State v. Bibee

• Decision Date: 21 May 1973
• Docket Number: No. 9370,9370
• Citation: 496 S.W.2d 305
• Parties: STATE of Missouri, Respondent, v. Roy BIBEE, Appellant.
• Court: Missouri Court of Appeals

Page 305

496 S.W.2d 305

STATE of Missouri, Respondent, v. Roy BIBEE, Appellant.

No. 9370.

Missouri Court of Appeals, Springfield District.

May 21, 1973.

Motion for Rehearing Denied June 12, 1973.

John C. Danforth, Atty. Gen., David Robards, Asst. Atty. Gen., Jefferson City, for respondent.

Ralph E. Baird, Joplin, for appellant.

PAUL E. CARVER, Special Judge.

Roy Bibee was found guilty by a jury in the Circuit Court of Jasper County, Missouri, of robbery in the first degree by means of a dangerous and deadly weapon and was sentenced to imprisonment for a term of 25 years under the supervision and custody of the state Department of Corrections of the state of Missouri. §§ 560.120 and 560.135, RSMo 1969, V.A.M.S. From the judgment and sentence resulting therefrom, he has appealed to this court.

The notice of appeal in this cause was filed on January 18, 1972. The trial court granted the appeal to the Supreme Court of Missouri. On August 7, 1972, the Supreme Court of Missouri ordered this case transferred to the Missouri Court of Appeals, Springfield District. We have jurisdiction to hear it.

About 10:15 p.m. on August 7, 1970, Ellen Brand, now Ellen McClary, was alone in the ticket booth of the Crest Drive-In Theater in Joplin, Missouri. The drive-in theater was located in the southeast edge of Joplin, adjoining the Newton County line. It was owned by the Tri-State Drive-In Corporation, a corporation which was engaged in the business of operating motion picture theaters.

Ellen Brand was employed by the Crest Drive-In Theater selling tickets to patrons of the theater when a man drove up to the box office in a white car and asked her for the money. The man had a 'small gun' and the windows on his car were rolled down, and he had his hand leaning on the window. The gun was not pointed directly at her. He said, 'Hand me all the bills.' She said, 'O.K.' and gave him the money. When she saw the gun, she was terrified. She had seen this man about thirty days before at the Crest Drive-In. After the robbery the man drove off behind the booth in front of the picture screen and out the exit at a speed of approximately thirty to thirty-five miles an hour. She could not read the license number on the car, due to the position of the car, although she tried. When the car reached the exit, it was driven onto Range Line and turned south toward Newton County. A car of similar description was found about 11 p.m. on South Range Line in front of the Arches Inn. The Arches Inn is a restaurant and motel located about one-half mile south in Newton County from the Crest Drive-In. At the time of the robbery she estimated she was about three and a half feet away from him, looking out of the window of the drive-in theater into the window of the car. The booth is lit on the inside and on the outside, the lights around the roof being in the nature of spotlights but the lights did not shine in the car.

Ellen Brand wore contact lens but wasn't sure she was wearing them because they bothered her eyes, so she took them out and forgot them. Ellen Brand had her sixteenth birthday in August of 1970, and thereafter she married and her name at the time of the trial was McClary. We shall refer to her hereafter as Ellen McClary. Her difficulty was seeing things that were close. She had no difficulty in seeing things from a distance. She could only see the upper part of the man, as he never got out of the car. She identified the defendant in the courtroom as the man who held her up on August 7, 1970. Prior to August 7, 1970, she had seen the defendant on July 5, 1970, shortly after ten o'clock; and at the time of the trial she had seen him in the Magistrate Court of Jasper County on August 18, 1971. There was no question in Ellen McClary's mind that the only time she had seen the defendant prior to August 7, 1970, was on July 5, 1970.

A short time after the robbery several police officers visited her and she went with them and identified a white Ford automobile found near the Arches Inn as a car 'that looked like it.' She previously had identified the car as a 'Ford or Chevrolet or something and of white color.' About forty-five minutes after the robbery she was taken to the Joplin Police Station to look at pictures. Later a member of the Joplin Police Department came to her house on several occasions and showed her pictures. An assistant prosecuting attorney of Jasper County had shown her a picture of the defendant. This was on the evening before the preliminary hearing, and she again looked at the picture the next morning. She stated that she did not remember picking out the picture marked defendant's Exhibit 3 at the Joplin Police Station from several loose pictures, but acknowledged that the assistant prosecuting attorney and Detective Forney, along with other police officers had showed her defendant's Exhibit 4. Defendant's Exhibit 3 is a picture of a man other than the defendant, and defendant's Exhibit 4 is a picture of the defendant. She picked out the defendant, who was with several other people in the magistrate courtroom, but denies she was relying upon the fact that she had been shown the picture of the defendant by the police officers and assistant prosecuting attorney. She further denied she identified the defendant by his picture for the officers, although he was arrested in California and returned to Joplin after she identified the picture.

The amount of money taken was shown to be $664.

On the night of the robbery near the Arches Inn, which was located a short distance south of the Crest Drive-In, Detective Carlton found a white 1970 Ford, with Oklahoma license, parked with the lights on, motor running, and keys in the switch. This was the car that Ellen McClary testified she identified. Officer Olin J. Daniels, who was called as a witness for the defendant, determined that it had been brought to the Joplin Auto Auction nearby and sold and was waiting transport from Joplin by the buyer, and it was later returned to the Joplin Auto Auction Company by the Joplin Police Department. At the preliminary hearing Officer Daniels, who had examined the car, testified that he didn't think they took fingerprints but admitted at the trial that they did take fingerprints. He further stated that they had not been sent in or processed. The impression of the fingerprints taken from the Ford were not produced but were concealed until the trial when Officer Daniels was subpoenaed and the records and files were searched during the course of the trial by defendant's counsel and marked as defendant's Exhibit 6. Exhibit 6 was not introduced into evidence.

Della Jean Bebee, who was called as a witness by the defendant to rebut the testimony of Ellen Brand McClary concerning her knowing Roy Bibee, testified that she was with him on the night of July 5, 1970, in Commerce, Oklahoma, from eight o'clock in the evening until twelve o'clock midnight or one o'clock thereafter. At Commerce they went to Jerry's Club and they signed a book on entering the club; that they were unable to find the book that was supposedly signed by them, as Jerry's Club had been closed. She also testified she had been intimate with the defendant, and after the robbery had gone to California with him. She admitted she had been convicted along with the defendant on a burglary charge in California. She also admitted having been convicted of burglary in the state of Texas.

The defendant, Roy Bibee, was called as a witness on his own behalf. The defendant on direct examination stated he had been twice convicted of felonies; one conviction being for violation of the Dyer Act in the state of Indiana, and one on the charge of burglary in the state of California. Also, that Della Jean Bebee was also convicted with him on the burglary charge in Visalia, California. He further testified that he had been prosecuted in California under the name of David Earl Harper.

Defendant's testimony was the same as Mrs. Bebee's concerning the night of July 5, 1970. He admitted that they were both together that night at Jerry's Club at Commerce, Oklahoma, and that it took about fifteen minutes to go from Joplin to Commerce; that they left Jerry's Club between 12:30 p.m. and 1 a.m. and that they went to his motel, where he and Mrs. Bebee stayed until 3:00 or 3:30 a.m. on July 6, 1970. He did not remember where he was on the night of August 7, 1970, but that he did not rob this young lady.

He testified that the witness Ellen McClary had testified at the preliminary hearing to picking out a picture other than the defendant and identified another person to the city police officer as the robber; and he heard her testify at the preliminary hearing that she identified him at the preliminary by use of a picture shown to her before the identification marked defendant's Exhibit 4. He also testified the defendant was in the hall at the magistrate court on the morning of the lineup and saw Ellen McClary, who a short time thereafter picked him out. He further stated that a search was made for the books and records of Jerry's Club of Commerce, Oklahoma, prior to the trial, on behalf of the defendant, but these could not be found.

The assistant prosecuting attorney, Grant Scott, in rebuttal disputed the defendant's testimony that the witness Ellen McClary had placed her identification of the defendant on pictures.

Ralph Baird, the attorney for the defendant, had been and is representing the defendant under appointments by the Circuit Court and Magistrate Court of Jasper County, Missouri. His appointment in the circuit court was made on September 20, 1971, when the defendant and his attorney were notified at the time the case was set for trial before a jury on September 30, 1971. An application for continuance of this case from September 30, 1971, was denied. Mr. Baird, representing the defendant as an attorney, asked the court to permit him to withdraw from the case because he was likely to be a material...