State v. Richardson
| Citation | 495 S.W.2d 435 |
| Decision Date | 11 June 1973 |
| Docket Number | No. 57277,57277 |
| Parties | STATE of Missouri, Respondent, v. Arthur W. RICHARDSON, Appellant. |
| Court | United States State Supreme Court of Missouri |
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
Philip H. Schwarz, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant; Paul T. Miller, Executive Director, Willard B. Bunch, Chief Defender, Kansas City, of council.
This opinion, written on reassignment, involves the prosecution and conviction of defendant, a 15-year-old juvenile at time of the offense, on a charge of murder in the first degree. The jury convicted defendant of murder in the second degree and assessed his punishment at imprisonment for 35 years. We have jurisdiction because notice of appeal was filed prior to January 1, 1972. Mo.Const. Art. V, §§ 3 and 31, V.A.M.S. We affirm.
On the evening of October 5, 1970, two men, Sibbe Adell and Freeman Franklin, witnessed an incident at 12th and Euclid in Kansas City in which a Herbert Andreasen was shot and killed. The men were walking on 12th and noticed two young couples walking ahead of them. A white Plymouth auto pulled to the curb near the couples and stopped. As Adell and Franklin reached the auto, the door was opened and one of the youths (later identified by Adell as defendant) was saying, At that point, defendant turned and looked at Adell who got a good look at him. Adell and Franklin kept walking, but when they were a step or so beyond the car door, they heard a shot. Adell turned quickly and saw two more flashes from a gun. At the time, Adell was close enough that he could have leaned over and touched defendant. Adell and Franklin started running across the street, but stopped on the other side and looked back. They saw the two youths and one of the girls drag the victim from the car. Then the two youths got in the car and drove off.
Adell and Franklin then ran a short distance and flagged down a police cruiser, after which they returned to the scene with the policeman. Later, they accompanied him to headquarters.
A short time later, two officers at Linwood and Paseo heard a crash. When they investigated, they found a 1966 white Plymouth ramming into the back of another auto. The officers blocked off the Plymouth and ordered the driver out of the car. It proved to be defendant. A search of his person revealed a revolver and two capsules commonly known as T-birds (Tuinal). The revolver contained three loaded rounds and three expended rounds. Subsequent tests disclosed that the bullets which killed the occupant of the automobile were fired from this gun.
The automobile contained a checkbook labeled 'Mr. and Mrs. H. W. Andreasen.' Subsequent license check disclosed that the car belonged to Herbert Andreasen, the victim.
Defendant was placed under arrest, handcuffed, placed in the police cruiser and given a Miranda warning. He was transported to the main police headquarters, identified and then removed to an upper floor. Police contacted defendant's mother and she arrived at around midnight. She visited her son for a short time, after which he was escorted to the Youth Unit of the Juvenile Detention Facility, where he was placed in the custody of Charles Gardner, Deputy Juvenile Officer for Jackson County. Mrs. Davis, defendant's mother, also went to the Youth Unit building.
Defendant was required to change into blue denim trousers and a white T-shirt, after which he and five other boys, similarly dressed, were placed in a lineup at the Youth Unit building. Prior thereto, Gardner, according to his testimony, advised both defendant and his mother of defendant's right to counsel at the lineup, that counsel would be provided, and that if he wanted counsel, the lineup would be postponed until the next morning. Defendant, according to Gardner, stated that he understood.
The lineup was conducted at approximately 1:00 A.M. on October 6, 1970. Adell and Franklin viewed the lineup separately. Adell made a positive identification of defendant as the youth who had done the shooting. Franklin could not make any positive identification. The lineup was observed also by Mrs. Davis.
On October 12, 1970, the State filed a motion in Juvenile Court seeking to prosecute defendant under the general law on the basis that he was not a proper subject for disposition under §§ 211.011 to 211.431. 1 After a hearing, the court sustained the State's motion. Thereafter, defendant was indicted for murder in the first degree.
Defendant contends on appeal that the trial court erred in overruling his motion to suppress the lineup evidence and the incourt identification of defendant by Sibbe Adell.
First, he says that his federal constitutional rights were violated by the lineup in that he was not represented by counsel and he did not knowingly and intelligently waive his right to counsel. He cites numerous cases but relies primarily on Junted States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). However such right to counsel at a lineup applies in post-indictment or post-information situations. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); State v. Walters, 457 S.W.2d 817 (Mo.1970). The lineup in this case occurred within 2 or 3 hours after defendant was apprehended and long before defendant was indicted. Hence, defendant had no constitutional right to counsel at the lineup. This being so, we need not consider whether what occurred would be sufficient to constitute a knowing and intelligent waiver of a constitutional right.
Defendant's second point relating to the lineup is that under the totality of circumstances the lineup was so unnecessarily suggestive and conducive to irreparable mistaken identification that it tainted the identification by Sibbe Adell so that the court should have suppressed his incount identification testimony. Defendant relies on the rule announced in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).
We overrule this contention. The evidence does not show that the lineup was unnecessarily suggestive or conducive to irreparable misidentification. Six negro youths (including defendant) were placed in the lineup, all dressed in blue denim trousers and white shirts. All had close hair styles and approxiamtely the same complexion. Heights were 5 6 , 5 7 , 5 8 , 5 10 , 5 11 and 6 1 . Weights varied from 125 pounds to 165 pounds, with two in the 125--130 range and three 140 to 145 pounds. Defendant was allowed to select his position in the lineup and he chose No. 5. No one made any comments or suggestions to Adell or Franklin about which one to choose. Neither Adell nor Franklin were shown defendant except as a part of the lineup and the two witnesses viewed the lineup separately. In addition, defendant's mother was permitted to observe the lineup. Adell picked out defendant as the one at the car when the victim was shot, but Franklin made no identification.
In view of our conclusion that the lineup was not unnecessarily suggestive, we need not consider whether witness Adell had a sufficient independent opportunity to observe defendant other than at the lineup. The fact is, however, that the evidence clearly shows that such opportunity did exist at the scene of the shooting.
The third objection raised as to lineup evidence is that the trial court should have sustained objections thereto on the basis that it was in violation of § 211.271(3) as interpreted in State v. Arbeiter, 449 S.W.2d 627 (Mo.1970). This contention necessitates examination of the provisions of § 211.271(3).
Prior to the amendment in 1969, § 211.271, RSMo 1959, V.A.M.S., provided as follows:
'1. No adjudication of the juvenile court upon the status of a child shall be deemed a conviction nor shall the adjudication operate to impose any of the civil disabilities ordinarily resulting from conviction nor shall the child be found guilty or be deemed a criminal by reason of the adjudication.
'2. No child shall be charged with a crime or convicted unless the case is transferred to a court of general jurisdiction as provided in sections 211.011 to 211.431.
'3. Evidence given in cases under sections 211.011 to 211.431 is not lawful or proper evidence against the child for any purpose whatever in a civil, criminal or other proceeding except in subsequent cases under sections 211.011 to 211.431.
The amended section, adopted in 1969, provides as follows:
'1. No adjudication by the juvenile court upon the status of a child shall be deemed a conviction nor shall the adjudication operate to impose any of the civil disabilities ordinarily resulting from conviction nor shall the child be found guilty or be deemed a criminal by reason of the adjudication.
'2. No child shall be charged with a crime or convicted unless the case is transferred to a court of general jurisdiction as provided in this chapter.
'3. After a child is taken into custody as provided in section 211.131, all admissions, confessions, and statements by the child to the juvenile officer and juvenile court personnel and all evidence given in cases under this chapter, as well as all reports and records of the juvenile court, are not lawful or proper evidence against the child and shall not be used for any purpose whatsoever in any proceeding, civil or criminal, other than proceedings under this chapter.
It should be noted that subsections (1) and (4) are identical in both acts...
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