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09/07/93 STATE MISSOURI v. GARY A. COOKS

September 7, 1993

STATE OF MISSOURI, PLAINTIFF-RESPONDENT,
v.
GARY A. COOKS, DEFENDANT-APPELLANT. GARY A. COOKS, MOVANT, V. STATE OF MISSOURI, RESPONDENT.



Appeal from the Circuit Court of St. Louis County. Honorable Emmett M. O'Brien.

James A. Pudlowski, Judge, Paul J. Simon, Presiding Judge, and Albert J. Stephan, Jr., Judge,.

The opinion of the court was delivered by: Pudlowski

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, accompanied 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 ...


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