State v. Bibbs, 55518
| Decision Date | 14 December 1970 |
| Docket Number | No. 55518,No. 1,55518,1 |
| Citation | 461 S.W.2d 755 |
| Parties | STATE of Missouri, (Plaintiff) Respondent, v. John Albert BIBBS, (Defendant) Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.
John C. Boyd, Peper, Martin, Jensen, Maichel & Hetlage, St. Louis, for appellant.
Defendant was charged with the offense of assault with intent to kill with malice aforethought under the provisions of § 559.180. 1 He was also charged with three prior felony convictions. See § 556.280. The jury found defendant guilty of the offense charged and the court fixed his punishment at imprisonment for a term of twenty-five years. Defendant has appealed from the ensuing judgment. We affirm.
At about 7:30 p.m. on January 17, 1969, Officers Mitchell and Holloway of the St. Louis Police Department were patrolling the area of Goodfellow and Page Avenue in an unmarked patrol car. They were following a 1962 Chevrolet to which their attention was drawn by the way it was being driven. They checked their sheet listing stolen automobiles and saw that the license number on the Chevrolet was listed on the sheet. Their car did not have the usual red dome light of regular patrol cars so they turned on the flasher for the four headlights and the siren and when the driver sought to escape they pursued the car. At a point on Blackstone the driver of the Chevrolet slowed and then suddenly jammed on the brakes and stopped the car. The driver of the police car was able to make a sudden stop, with his front bumper about three feet behind the rear of the Chevrolet. As the policemen were preparing to alight from the car the driver of the Chevrolet suddenly turned toward the rear and fired three shots through the back window in the direction of their car. The Chevrolet then started forward, but the officers in the police car were delayed because their engine had died and they had difficulty in starting. However, they immediately made an emergency broadcast over the police radio advising that they had been shot at from a car and giving a description of the car and driver. After their car was started they tried to follow the Chevrolet but soon lost sight of it. They cruised in the area until they did find it, empty, a short time later. They searched the surrounding area without success and then returned to their headquarters, the 7th District Police Station. None of the shots struck the car or its occupants.
In regard to the evidence as to the ability of the officers to see defendant under the circumstances the following testimony of Officer Mitchell is significant: Officer Holloway described the driver of the Chevrolet as 'a light-skinned Negro with long slender type face, with large eyes and bushy hair.' Evidence of these officers concerning a police station identification of defendant will be stated later.
After the police broadcast a number of nearby police cars came to the area and Officer Burroughs, in one car, saw the Chevrolet coming toward his car on Bartmer at high speed. It jumped the curb apparently inflicting head injuries to the defendant who got out of the car and ran between two houses. Burroughs advised on the radio as to the direction defendant was running, and defendant was apprehended within a minute or two by officers in another car on Page who saw defendant in an areaway at 5348 Page. Because of defendant's head injuries he was taken from the place of arrest to Homer Phillips Hospital. About an hour later he was taken to the 7th District Police Station for booking.
Another officer present at the arrest scene searched the area nearby and found a .38 caliber Smith and Wesson revolver in a garage. It contained five spent rounds and there was testimony that it had been fired recently. At the trial both Officers Mitchell and Holloway identified defendant as the person who fired the shots.
Defendant did not testify and did not offer any evidence except an exhibit of the clothing he was wearing at the time of his arrest. This was offered because the arresting officers had said he was wearing dark clothing, including his pants, and the pants he was actually wearing were described as light khaki. Also, defendant brought out on cross-examination of the arresting officers that at the time of his arrest he had a slight mustache and goatee 'in the process of growing.' That testimony was elicited because neither of the officers fired upon saw any mustache or goatee at the time of the occurrence.
Defendant filed a motion to suppress any identification evidence of Officers Mitchell and Holloway because he did not have counsel present at the time they viewed him at the police station. That motion was heard and overruled prior to trial. At that hearing defendant testified that he had not been offered counsel or given any warning as to his constitutional rights before the two officers identified him. Officer Holloway testified that he knew a suspect had been arrested but did not know he was at the police station when, about an hour after the incident, he walked into the holdover and saw them booking defendant whom he recognized as the man who had shot at him and Officer Mitchell. Officer Laux testified that prior to the time defendant was seen by either of the officers the following had been read to him:
Defendant contends that the court erred in overruling the motion to suppress and in admitting the identification testimony of the two officers at the trial. He cites United States v. Wade, 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. Neither Wade nor Gilbert is applicable to this case. They were pretrial, post-indictment cases involving a lineup conducted without notice to defendant's counsel. As is now well known, those cases hold that a defendant is entitled to have counsel present at a lineup so that said counsel will be prepared to bring out on cross-examination at later proceedings suggestive procedures or other unfairness that may have occurred at the lineup. Stovall involved the viewing of a suspect singly, without counsel, and it states that whether such a confrontation is a violation of due process depends on the totality of the surrounding circumstances.
We do not think that any of the three cases heretofore discussed are applicable to the case before us because here there was no lineup and no arranged confrontation of defendant by the two officers. Officer Holloway came upon defendant unintentionally in the ordinary course of his work an hour after the shooting. Before Officer Mitchell saw defendant at the station he had been told by Officer Holloway that they had the suspect downstairs. Under those circumstances it would appear that counsel would have been of little benefit to defendant. It is difficult to see how there could have been any suggestive procedures or other unfairness in that situation. It is suggested that defendant was wearing a hospital robe when he was observed at the station. While that might indicate that he was the suspect it also would make him more difficult to identify than if he had been dressed in street clothes. Even if we assume that the viewing of defendant by the officers comes within the classification of an arranged confrontation it was very similar to the prompt so-called on-the-scene confrontation to which Wade and Gilbert do not apply, and the absence of counsel would not make such illegal or impermissible. We do held in State v. Hamblin, Mo.Sup., 448 S.W.2d 603, and State v. Townes, Mo.Sup., 461 S.W.2d 761. And we do not think Stovall would preclude that conclusion. As indicated in Hamblin and Townes, it was important that the officers view defendant immediately so that if he were not identified as the guilty person he could be released and the search for the real offender continued. We observe in passing, however, that there was convincing evidence of an independent basis for the in-court identification. And, since we have held that Wade and Gilbert are not applicable in the situation before us the per se exclusionary rule of Gilbert would not apply. For the reasons stated we rule this point against defendant.
Defendant filed a motion seeking an order requiring the State to produce for inspection the grand jury testimony respecting this charge, the police report, and all evidence known to the State which would be favorable to defendant. The court required production of the police report but overruled the remainder. Defendant contends that the court erred in the portion overruled because, 'in view of defendant's limited resources, he was not otherwise able adequately to prepare for trial, and he was therefore deprived of due process and equal protection of the laws * * *.'
No evidence was offered in support of this motion. All the witnesses were police officers. Defendant's attorney did make a statement to the court that he had had difficulty locating some of the witnesses and that one he talked with over the telephone had politely refused to discuss the case with him. The court did not err in refusing to order production of the grand jury testimony. We have consistently held...
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...Those cases involved post-indictment lineups conducted in the absence of counsel and are distinguishable on that basis. State v. Bibbs, 461 S.W.2d 755, 757 (Mo.1970); State v. Townes, 461 S.W.2d 761, 763 (Mo.1970), Cert. denied, 407 U.S. 909, 92 S.Ct. 2445, 32 L.Ed.2d 683 (1972). Moreover, ......
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