State v. Hamilton, 56504

• Decision Date: 12 February 1973
• Docket Number: No. 2,No. 56504,56504,2
• Citation: 490 S.W.2d 96
• Parties: STATE of Missouri, Respondent, v. Tyrone HAMILTON, Appellant
• Court: Missouri Supreme Court

Page 96

490 S.W.2d 96

STATE of Missouri, Respondent, v. Tyrone HAMILTON, Appellant.

No. 56504.

Supreme Court of Missouri, Division No. 2.

Feb. 12, 1973.

John C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, for respondent.

Michael J. Tannler, Joseph H. Weyhrich, St. Louis, for appellant.

STOCKARD, Commissioner.

Tyrone Hamilton was found guilty by a jury of robbery in the first degree by means of a dangerous and deadly weapon, and punishment was assessed at imprisonment for a term of ten years. The notice of appeal was filed prior to January 1, 1972. Appellate jurisdiction is in this court.

The sufficiency of the evidence to sustain the verdict is not challenged. Briefly stated, a jury reasonably could find that on the evening of July 9, 1970, appellant and two companions, by use of guns, robbed Calvin Pickett, an attendant at a Standard service station, and Thomas Marshall, a friend of Pickett's. The police were called, and Pickett, while riding in a police automobile about three blocks from the service station, pointed out appellant and his companions to the police officers. Appellant and the others ran when they saw the police automobile, but Officer Thomas pursued and apprehended appellant. After having been given the 'Miranda' warnings appellant stated to Officer Thomas that he had participated in the robbery. Officer Thomas returned to the area where the chase started and found a .22 caliber gun.

Prior to trial appellant moved to suppress all evidence of identification and of statements allegedly made by him. After a hearing the trial court sustained the motion as to any lineup identification, but overruled it in all other respects.

Appellant first contends that the trial court erred in denying his motion to suppress in-court identifications because such identifications were the product of 'lineups conducted in violation of (appellant's) right to counsel,' and that the State failed to sustain its burden of showing an independent basis for the in-court identifications.

While the record does not show the precise reason for the ruling of the trial court, it appears that the lineup identifications were suppressed on the basis that the lineups were conducted without counsel being present or waived. However, the lineups were held before any charge had been filed against appellant, and the per se exclusionary rule of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, was not applicable. State v. Walters, Mo., 457 S.W.2d 817; Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411. Therefore, the lack of counsel at the lineups could not justify the suppression of the in-court identifications. The evidence does not disclose anything concerning the lineups which was unduly suggestive or otherwise improper. Both victims of the robbery had a clear view of appellant during the robbery. Mr. Pickett described appellant to the police immediately after the robbery, and then pointed him out to the police a few minutes later only a few blocks from the scene of the crime. Assuming the lineups were improper for some reason, the evidence discloses that the witnesses had a source of identification independent of the lineups, and the trial court so found. That determination was not clearly erroneous.

Appellant next contends the trial court erred in refusing to suppress statements by him because it was not shown that he knowingly and intelligently waived his privilege against self-incrimination or his right to have retained or appointed counsel....