State v. Sanders, 36897
| Decision Date | 27 April 1976 |
| Docket Number | No. 36897,36897 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Reginald SANDERS, Defendant-Appellant. . Louis District, Division Three |
| Court | Missouri Court of Appeals |
William J. Shaw, Public Defender, Timothy A. Braun, Asst. Public Defender, Clayton, for defendant-appellant.
John C. Danforth, Atty. Gen., Preston Dean, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Clayton, for plaintiff-respondent.
Defendant was convicted of first degree robbery. On appeal defendant raises three points of alleged error: 1) that his counsel impermissibly waived defendant's presence at a pre-trial motion to suppress defendant's oral confession; 2) that the prosecutor was erroneously permitted to define the term 'reasonable doubt' during his closing argument; 3) that the trial court erred in permitting testimony regarding a weapon allegedly used in the robbery. We find no reversible error and affirm the judgment.
Shortly after its 11 p.m. closing, a hamburger restaurant in Kirkwood was robbed by three men. The robbers entered the restaurant, displaying a sawed-off shotgun and an unsheathed machete, and forced one of the employees to turn over the cash register money. Officer Wade Franklin, of the Kirkwood Police Department, was cruising nearby and observed the incident taking place in the brightly lighted restaurant. The robbers also saw Officer Franklin and made their evacuation from the restaurant with great celerity. Other police officers were summoned, and a search for the robbers was conducted. The defendant was soon discovered lying doggo on the bank of a shallow creek a short distance from the robbery scene. He was positively identified by one of the restaurant employees as the machete bearing robber. Officer Franklin, who had observed the robbery, also positively identified defendant as one of the three robbers. Officer Franklin testified that he assisted in the arrest of the defendant and advised him of his Miranda rights; that subsequently defendant fully admitted his complicity in the robbery. Defendant's admission to his involvement in the crime was verified by the restaurant employee who had identified the defendant.
The first point which we consider is defendant's oral confession. The trial before the jury commenced on October 1, 1974. Prior to trial, on May 14, 1974, defendant's counsel filed a motion to suppress defendant's oral confession. Hearing on the motion was set for June 6, 1974, at which time State and defendant's counsel appeared before the circuit judge hearing the motion to suppress. The following dialogue took place at the June 6 hearing:
Mr. BRAUN: City Court, Division Number 18.
At the June 6 hearing, the restaurant employee identifying defendant as participating in the robbery testified that the defendant had acknowledged in the witness' presence that he had wielded a machete during the course of the robbery. Officer Franklin also testified that defendant, after being given his Miranda warnigs, had admitted his part in the robbery. After hearing the State's evidence regarding the oral confession, the hearing was continued by agreement to June 13, 1974. On June 13, the hearing was again continued 'because the defendant's presence today (June 13) was required in Division 16 (Criminal Assignment) in the Circuit Court of the City of St. Louis where the defendant is awaiting jury trial on another matter.' On June 24, when the defendant did not appear, the circuit judge said he would issue a capias to bring the defendant before the court. The defendant's counsel, by specific written memorandum filed by him with the court, again waived defendant's presence at the hearing. With no further evidence on the motion to suppress or request for further hearing on the motion, the court overruled the motion to suppress based on the June 6, testimony.
Trial was held on October 1 and 2, 1974, with defendant present but not testifying. The jury found the defendant guilty of first degree robbery, and he was sentenced by the trial court under the Second Offender Act to ten years imprisonment.
On appeal, defendant argues that he did not authorize the waiver of his presence at the motion to suppress, and that, hence, he was deprived of his constitutional and statutory right to be present during his trial. We first note that the defendant does not object to the June 6 or June 13 hearing dates, and it was at the June 6 hearing that the State presented the testimony of the two witnesses giving evidence as to defendant's confession and the fact that it was not in any manner coerced. Defendant's challenge goes only to the June 24 hearing, where, after waiver of defendant's presence, no evidence was presented, the State's evidence having been given on June 6. The defendant argues that he had an unqualified right to be present at the pre-trial motion to suppress, and there could be no waiver of his presence without his express authority. Defendant relies on Article I, § 18(a) of the Missouri Constitution which provides:
'That in criminal prosecutions the accused shall have the right to appear and defend, in person and by consel; . . ..' 1
Defendant also asserts § 546.030 RSMo. 1969, declaring that:
'No person indicted for a felony can be tried unless he be personally present, during the trial; . . ..' (Supreme Court Rule 29.02 repeats this statutory tenet).
First, we find that the broader Missouri constitutional right to be present has no application in this case as there was a waiver of defendant's presence by his counsel. 2 And we find no deprivation of defendant's constitutional or statutory rights by his consel's waiver of his appearance at the motion to suppress the oral confession. It is manifest that the decision to file the motion to suppress the oral confession was a matter of pre-trial strategy. Whether or when the particular legal maneuver of filing a motion to suppress is to be exercised is a matter for the counsel's determination. State v. Brownridge, 506 S.W.2d 466 (Mo.App.1974). It was within the defense counsel's discretion whether to file the motion to suppress the oral confession. It was also within the counsel's discretion whether the motion to suppress should be vigorously pursued, or, as in this case, after hearing the State's evidence from two witnesses as to the voluntariness of the confession, whether further pursuit of the motion would be unavailing. Defendant's counsel, thus, had the option of filing or not filing the pre-trial motion to suppress the confession, or, once having filed the motion, of discontinuing it at anytime--all within his own discretion as part of his own strategy in the conduct of the case. Waiving defendant's appearance at this particular pre-trial motion--which was done--was within the defense consel's discretion.
There is no Missouri case specifically relating to the right of counsel to waive his client's right of presence at trial under § 546.030, or whether a pre-trial motion to suppress is part of the 'trial' within § 546.030. But there is ample precedent from other jurisdictions holding that such a waiver by counsel without his client's consent may properly be made. We choose to follow such precedent. In State v. Williams, 19 Ohio App.2d 234, 250 N.E.2d 907 (1969), the court specifically upheld the defense counsel's unilateral waiver of his client's constitutional and statutory right to be present at a pre-trial motion to suppress evidence. People v. Clombani, 22 A.D.2d 956, 255 N.Y.S.2d 906 (1964), aff'd, 16 N.Y.2d 1055, 266 N.Y.S.2d 129, 213 N.E.2d 460 (1965), and People v. Brighenti, 22 A.D.2d 956, 255 N.Y.S.2d 905 (1964), aff'd, 16 N.Y.2d 753, 262 N.Y.S.2d 119, 209 N.E.2d 733 (1965), also hold that a defendant's attorney can, by his unilateral action, waive the defendant's appearance at a hearing on a motion to suppress. In Williams, Colombani and Brighenti, constitutional and statutory provisions similar to the Missouri constitutional and statutory provisions relied on by defendant here were applicable and interpreted by the courts. Our truling here is also congruent with Poteat v. United States, 330 A.2d 229 (D.C.App.1974), which holds that a defendant's counsel can deliberately bypass or waive the defendant's right to be present at a hearing on a motion to suppress evidence--all without consultation with his client.
In People v. Colombani, supra, the court said, 255 N.Y.S.2d at 907:
'While it is true that 'a defendant in a felony case has an absolute constitutional and statutory right to be present at all stages of the trial' (cites omitted), such right, in a noncapital case, may be waived by an absent defendant whose counsel voluntarily proceeds without him in the apparent belief that his absence will not prejudice his position or his defense.' (cites omitted).
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