State v. Barron
| Decision Date | 08 March 1971 |
| Docket Number | No. 55658,No. 2,55658,2 |
| Citation | 49 A.L.R.3d 1176,465 S.W.2d 523 |
| Parties | STATE of Missouri, Respondent, v. David BARRON, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Charles A. Blackmar, Asst. Atty. Gen., Jefferson City, for respondent.
Louis Kranitz, Theodore M. Kranitz, St. Joseph, for appellant.
STOCKARD, Commissioner.
Appellant, David Barron, was found guilty by a jury of burglary in the second degree, but the jury failed to declare the punishment by their verdict, and the trial court, pursuant to § 546.440, RSMo 1969, V.A.M.S., determined the sentence to be imprisonment for two years, the minimum.
There is no question but that a burglary of an automobile garage at 1925 St. Joseph Avenue in the City of St. Joseph occurred in the early morning hours of September 18, 1969. Entrance was obtained by removing a window pane from a storeroom window, and then by breaking through the connecting door into the garage. Two police officers, in separate automobiles, arrived at the garage before the burglar departed. Officer Donald E. Egelhoff testified that he saw a person in the garage, and that the person was appellant. Office Herman C. Merrill also arrived on the scene about the same time, and he saw a person in the garage whom he identified as appellant. However, the person in the garage escaped out a window and ran, and although the officers attempted to apprehend him they were not able to do so.
At the side of the garage was an automobile, later established to belong to appellant, and in the front seat the officers found a wallet in which was an operator's license issued to appellant. Later that morning two other police officers went to appellant's home and arrested him. Shortly after he was brought to the police station Officers Egelhoff and Merrill each saw him, and each testified on direct examination that at that time he identified appellant as the person he had previously seen in the garage.
Appellant's first point is that 'Identification procedures followed by the St. Joseph Police Department and the action of the trial court supportive thereof, were so conducive to irreparable mistaken identity as to be a denial of due process of law.'
From the argument we find that by this point appellant contends that the police station identification by Officers Egelhoff and Merrill constituted the 'widely condemned' practice of 'showing suspects singly to persons for the purpose of identification and not as a part of a lineup,' and (2) that the trial court refused to permit counsel to have the appellant sit back of the rail in the general audience and then have the witnesses attempt to identify him in those circumstances.
We note that appellant did not file a pre-trial motion to suppress testimony of identification by the officers at the police station, and further, that when each officer testified on direct examination that he had identified the appellant at the police station no objection whatever was made. Appellant sets forth verbatim in his brief certain testimony of each officer concerning the identification at the police station, but in each case the testimony so set forth is that which was given on cross-examination in answer to questions asked by appellant's counsel. For these reasons, any objection to the testimony of the police officers concerning identification by the police officers at the station has been waived. 'Timely objection at the trial, and preservation of the objection in the motion for new trial, must be made in order to preserve the point for appellate review.' State v. Brownridge, Mo., 459 S.W.2d 317. See also State v. Franklin, Mo., 448 S.W.2d 583, and State v. Hampton, Mo., 430 S.W.2d 160.
Assuming that this matter could be the subject of examination pursuant to Supreme Court Rule 27.20(c), V.A.M.R., pertaining to plain error, it has no merit. The officers either accidentally without design saw appellant at the police station and identified him, or they saw him pursuant to an arrangement to do so. The record does not indicate which it was. If it was the former, the situation is ruled by the recent case of State v. Bibbs, Mo., 461 S.W.2d 755. If it was the latter, the situation is ruled by State v. Hamblin, Mo., 448 S.W.2d 603. We find no justification for invoking the plain error rule.
The second part of this point also is without merit. The factual situation was that during the voir dire examination appellant was sitting outside the rail in the audience, and the prosecuting attorney asked that he 'take his seat.' Appellant's counsel stated he did not want him at the counsel table, and in 'making a record' he stated that he had appellant outside the rail with members of his family 'in order that the identification of the defendant is not facilitated by his being segregated from everybody else.' The court stated that it would not permit 'a demonstration,' but it further stated that it would 'rule on the matter when it comes up.' The voir dire examination continued, but the record does not show whether appellant remained outside the rail during the remainder of the voir dire. During the discussion, counsel for appellant stated that he would 'move him right down there as soon as the jury is empaneled.' In any event, during the trial there was no request that the police officers identify the appellant from the audience, and apparently he was seated at the counsel table. Therefore, the court was not called upon to rule the matter as it indicated it would do.
Under these circumstances we find nothing presented for appellate review. But, making the necessary assumptions to consider what appellant apparently wanted to do, but abandoned because the court stated it would not permit a 'demonstration,' this is a matter concerning the conduct of the trial and courtroom procedure over which the trial judge has a wide discretion. State v. Turner, Mo., 320 S.W.2d 579, 584. The record before us does not demonstrate an abuse of that discretion.
Appellant next contends that he was denied a 'fair trial and * * * equal protection of the law, in that the physical evidence found at the scene of the alleged crime was not preserved, and defendant thereby was prevented from establishing his innocence.'
By this point appellant has reference to the fact that the police did not take possession of and preserve a broken screwdriver, a pane of glass, the soft-drink machine and coin box, the numerous tools which had been moved by the burglar, and defendant's automobile which was parked near the garage. He also contends that the police should have 'dusted' the items for fingerprints, which they did not do. Appellant admits that he has no case authority to support his position, but he contends that if the police had taken possession of these items they could have been examined for fingerprints, and 'had any borne fingerprints or indicia of contact of other persons, this would have tended to support (his) alibi.'
We do not have here deliberate suppression of evidence favorable to an accused as in State v. Thompson, Mo., 396 S.W.2d 697. What appellant really contends is that (1) the State should have done a better job in preparing its case by seizing and holding the enumerated items, and if this had been done the items would then have been available to him, or (2) that the State must investigate any matter which might result in the discovery of evidence favorable to an accused. One of the officers testified that after he saw a person in the garage and identified that person as appellant, and after having found his automobile and billfold at the scene, he did not think additional investigation was necessary. Whether he was right was a matter of judgment. If the police had done more after arriving at that conclusion, they then would have been doing the investigation work for the accused, which they are not required to do. See State v. Reynolds, Mo., 422 S.W.2d 278.
The items were not available at trial, and of course are not now available. Therefore, nothing could be gained by a new trial. The effect of appellant's contention is that he should be discharged. However, it is purely speculative that the items would have been helpful to appellant. We do not agree that the circumstances justify a reversal of the judgment.
Appellant next asserts in his third point that 'The trial judge failed to maintain an attitude of scrupulous fairness, and permitted his belief in the guilt of defendant to be reflected in his reaction to witnesses and counsel.'
During rebuttal argument by the prosecuting attorney, he turned to counsel for appellant and said, 'Is it funny?' What brought about this remark is not shown by the record, and we are not here concerned with the propriety of counsel making such a remark to other counsel instead of looked like him. An objection was made Counsel for appellant then stated to the court that he had not 'addressed any remarks to (State's) counsel,' and the court replied: No objection was then made concerning the remark of the court, and no relief was requested. Counsel, by inference, indicates in his brief that there was something done by him to bring on the comment, because he says 'if any one in the courtroom were entitled to carry upon his face an expression of partiality, whether frown or smile, in favor of defendant, it would be his attorney.' He argues, however, that it was 'grossly improper' for the court to reprimand him.
Aside from the fact that no objection was made to the remark of the court and no relief was requested, the remark was in the nature of an admonishment to counsel, a matter within the discretion of the trial court. State v. Gyngard, Mo., 333 S.W.2d 73. The record implies that the admonishment was not totally without justification, and under the circumstances we see no abuse...
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