State v. Gates, 55989
Decision Date | 10 May 1971 |
Docket Number | No. 2,No. 55989,55989,2 |
Citation | 466 S.W.2d 681 |
Parties | STATE of Missouri, Respondent, v. Larry Raymond GATES, Appellant |
Court | Missouri 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.
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):
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 lawyer's...
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