State v. Carey

• Decision Date: 13 November 1972
• Docket Number: No. 1,No. 56736,56736,1
• Citation: 486 S.W.2d 443
• Parties: STATE of Missouri, Respondent, v. Ross Odell CAREY, Appellant
• Court: Missouri Supreme Court

Page 443

486 S.W.2d 443

STATE of Missouri, Respondent, v. Ross Odell CAREY, Appellant.

No. 56736.

Supreme Court of Missouri, Division No. 1.

Nov. 13, 1972.

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

Kenneth K. Simon, Kansas City, for appellant.

HIGGINS, Commissioner.

Ross Odell Carey was convicted by a jury of burglary, first degree. The jury was unable to agree on defendant's punishment; the court assessed his punishment at seven and one-half years' imprisonment and rendered sentence and judgment accordingly. §§ 560.040, 560.095, V.A.M.S.; Rule 27.03, V.A.M.R. (Appeal taken prior to January 1, 1972.)

Appellant's statement of evidence demonstrates the sufficiency of evidence to sustain his conviction.

'Eula Mitchell testified that she occupied the premises in question (Route 1, Box 41, Buckner, Jackson County, Missouri) as a tenant, with her husband and her son Paul, and that on the morning in question she left the house. At about ten minutes to nine after walking her son, she further testified that the back door was locked and the front door was locked by her as she left. Upon her return at approximately ten in response to her son's call she inspected the back door and noticed the hook on said door pulled off the screen door and the door, doorknob and wall damaged, none of which was evident when she left. During cross examination, she testified that nothing was disturbed in the house but that the hook was pulled out of the wall by the back door.

'Paul Wayne Mitchell, being called on behalf of the State testified that he awoke about ten A.M. in his bedroom by a knocking at the front door, noticed a white car in the driveway, saw the man who was knocking motion to a second man in said car, at which point the car was backed up to the front door to a point about 30--40 feet from the front door. The occupant of the car then got out and proceeded with the other man around to the corner of the house where he lost sight of them. The witness identified the defendant as one of the men. The witness proceeded to his parents' bedroom where he procured a shotgun and waited in his parents' bedroom. He then saw a man's torso and face, a man not in the Courtroom and accosted him and told both men to leave the house. The second man he identified as the defendant, both men then left the house. None of the property in the house, among which numbered several small appliances, and guns was removed. The witness testified that after the incident he described he inspected the back door and noticed the hook pulled from the wood of said door casing, but still attached to the eye.'

Appellant charges first that the court erred in overruling defendant's motion to suppress testimonial evidence of Paul Mitchell, 'as the in court identification * * * was tainted by * * * prior contacts with photographic and line up identifications so as to be unreliable and for the further ground that the defendant was deprived of counsel at what he urges was a critical stage of the proceedings.' This point is further delineated by appellant's assertion that the identification of defendant by Paul Mitchell should have been suppressed 'following the line of reasoning 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 the logic of' Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402, 'which elaborated on those decisions,' and United States v. Zeiler, 3 Cir., 427 F.2d 1305, 'which lends its analysis to photographic show ups.' Appellant's argument is that an initial photographic view and later lineup contained suggestive elements which 'predicated against a fair identification procedure and made the identification of the defendant so prejudicial as to deprive him of due process.'

Appellant would support his position with the following statement of evidence from his brief: 'Evidence was adduced from Paul Wayne Mitchell with respect to said Motion (to suppress), the witness testified that he occupied a home at Buckner, Missouri on August 12, which at about 10:00 A.M. was entered after a series of knocking by a man, the incident of entry being reported to the authorities at Lake Jacomo, that same day. While at the police station, he viewed four pictures of persons, two of whom have been arrested in connection with the entry aforesaid and made from these an identification. Mr. Mitchell further testified that while the persons aforesaid were in his house, he had occasion to see both of them, the defendant and the co-defendant whose case was disposed of separately, the defendant in the instant case being in the living room. The photographs viewed consisted of black and white polaroid shots of men from the waist up. On cross examination, Mitchell testified that he had been advised, prior to the view of the photographs that the police had two men in custody. He further testified that his identification was in part based upon the dress of one of the photographed suspects and in part upon the fact that there were tattoos in evidence, but that all photographs appeared to be of men of the same race and age. The photographic identification occurred after the witness had had a chance to view all photographs handed to him in a group, laid out. There subsequently occurred a live lineup, in which further identification of the defendant was made. The witness testified that he did have recognition of the defendant at that latter show up as being the same man identified from the photographs. He further testified that his view of the person in his home whom he identified as the defendant in the instant case was for only a fraction of a second, and that...