State v. Berry, 61750

• Citation: 609 S.W.2d 948
• Decision Date: 15 December 1980
• Docket Number: No. 61750,61750
• Parties: STATE of Missouri, Respondent, v. Irving J. BERRY, Jr., Appellant.
• Court: United States State Supreme Court of Missouri

Page 948

609 S.W.2d 948

STATE of Missouri, Respondent, v. Irving J. BERRY, Jr., Appellant.

No. 61750.

Supreme Court of Missouri, En Banc.

Dec. 15, 1980.

Rehearing Denied Jan. 13, 1981.

Stephen J. Murphy, Affton, for appellant.

John Ashcroft, Atty. Gen., Edward F. Downey, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Convicted of first degree robbery, class B rape and class B kidnapping, defendant's punishment was assessed by the jury at life, 15 years, and 15 years imprisonment, respectively. Determining that defendant was a dangerous offender under § 558.016, RSMo 1978, the trial court ordered sentences of consecutive terms of 30 years for the rape and 25 for the kidnapping. A life sentence having been imposed, the cause falls within the exclusive appellate jurisdiction of this Court. Art. V, § 3, Mo. Const.

As error defendant alleges the trial court improperly (1) permitted the State to withhold from defendant a photograph of one of the lineups in which defendant participated; (2) denied defendant's motion to suppress evidence illegally seized; (3) denied defendant's motion to suppress the prosecutrix's in-court identification, tainted by unduly suggestive lineup procedures; (4) permitted objectionable testimony by the prosecutrix's sister; and (5) imposed an extended term of imprisonment under § 558.016, RSMo 1978, sans the hearing mandated by § 558.021, RSMo 1978.

On February 2, 1979, at 6:45 p. m., the victim parked her automobile under a street light near her apartment building at the intersection of Pershing and Newstead in the City of St. Louis. While removing a bag of groceries she was accosted by defendant who menaced her with a chrome-plated object appearing to be a gun with a narrow six inch barrel, stating he intended to rob her. Ordering her to get in the car, he forced her to drive to an empty lot, then told her to stop. After taking her jewelry and money, defendant forced her to crawl into the back seat. During this time the dome light in the car was on and the assailant stood part outside and part inside the car, hovering over the victim. He demanded she undress and after much protest she removed her shirt and pants. When she refused to undress further, defendant threatened to kill her, striking her head several times with the weapon and threatening to hit her with a soda bottle. Finally the victim disrobed fully and defendant raped her.

Subsequently, in accordance with her assailant's instructions, the victim dressed and started the car. When she backed the automobile into the alley, it became stuck in the snow and remained so notwithstanding repeated attempts to move it. Eventually they abandoned the car and while leaving the alley, the victim consciously sized up defendant. Reaching Newstead Avenue defendant threatened his victim against calling the police and then fled. She crossed the street to a service station where she telephoned for help and her sister came to pick her up.

On the evening of February 9, 1979, Laird Kelley, an off-duty police officer working as a security guard in a posted area for Kingsberry Place Street and Terrace Association, observed movement in some shrubbery. As Kelley went to to investigate, defendant darted from the bushes and during the chase that followed, tossed what appeared to be a gun into the snow. Cornering him in a dead end driveway, Kelley placed defendant under arrest for trespassing on Kingsberry Place. Recovering the discarded object, the officer discovered it was a large cigarette lighter shaped like a gun. Kelley also noted that defendant fit the description of a suspect in several recent nearby robberies.

At the outset, we examine respondent's contention concerning procedural deficiencies in appellant's brief. When initially filed, the argument portion omitted transcript page references supportive of appellant's factual allegations, required by Rule 30.06(h). While such failure can preclude appellate review of the merits, State v. Laususe, 588 S.W.2d 719, 722 (Mo.App. 1979), this result will not obtain because appellant by leave has submitted a corrected brief reaching the minimum standards of Rule 30.06. See Morris v. Reed, 510 S.W.2d 234, 238 (Mo.App. 1974).

Defendant first complains of the State's alleged failure to relinquish a photograph of an original lineup in which defendant appeared with one Larry Williams. At the pretrial hearing on the motion to suppress the victim's identification testimony, Williams testified that he was initially identified in a lineup as the assailant which he learned involved a rape case occurring on February 2, 1979. He further asserted that when it was ascertained that he had been incarcerated on that date, he was returned for another lineup in which defendant participated and defendant was identified as the attacker in a rape on February 2, 1979. Williams did not know who made the identification in the original lineup, but defendant alleges in his brief he was denied a photograph taken of that lineup. Defendant filed two motions for new trial. The first, October 5, 1979, the final day for a timely motion, was silent on this point. Defendant filed a second motion October 11, raising as additional error, the prosecutor's withholding of the photograph. The untimely motion for new trial was a nullity, preserving nothing for appellate review. State v. Collett, 542 S.W.2d 783, 785 (Mo. banc 1976); State v. Moore, 575 S.W.2d 253, 254 (Mo.App. 1978); State v. Harley, 543 S.W.2d 288, 292 (Mo.App. 1976). ¹ Moreover, the point may not be saved by designating the second motion an "amendment" to the first thereby permitting its filing date to relate back to October 5. See, Lloyd v. Garren, 366 S.W.2d 341, 344 (Mo. 1963). Nevertheless, we examine for plain error to consider whether the alleged error rises to the level of "manifest injustice or miscarriage of justice." Rule 29.12.

A prosecutor must, upon request, disclose to defense counsel any exculpatory evidence "which tends to negate the guilt of the defendant as to the offense charged ...." Rule 25.32(A)(9) (1979), now Rule 25.03(A)(9) (1980); Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963); Lee v. State, 573 S.W.2d 131, 133 (Mo.App. 1978); State v. Brooks, 551 S.W.2d 634, 655 (Mo.App. 1977), cert. denied, 434 U.S. 1017, 98 S.Ct. 736, 54 L.Ed.2d 763 (1978). For nondivulgence to result in reversal, the evidence must be material and the nondisclosure prejudice defendant's rights. Lee v. State, supra: State v. Brooks, supra. At trial, defendant sought discovery of a photograph allegedly taken of a lineup in which he and Larry Williams appeared, ² contending it would discredit the victim's identification testimony. However, at the suppression hearing the victim testified she viewed only one lineup and selected only the defendant as her assailant. She further identified State's Exhibit 1 as a photograph depicting the lineup she viewed. Williams does not appear in this photograph. Officer James Brawley confirmed the victim's identification of State's Exhibit 1 and her testimony respecting her view of the lineup. Hence, defendant apparently sought a photograph depicting a lineup viewed by someone other than the victim he attacked and not germane to defendant's contention of fallacious identification. It would not have discredited the victim's identification testimony. It could only have corroborated Williams' testimony that he and defendant appeared in the original lineup. We hold therefore that the State's alleged refusal to relinquish the photograph cannot be said to have prejudiced defendant and the trial court's action was not plain error.

Defendant next contends his person and the gun-like cigarette lighter should have been suppressed as tainted by a warrantless arrest made without probable cause. ³ A warrantless arrest requires a showing of probable cause. When making the arrest, the officer must have known facts sufficient for a prudent person to believe defendant had committed or was committing an offense. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964); State v. Maxwell, 502 S.W.2d 382, 386 (Mo.App. 1973). The record is replete with such circumstances. As previously discussed, the arrest was made after a chase commencing when Officer Kelley observed defendant crouched in some bushes in a posted area. At the time, Kelley was working extra hours in an area where several robberies had recently occurred. His suspicions were aroused by defendant's hiding in the bushes, fleeing when he approached and tossing an object appearing to be a gun into the snow. This activity justified the officer's approach to investigate. Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921 1922, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); State v. Rankin, 477 S.W.2d 72, 75 (Mo. 1972).

When defendant was caught, the officer recognized he fit the description of a suspect in several recent robberies. Moreover Officer Kelley caught defendant flagrante delicto, trespassing in a neighborhood posted private. When an officer witnesses a crime, albeit a misdemeanor, ⁴ in which the perpetrator acts in a highly suspicious manner and when cornered is recognized as fitting the description of a suspect in recent felonies, that officer has probable cause for a warrantless arrest. See, State v. Jefferson, 391 S.W.2d 885, 888 (Mo. 1965); State v. Moore, 580 S.W.2d 747, 750 (Mo. banc 1979); State v. Robinson, 484 S.W.2d 186, 190 (Mo. 1972); State v. Hill, 419 S.W.2d 46, 47 (Mo. 1967); Adams v. Williams, 407 U.S. 143, 149, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972).

Defendant next objects to the trial court's denial of his motion to suppress the victim's in-court identification as tainted by an unduly suggestive lineup identification. He argues the evidence showed that when viewing the lineup, the victim selected defendant only after learning that her first choice...