State v. Cooks

861 S.W.2d 769, 1993 Mo. App. LEXIS 1397, 1993 WL 335376
CourtMissouri Court of Appeals
DecidedSeptember 7, 1993
DocketNos. 60984, 62732
StatusPublished
Cited by7 cases

This text of 861 S.W.2d 769 (State v. Cooks) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cooks, 861 S.W.2d 769, 1993 Mo. App. LEXIS 1397, 1993 WL 335376 (Mo. Ct. App. 1993).

Opinion

PUDLOWSKI, Judge.

Defendant, Gary Cooks, appeals from his judgment of conviction by jury for robbery in the first degree, § 569.020, RSMo 1986. The St. Louis County Circuit Court sentenced defendant as a prior offender, §§ 558.016, 557.036.4, RSMo 1986, to serve a twenty-year term of imprisonment. We affirm.

Defendant raises four points on appeal: (1) defendant claims the trial court erred in failing to suppress his confession to police, officers, because the police officers acquired his confession in violation of his Miranda right to counsel; (2) defendant alleges the trial court erred in admitting the victim’s in-court identification of defendant, because the identification was tainted by an impermissibly suggestive pretrial photographic lineup procedure; (3) defendant challenges the constitutionality of the “reasonable doubt” instruction modeled on MAI-CR3d 302.04; and (4) defendant avers the motion court clearly erred in denying his Rule 29.15 motion for ineffective assistance of counsel.

Facts

On August 15,1989, defendant ordered two Domino’s pizzas to be delivered to him at his mother’s house. When the pizza deliverer arrived, defendant stalled for over five minutes and then forcibly stole the two pizzas: pointing a gun, defendant instructed the victim to leave the pizzas with him and to return to the car without looking back.

The victim heeded defendant’s instructions, drove back to the pizza store, and contacted the police. Based on the victim’s description of the criminal and on information from neighbors at the scene of the crime, police officers issued a “wanted” for defendant.

Police officers arrested defendant on December 9, 1989. After being advised orally and in print of his Miranda rights, defendant gave a detailed confession of the crime both verbally and in writing. He admitted that he pointed a tear gas gun at the victim and stole the pizzas. In addition, he averred that the gun was concealed in the garage.

When asked, defendant told the police he had hidden the tear gas gun behind a beam in the ceiling of his mother’s garage. In retrieving the gun, the police officers first obtained the consent of defendant’s mother to search her garage. The police officers, [771]*771accompanied by defendant, found the gun in the exact spot where it had been described.

I. Miranda Right to Counsel

Defendant claims the trial court erred in failing to suppress his pretrial confession, because police officers elicited his confession after defendant arguably invoked his Miranda right to counsel. Defendant claims that he arguably invoked his right to counsel by signing a “Miranda Warning & Waiver” form in two places: (1) on the appropriate signature line to indicate waiver; and (2) on the appropriate signature line to confirm an invocation of various Miranda rights. We disagree with defendant’s contention, and affirm the trial court’s order.

On a motion to suppress evidence, we review the facts and reasonable inferences therefrom in the light most favorable to the trial court’s ruling, and disregard all contrary evidence and inferences. State v. Bittick, 806 S.W.2d 652, 654 (Mo. banc 1991). We limit our review to see if sufficient evidence existed to sustain the trial court’s finding, Id., and give deference to the trial court’s superior opportunity to determine the credibility of witnesses. State v. Whittle, 813 S.W.2d 336, 338 (Mo.App.W.D.1991).

The Fifth Amendment prohibition against compelled self-incrimination offers an accused the right to have counsel present during custodial interrogation. State v. Gill, 806 S.W.2d 48, 51 (Mo.App.W.D.1991). If an accused expresses his or her desire to deal with police exclusively through counsel, police interrogation must cease until counsel is made available. Id. Even if the accused invokes the right to counsel, a waiver can be established by showing the accused initiated further communication, exchange, or conversation with the police, but cannot be established merely by showing the accused responded to further police-initiated custodial interrogation. State v. Figgins, 839 S.W.2d 630, 636 (Mo.App.W.D.1992).

To decide defendant’s claim, we first inquire whether defendant actually invoked the right to counsel. State v. Reese, 795 S.W.2d 69, 72 (Mo. banc 1990). Defendant must have specifically requested counsel; the mere mention of counsel would not have been sufficient. Gill, 806 S.W.2d at 51.

We reject defendant’s charge that his two signatures on the “Miranda Warning & Waiver” form denoted a sufficient invocation of his right to counsel. Defendant testified that he had signed the form without reading it, therefore, we disregard whatever cogency the form may have had on the issue of waiver or invocation. Consequently, we will determine waiver from all the circumstances surrounding the interrogation. State v. Garretts, 699 S.W.2d 468, 497 (Mo.App.S.D.1985).

The police officers adequately informed defendant of his Miranda right to counsel. Defendant understood that right. During custodial interrogation, defendant never verbally indicated that he wanted to talk to a lawyer or to invoke his right to counsel. When invited to talk about the robbery, defendant gave a detailed oral and then a written confession. No coercion or promises were used to elicit defendant’s confession. We find this evidence sufficient to sustain the trial court’s order overruling defendant’s motion to suppress his written confession. Defendant’s first point is denied.

II. In-Court Identification

Defendant alleges the trial court erred in admitting the victim’s in-court identification of defendant, because the in-eourt identification was tainted by an impermissibly suggestive pretrial photographic lineup procedure. Defendant claims that a very substantial likelihood of irreparable misidentifieation exists ed, because, of the approximately twenty photographs shown, only a photo of defendant featured a man wearing glasses, and because the victim had told the police that the one thing she remembered about the robber was the glasses, and how his eyes appeared with them on. We disagree with defendant’s allegation, and affirm the trial court’s decision.

Once again, when reviewing a trial court’s order on a motion to suppress evidence, we state the facts and reasonable inferences favorably to the order challenged on appeal, and may disregard any facts to the contrary. Bittick, 806 S.W.2d at 654. The trial court’s [772]*772ruling shall be affirmed if we find sufficient evidence in the record to support it. Id.

Utilization of photographs can properly aid the identification or release of suspects in a police investigation. State v. Higgins, 592 S.W.2d 151, 159 (Mo. banc 1979), overruled on other grounds by Kuyper v. Stone County Comm’n, 838 S.W.2d 436 (Mo.

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Bluebook (online)
861 S.W.2d 769, 1993 Mo. App. LEXIS 1397, 1993 WL 335376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cooks-moctapp-1993.