State v. Gaye

• Decision Date: 25 November 1975
• Docket Number: No. 36418,36418
• Citation: 532 S.W.2d 783
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Tommy Sam GAYE, Defendant-Appellant. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 783

532 S.W.2d 783

STATE of Missouri, Plaintiff-Respondent, v. Tommy Sam GAYE, Defendant-Appellant.

No. 36418.

Missouri Court of Appeals, St. Louis District, Division Four.

Nov. 25, 1975.

Motion for Rehearing or Transfer Denied Jan. 23, 1976.

Application to Transfer Denied March 8, 1976.

Latney Barnes, Mexico, James E. Cafer, Vandalia, for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

NORWIN D. HOUSER, Special Judge.

Tommy Sam Gaye appeals from a conviction and sentence by a jury to 50 years' confinement on a charge of armed robbery by means of a dangerous and deadly weapon.

Appellant's main contention is that he was not afforded his Sixth Amendment right to counsel; that he did not waive his right to counsel; that he was totally incapable of representing himself and the court erred in compelling him to do so, and that no evidentiary hearing was conducted to determine his capacity to represent himself.

The State introduced evidence that on August 28, 1973, appellant held up Cruzan's Liquor Store in Mexico at gunpoint, robbed the operator of $942, fled in the automobile of a femal accomplice named Mae Louise Bruner; that the automobile was stopped by police and both were apprehended a few minutes after the robbery; that the $942 was found hidden in the underclothes of the accomplice.

Arraigned in magistrate court on August 31 and advised of his rights, appellant requested and was granted a continuance to September 14 to enable him to obtain and consult with counsel. Bond was fixed at $15,000. On September 14 appellant appeared in magistrate court with Attorney Granville Collins. At appellant's request a preliminary examination was set for October 5, on which date appellant appeared with Attorney Collins. At the conclusion of the preliminary examination the magistrate found probable cause and bound appellant over for trial in circuit court. An information was filed on October 10. On November 6 appellant was brought before the circuit court, without counsel. Attorney Collins had been employed to represent appellant only at the preliminary hearing. The circuit judge informed appellant that the punishment for the crime charged, if found guilty by a jury or on a plea of guilty, was imprisonment of not less than five years 'on up to life imprisonment.' Appellant wanted time to consult with an attorney and asked for a reduction of bail so he could 'get out and hire a lawyer.' The court conducted an informal inquiry into appeallant's past record and ability to make bond, reduced the bond to $7,500, and offered to appoint counsel to represent appellant. At appellant's request the court delayed appointment of counsel for a month to give appellant a chance to make bond and to employ a lawyer. On November 23 the court, at appellant's request, set the case over to December 3 to give appellant a further opportunity to make bond and employ counsel. The judge informed appellant at that time that if he failed to make these arrangements by that time the court would appoint counsel. Appellant failed to employ counsel, so on December 3 the court appointed Attorney G. Andy Runge to represent appellant. On the same day, after consulting with counsel, appellant was arraigned, plead not guilty, and the cause was set for trial January 17, 1974. On January 11 on motion Mr. Runge was permitted to withdraw as appellant's counsel. On the same day Attorney Melvin D. Benitz, employed by appellant's aunt, entered his appearance as attorney of record for appellant. The cause was continued to February 4 for a March trial setting, and was eventually reset for trial March 28. By letter postmarked March 23 appellant informed Mr. Benitz that he did no care to 'go any farther' with him and that Mr. Benitz need not come to the March 28 hearing. Upon receipt of the letter Mr. Benitz telephoned Circuit Judge George Adams, informed him that he had received the letter of discharge and requested leave to withdraw as counsel. Judge Adams refused to permit Mr. Benitz to withdraw, stating that since the case was set for trial it would be tried; that if appellant did not want Mr. Benitz to represent him appellant would try his own case. Judge Adams asked Mr. Benitz to sit at the table so that if appellant wanted the advice of an experienced attorney it would be available to him.

Prior to trial on the morning of March 28 Judge Adams conferred with appellant, Mr. Benitz and the prosecuting attorney. Judge Adams reviewed the history of the case in circuit court; informed appellant that he was going to have to try his case 'some day'; recited that the case had been set twice, and postponed since the previous November at appellant's request. Appellant remarked that the bond was too high, and that he would like to hire his own lawyer. The judge told appellant he was going to try the case himself 'this morning,' and asked appellant if he thought he would be better off trying it himself without a lawyer. Appellant responded, 'Like I don't have no other opportunity, you know. Like this is a must, you know. I must go to court but I'm not going to try my own case.' The court warned appellant: 'Well, you're going to sit there and the jury's going to hear the evidence and they're going to probably convict you if you don't attempt to do something. Do you think I'm going to let you just sit around and never be tried?' Appellant complained about the size of the bond. The judge responded that he had cut the bond from $15,000 to $7,500; that it is a serious charge which can carry life imprisonment; that the bond has to be substantial. Asked why he had waited until five days before trial to discharge his attorney appellant indicated that he came to the conclusion after talking to Mr. Benitz in January, at which time he was informed that the prosecutor would recommend 12 years upon plea of guilty; that he was 'not good for no robbery' and was not going 'to no penitentiary.' Concending that he could not make $7,500 bond, and being informed that the judge was not going to reduce it further, and asked by the judge, 'How are we ever going to try your case?,' appellant said, 'O, well, then, we might as well go on this morning and get the trial on * * * because I ain't going to keep going around in no circles, you know.' The judge agreed that they had been going around in circles; stated that he had given appellant every opportunity to procure counsel; reminded appellant that he had appointed a 'good lawyer' for appellant and that his folks had hired a 'good lawyer' for him, and concluded, 'There's just no use granting you a continuance if the next time you come up for trial you're going to do the same thing. You don't have a lawyer and you don't want to go to trial.' He reminded appellant that he had had four months, and asked, 'What if you don't go to trial today? Are you ever going to go to trial?' Appellant answered, 'Well, I'm ready to go to trial today.' The judge asked if he had any witnesses he wanted subpoenaed. Appellant said no. Asked if he wanted to act as his own lawyer appellant answered, 'I don't want to be my--I'll go in there.' The judge informed appellant that if he went into court and started talking when he was not supposed to the judge would put him back in jail and try him in his absence; that appellant was not going to 'make a monkey out of everybody else' because he wanted to talk; and pointed out that the prosecuting attorney was skilled and knew what he was doing, but that appellant was going to be 'at a tremendous disadvantage' in asking questions because he was not a lawyer. Appellant repeated willingness to try the case that day since the judge was not going to lower his bond. The judge said, 'I just feel like that I should go on and proceed with the trial because its obvious here we'll never try it.' Appellant said he was aware that he could dismiss Mr. Benitz or any other lawyer at any time; that he had the 'say-so' whether he should have him or not; that he did not see why the court should force Mr. Benitz upon him; that he had dismissed Mr. Benitz. The court observed, 'And every time your case is set you dismiss the next lawyer so you'll never be tried for robbery.' The prosecuting attorney suggested asking Mr. Benitz to sit at the counsel table, to be available if appellant wanted to talk to an attorney during the trial, so he would not have to rely upon the prosecuting attorney or judge as to what the legal consequences of certain matters might be. The court had told Mr. Benitz by telephone that he would not permit him to withdraw nor permit appellant to 'fire him to the extent that he wouldn't be in the courtroom,' available to consult with appellant and answer any questions appellant might ask. Appellant objected to Mr. Benitz sitting next to him at the counsel table but 'did not mind' Mr. Benitz remaining in the courtroom. The judge suggested Mr. Benitz remain inside the bar at the bench, in case appellant wanted to turn to him. The judge then advised appellant for the second time that he would be at a tremendous disadvantage; that he could try his own case if he wanted to but he did not know how; did not know what questions to ask to bring out matters in his own favor, or what questions to object to. The prosecuting attorney then advised appellant in detail what evidence the State intended to introduce, including the fact that Mrs. Brunder had turned State's evidence and would implicate him as the robber. Appellant commented, 'O man, o man.' The prosecutor stated appellant's guilt was clear; that the punishment should be serve and that he would ask the jury for a 50-year sentence, to punish appellant and deter others like-minded. Mr. Benitz asked if he was to be in the courtroom 'under judicial compulsion.' The judge answered in the affirmative; that he was not permitting him to withdraw; that Mr. Benitz' client had indicated h...