State v. Cole, 45049

• Decision Date: 16 August 1983
• Docket Number: No. 45049,45049
• Citation: 657 S.W.2d 59
• Parties: STATE of Missouri, Respondent, v. Joe COLE, Appellant.
• Court: Missouri Court of Appeals

Page 59

657 S.W.2d 59

STATE of Missouri, Respondent, v. Joe COLE, Appellant.

No. 45049.

Missouri Court of Appeals,

Eastern District,

Division One.

Aug. 16, 1983.

Joseph W. Doenwy, Public Defender, Henry Robertson, Asst. Public Defender, St. Louis, for appellant.

John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.

STEPHAN, Judge.

The jury found defendant guilty of two counts of robbery in the second degree in violation of § 569.030, RSMo 1978, and assessed punishment of concurrent terms of five years in prison. Judgment and sentence were entered in accordance with the verdict and defendant appealed. We affirm.

On the afternoon of March 27, 1981, the two victims, Paula Husgen and Cynthia Krost, were leaving their jobs at a bank in South St. Louis. As they were walking to a nearby parking lot, someone came from behind and shoved Ms. Husgen. The assailant grabbed Ms. Husgen's arm and ripped her purse off her arm. He struck Ms. Krost on the side of her head and pulled her purse off her shoulder. The assailant fled with the purses. Ms. Husgen pursued the assailant who turned to look at her. Ms. Krost immediately ran back to the bank to call the police. On her way to the bank, Ms. Krost told Troy Blacksher, who was working outside of a funeral home where he was employed, that a black man had taken her purse. Mr. Blacksher then ran in the direction from which Ms. Krost had come. Mr. Blacksher saw a black male run out of an alley, and he chased him. During the chase, the man dropped Ms. Krost's purse. Mr. Blacksher picked up the purse and continued the chase. The man ran into a garage.

Meanwhile, Ms. Krost had called the police. A description of the assailant as a black male, 20 to 25 years old, five feet ten inches tall, 170 pounds, with a large Afro and wearing dark trousers, a tan coat, tennis shoes and dark glasses was put out on the radio. Officers Eckhard and Haley, in separate cars, responded to the call and proceeded in the direction the robber was said to be running. Mr. Blacksher flagged down Officers Eckhard and Haley and directed them to the garage. The two officers entered the garage, climbed a back stairs, entered the apartment building served by the garage, and found defendant on the third-floor landing. Defendant matched the description the victims had provided the police.

The police officers handcuffed defendant and put him in a police car. Defendant was taken back to the vicinity of the bank, where the victims viewed him while he was still seated in the police car and identified him as the man who had stolen their purses. Officer Eckhard read defendant his Miranda rights, and defendant stated that he understood them. Officer Eckhard asked defendant why he did it, and defendant replied that he needed the money. Defendant also stated that he would show where the other purse was and he took the officers to a nearby service station lot where he had thrown the purse under a parked car. Ms. Husgen testified that the recovered purse was the one taken from her in the robbery.

Defendant claims that (1) identification evidence should have been excluded, and (2) his confession ought to have been excluded. Deprived of such evidentiary support, according to defendant's argument, the conviction cannot stand. We reject at the outset defendant's contention that all such evidence should have been excluded as the fruit of an unlawful arrest not based on probable cause. The arresting officers pursued defendant guided by persons on the scene, including Mr. Blacksher, who had chased the robber and had seen him drop a purse. Information received from such informants may be presumed reliable and a basis for probable cause for arrest. State v. Perry, 499 S.W.2d 473, 475 (Mo.1973); State v. Watson, 588 S.W.2d 178, 180 (Mo.App.1979). It is not necessary that such an informant be a known source of reliable information. State v. Chapman, 627 S.W.2d 597, 598 (Mo.1982). Furthermore, the officers had a detailed description of the robber which fit defendant. Cf. State v. Purnell, 621 S.W.2d 277, 284 (Mo.1981). Thus, the arresting officers had probable cause to believe that the man at the end of the trail laid by citizens observing his flight was indeed the perpetrator of the crime.

Defendant also asserts that the identification evidence was in itself unreliable and should have been excluded. Determination of the reliability of identification evidence depends on the totality of the circumstances upon which it is based. State v. Higgins, 592 S.W.2d 151, 160 (Mo. banc 1979), appeal dismissed, 446 U.S. 902, 100 S.Ct. 1825, 64 L.Ed.2d 254 (1980); State v. Holt, 603 S.W.2d 698, 702 (Mo.App.1980); State v. Ralls, 583 S.W.2d 289, 291 (Mo.App.1979). In assessing such reliability, a reviewing court will consider such factors as:

"the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation."

State v. Carter, 571 S.W.2d 779, 782 (Mo.App.1978), quoting Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). Similar statements appear in Higgins, supra, and Holt, supra.

In this case the victims had an opportunity to view the defendant twice before the showup in the police car: first, as he stood at a nearby bus stop and, second, at the time of the robbery. The victims gave a detailed and accurate description of the robber; they made their showup identifications within fifteen minutes of the robbery; and they were sure of their identifications. In addition, there is no indication that the showup was unduly suggestive or unfair. See Ralls, supra; State v. Dickerson, 568 S.W.2d 559 (Mo.App.1978). On the basis of these factors, we find that the identification evidence was reliable and was properly admitted.

Next, defendant argues that his confession ought to have been excluded in response to his motion to suppress, since the testimony of police officers as to when he was read his Miranda rights is in conflict. Officer Eckhard testified that he read defendant his rights while defendant was seated in the car immediately after the victims identified him. Officer Haley testified that Officer Eckhard read defendant his rights in the police car on the way back to the bank and, thus, a few minutes before the showup. Both officers agreed, though, that defendant made his incriminating statements only after he was read his rights and acknowledged that he understood them. The State bears the burden of proving the voluntary nature of a confession by a preponderance of the evidence. State v. White, 622 S.W.2d 939, 946 (Mo. banc 1981), cert. denied, 456 U.S. 963, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982). The admission of a confession into evidence lies within the discretion of the trial court, State v. Jensen, 621 S.W.2d 263, 264 (Mo.1981), and the question on appeal is whether the evidence was sufficient to sustain the trial court's finding that the statement was voluntarily given. State v. Haas, 610 S.W.2d 68, 73 (Mo.App.1980).

We hold that it was. The discrepancy in the officers' testimony is insignificant. Their testimony was clear and certain that Eckhard read defendant his rights, that defendant acknowledged he understood them, and thereafter defendant made the incriminating statement that he took the purses...