State v. Cannon

• Decision Date: 12 April 1971
• Docket Number: No. 54252,54252
• Citation: 465 S.W.2d 584
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Billy Eugene CANNON, Defendant-Appellant.
• Court: Missouri Supreme Court

Page 584

465 S.W.2d 584

STATE of Missouri, Plaintiff-Respondent, v. Billy Eugene CANNON, Defendant-Appellant.

No. 54252.

Supreme Court of Missouri, En Banc.

April 12, 1971.

John C. Danforth, Atty. Gen., Peter H. Ruger, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Murray Stone, St. Louis, for defendant-appellant.

HOLMAN, Judge.

Defendant was charged with the offense of robbery in the first degree by means of a dangerous and deadly weapon. See §§ 560.120 and 560.135. ¹ The information also charged four prior felony convictions, as follows: two convictions for the offense of robbery in the first degree, one of burglary, and one for carrying a concealed weapon. See § 556.280. The facts relating to those convictions were stipulated. The jury found defendant guilty as charged and the court fixed his punishment at imprisonment for a term of 18 years. Defendant appealed.

This appeal was originally heard in Division One where an opinion was adopted, but the case was subsequently transferred to Court en Banc because of the dissent of one of the judges. After the case was reargued the Division opinion failed of adoption en Banc and the cause was assigned to the undersigned. Portions of the aforementioned opinion are here adopted without the use of quotation marks.

The robbery in this case was committed by one individual. Four eyewitnesses made lineup and in-court identifications of defendant as the guilty party. The two points briefed on this appeal are (1) the lineups were conducted without counsel for defendant, were tainted, suggestive, and unfair, and hence the court erred in permitting the four witnesses to testify to either the lineup or in-court identification of defendant, and (2) the court erred in refusing to permit defendant to see the police report concerning this occurrence so that his counsel could use it in the cross-examination and possible impeachment of the eyewitnesses.

The occurrence in question took place at about 8:50 p.m. on February 16, 1968. In view of the identification testimony offered by the State we will refer to the robber as the defendant. According to the evidence defendant entered the front door of the Save-Way Market armed with a gun. He said, 'This is a holdup,' and caused several people near the check-out stand to line up against the window. At about that time the owner, Mr. Lubeck, came from the rear of the store and defendant directed that he take the money from the cash register (about $200) and place it in a paper bag, which was done. Defendant then required each of the other persons there to empty their wallets onto the counter and that money was then placed in the bag. One of the employees, Gerald Hooper, was slow in emptying his wallet and defendant stuck the gun in his ribs and said, 'You think I'm playing? I'll blow your brains out.' Defendant then took the bag of money and backed out the front door, threatening to shoot anyone who followed him. There was good light in the building and at least six people observed the defendant during the ten or twelve minutes he was in the store.

Lubeck and three of his employees testified at the trial. Two of the other witnesses did not testify, apparently because one of them was suffering from a heart condition, and the other was serving in the Marines at the time of trial.

Defendant was arrested at about one o'clock a.m., on February 18. He was taken to the District Police Station where he was viewed a short time later and identified in a lineup by Lubeck and Chilton. Another lineup was held at Central Police Station the following afternoon where Lubeck and Chilton, as well as the two other employees, John Hursey and Gerald Hooper, viewed a four-man lineup and each identified defendant as the person who committed the robbery. At the trial each of those four witnesses testified concerning the lineup identifications and also made in-court identifications of defendant as the one who entered the store and took the money. Each of these witnesses was very positive in their identifications, Lubeck saying, 'I am definite, positive, no question in my mind whatsoever.' Mr. Hooper, in answer to a question as to whether there was any question in his mind that defendant was the person, answered, 'No, sir, there is no question.' In answer to a similar question, witness Chilton said, 'I am sure, sir,' and Mr. Hursey testified on that point as follows: 'Q This is the man about which you have testified? A Yes. Q No question in your mind about that? A No question in my mind whatever.'

The defense was an alibi. Defendant presented as a witness his cousin, Irving Sprous, who testified that he was with the defendant from about 5:30 p.m. on the day of the robbery until after midnight. William Poirrier testified that he, in company with two girls, met defendant and Sprous at about 9 p.m. on the day in question and that they were all together until he had to leave at 11:30 p.m.

Defendant moved to suppress the anticipated identification testimony of the store employees on the ground that the lineup procedures violated the rules of United States v. Wade, 388 U.S. 218, 87 S.Ct 1926, 18 L.Ed.2d 1149; 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, both as to suggestiveness and as to lack of counsel. After a hearing prior to trial the court overruled the motion. Similar objections were made during the course of the trial when the identification testimony of the store employees was offered and, again, overruled by the court. Near the close of the trial the court expressly found that the in-court identifications were the result of the observations which the victims made of the holdup man during the commission of the offense and not as the result of the lineup.

While there is evidence indicating the lineup procedures were leading and suggestive in certain respects, there is testimony in the record which supports the finding of the trial court that the in-court identifications were based on what the witnesses saw at the time the offense was being committed and were not the result of improper or suggestive lineup procedures. As to absence of counsel at the lineup, this was a disputed fact issue based on the testimony of the police officers that defendant was offered counsel and did not want it, and defendant's testimony that no such offer was made, and, that he did not make a waiver. The trial court resolved this factual issue in favor of the State and there is evidence in the record to support the finding. Defendant's first point is therefore overruled.

In view of the point relating to the refusal of the court to permit defendant to see the police report we will state additional facts relating to the descriptions of the robber given by the witnesses to the police. Mr. Lubeck testified that he told the police he was about 5 11 tall, 'kind of slim, and had tattoos on the back of each hand'; that he also 'had a bruise, or mud, or blood, something over the left eye'; that he did not mention the color of his eyes or hair. Mr. Hooper testified that he gave the police a description that the robber was tall and thin, his hair was sandy and combed back, and he had on a brown sweater. He stated that he did not notice tattoos on the man's hands. Witness Chilton testified that he described defendant to the police as weighing about 140 pounds, 5 10 tall, with a thin face. John Hursey stated that he told the police officer that the robber was a tall, thin man, fair, had on a colored jacket or sweater and had tattoos on his hands.

Two police officers who investigated the robbery testified that they took notes of the descriptions, primarily for their use in trying to apprehend the robber immediately, and that the facts were incorporated into the police report and the notes then destroyed. They each testified that the description in the police report was a composite description containing various items related by the witnesses and that it did not show the description given by each witness. Officer Hollocher stated, however, that he remembered the description given him by Mr. Lubeck which was that the man was 5 11 tall, weighed about 170 pounds, was thin-built, had tattoos on the back of his hands, and had brown hair. On cross-examination he stated that the composite description given by all of the witnesses was 'white male, about 25, five eleven, six foot, thin-built, brown hair, light brown hair, tattoos on his hands.'

In presenting the evidence on the motion to suppress (just prior to the trial) reference was made to the police report concerning this robbery. At that time defendant's counsel made an oral motion for production of the report which was denied by the court. The defendant's theory in making the request is shown by the following: 'THE COURT: What is your reason for wanting this report now, Mr. Stone? MR. STONE: Well, I think, on Brady v. Maryland (373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215), I am allowed to have anything that would be favorable to my case, and I have reason to believe that the descriptions given by the victims would be favorable to my case, as far as conducting a cross-examination of the victims and as far as seeing what they would say. THE COURT: In what sense? I don't understand. MR. STONE: Well, I think it would be favorable to see if the descriptions they gave the police and what they say on cross-examination is the same, or different, and I wouldn't know unless I see what they said to the police. * * * THE COURT: The police officers have already testified what description they have had. MR. STONE: That's all I want to do is see it in writing. I think it is favorable to my case.' No further request was made for the production of the report during the trial.

Defendant, in here contending that the court erred in denying his request, continues to rely on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, which holds...