State v. Clark, 57939

• Decision Date: 16 April 1991
• Docket Number: No. 57939,57939
• Citation: 809 S.W.2d 139
• Parties: STATE of Missouri, Respondent, v. Michael A. CLARK, Appellant.
• Court: Missouri Court of Appeals

Page 139

809 S.W.2d 139

STATE of Missouri, Respondent, v. Michael A. CLARK, Appellant.

No. 57939.

Missouri Court of Appeals,

Eastern District,

Division Two.

April 16, 1991.

Motion for Rehearing and/or

Transfer to Supreme Court Denied

May 15, 1991.

William L. Webster, Atty. Gen., Barbara J. Wood, Asst. Atty. Gen., Jefferson City, for respondent.

GARY M. GAERTNER, Presiding Judge.

Appellant, Michael Clark, appeals from his jury convictions of first degree robbery and armed criminal action. Since appellant was found to be a prior, persistent and Class X offender, the judge sentenced him to life imprisonment for first degree robbery and a concurrent term of 30 years imprisonment for armed criminal action. While the appellant does not challenge the sufficiency of the evidence to support his convictions, a brief overview of the facts is necessary for an understanding of appellant's three claims on appeal.

At approximately 4:25, on the evening of November 12, 1988, appellant and his companion/codefendant entered Mack's Package Liquor Store in St. Louis County. No other customers were in the store at this time. The only employee present, Virginia Conner, testified that the men wanted to know where the wine was located and that they both faced her as she directed them to the wine.

Shortly thereafter, the two men faced Ms. Conner and inquired about the price of various wine coolers. After choosing their desired purchase, they both approached the cash register where Ms. Conner was located. Ms. Conner testified that they stood very close together and were directly facing her as she proceeded to register their purchase. Appellant was standing to Ms. Conner's left as his companion handed Ms. Conner a ten dollar bill to pay for the wine coolers.

After Ms. Conner opened the drawer to the cash register to make change, appellant's companion reached over the counter and began helping himself to the contents of the register. When Ms. Conner looked up, she noticed that appellant was pointing a handgun at her and that both men were smiling.

After the appellant and his companion had helped themselves to $629.07, they instructed Ms. Conner to lie down behind the counter and she complied. While Ms. Conner was lying behind the counter, she was able to activate the store's silent alarm.

As the appellant and his companion were about to walk out of the store, John Walker entered the store and picked up two leather gloves which he believed belonged to either the appellant or his companion. Mr. Walker asked the appellant whether he had dropped his gloves and the appellant looked down and said "thank you" as he took the gloves from Mr. Walker. Appellant and his companion then left the store.

Mr. Walker, not yet realizing what had transpired, placed his chosen purchase on the counter and, as he did so, Ms. Conner arose from behind the counter. After Ms. Conner informed Mr. Walker that the two men whom he had encountered had robbed her, Mr. Walker ran outside, was able to view both the appellant and his companion two more times and used a nearby telephone to contact the police. Mr. Walker provided the police with a description of both men and indicated that they were headed in a northerly direction from the liquor store.

Shortly thereafter, Officer Milton Voedli of the Ferguson Police Department noticed two men who fit the description of the suspects walking near railroad tracks north of the liquor store. After he told these two men to "halt, police officer," the men began running. Within fifteen minutes of the robbery, however, both of these men, who later were identified as the appellant and his companion, were apprehended. Between them, they possessed $582.68, only $46.39 less than the amount taken from the liquor store. ¹

Detective Donald Borts, also of the Ferguson Police Department, then returned to the liquor store and asked Ms. Conner and Mr. Walker to accompany him in order to try and positively identify the appellant and his companion as the perpetrators of the crime. Ms. Conner and Mr. Walker got into the unmarked patrol car. Ms. Conner sat in the rear-right passenger seat and Mr. Walker sat in the left rear passenger seat. Appellant and his companion were being held, in handcuffs, by five officers in the driveway of an apartment complex. As Detective Borts' car arrived, appellant was standing and his companion was lying on the ground. Appellant's companion was helped to his feet by the officers, however, in time for Ms. Conner and Mr. Walker to view him. Both Ms. Conner and Mr. Walker positively identified the men as the perpetrators of the robbery.

Both the appellant and his companion were charged by information on February 9, 1989, with first degree robbery and armed criminal action, both of which are felony offenses. After the trial court denied a motion for severance, both men were tried together commencing on October 30, 1989. However, the jury was unable to reach a verdict. The trial court declared a mistrial and both the appellant and his companion were tried again on December 12, 1989. The jury returned on December 15, 1989, and found appellant guilty as charged. This appeal followed.

Appellant's first point on appeal is that the trial court was without jurisdiction to place appellant on trial the second time since more than 180 days had elapsed since appellant filed his Request for Disposition of Detainer on May 26, 1989. Both parties agree that the 180 day time period ended on November 27, 1989.

Missouri Revised Statutes § 217.450 (1986) provides that any person who is in a correctional facility may request a final disposition of any untried indictment, information or complaint which is pending in this state. Missouri Revised Statutes § 217.460 provides that, upon receipt of such a request by the court and the State, the indictment, information or complaint "shall be brought to trial" within 180 days. The rule reads as follows:

Within one hundred eighty days after the receipt of the request and certificate, pursuant to sections 217.450 and 217.455, by the court and the prosecuting attorney or within such additional necessary or reasonable time as the court may grant, for good cause shown in open court, the offender or his counsel being present, the indictment, information or complaint shall be brought to trial. The parties may stipulate for a continuance or a continuance may be granted if notice is given to the attorney of record with an opportunity for him to be heard.

In the present case, appellant, who was imprisoned on other charges, filed his request with the State and the court on May 26, 1989, and the State was, therefore, required under RSMo § 217.460 to bring the appellant to trial before November 27, 1989. The trial from which appellant now appeals commenced December 12, 1989. If these were all of the pertinent facts, appellant's argument would be well taken.

However, appellant was, indeed, brought to trial before the 180 day period was exhausted. Appellant's first trial was commenced on October 30, 1989, and ended in a mistrial on November 2, 1989. Thus, the statute was complied with. All that the statute requires is that appellant's trial begin within 180 days after the proper filing of a Request for Disposition of Detainer. State v. White, 728 S.W.2d 564, 567 (Mo.App., W.D.1987).

In White, the defendant's trial began on the 179th day following his execution of a request for disposition under RSMo § 217.450. Id. at 565. ² On April 2, a mistrial was declared and the case was docketed for retrial on April 7. The Western District stated that the fact that the trial ended in a mistrial and was reset after the 180 day period had run, had no bearing on the timeliness of the commencement of the trial. Id. at 567. Every trial is subject to a mistrial, which is sometimes a necessary incident of a trial. Id. The court also stated, in dicta, that the resetting of the trial after the declaration of the mistrial constituted good cause under RSMo § 217.460.

Similarly, in the case at bar, appellant's first trial necessitated a mistrial. The declaration of a mistrial does not change the fact that appellant was brought to trial within 180 days of his request for disposition. The statute has been complied with.

We note, also, that on November 14, 1989, appellant filed a request for a continuance in which he specifically stated that, by requesting a continuance, he waived any claim that his trial was not commenced within RSMo § 217.460's 180 day requirement. Point denied.

Appellant next claims that the trial court erred in denying his motion to suppress identification because the "show-up" procedure which was used was impermissibly suggestive. Appellant further challenges that the in-court identification made by both Ms. Conner and Mr. Walker was unreliable.

Our review of the admissibility of evidence recognizes that the trial court is afforded broad discretion in these matters. State v. Clark, 711 S.W.2d 928, 932 (Mo.App., E.D.1986). The test for the admission of identification testimony is two-pronged: (1) Was the pretrial identification procedure impermissibly suggestive; and (2) if so, what impact did the pretrial identification have upon the reliability of the witness' identification. State v. Hornbuckle, 769 S.W.2d 89, 93 (Mo. banc 1989).

Appellant argues that the show-up procedures in the present case were impermissibly suggestive because the witnesses, Ms. Conner and Mr. Walker, were told by an officer that they were to be taken to view two suspects the police had just caught, because the suspects were still in handcuffs and because the only two suspects, appellant and his companion, who were both black, were surrounded by several white police...