In re Bear

578 S.W.2d 928, 1979 Mo. LEXIS 354
CourtSupreme Court of Missouri
DecidedApril 10, 1979
DocketNo. 60459
StatusPublished
Cited by4 cases

This text of 578 S.W.2d 928 (In re Bear) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Bear, 578 S.W.2d 928, 1979 Mo. LEXIS 354 (Mo. 1979).

Opinion

SIMEONE, Judge.

I.

This is a disciplinary proceeding pursuant to Rule 5 against David V. Bear III, an attorney licensed to practice in this state. On November 9, 1977, the Advisory Committee charged Mr. Bear with various acts of professional misconduct allegedly contrary to the Code of Professional Responsibility, Rule 4.

The information filed by the Advisory Committee is in four counts:

1. That on or about April 15, 1972, respondent did tamper with evidence in a criminal case by erasure of a tape-recorded interview and interrogation of Larry Lee, a juvenile, by Officer Robert Muse contrary [929]*929to DR 1-102(A)(4)(5) and (6) and DR 7-102(A)(1)(6).1

2. That subsequent to April 15, 1972, and prior to the preliminary hearing in the case of State v. Larry Lee, Respondent did prepare and distribute a “schedule of events” knowing that some portions thereof were false and did distribute copies of said “schedule of events” to potential witnesses in the case of State v. Larry Lee to influence said witnesses to testify falsely contrary to DR 1 — 102(A)(5) and (6).

3. That prior to the preliminary hearing in the case of State v. Larry Lee, Respondent did obtain and show to his client, one Victoria Ransom, a picture of defendant, Larry Lee, in order to aid said client in the identification of the defendant, such conduct being impermissibly suggestive to said client well knowing that his client had never viewed the defendant in an identification lineup and had, in fact, made wrongful identification of two other persons in a lineup prior to the arrest of the defendant, contrary to DR 1 — 102(A)(5) and (6).

4. That in April of 1976, Respondent did engage in discussion of and exploration of a scheme to bribe a public official and furthermore Respondent failed to report the same to proper authorities at the time such discussion occurred, contrary to DR 1— 102(A)(4)(5) and (6). The first three counts refer to the “Larry Lee Matter” and the fourth count refers to the “Robert Brown Matter”.

The information prayed that Respondent be disbarred and that his right to practice law be terminated. An answer was filed by Respondent. In December, 1977, this court appointed the Honorable J. Donald Murphy as master to hear the evidence and make findings of fact and conclusions of law. A hearing was held February 27 — March 2, 1978.

II.

The Larry Lee Matter

On the evening of April 3, 1972, Miss Victoria Ann McKay Ransom, a student at Stephens College, had just finished doing the news for a radio station at Stephens College and was walking to a friend’s house. She noticed two men following her. She picked up her pace, but the two men confronted her. She started running. One of the men shouted, “Stop”; she turned around; he said “I have a gun.” She stopped. The man pointed the gun at her; she gave him $1.25. He asked if that wafe all there was, she said “Yes,” and then he shot her in the face. Part of her tongue was severed. The assailants escaped. Miss Ransom was hospitalized. Shortly after the incident, Miss Ransom’s father contacted Mr. Bear, the respondent, and requested that he be retained to advise and assist Miss Ransom and to assist the police department in the investigation of the case. The father indicated to Mr. Bear that he had checked with the Chief of Police and the Chief indicated that it was all right. Such a procedure — a private attorney assisting the police — was not “unusual” in this area, although “[i]t wasn’t a routine thing, so to speak.”2 Respondent was paid a fee which was not contingent upon results. Mr. Bear in this role assisted the police department in the investigation, gave legal advice to the police, discussed questions and problems with regard to the investigation, and was present or participated in various stages of the investigation or proceeding.

[930]*930Police went to the hospital to show pictures to Miss Ransom. A composite drawing was made. On April 14, 1972, warrants were issued for the arrests of Ronnie Eugene Hickem and William Lorenzo Lawson. There was never a return to the warrants, presumably because they were in jail. On that same date a lineup was held in the courtroom of the Boone County Courthouse. Before the lineup, while Miss Ransom was waiting in an anteroom, respondent gave her a general description of two of the six or seven persons who were to be in the lineup without stating their names or positions, but stating that one was “old looking” and one “very tall”. He told her to be “very careful” before she selected someone. At the lineup Miss Ransom was very nervous and afraid. According to Miss Ransom she could not visually identify anyone at the lineup, but did identify one of the persons by voice — a man by the name of Taylor. According to one witness, Suzanne Gladney, Miss Ransom did identify one person, but not Lawson or Hickem.

After the lineup and contrary to the fact, Detective Sergeant Robert Muse who was present at the lineup and involved in the investigation, at the suggestion of respondent, told Lawson that he (Lawson) had tentatively been identified in the lineup. During a previous interrogation of Lawson, he mentioned that Larry Lee was involved in the incident. Lawson was released with the understanding that when he was released he was going to obtain, if possible, information from Lee regarding the shooting. Some short time later, Lawson called Detective Muse and informed him that Lee and Dale Quint were involved.

On April 15, 1972, respondent attempted to obtain an arrest warrant from Timothy (Tim) Ann Sloan, an assistant prosecutor. However, the prosecutor declined to seek a warrant for lack of .probable cause. Respondent then suggested3 that Lee and Quint be “picked up” but not to place them under arrest. On the evening of April 15, about 5:30 or 6:00 p. m. Lee was “picked up” and brought to the police station by Officer Jessie Brown. At that time several police officers, including Detective Palmer and Officer Carroll Highbarger and Sergeant McGrath were present. So was respondent. Detective Muse was not present at that time. Detective Muse was called at home and he went to the station. Before Lee was brought to the station, the respondent obtained his tape recorder from his office and brought it to the station. The recorder would not fit properly in a drawer in the police room so Sergeant McGrath used his tape recorder and placed it in the room where Lee was brought in. According to the respondent Lee was to be informed that he was not under arrest and that he could leave at any time. At the police station, in the presence of one or more officers, Lee was given Miranda warnings and was told he could leave. Present were Sergeant McGrath, Mr. Bear, and Detective Carroll Highbarger. After warnings were given, Muse interrogated Lee alone, and the others went to an adjoining room. The interrogation of Lee by Muse was recorded. Muse informed Lee that “Bear was there and that if [Mr.] Lee had not committed the offense, that Mr. Bear would help him.” Muse remembered telling Lee that Bear “was there acting on behalf of the Police Department and if he was not involved, he had nothing to worry about, because Mr. Bear would see that he wasn’t involved, words similar to that.”

After interrogating Lee for 10 or 15 minutes, Detective Muse learned that Lee was a juvenile. The entire colloquy was tape recorded. After learning that fact, Muse went out of the room and talked to Sergeant McGrath or Mr.

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731 S.W.2d 252 (Supreme Court of Missouri, 1987)
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669 S.W.2d 254 (Missouri Court of Appeals, 1984)
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620 S.W.2d 362 (Supreme Court of Missouri, 1981)

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578 S.W.2d 928, 1979 Mo. LEXIS 354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bear-mo-1979.