State v. Gates, 55989

• Decision Date: 11 October 1971
• Docket Number: No. 55989,No. 2,55989,2
• Citation: 471 S.W.2d 272
• Parties: STATE of Missouri, Respondent, v. Larry Raymond GATES, Appellant
• Court: Missouri Supreme Court

Page 272

471 S.W.2d 272

STATE of Missouri, Respondent, v. Larry Raymond GATES, Appellant.

No. 55989.

Supreme Court of Missouri, Division No. 2.

Oct. 11, 1971.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.

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

STOCKARD, Commissioner.

Appellant was found guilty by a jury of robbery in the first degree, and when the jury could not agree on the punishment the court fixed the punishment at imprisonment for a term of forty years. A previous submission of this appeal was set aside and the case redocketed. See State v. Gates, Mo., 466 S.W.2d 681.

A jury reasonably could find that on April 12, 1969, appellant and two companions held up Ralph Emerson, a service station attendant at gun point and took a little more than $100 from him, and that appellant then shot Mr. Emerson in the wrist.

Appellant first contends that his constitutional rights were violated in that he was not represented by counsel at a lineup, and that he had not knowingly and intelligently waived his right to counsel.

A hearing was held out of the presence of the jury on appellant's motion to suppress evidence of the lineup identification. Police Officer Vernon Wilson testified that he advised appellant of his constitutional rights, and that appellant stated that he knew those rights but would not sign anything. He was then advised that there would be a 'show-up' and that he had a right to have counsel present if desired, and that if he could not afford counsel the public defender's office would be contacted. Thereafter appellant participated in a lineup of three persons without asking to contact an attorney or to have one present.

Appellant's contention is without merit for two reasons. First, the trial court found that appellant knew of his right to counsel and understandingly waived it. Those findings are clearly supported by the evidence. The trial court was not bound to believe appellant's testimony inferring the contrary. Second, the lineup was held only a few hours after appellant was arrested and before any charge was filed against him. In State v. Walters, Mo., 457 S.W.2d 817, this court ruled that the cases of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, upon which appellant relies, do not apply to a lineup held prior to the filing of an indictment or information. There is no contention that the lineup was unnecessarily suggestive or conducive to irreparable mistaken identification within the proscription of Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.

Appellant next contends that his arrest was unlawful, and that all subsequent proceedings were tainted by the unlawful arrest.

Appellant was arrested seven days subsequent to the robbery by Police Officer Vernon Wilson who had received information from a confidential informant that appellant was one of the robbers and the one who did the shooting. A black 1958 Chevrolet automobile had been used in the robbery and an automobile matching that description was in front of appellant's house. The officer had been investigating another...