State v. Coe, 12720

• Decision Date: 24 December 1979
• Docket Number: No. 12720,12720
• Citation: 286 N.W.2d 340
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Douglas Wayne COE, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 340

286 N.W.2d 340

STATE of South Dakota, Plaintiff and Respondent, v. Douglas Wayne COE, Defendant and Appellant.

No. 12720.

Supreme Court of South Dakota.

Argued Nov. 7, 1979.

Decided Dec. 24, 1979.

Leann Larson Finke, Asst. Atty. Gen., Pierre, for plaintiff and respondent; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Robert J. Wagner, Watertown, for defendant and appellant.

DUNN, Justice.

Defendant appeals his conviction and sentence on charges of possession of a concealed weapon with intent to commit a felony and first-degree armed robbery. We affirm.

During the early morning hours of June 27, 1978, a robbery occurred at the Country Kitchen Restaurant in Watertown, South Dakota. Three employees were eyewitnesses. They testified that at about 3 a. m. defendant entered the restaurant, asked for change for a dollar, pulled a gun, pointed it at the attending waitress and grabbed approximately $200 in coin and currency from the cash register.

The Watertown police were called, and two officers arrived on the scene within minutes. The witnesses described the robber as a thin man of medium height with surgical tape across his eyebrows and nose. He was wearing a blue quilted jacket, blue pants, boots, sunglasses and a dark stocking cap.

While enroute to the Country Kitchen, two other officers stopped a car that had run a stop sign at Sixth Avenue South and Maple in Watertown. The car was the only vehicle moving in the residential district at that time. It was spotted within two or three minutes of the reported robbery. It was traveling in a direction away from the Country Kitchen and was only three blocks away from the restaurant. The officers "pat searched" the occupants and radioed for a description of the robbery suspect. They were given a description matching that of one of the automobile's occupants defendant Coe. A plain view search at the scene revealed .357 and .38 revolvers loaded with hollow point bullets and a stocking cap. In the course of a search incident to the arrest, the officers found a blue quilted jacket containing sunglasses in one pocket and $200 in coin and currency in the other pocket. A later search of the area where the stop occurred produced a piece of white tape with hair sticking to its adhesive side.

At the police station, the three employee/eyewitnesses were individually shown a group of photographs that included one of the defendant. Each employee quickly identified defendant, despite the fact that only photographs of men with beards similar to that of the defendant were included in the group.

A four-man lineup was held shortly thereafter. All of the participants were inmates of medium height and weight clothed in prison garb. Each employee viewed the lineup individually, and each quickly identified defendant. The state's attorney supervised the procedure.

On the morning defendant's trial commenced, the trial court allowed the late endorsement of witness Bruce Tchida to the information. During the trial, the court refused to grant defendant's motion to dismiss the charge of possessing a concealed weapon with intent to commit a felony.

We find that the officers acted properly in stopping the vehicle, frisking the occupants and arresting defendant. The testimony indicated that the officers, after being alerted that a robbery had just taken place at the Country Kitchen, spotted this out-of-state vehicle running a stop sign just three blocks from and proceeding away from the restaurant within three minutes of the robbery report. It was the only moving vehicle in the area. We find that the vehicle was properly stopped and that the items appearing in plain view, together with the description of the robber received over the radio, provided probable cause for arrest. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); SDCL 23-1A-7.

Likewise, the subsequent full search of the vehicle at the police station was properly performed. A valid search warrant had been obtained. In fact, the officers would have been justified in making a full search at the scene of the stop without a search warrant. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Orricer v. Erickson, 471 F.2d 1204 (8th Cir. 1973).

Defendant failed to preserve the issue of the propriety of the photographic identification and the lineup. No objection was made at trial. This court has never adopted the plain error rule. Application of Heintz,78 S.D. 188, 99 N.W.2d 794 (1959). Furthermore, the precautions taken, as mentioned above, make it clear that the identification procedures were fairly executed.

The late endorsement of witness Tchida was proper. Mr. Tchida had been a cellmate of defendant, and the state's attorney did not know of his whereabouts until he appeared in Watertown late in the afternoon of the day before trial. The prosecution and the trial court made every effort to minimize prejudice by giving defense counsel any time necessary to interview the witness before he testified. Defendant neither availed himself of this opportunity nor moved for a continuance. This failure is fatal. State v. Poppenga, 76 S.D. 592, 83 N.W.2d 518 (1957). Furthermore, there is no showing of bad faith on the part of the prosecutor, and the trial court's wide discretion in allowing late endorsements should not be disturbed in this instance. State v. Rober, ...