State v. Hill

• Court: Missouri Supreme Court
• Writing for the Court: FRED E. SCHOENLAUB; HENLEY, P.J., and SEILER; STORCKMAN
• Citation: State v. Hill, 438 S.W.2d 244 (Mo. 1969)
• Decision Date: 13 January 1969
• Docket Number: No. 53137,No. 1,53137,1
• Parties: STATE of Missouri, Respondent, v. Willie Edward HILL, Appellant

Page 244

438 S.W.2d 244

STATE of Missouri, Respondent, v. Willie Edward HILL, Appellant.

No. 53137.

Supreme Court of Missouri, Division No. 1.

Jan. 13, 1969.

Motion for Rehearing or to Transfer to Court En Banc Denied

March 10, 1969.

Norman H. Anderson, Atty. Gen., Jefferson City, Albert J. Stephan, Jr., Sp. Asst. Atty. Gen., St. Louis, for respondent.

Robert W. Herr, Tom Mendelson, St. Louis, for appellant.

FRED E. SCHOENLAUB, Special Judge.

Defendant was found guilty by a jury of robbery in the first degree. Section 560.120 RSMo 1959, V.A.M.S. Upon a finding of two prior felony convictions by the court, he was sentenced to eight years in the custody of the Department of Corrections. Sections 556.280 and 560.135 RSMo 1959, V.A.M.S. Defendant's motion to set aside the verdict and direct a verdict of acquittal, or in the alternative to grant a new trial, was overruled and he appealed.

In his brief defendant assigns as error the action of the trial court overruling his motion to dismiss the information because of the failure to provide counsel at his preliminary hearing, overruling his motion for judgment of acquittal based on insufficient identification of defendant, and giving of the court's verdict directing instruction.

Howard Davis owned and operated a radio service business at 3305 Easton in the City of St. Louis under the name Howard's Radio Service. Laird Simpson, 16 years of age and in the eighth grade of school, was employed by Davis as a clerk and service man. On November 26, 1966, at approximately 4:00 P.M., and while Davis and Simpson were attending the shop, one George Jackson, an acquaintance of Davis for approximately twelve years, entered. After some conversation, and at the request of Jackson, Davis demonstrated an automobile stereo tape player. Jackson left and returned later with his wife, at which time there was another demonstration of the tape player. Some time between 4:45 P.M. and 5:00 P.M., the Jacksons left the shop. Davis then departed, leaving Simpson in charge.

Shortly after Davis left defendant appeared at the door asking for Davis. He was admitted to the shop, whereupon he attempted to forcibly take the tape player. The tape player was fastened to the counter by a chain, and he was unable to pull it loose. He then displayed a gun and demanded the tape player. Simpson unscrewed the chain and handed the tape player to him. During this period Jackson reappeared in the store, remained a short while, but left without either participating in or attempting to stop the robbery. Patrolman Kevin Condon investigated the robbery at the scene, where he was advised by Simpson that two negro males and one negro female held him up. Simpson gave Officer Condon Jackson's name along with a description of Jackson's car and of defendant. He described defendant as being a negro male, about 27 years old, four feet nine inches tall and wearing a heavy mustache, goatee, black hat, black trench coat and gold shirt. Four days later, on November 30, 1966, George Jackson, his wife and defendant were arrested by Officer Condon in Jackson's automobile. They were taken to the Ninth District Police Station where identification was made by Laird Simpson.

Defendant and George Jackson were jointly charged with first degree robbery and the preliminary hearing was held in the St. Louis Court of Criminal Corrections on December 13, 1966. Jackson was represented by an attorney from the St. Louis Public Defender's office. Defendant was not represented by counsel, and although present at the hearing he did not participate.

In his brief defendant first argues that the preliminary hearing is a critical stage in all criminal proceedings, requiring appointment of counsel for indigent defendants. This argument has been considered extensively by this court on other occasions. It has been consistently rejected, and the authorities cited in support of it have been held to have no application to the Missouri preliminary hearing. In State v. Turner, Mo., 353 S.W.2d 602, 604, this court held that 'A preliminary examination is not a trial of the accused for the offense alleged in the complaint but merely an inquiry to determine if there is probable cause to believe that a felony has been committed and that the accused is the offender so that he may be bound over and formally charged and tried in the circuit court or discharged if probable cause is not found. A preliminary hearing is designed to prevent possible abuse of power by the prosecution and at the same time permit the arrest and detention of an accused in a proper case. Neither the federal or state constitution, nor any of our statutes require the magistrate to appoint counsel for the accused at a preliminary examination.' To like effect see also State v. Phelps, Mo., 384 S.W.2d 616; State v. Owens, Mo., 391 S.W.2d 248; State v. McClain, Mo., 404 S.W.2d 186; State v. Quinn, Mo., 405 S.W.2d 895; State v. Smith, Mo., 411 S.W.2d 208; State v. Benison, Mo., 415 S.W.2d 773; State v. Turley, Mo., 416 S.W.2d 75; State v. Durham, Mo., 416 S.W.2d 79; State v. Patrick, Mo., 420 S.W.2d 258; State v. Harris, Mo., 425 S.W.2d 148; State v. Jefferson, Mo., 426 S.W.2d 41; State v. Peck, Mo., 429 S.W.2d 247.

Defendant next contends that because of the particular facts in this case the preliminary hearing was 'a critical stage' for him and that he was prejudiced by the absence of counsel. He argues that the failure to appoint counsel to assist him resulted in 'unfairness and prejudice' to him in that he was thereby denied the opportunity for release at the preliminary hearing, that the state was enabled to gain an advantage by being able to rectify the 'flagrant deficiencies' of Simpson's preliminary hearing testimony, and that he was denied the opportunity to impeach Simpson at trial.

The only evidence presented at the preliminary hearing was the testimony of Laird Simpson. His testimony, as recorded in the hearing transcript, left much to be desired as to clarity, but he did make positive identification of defendant as the person who, at gun point, robbed him of the stereo tape player. In State v. McClain, supra, this was held to be, in and of itself, sufficient evidence to support a finding of probable cause. In that case the court further noted that '* * * The discrepancies in testimony were all corrected at the trial and defendant's counsel had the added advantage of cross-examining the witnesses there from the transcript of their testimony at the preliminary. If the discrepancies made any difference, which we doubt, they would seem to have worked to the defendant's advantage in the trial. The Court of Criminal Corrections did not convict him,--the jury did, after having heard a full comparison of all evidence so far as desired by the defendant.' (Emphasis theirs.)

In the case at bar the discrepancies in the testimony of Laird Simpson were corrected at trial, and although defendant did not have the preliminary hearing transcript for use at his trial, its contents were known to his attorney, as evidenced by the allegations concerning Simpson's testimony in defendant's pre-trial Motion to Dismiss. In addition, he was further assisted by a deposition taken from Simpson prior to trial and containing similar discrepancies. We hold that the defendant was not prejudiced by the lack of counsel at his preliminary hearing, and that the court did not err in overruling his motion to dismiss the information.

Defendant contends that the court erred in denying his motions for judgment of acquittal made at the close of the state's case and at the close of the entire case, because the evidence presented by the state was insufficient, as a matter of law, to identify defendant as the perpetrator of the robbery. By offering evidence in his own behalf defendant waived any claim of error as to his motion for acquittal at the close of the state's case. State v. Spraggins, Mo., 368 S.W.2d 407, 408; State v. McDaniel, Mo., 392 S.W.2d 310, 314.

In support...