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• Title: State Missouri v. Billy Ray Walters
• Author : Supreme Court of Missouri Division 2
• Release Date : January 14, 1970
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 65 KB

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Appellant's guilt of the offense of assault with intent to rape was found by a jury which assessed his punishment at five
years imprisonment in the Department of Corrections. By his second point on this appeal appellant asserts that he was denied his constitutional right to counsel at a pre-trial
lineup under the Sixth Amendment to the Constitution of the United States. His Fourteenth Amendment rights are also claimed
to have been violated. The facts show that appellant did not have counsel at the lineup, but also that he had not been indicted
and no information had been filed against him at that time. A number of other state jurisdictions have expressly held that
the cases of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263,
87 S.Ct. 1951, 18 L.Ed.2d 1178, apply only to post-indictment situations. People v. Palmer, 41 Ill.2d 571, 244 N.E.2d 173,
175[2,3]; People v. Cesarz, 44 Ill.2d 180, 255 N.E.2d 1, 4[2-5]; People v. Green, Ill. App., 254 N.E.2d 663, 665[5]; State
v. Thomas, 107 N.J.Super. 128, 257 A.2d 377, 380; State v. Fields, 104 Ariz. 486, 455 P.2d 964, 965[1]. See also Commonwealth
v. Bumpus, Mass., 238 N.E.2d 343. In the Concurring opinion of Hayes v. State, 46 Wis.2d 93, 175 N.W.2d 625, 633, after noting
that the rationale of the Wade and Gilbert cases was that a post-indictment lineup was a critical stage of the proceedings,
it was said, "At earlier stages the practical difficulties of appointing or arranging for the presence of counsel appears
formidable. Thus the limiting of the Wade-Gilbert rule to post-indictment situations has sound reasons to recommend it. Regardless
of the reasons, the limitation is stated in the rule. If the rule is to be extended to earlier stages or other situations,
the court that authorized the rule should do the extending." For a court holding contrary to the foregoing cases see People
v. Fowler, 82 Cal.Rptr. 363, 461 P.2d 643, 650. For the reason that appellant's lineup identification preceded the filing
of the information against him, the Gilbert rule does not apply, and Point II is overruled.

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