State v. Quinn, 38799

• Decision Date: 14 March 1978
• Docket Number: No. 38799,38799
• Citation: 565 S.W.2d 665
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Joseph QUINN, Defendant-Appellant. . Louis District,Division Three
• Court: Missouri Court of Appeals

Page 665

565 S.W.2d 665

STATE of Missouri, Plaintiff-Respondent, v. Joseph QUINN, Defendant-Appellant.

No. 38799.

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

March 14, 1978.

Motion for Rehearing and/or Transfer Denied May 9, 1978.

Application to Transfer Denied June 15, 1978.

Robert C. Babione, Public Defender, Linda Murphy, Asst. Public Defender, St. Louis, for defendant-appellant.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Frank Murphy, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Michael Ravetta, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

I.

SIMEONE, Chief Judge.

Defendant-appellant, Joseph Quinn a/k/a Joseph Nathan Quinn, was charged in two counts for the offenses of robbery in the first degree by means of a dangerous and deadly weapon and carrying a concealed weapon. The information also alleged a prior conviction. §§ 560.120, 560.135, 564.610, RSMo. He was tried by a jury on both counts. The jury was unable to reach a verdict on the robbery count, but unanimously found him guilty of carrying a concealed weapon. Under the provisions of the second offender act, appellant was, on December 17, 1976, sentenced to four years in the Department of Corrections. § 556.280, RSMo. He appeals. We affirm.

Appellant does not question the sufficiency of the evidence. He raises two points on this appeal: (1) that it was "plain error" for the trial court to admit a gun into evidence because it was the product of an unlawful search and seizure and (2) that it was "plain error" for the trial court to allow him to represent himself since there was no valid, intelligent waiver of his right to counsel. Rule 27.20(c). We find neither point to be meritorious and affirm.

II.

The jury could reasonably find the following facts consistent with the verdict.

During the late hours on the evening of September 25, 1975, and at approximately 11:15 p. m., Mr. Louis Banks, a taxicab driver in the City of St. Louis, after delivering a passenger and after having some automobile trouble, stopped at a gasoline station at Glasgow and Cass Avenues to attempt to repair his vehicle. He was having trouble with a "(l)eaking bottom radiator hose" and "(t)he hot light kept showing coming on and off." While he was there, "the young man there (the defendant), he flagged me and I ignored him because I had car trouble." There was a young woman with the defendant. The defendant came over to Banks and inquired, " 'You for hire?' " Banks indicated he was Banks radioed his dispatcher that he had been robbed. The dispatcher notified the police. Officers Terran Williams and Kenneth Scoggins received a radio call "for a hold-up" and went to Banks. Banks described the individuals who robbed him and "an all-points over the police radio" was flashed. The officers told Banks to "leave my car where it was" and "I left the cab" and went with the officers. The officers and Banks responded to Sarah and Page to meet an officer a couple of blocks away, where they met Officer Timothy Diffley who had the defendant and Miss Sullivan in custody. Banks was asked to " '(c) ome over and see if this is the man who robbed you.' " Banks identified the defendant. Later he saw the defendant again at the Eighth District Police Station. At trial Banks identified the defendant as the man who robbed him.

for hire and the defendant and the young lady got into the cab. The defendant indicated he wanted to go to an address on Washington Avenue at first he gave one address and then another. When the cab arrived at "Pendleton and King Drive" and "(j)ust as I got to the church on Pendleton, that's when he put the gun to my head." He said, " 'This is a stick-up.' " Banks turned and "looked down the gun barrel." Banks said, " 'Oh, man! You've got to be kidding!' " Defendant said, " 'Give me that money.' " Banks handed him eight dollars in "(o)ne dollar bills and singles." Much was made of the way Banks "folded" his money, but the court sustained an objection by the "consulting attorney" to the introduction of the money. The defendant and the young lady, Shirley Sullivan, got out of the cab and the defendant "told (Banks) to go ahead before he would blow my brains out."

On that same evening, at about 11:58 p. m., Officer Timothy Diffley was cruising the area of the 1300 block of Sarah. "There had just been a description placed on the air of a subject wanted for armed robbery in the vicinity." He observed a man and a woman fitting the description "seated on the steps in front of 1310 North Sarah." When Officer Diffley first observed the defendant he was sitting "on the steps." The woman was seated next to him. The man had a "brown paper bag in his hand." The officer got out of the cruiser and asked the man to "step over to the cruiser." "When (the defendant) got up, he gave the bag to her and then he started for the cruiser." The officer asked the woman to come over to the cruiser and "when she got up, she placed the bag on the step." When she came to the cruiser, the officer advised them that they fit the general description of the individuals wanted for the robbery and he placed them in the rear of the cruiser. The officer then "went over the the steps and retrieved the bag." ¹ The bag was an 18 X 24 inch bag, folded in half. When the officer picked it up, he felt a gun in the fold of the bag "(t)he gun was in a fold of the bag. The bag was folded over and it was in the fold of the bag." There were two live rounds in the gun. He called for the car that put out the description of the robbery suspects; the car came to the scene and then went to the police station. At the station the defendant and Miss Sullivan were arrested. The defendant was advised of his rights and, after indicating he understood them, he made a statement that "it was his gun and he got it from a friend." At the station the officer looked into the brown paper bag and found a half-pint bottle of gin and some personal papers. The officer also searched the defendant and recovered $5.35 from his person.

On November 10, 1975, an information was filed by the circuit attorney charging the defendant with a prior conviction and two counts of robbery first degree with a dangerous and deadly weapon and carrying a concealed weapon. Certain pre-trial motions were made including a motion to suppress Trial began on November 22, 1976. Prior to trial the motions were taken up and there was a hearing, outside the presence of the jury, concerning the desires of the defendant to represent himself without a lawyer.

the gun. On November 28, 1975, Mr. Neal P. Murphy of the Public Defender's office entered his appearance as the trial attorney and filed motions for discovery and a psychiatric examination. On April 6, 1976, Mr. Joseph Beatty, assistant public defender, entered his appearance and moved for a psychiatric examination and filed a motion to suppress the gun and statements. A psychiatric examination was given and the defendant was found to have no mental disease or defect.

The assistant public defender informed the court that "(i)t is my understanding that Mr. Quinn wants to defend himself in this case." The trial judge requested the defendant to come to the bench and asked the defendant, "Mr. Quinn, is it correct that you want to try this case yourself?" The defendant replied, "Well, this is what I request, sir" and "Yes, I request that." The judge then (1) asked defendant how much education he had, (2) asked defendant what he knew about court procedures, (3) informed defendant that Mr. Beatty had tried many cases, (4) asked whether the defendant thought he could "come into this courtroom and defend yourself" ², (5) informed defendant that he would be bound by the rules of evidence, (6) informed defendant that this is a "highly technical business," and (7) asked defendant, "(h)ow do you think you can compete with (the prosecutor)?" The court also informed the defendant:

". . . If you want to try the case yourself, all right. But one thing I want you to know . . . you are not going to ask a ridiculous question. If there are some questions you want him to ask, tell him you want him to ask those questions and he'll do the best he can to present the point you wanted to present. . . ."

After a discussion concerning law books and Miss Sullivan, the court then addressed the defendant, "Now do you still want to try this case yourself?" The defendant replied, "Yes, Your Honor, I would like to." The court then said, "All right then." The jury was then told that Mr. Quinn would defend himself and that Mr. Beatty would assist him "wherever he needs help."

Prior to trial the motions to suppress were heard and overruled. The trial proceeded. At trial the above evidence was introduced. The defendant cross-examined the state's witnesses, and at various times the public defender participated in the trial and made certain objections and statements. ³

The defendant testified in his own behalf. But before he did so, he was warned by Mr. Beatty that he did not have to take the stand and had a right to remain silent. If he took the stand his prior convictions "could be brought in." The defendant indicated he wanted to testify and would bring up his prior convictions himself.

The testimony of the defendant conflicted with the state's witnesses. He was questioned by his court-appointed attorney, Mr. Beatty. He testified that on the morning of September 25, 1975, he was in Hayti, Missouri and left there by bus with Miss Sullivan. They arrived in St. Louis "about 10:40 or maybe something like that" or "about 11 about 11:05 or 11:00. Something like that." When they arrived they took a cab and asked the driver to take them to "1306 North Sarah." He had property there "my clothes (were) there with a friend of mine." They arrived about 11:30 "I gets up. I had the gun in my waistband. I puts the gun on the steps out of my waistband because a police officer was pulling up and I didn't want...