N.D.1980), holding t......
  • Com. v. Moffett
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    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 24, 1981
    ...State v. McKenney, 98 Idaho 551, 568 P.2d 1213 (1977); Dixon v. State, 152 Ind.App. 430, 436-437, 284 N.E.2d 102 (1972); State v. Gates, 466 S.W.2d 681, 684 (Mo.1971). See Note, Withdrawal of Appointed Counsel from Frivolous Indigent Appeals, 49 Ind.L.J. 740, 747 (1974). Aside from the poss......
  • A.C. v. Cabinet for Health & Family Servs., No. 2011–CA–000504–ME.
    • United States
    • Kentucky Court of Appeals
    • February 24, 2012
    ...98 Idaho 551, 568 P.2d 1213 (1977); Mosley v. State, 908 N.E.2d 599 (Ind.2009); State v. Junkins, 779 A.2d 948 (Me.2001); State v. Gates, 466 S.W.2d 681 (Mo.1971); Ramos v. State, 113 Nev. 1081, 944 P.2d 856 (1997); State v. Cigic, 138 N.H. 313, 639 A.2d 251 (1994); and State v. Lewis, 291 ......
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