State v. Gilmore

697 S.W.2d 172, 1985 Mo. LEXIS 318
CourtSupreme Court of Missouri
DecidedSeptember 10, 1985
Docket65971
StatusPublished
Cited by54 cases

This text of 697 S.W.2d 172 (State v. Gilmore) 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
State v. Gilmore, 697 S.W.2d 172, 1985 Mo. LEXIS 318 (Mo. 1985).

Opinions

HIGGINS, Chief Justice.

George Clifton Gilmore was convicted by a jury of capital murder, section 565.001, RSMo 1978, and sentenced to death, section 565.032, RSMo Cum.Supp.1984. Judgment was rendered accordingly. This is the second appeal to this Court, a previous conviction having been reversed for a defect in the indictment. State v. Gilmore, 650 S.W.2d 627 (Mo. banc 1983). Appellant charges the trial court erred in: (1) refusing to allow defense counsel to withdraw and substitute new counsel; (2) permitting defendant to represent himself without a knowing and intelligent waiver; (3) sustaining the state’s challenges for cause of three veniremen even though they did not state unequivocally that they would vote against the death penalty; (4) permitting death qualification voir dire questions; (5) refusing to suppress evidence as products of a warrantless arrest; (6) submitting certain aggravating circumstances unsupported by the evidence; and (7) excessive punishment. Affirmed.

A brief summary of the facts will suffice.1 Defendant, his brother Norman, and Leonard Laws decided to rob Clarence and Lottie Williams. They went to the Williams’ home with intent to get money, ransacked it and took several items and some [174]*174one hundred and fifty dollars in money. Defendant then shot Mr. and Mrs. Williams with a twelve gauge shotgun. Two relatives of the defendant learned of the murders and reported the incident to the police. The two relatives agreed to help apprehend the three perpetrators. They tricked defendant and Leonard Laws into leaving their trailer and the two were arrested at a police roadblock. Norman Gilmore was arrested at a house in Franklin County, Missouri.

Norman Gilmore agreed to plead guilty to reduced charges in exchange for his testimony against Leonard Laws and defendant. Defendant subsequently admitted shooting Clarence and Lottie Williams.

Appellant contends that his pro se motion to remove his appointed counsel and to appoint new counsel should have been granted. His motion alleged that his attorney refused to investigate an alibi defense and intended to present false evidence at trial. Defendant followed this with a legal malpractice action against his attorney. Defendant’s counsel filed a motion to withdraw based on conflict of interest.

To warrant substitution of counsel, the defendant must show “justifiable dissatisfaction” with his appointed counsel. State v. Olinghouse, 605 S.W.2d 58, 70 (Mo. banc 1980), citing United States v. Hart, 557 F.2d 162 (8th Cir.1977), cert. denied, 434 U.S. 906, 98 S.Ct. 305, 54 L.Ed.2d 193 (1977). Refusing to present a proposed alibi defense does not constitute “justifiable dissatisfaction” because determination of what witnesses to call is a matter of trial strategy and the decision is best left to counsel. State v. Turner, 623 S.W.2d 4, 11 (Mo. banc 1981). Counsel had no duty to call witnesses in this situation. The record shows that counsel investigated the alibi defense. The record further shows that defendant admitted presence at the scene of the crime in a videotaped confession to the police and in testimony at his first trial. There was also testimony of defendant’s relatives and friends. The attorney was under an absolute obligation not to present perjured testimony in support of her client. Bennett v. State, 549 S.W.2d 585, 587 (Mo.App.1977) (citing cases).

Appellant contends he should not have been allowed to defend himself because he did not effectively waive his right to counsel. A defendant has a constitutional right under the Sixth Amendment to represent himself, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); assertion of this right is conditioned on a knowing and intelligent waiver of the right to counsel, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). It is the duty of the trial judge initially to determine whether a knowing and intelligent waiver has been made, and the judge must investigate “as long and as thoroughly as the circumstances of the case before him demand.” Von Moltke v. Gillies, 332 U.S. 708, 723-24, 68 S.Ct. 316, 323-24, 92 L.Ed. 309 (1948).

Defendant told the trial judge that he had been involved in three previous trial proceedings, that it was in his best interest to represent himself, and that he was aware of his right to have an attorney. He stated that his waiver was voluntary and of his own free will and that no threats or promises were made. He was not under the influence of alcohol and had never been treated for a mental illness. The judge expressly told defendant that it was not in his best interest to represent himself. He also told defendant that his appointed counsel was a “fine and skillful attorney” and that defendant would be making a “substantial and serious mistake” if he discharged her. In addition, defendant signed a waiver memorandum as required under section 600.051, RSMo 1978.

Appellant argues that this was insufficient to support a waiver of counsel. This Court disagrees because the evidence shows that the trial judge correctly determined that the defendant was adequately informed and made an advised and intelligent waiver of counsel. This Court is in agreement with decisions holding that the defendant’s knowledge of all relevant facts [175]*175need not appear on the trial record and that the court may properly consider the defendant’s background, experience and conduct and such factors as involvement in previous criminal trials and representation by counsel before trial. See Maynard v. Meachum, 545 F.2d 273 (1st Cir.1976).

Appellant contends that the trial court should not have sustained the State’s challenges for cause of three veniremen because their answers on voir dire did not show unequivocally that they would vote against the death penalty. In addition, he asserts that the trial judge should not have permitted death qualification voir dire questions because by eliminating jurors who opposed capital punishment, the result was a jury partial to the state.2 This Court dealt with these issues in the recent case of State v. Malone, 694 S.W.2d 723 (Mo. banc 1985). In Malone, this Court declined to depart from the line of Missouri cases following current United States Supreme Court cases holding that the state may constitutionally exclude jurors who cannot consider death as a possible punishment. Id. at 727. The answers of prospective jurors do not have to be unequivocal in order for the jurors to be excluded. The current standard of the United States Supreme Court is “whether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath.” Wainwright v. Witt, _ U.S. _, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).

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Bluebook (online)
697 S.W.2d 172, 1985 Mo. LEXIS 318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gilmore-mo-1985.