State v. Brown, 11614.

Decision Date06 November 1980
Docket NumberNo. 11614.,11614.
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Kevin Neil BROWN, Defendant-Appellant.
CourtMissouri Court of Appeals

John G. Newberry, Springfield, for defendant-appellant.

John Ashcroft, Atty. Gen., Nancy D. Kelley, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

MAUS, Judge.

The defendant was charged and convicted by a jury of robbery in the first degree and was sentenced to 15 years' imprisonment. Viewing the evidence most favorably to the state as required by the jury verdict, State v. Franco, 544 S.W.2d 533 (Mo. banc 1976), there was evidence from which the jury could have found the following facts. On February 14, 1979, Paul Bowles had the use of his family's automobile and picked up his acquaintance, the defendant. The two drove to Mt. Vernon to the home of Paul Magadanz, a friend of the defendant. There they played pool and drank for several hours. They returned to Springfield where they bought some beer and whiskey. After a stop in Springfield, they returned to the Magadanz home. This time only the defendant entered and he returned with a Crossman .22 caliber pellet gun. The two decided to rob someone.

They returned to Springfield and drove to a motor inn. There they saw Larry Michael Sauer, a guest at the motor inn, parking at one of the accommodation units. While Sauer was in the process of getting out and unloading, the two approached from their parked car. One came to the left of Sauer's car and the other to the right. As he started to walk from his trunk to the building as Sauer related: "One of them stuck a gun in my belly and said `This is a stickup', or something to that effect. I said `Well, I don't have much money,' and he said something like `I don't care, get it out.' And I reached in and handed him my wallet and glanced back around and was hit in the head and fell to the ground." He was hit with something he observed being similar to a toy baseball bat. As soon as Sauer regained his senses, he went to the office and the police were called. This call was received at 9:42 p. m.

After leaving the scene the two went to a liquor store where the defendant used one of Sauer's credit cards to buy some beer and a bottle of Old Charter. Then, about 10:00 to 10:30 p. m. they went to the Cedar Shake for drinking and dancing. They left about 12:00 midnight. They started west on I-44. On the route they used the Sauer credit card to purchase gasoline. They wandered, driving and drinking, into Oklahoma. There they were apprehended at 8:30 a. m. when they left a filling station without paying for gasoline. At that time, there was found in the automobile, among other things, a Crossman .22 caliber pellet gun, a stick or small piece of wood, and a bottle of Old Charter. When he was booked, the defendant attempted to conceal under his belt three credit cards and a driver's license belonging to Sauer.

The basic facts of the robbery were established by the testimony of Sauer. He identified the defendant as one of the two men who robbed him, the one who hit him on the head. Bowles, a juvenile, was called as a witness by the state. He confirmed the general facts of the robbery and provided much of the background information. He stated that it was the defendant who wielded the gun and he, Bowles, hit Sauer on the head.

The defendant testified. He admitted being with Bowles and one trip to Mt. Vernon. He said that upon leaving, Magadanz gave him the gun for repairs. He denied a second trip to Mt. Vernon. He testified that he and Bowles drove to the Cedar Shake at 9:00 p. m. He left Bowles in the car and went into the building. He did not see Bowles again until about 11:30 p. m. in the parking lot. He related that then Bowles found, or purported to find, Sauer's wallet in the parking lot. The defendant confirmed the use of the credit card to purchase liquor. He generally confirmed the trip to Oklahoma with prior stops at his mother's and again at 3:00 a. m. at the Magadanz home. Defendant presented four witnesses who saw him at the Cedar Shake, two fixing the time at 9:30 p. m. However, the jury did not believe that alibi. In addition to the testimony of Bowles, a basis for this disbelief could have been found in the defendant's statement to a Springfield officer that he, the defendant, went to the Cedar Shake but did not go in and that it was he who found the wallet; the improbability of the two entering the Magadanz home at 3:00 a. m., playing pool and not awakening the occupants; Virginia Magadanz's confirmation of two trips to Mt. Vernon; and the defendant's incriminating phone call hereafter related.

The defendant's first point is that the trial court erred in not suppressing Sauer's in-court identification of the defendant because it was tainted by an impermissibly suggestive photographic line-up. On February 20, 1979, a Springfield police officer interviewed and photographed the defendant in Oklahoma. On February 23, 1979, the picture, with five others, was shown to Sauer for identification. Sauer was certain the picture he identified (which was of a clean-shaven defendant) was of one of the men who robbed him; he believed he was the one who hit him on the head. The defendant's contention is based upon the premise that despite the description given to the police by Sauer that the one who hit him on the head was clean-shaven; the men in the other five photographs had facial hair to one degree or another. He emphasizes this argument by referring to Bowles' testimony that the defendant wielded the gun. Whether the defendant wielded the club or the gun, as there was evidence to support either hypothesis, is not decisive. State v. Easton, 577 S.W.2d 953 (Mo.App.1979).

Even assuming the photographic line-up was impermissibly suggestive, that fact is not determinative. "If there is proof of an independent source of observation on which a witness has based his identification testimony, the court need not examine the details of the questioned lineup procedures for impermissible suggestiveness." State v. Csolak, 571 S.W.2d 118, 123-124 (Mo.App. 1978). Such an independent source has been established upon the basis of observation of the criminal by the witness for 15 seconds on a 14-inch television screen, United States v. Mooney, 417 F.2d 936, 939 (8th Cir. 1969); 10 seconds at a distance of eight feet, State v. Davis, 530 S.W.2d 709, 712 (Mo.App.1975); three seconds at a distance of 30 feet, State v. Young, 534 S.W.2d 585, 589 (Mo.App.1976).

There was evidence that the area in question was lighted and that Sauer observed the two men involved as they walked toward the car for two or three minutes; he saw the face of the defendant for 30 seconds to a minute. He then briefly saw the man who stuck the gun in his stomach and for a few seconds the man who hit him on the head. On the motion to suppress, Sauer testified that he was certain the picture of the defendant was a picture of one of the men who attacked him, he believed the one at his back. At the trial Sauer testified the defendant struck him and referring to the defendant, further testified, "Q. Is this one of the men who robbed you on that night? A. Yes sir. Q. Is there any doubt in your mind about that? A. No Sir. Q. Looking at him right now. A. Yes sir, that's one of them." The trial court found there was an independent basis for Sauer's in-court identification and that finding is supported by the evidence.

The defendant's second point concerns a picture of him taken when he was booked in Oklahoma. He alleges the picture was important exculpatory evidence because Sauer had described the man who wielded the club as clean-shaven and that at the time he had a beard. He asserts the picture would show he did have a beard. His point is that he did not receive a fair trial because the state suppressed that exculpatory evidence and the trial court refused to grant a continuance to give him an opportunity to get that picture. The subject of the picture was opened up by defense counsel asking one of the deputy sheriffs from Oklahoma if the Springfield police knew the photograph was made. That officer replied that he didn't know. Defense counsel then said he would like to see the pictures. "If those photographs exist, I'd like to have an opportunity to get them." He then asked for a continuance for that purpose. The prosecuting attorney responded that he assumed such a picture may have been taken, but he had no knowledge of the picture other than the expressed supposition it was made and that it was not in the possession of the state of Missouri. Later, another deputy sheriff from Oklahoma said "mug shots" were taken and he thought the officers from Springfield took them. However, the subject was developed no further and no additional objections or requests were made. If the state had willfully and knowingly suppressed exculpatory evidence, the point would require further consideration. However, the record does not support such an assertion. State v. Rapheld, 587 S.W.2d 881 (Mo.App.1979); State v. Leigh, 580 S.W.2d 536 (Mo.App.1979).

The granting of the defendant's request for continuance was for the sound discretion of the court. State v. Oliver, 572 S.W.2d 440 (Mo. banc 1978). At the time the request was made, it had not been shown to the court the picture had actually been taken. The defendant obviously knew his picture had been taken. If he deemed that picture to be of importance, he should have shown some interest in obtaining its presence before his trial started. Further, there was an overnight recess after the request was made. Nowata, Oklahoma, is not such a distance from Springfield, Missouri, that the picture could not have been obtained during that recess. Yet the defendant demonstrated no effort to do so or to have that done. The trial court did not abuse its discretion in denying the request.

The defendant's next three points concern a tape recording of...

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