State v. Britt, 57705

• Decision Date: 12 November 1973
• Docket Number: No. 57705,No. 1,57705,1
• Citation: State v. Britt, 504 S.W.2d 38 (Mo. 1973)
• Parties: STATE of Missouri, Respondent, v. Ronald BRITT, Appellant
• Court: Missouri Supreme Court

Page 38

504 S.W.2d 38

STATE of Missouri, Respondent, v. Ronald BRITT, Appellant.

No. 57705.

Supreme Court of Missouri, Division No. 1.

Nov. 12, 1973.

Rehearing Denied Jan. 14, 1974.

John C. Danforth, Atty. Gen., Neil MacFarlane, Asst. Atty. Gen., Jefferson City, for respondent.

Tom P. Mendelson, St. Louis, for appellant.

HOLMAN, Judge.

Defendant was charged with the offense of robbery in the first degree. See §§ 560.120 and 560.135. ¹ The trial resulted in a verdict of guilty and the jury fixed defendant's punishment at imprisonment for a term of eight years. Defendant has duly appealed.

Sandra Sondag testified that on October 10, 1970, she was employed as a desk clerk at the Downtowner Motor Inn in St. Louis and was working the shift from 3 until 11 p.m.; that shortly before 11 o'clock, in accordance with established custom, she checked the cash drawer and removed the money which exceeded $300, and placed it in the safe; that as she prepared to place the cash drawer containing $300 back in the cash register, two young men suddenly came behind the counter and while one held a knife the other grabbed the drawer and they rapidly went around the desk and out the side door of the lobby; that she got a close look at the face of the man who took the cash drawer and later identified him as the defendant; that she immediately called to the bellman, who pursued the robbers, and that she then called the police. This witness further testified that on that night there was a fraternity party in progress in a room on the mezzanine at which 50 or more people were attending, most of them black; that when the bellman pursued the robbers there was a group of about ten people in the lobby, in front of the door, and he had trouble getting through the crowd; that the $300 in the cash drawer consisted of currency, the largest denomination being $20, some change, and quite a few coins in wrappers; that the wrapper admitted in evidence, which was found in the car in which defendant was arrested, was similar to one of the wrappers in the cash drawer; that when the police arrived she described the two men as being colored, about 20 years old, and wearing dark clothing; that one was a little taller and more 'heavy set' than the other; that about 4:30 a.m. on the next day, at the request of the police, she went to police headquarters where she viewed a lineup of four or five people and in which she identified defendant. She stated that all of the men in the lineup were black and were reasonably close in height and weight, and that one was considerably older than the others; that there 'is absolutely no doubt at all' that defendant was the person who picked up the cash drawer in the robbery.

The bellman, James Coleman, testified that on the evening in question he had difficulty in keeping cars from stopping and parking in the driveway; that there was a gray Buick with its front end 'bashed in,' containing six or seven people, which kept driving up and stopping in the driveway; that on three occasions he had had to direct them to move out of the driveway; that when he saw the holdup in progress he pursued the two men who went through the north door; that although he was delayed a little by men blocking the doorway, he saw the two men get into the Buick previously described; that about two or three hours later the police took him to the police station where he saw defendant and a number of others sitting in a room; that he had previously told the police he could identify the two men involved; that he recognized defendant at the police station as being the man who had taken the cash drawer. This witness identified the defendant in court as being one of the robbers, stating there was no doubt in his mind that he was the one.

Patrolman Jerry Mitchell testified that he responded to the call from the motel and received a report from Sandra concerning the theft and a description of the robbers; that he also interviewed Coleman and obtained a description of the Buick car in which the robbers had escaped; that he broadcast this information over police radio and about 1:30 a.m., responded to a call for assistance by another officer who had located the car at 10th and Carr Streets; that he went to that location and participated in the arrest of the persons in the car, including defendant.

James Mosley, another patrolman, testified that while patrolling an area near 10th and Carr, he observed a Buick of the description he had previously obtained; that he stopped the car and arrested the subjects, who were six males and one female, including defendant; that a green dime coin wrapper was found in the center of the front seat of the car; that after the arrest the occupants of the car were searched and defendant was found to have something over $50 in his possession; that the amount of money possessed by all of the car occupants totaled $301.29; that the currency consisted of twenties, tens, fives, and ones.

Patrick Casey, police sergeant, testified that he participated in the arrest of the defendant and later was present at the lineup; that he was in the room at the time Sandra viewed the lineup and identified defendant as the person who took the cash drawer; that he was also present at the time Mr. Coleman separately viewed the same lineup and made the same identification.

Defendant testified that he attended the dance at the Downtowner on the occasion in question and was with Keith Cain (the person identified as the other participant in the robbery); that they went to the Downtowner in the Buick described in evidence with a number of other persons; that he had nothing to do with the robbery and was standing near the door when the bellman was chasing the robbers and, in so doing, burned his coat; that he later protested to the bellman and sought damages because of the burned coat; that he later left the motel and walked to 20th and Franklin, where he happened to meet the other parties in the Buick, left with them, and was later arrested. Defendant also presented as witnesses two friends who testified that they were in the motel lobby and verified the fact that defendant was near the door when the bellman was pursuing the robbers.

During the cross-examination of Sandra Sondag defendant's attorney sought to show that he 'attempted to talk with her, just to get her account of what happened, and that she refused to discuss the thing.' His theory was that such was proper 'to show a possible bias of this witness.' Upon the State's objection the court ruled, 'sustained as not the proper method to accomplish what you state.' Defendant here contends that the court's ruling constituted reversible error.

Defendant's contention presents as interesting question which apparently has not been settled in this state. Defendant's main reliance is upon State v. Solven, 371 S.W.2d 328 (Mo.1963), but we think that case is clearly distinguishable. There the defendant's attorney contacted a State's witness who refused to talk with him until she telephoned the circuit attorney and complied with the circuit attorney's directions that she not talk with the attorney. The trial court sustained an objection to an offer to show those facts. In ruling that such was reversible error we strongly relied on the fact that she followed the direction of the circuit attorney in refusing to discuss the case. There are, however, two Alabama cases cited in Solven which tend to support defendant's position. The case of State v. Cropper, 327 Mo. 193, 36 S.W.2d 923 (1931), would appear to support the court's ruling. Therein it is stated that '(p)roof that Shipley's wife (widow of the murdered man), Edgar Herd, and Edward Herd had been cautioned not to talk to the defendant's counsel in the absence of counsel for the state would have been immaterial, and was properly excluded on the state's general objection thereto. While these witnesses were under no legal obligation to talk to the defendant's counsel, they were free to do so at any time, regardless of the suggestions or directions of the counsel for the state.' However, we note that in Cropper, it does not clearly appear that defendant's counsel actually sought to interview these witnesses. Defendant's cited case of Phillips v. East St. Louis & S. Ry. Co., 226 S.W. 863 (Mo.1920), is not applicable because there the ruling related to a showing that the witness refused to answer questions upon the taking of a deposition.

We recognize that many people dislike being questioned by an attorney because of a suspicion that the purpose is to prepare to attack and perhaps belittle them in a public trial. It is elementary that a witness is not required to talk with an attorney, and we have the view that a refusal does not necessarily indicate ill will or bias against his client. We have, however, concluded that courts should permit a showing of such refusal for whatever it may be worth as an indication of bias against the attorney's client.

In the case at bar, however, we have concluded that the ruling did not constitute reversible error. It appears that Sandra cooperated with the police in reporting the facts and in viewing a lineup in order to identify defendant. Such was her duty as a citizen. As the prosecuting witness in the case she undoubtedly had an interest in desiring that the person she had identified as one of the robbers should be convicted. Any juror of average intelligence would know of her interest, and a showing that she refused to talk with defendant's attorney would not significantly add to that knowledge. As indicated, we rule that the error was not prejudicial.

Defendant's next point is that the lineup in which he was identified by the two witnesses was unnecessarily...