State v. Gray

• Decision Date: 11 December 1973
• Docket Number: No. 35177,35177
• Citation: 503 S.W.2d 457
• Parties: STATE of Missouri, Respondent, v. Firman Bill GRAY, Defendant. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 457

503 S.W.2d 457

STATE of Missouri, Respondent, v. Firman Bill GRAY, Defendant.

No. 35177.

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

Dec. 11, 1973.

Daniel B. Hayes, Asst. Public Defender, Clayton, Robert E. Heisler, Legal Aid Society, St. Louis, for defendant.

George R. Westfall, Asst. Pros. Atty., Clayton, for respondent.

McMILLIAN, Judge.

This is an appeal by defendant Firman Bill Gray from a judgment entered by the Circuit Court of St. Louis County on a jury verdict of guilty to the charges of Robbery in the First Degree by means of a Dangerous and Deadly Weapon, Attempted Robbery in the First Degree by means of a Dangerous and Deadly Weapon, and Assault with Intent to do Great Bodily Harm with Malice Aforethought. Defendant was sentenced to serve a term of thirty years, fifteen years, and thirty years respectively in the custody of the Department of Corrections. Each Count was to run concurrently.

Defendant contends that the court erred in the following respects: (1) failure to have counsel present at the pre-informational lineup; (2) failure to suppress evidence obtained as a result of an unreasonable search and seizure; (3) failure to grant a new trial for 'plain error' as a result of the court's comment upon defendant's failure to testify; (4) admission into evidence of exhibits which were inflammatory and prejudicial; and (5) the giving of erroneous and misleading instructions to the jury. We find that the trial court's comment on defendant's failure to testify was 'plain error' and accordingly reverse.

On January 8, 1972, at about 1:15 A.M., as Robert E. Hitchcock and Frankie Ray Bush were leaving Yacovelli's Restaurant located in St. Louis County, they heard a gunshot in the parking lot adjoining the restaurant. When they turned around, they saw two men approaching them. Both appeared to be black, of different heights, and the taller man had a gun. Both men approached the victims face to face, encircled them, and subsequently stood behind them throughout most of the encounter. The taller man asked the victims for their wallets; Mr. Bush complied, but Mr. Hitchcock hesitated and was shot in the hand. Thereafter the two men backed off and ran. Mr. Hitchcock ran inside the restaurant to call the police. As Mr. Bush recovered Mr. Hitchcock's wallet in the parking lot, he noticed a white 1962 Ford Convertible pull away. Immediately Bush ran inside and informed Hitchcock, who then relayed the description of the suspects and the car to the police.

A few minutes later, Patrolman Ricks received a radio dispatch from the Kirkwood Police Department which stated: 'A holdup; two colored males wearing leather jackets and skinner hats and sunglasses . . . on foot . . .' Shortly after receiving the dispatch Patrolman Ricks passed a white 1962 Ford Convertible that was going in the opposite direction. After he turned around to pursue the white convertible and while in the process of pulling the car over, he received another message that there was a car involved in the holdup and that car fitted the description of the white Ford Convertible he had stopped.

In the car were four occupants. After the driver was ordered to get out of the car and placed under arrest, Patrolman Ricks received an assist from Sergeant Harris. Officer Harris' search revealed some money, a hatchet, guns, a hammer, and one glove. Later the car was taken to the police garage where a more thorough search was conducted.

Later that morning, defendant appeared in two lineups and was viewed by Bush and Hitchcock. Nine men were in the lineup, and each was required to say, 'My name is John Doe.' There was some hesitancy about the identifications; and thus, the second lineup was held. Between the first and second lineup some discussion, outside the viewing room, took place between the victims and the police.

Prior to the lineup, Gray requested and was permitted to telephone the Chief Public Defender of St. Louis County. After a short conversation, the Public Defender advised him that his attendance would not be helpful, and if it was alright with defendant he would not attend. Defendant replied, '. . . (D) on't bother to come down.' Later defendant was identified by both victims as the smaller man who had participated in the robbery.

Defendant's contention that he had a right to counsel at his pre-informational lineup cannot be sustained. He relies heavily upon United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) and attempts to find support for his position in the holding of Arnold v. State, 484 S.W.2d 248 (Mo.1972). In both Wade and Gilbert the lineup took place after indictment, while in our case the lineup was held before an information was founded. Moreover, in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the U.S. Supreme Court held that a police station 'show up' that took place after petitioner's arrest but before he had been indicted or otherwise formally charged was not a critical stage of a criminal prosecution at which petitioner had a constitutional right to counsel. The court also held that the victim's testimony at trial describing his 'show up' identification of defendant, who was not represented by counsel at the show up, was admissible. Furthermore, in Arnold v. State, supra, our own Supreme Court has said that the right to counsel attaches at the time the complaint is filed and the warrant is issued. So, too, in State v. Walters, 457 S.W.2d 817, 819 (Mo.1970), the court specifically held that a defendant's lack of counsel at lineup did not deprive him of his right to counsel or due process where defendant had not been indicted and no information had been filed against him prior to the time of lineup. Consequently, this point is resolved against the defendant. While the writer has resolved this issue against defendant, it is my personal opinion, that if Wade, supra; Gilbert, supra, and Arnold, supra, have any validity for the reasons designated therein that after indictment or filing of an information, or after filing of a complaint and a warrant issued, the proceedings have become adversary and hence 'a critical stage' of the proceedings; then on principle the same reasons should obtain and carry over, absent exigent circumstances to a lineup conducted after arrest especially when the investigation has focused upon the arrestee as the suspect. Once he has been identified by the victim, pre-informational or post-informational, to a large extent he has had his trial. While I recognize society's need for early detection of criminal activities, I fail to see in what significant way its societal needs are abridged by permitting the accused, absent exigent circumstances, to have counsel present at this critical juncture--otherwise, counsel appointed at some later stage is completely at a loss to properly reconstruct what transpired at the initial confrontation so as to meaningfully be of assistance to his client.

Defendant also contends that the out-court and in-court identifications should have been suppressed because he was denied a fair lineup under the 'totality of the circumstance.' Our review of the record shows that the lineup was held four hours after defendant's arrest; that defendant and three other suspects were placed in a lineup with five other men; all nine were black males; and that defendant and his co-defendant Tommy Berry were the only two who wore undershirts for upper garments. There is no evidence that defendant in any way was singled out by the police during the lineup in a manner that would be prejudicial. Nor, do we find anything prejudicial because defendant's upper garment was an undershirt; if anything, it was favorable to defendant since the assailants wore shirts and jackets. In State v. Boothe, 485 S.W.2d 11 (Mo. banc 1972), the court held that each case must be considered on its facts and evaluated in light of the totality of the surrounding circumstances. In each case three points are to be considered: (1) the presence of an independent source of identification; (2) the absence of any suggestive influence by others; and (3) positive courtroom identification. Using these criteria as a yardstick, we find that the victims had an independent basis for identification, since they were able to see their assailants as the assailants approached and spoke to them. So, too, neither the police nor anybody else indicated to the victims by any means whatsoever which of the nine subjects were the suspects. And, finally, each victim made an independent positive identification of the defendant as one of the two people who robbed them. Consequently, this claim of error is unavailing.

Likewise, we find that defendant's claim that the search and seizure of the automobile was violative of the Fourth Amendment of the U.S. Constitution and Art. I, Sec. 15 of the Missouri Constitution, V.A.M.S., to be without merit. The evidence shows that the arresting officer not only had knowledge that a crime had been committed and a description of the assailants, but also a description of an automobile used by the assailants to leave the scene. Thus, probable cause having been established, the officer was permitted to conduct a warrantless, contemporaneous search as an incident to a lawful arrest--not only to recover the fruits of the crime and...