State v. Cole

• Decision Date: 06 December 1983
• Docket Number: No. 44852,44852
• Citation: 662 S.W.2d 297
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Arnold Butch COLE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 297

662 S.W.2d 297

STATE of Missouri, Plaintiff-Respondent, v. Arnold Butch COLE, Defendant-Appellant.

No. 44852.

Missouri Court of Appeals,

Eastern District,

Division Three.

Dec. 6, 1983.

Davis Biggs, St. Louis, for defendant-appellant.

Kristie Lynne Green, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

KAROHL, Presiding Judge.

Defendant Arnold Butch Cole appeals from a conviction in a court-tried case of robbery in the first degree, § 569.020 RSMo 1978, and carrying a concealed weapon, § 571.115 RSMo 1978. ¹ He received concurrent sentences of seventeen years and five years, respectively.

On appeal defendant contends that (1) there was insufficient evidence of concealment; (2) there was insufficient evidence of intent for first degree robbery because of evidence of defendant's intoxication; (3) the trial court erred in admitting seized evidence and the victim's identification of defendant because they were tainted by an illegal arrest; (4) the trial court erred in admitting the victim's identification of defendant because the identification procedure was unduly suggestive; and (5) defendant received ineffective assistance of counsel. We affirm.

Although the state correctly asserts that defendant's points on appeal fail to comply with Rule 30.06(d), the argument portion of defendant's brief clarifies the points and we elect to decide them on the merits.

We turn first to defendant's challenge as to the sufficiency of the evidence. In a jury-waived case we review the sufficiency of the evidence as in a jury-tried case. State v. Turnbough, 604 S.W.2d 742, 744 (Mo.App.1980). The appellate court is bound to consider as true the evidence most favorable to the state and all reasonable inferences therefrom, disregarding evidence and inferences to the contrary. State v. Smith, 621 S.W.2d 94, 95 (Mo.App.1981). We will affirm the conviction if supported by substantial evidence. State v. Trask, 581 S.W.2d 417, 418 (Mo.App.1979).

The evidence showed that on October 10, 1979, at 11:15 p.m., Benjamin Conway was working alone as an attendant at the Clark Gasoline Station at 4301 Lafayette in the City of St. Louis. Conway walked toward the back room to deposit some money, turned around, and saw a person he later identified as defendant standing behind him holding a large revolver. The lighting was good in the station, and Conway said the man was wearing a three-quarter-length blue jean jacket, white or tan pants, a red or dark stocking cap, a nylon mask, blue tennis shoes and no socks.

Conway attempted to shut defendant out of the back room, but was unsuccessful. In the struggle, the gun fired, the shell hit the wall, and Conway fell to the floor. Defendant grabbed Conway by his hair and hit his head on the concrete floor. After threatening to kill the victim, defendant kicked him several times and ran out of the station carrying the coin changer, the cash box, and a carton of cigarettes. Conway called the police, and when they arrived he described defendant to them.

Two men in a nearby restaurant were alerted and arrived at the Clark Station in time to see defendant, dressed in a red stocking cap, nylon mask, light pants, and a levi jacket, leaving the station with the cash box. One of the witnesses saw defendant holding a gun.

The two individuals pursued defendant. Although they lost sight of defendant in a gangway, they pointed out his direction to the police who arrived eight to ten minutes later. Police Officer Keough, following the witnesses' directions, found defendant crouched down in a stairwell. Defendant was wearing light pants, a blue jean jacket and no socks. After arresting defendant, the police searched him and found a .38 caliber revolver stuck in the waistband of his pants. The coin changer was found at the head of the staircase and the stocking cap, nylon mask, cash box, and carton of cigarettes were found nearby.

In the courtroom, the police officer identified defendant as the person he arrested. Following the arrest defendant was taken to the Clark Station and positively identified by Conway.

Defendant, his father, and his wife testified that defendant had been drinking heavily the night of the crime. Defendant testified that he did not remember anything from the time he left his father's house that night until he woke up in a holdover cell. He testified that he did not commit the crime.

Defendant claims there was insufficient evidence that the weapon he was carrying was concealed. Concealment is a necessary element of the offense of carrying a concealed weapon, State v. Tate, 416 S.W.2d 103, 105 (Mo.1967), and generally to meet the test of concealment the gun must not be discernible by ordinary observation. State v. Payne, 654 S.W.2d 139, 141 (Mo.App.1983). A weapon is not concealed simply because it cannot be seen from a single vantage point if it is clearly visible from other positions. State v. Murphy, 610 S.W.2d 382, 384 (Mo.App.1980). If it can only be seen from one particular vantage point, however, it is considered concealed. Id.

Here the weapon was clearly visible to the victim during the robbery and to one of the two witnesses who saw defendant leave the gas station. The police officer, however, found defendant crouched down in a stairwell in a dark backyard. The officer told defendant to come out of the stairwell, placed him under arrest, and when he searched him he found the gun in his waistband. When the officer found him, defendant was wearing a three-quarter-length or long blue jean jacket.

The fact that defendant was wearing a jacket that extended well below his waist, that the gun was found in his waistband, and that it was not discovered until a search of his person, was sufficient to support a finding that the weapon was not discernible by ordinary observation. See State v. Woolbright, 495 S.W.2d 637 (Mo.1973); State v. Shegog, 577 S.W.2d 185 (Mo.App.1979); and State v. Wood, 562 S.W.2d 699 (Mo.App.1978). We therefore find sufficient evidence of concealment.

Defendant also contends the evidence was insufficient to support his first degree robbery conviction because evidence of his intoxication negated the necessary intent. Defendant attempted to invoke the voluntary intoxication defense, § 562.076.1(1), which became effective January 1, 1979. The defense is available to negate "the existence of the mental states of purpose or knowledge when such mental states are elements of the offense charged or of an included offense." § 562.076.1(1). State v. Helm, 624 S.W.2d 513, 517 (Mo.App.1981), specifically found the defense inapplicable to first degree robbery because the robbery statute, § 569.020, contains no explicit finding that the offense be committed with purpose or knowing intent. The jury need not assess a defendant's mental state to reach a robbery verdict. 624 S.W.2d at 517. Although defendant attacks the soundness of Helm, under the circumstances we need not address this contention. The trial court found defendant's evidence insufficient to raise the defense.

Evidence of mere intoxication does not raise the voluntary intoxication defense. State v. Bienkowski, 624 S.W.2d 107, 108 (Mo.App.1981). The extreme degree of intoxication required has been expressed in many ways:

" '[U]nless he is so intoxicated that he is utterly devoid of consciousness or awareness of what he is doing', State v. Masqua, 210 Kan. 419, 502 P.2d 728, 733 (1972) ... 'when there is demonstrated a total lack of capacity such that the bodily machine completely fails,' State v. Brant, [252 S.E.2d 901, 904 (W.Va.1979) ] ... 'the condition of intoxication must be so extreme as to suspend all reason', People v. Hayes, [37 Ill.App.3d 772, 347 N.E.2d 327, 329 (1976) ]."

State v. Gullett, 606 S.W.2d 796, 805-806 (Mo.App.1980) criticized on other grounds in State v. Mannon, 637 S.W.2d 674 (Mo. banc 1982). Once evidence is presented that this was defendant's condition, any reasonable doubt on the issue requires a finding for defendant. §§ 562.076.2, 556.051; State v. Gullett, 606 S.W.2d at 806.

The defendant, his wife, and his father all testified that defendant consumed large quantities of liquor the night of the crime. Both the state's and defendant's expert witnesses agreed defendant had an alcohol abuse problem. Defendant's expert, a licensed clinical psychologist, stated that had defendant consumed the amount of liquor that he claimed to have drunk, he would not have been able to knowingly intend the robbery and "there would have been a severe interaction effect and would have impaired his judgment severely."

Although defendant presented sufficient evidence to support submitting the intoxication defense in a jury-tried case, the trial judge here was not required to believe defendant and his witnesses as to the amount of alcohol defendant had drunk. In this court-tried case we are bound by the trial court's decision on the issue of credibility. State v. Tippett, 588 S.W.2d 742, 743 (Mo.App.1979).

The court believed the defendant was not intoxicated to a degree negating intent. The evidence of defendant's conduct before, after and during the crime is relevant in determining intoxication. State v. Gullett, 606 S.W.2d at 806. The victim did not remember defendant showing signs of intoxication, and neither the victim nor the arresting officer smelled alcohol on defendant's breath. Defendant, apparently aware of the danger of being recognized, wore a nylon mask and stocking cap during the robbery. After the robbery he was able to leave the scene, climb fences, elude two pursuers, and find a hiding place. When police arrested defendant he was conscious and able to accompany them back to the gas station. At the officer's direction, defendant repeated phrases to the victim for identification purposes.

The trial court could have found beyond a reasonable doubt that defendant was not intoxicated to the degree required to negate a mental state of purpose or knowledge. See State v....