State v. Andrews

• Decision Date: 11 April 1989
• Docket Number: No. 54589,54589
• Citation: 770 S.W.2d 424
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Anthony ANDREWS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 424

770 S.W.2d 424

STATE of Missouri, Plaintiff-Respondent, v. Anthony ANDREWS, Defendant-Appellant.

No. 54589.

Missouri Court of Appeals,

Eastern District,

Division Five.

April 11, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied May 9, 1989.

Application to Transfer Denied June 13, 1989.

Harvey I. Feldman, St. Louis, Stormy White, Asst. Public Defender, Clayton, for defendant-appellant.

William L. Webster, Asst. Atty. Gen., John P. Pollard, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

SIMEONE, Senior Judge.

Defendant-appellant, Anthony Andrews, was charged, tried by a jury, and found guilty of four counts of robbery in the first degree, two counts of attempted robbery in the first degree and six counts of armed criminal action for twice robbing the Farm and Home Savings and Loan located at 9601 Halls Ferry in St. Louis County. Sections 569.020, 564.011, 571.015, R.S.Mo.1986 . He was sentenced by the court to a total of 53 years. He appeals. We affirm.

I.

Immediately prior to the trial, which took place in January, 1988, an evidentiary hearing was held on three pre-trial motions filed by appellant: (a) to suppress evidence, a cap or hat, allegedly worn by the appellant during one of the robberies, (b) to suppress statements and (c) to suppress identification of a photo and live lineup. After the hearing on the motions, the court eventually overruled each of them.

Also prior to trial evidence, a venire of some thirty jurors were interrogated. On the venire were four black jurors. At the end of voir dire, the prosecution used two of his peremptory challenges to strike two of the four black jurors--Number 25, Vonnie M. Raglin, and Number 31 (who later became No. 21) Nancy A. Russell. Two other black jurors were not stricken. Defense counsel challenged the validity of the jury on the grounds that these venirepersons were stricken because of their race and the State gave no rational, neutral or lucid reason why they were not qualified to serve. The court requested the prosecution to give an indication of "why you struck the two that you did." The prosecutor replied that he struck No. 25 because:

[i]f I recall she is a maid and seemed to be of a lower income level that I suspect Defendant's alibi witnesses will also be either unemployed or have as far as employment an extremely low income level and because of the possible identification of characters like that....

As to juror Number 31, the prosecutor stated that he struck her because:

That one is easy, your Honor. If I recall, I asked what she did for a living. She retired. She indicated she hadn't worked ten or fifteen years, couldn't really remember the last time she worked was. If I recall, her mentality didn't seem to be very sharp and ... secondly, the Defendant ... has been unemployed for years. I suspect the alibi witnesses he intends to call have been unemployed for years and for both of those reasons I struck Nancy Russell.

Defense counsel stated that these reasons do not show neutral and lucid reasons and moved that the jury panel be quashed. The court commented that:

Well, since in my opinion he only struck two, there were four originally on the panel, he struck two, I am not even sure that he would have had to give any reasons for those two, but he has and I am satisfied so I will overrule your Motion ... to strike the jury.

II.

The trial then began on January 26, 1988. The jury could reasonably find the following.

Farm and Home Savings and Loan is located at 9601 Halls Ferry in Jennings, St. Louis County. On two occasions ¹ the Savings and Loan was robbed--once on Friday, November 7, 1986 and again on Monday, February 2, 1987. Employed at the Savings and Loan at the time of these events were Shelley Upple, a teller, Marilyn Brown, a customer service representative, Sallie Gooch, a marketing service representative, Rosemary Ivie, the head teller, and Carol Crump, the savings manager.

At about 5:00 p.m. on the evening of November 7, 1986, Ms. Brown was seated at her desk and saw the robber enter the bank and proceed to another employee's desk. He soon left the bank but shortly returned. When he returned he went to the teller window of Shelley Upple. He tapped her on the back, she turned around and the robber said "Give me all your money." He was about two feet away from her. The man had a "small black gun with a brown handle." The gun was "probably a half a foot away" from her. Shelley gave the man approximately $3,000. The man had on a stocking cap and a green jacket. Rosemary Ivie was nearby. She was running vault tickets and she noticed Shelley was being robbed. She heard the man ask for money. The man then pointed the gun at Rosemary and said "I'll take your money too." But she had none and with that he went to the window of Sallie Gooch, and demanded money too. Sallie "took her money out of the drawer and handed it to him." She gave him approximately $2,000. The man was observed by the women for several minutes ranging from three to eight. The man left the Savings and Loan.

Then about noon on February 2, 1987, Ms. Brown was again working at her desk and saw the same man enter the savings and loan. The "minute he walked through the front doors" she recognized him because "he was the same guy that had came [sic] in in November." Again he walked over to the teller line and went to Shelly's window, but at that time Carol Crump was "working her window." Carol Crump recognized him. He had a gun. She gave him money. He then went to Sallie Gooch's window and asked for her money. Sallie testified that the same man came into the bank in November and that she recognized him from "the previous robbery." She also gave him money. He then went to Rosemary Ivie, held a gun on her, and asked if she had any money and although she had some, she didn't give it to him. The man had on a green jacket, jeans and a dark covering on his head, a black nylon stocking cap. The man left.

Police Detective, Herman Barnes, Jr. of the City of Jennings police was directly involved in the investigation of the robberies. The FBI was also involved. The women witnesses were shown many photographs by the FBI and then shown five photographs of suspects by Detective Barnes. Barnes testified that his investigation of the initial robbery focused on several possible suspects. At some point, the investigation ultimately came to focus on the appellant. That came about because a "very reliable confidential informant that has worked with me approximately six to eight years gave me a telephone call and advised me of a name that I should consider as a possible suspect." Barnes went to the Savings and Loan and showed the women five photographs of suspects independently. Each of the women picked out the defendant. Later a live lineup was held at the Jennings police station and each of the women independently picked out the defendant as the man who robbed the savings and loan company on both occasions. Furthermore, at the trial each of the women witnesses, Shelley Upple, Marilyn Brown, Carol Crump, Rosemary Ivie and Sallie Gooch, identified the defendant as the man who committed both robberies on November 7 and February 2.

During the trial, an investigator of crime scenes testified. On February 2, he was requested by the FBI to respond to retrieve physical evidence they had located in the rear yard of a residence about a block away from the savings and loan. The investigator went there and retrieved a black nylon stocking cap. Hairs were found inside the cap. Some hairs were taken from the appellant's head and the two samples were compared by the St. Louis County Crime Laboratory. The supervisor of the laboratory testified that the "results of the comparison of hairs removed from the black nylon stocking cap and the known hair samples submitted as those of Anthony Andrews disclosed the presence of similarly appearing hairs and that was similarly appearing in a microscopic sense." The statistical relevance of the comparison is such that "if you have two hairs appearing alike microscopically, the statistics say those hairs not to be the same individual are one in 850 individuals."

In the defendant's case, the appellant denied taking part in either of the robberies. The thrust of his defense was misidentification and alibi. While he could not recall how he spent the day on November 7, he testified that on February 2, 1987, he was at his stepmother's for a "get together" for his girlfriend. The "get together" lasted over the weekend and into Monday. He testified he was there all day, February 2. His stepmother, sister and girlfriend corroborated his testimony.

The court gave some 30 instructions, the cause was argued and after about six and a-half hours, the jury returned its verdict of guilty of all twelve counts. In due time defendant appealed.

III.

In his first point, appellant contends that the trial court erred (1) in overruling his motion ² to disclose the identity of the confidential informant because the information was vital to his defense and (2) in permitting the state to introduce evidence that information from a confidential informant led to his arrest because such evidence led the jury to believe facts which showed appellant was guilty and caused the jury to convict on matters not in evidence. He relies upon principally on State v. Wandix, 590 S.W.2d 82 (Mo. banc 1979) and Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) and State v. Nafziger, 534 S.W.2d 480 (Mo.App.1975).

He argues that the appellant's photograph was shown to various witnesses in the Farm and Home Savings and Loan robberies because of information from a confidential informant and the court permitted the state to conceal the name and identity of the informant. He also argues that in the testimony of Detective Barnes, Barnes stated that his investigator's investigation focused on several possible suspects and ultimately focused on ...