State v. Coleman

• Decision Date: 14 April 1969
• Docket Number: No. 1,No. 54049,54049,1
• Citation: 441 S.W.2d 46
• Parties: STATE of Missouri, Respondent, v. Melvin COLEMAN, Appellant
• Court: Missouri Supreme Court

Page 46

441 S.W.2d 46

STATE of Missouri, Respondent, v. Melvin COLEMAN, Appellant.

No. 54049.

Supreme Court of Missouri, Division No. 1.

April 14, 1969.

Motion for Rehearing or to Transfer to Court En Banc Denied

May 12, 1969.

John C. Danforth, Atty. Gen., Jefferson City, Arthur L. Poger, Special Asst. Atty. Gen., Clayton, for respondent.

Alan G. Kimbrell, Clayton, for appellant.

WELBORN, Commissioner.

Appeal from 20-year sentence, imposed under Second Offender Act, after jury verdict of guilty on charge of robbery in the first degree.

Joseph Tucker was the sole attendant at a Clark Service Station at 8341 Olive Street Road, in University City, in the early morning hours on June 29, 1967. At around 3:00 A.M., he was seated on a stool in a rear room of the station, working on an inventory. A person whom he did not see entered the room, struck him in the head with a hard object, and grabbed his head with his left arm. The intruder said, 'This is it,' and asked where the money was. Tucker replied that the money was in a metal box and a wooden box on nearby shelves. The intruder took the boxes and the $50 each contained. He took a brown envelope, also containing $50, and money from Tucker's shirt pocket. A total of some $233 was taken. A wristwatch was also taken from Tucker. Tucker was warned not to try to look at the intruder and did not see his face. The attendant could observe that the left arm encircling his throat was that of a Negro and the weight which he felt made him aware that the intruder was a large man. Tucker did see a blue and white polka dot bondanna in the intruder's right hand and that the man wore a bluish-green, short-sleeved shirt. When the intruder released Tucker, the attendant was told to stand in the corner. Shortly after the intruder left, Tucker called the University City police.

At 3:27 A.M., when he was eight blocks from the Clark station, Officer Heller received a radio call about the robbery and a minute or two later arrived at the station. He obtained from Tucker such identifying data about the robber as he could and then called the police dispatcher who transmitted the information to all police cars in the City of St. Louis and St. Louis County.

Officer Warren of the University City Police Department was patrolling on McKnight Road, about five blocks south of Olive Street Road, when he heard a radio broadcast report of the Clark station robbery. As he drove north on McKnight toward Olive, he noticed an automobile turn off Elmore Street and start north on Woodson Road. He started toward that vehicle in order to obtain a description of it. As he went toward the automobile, its lights were turned off and it accelerated rapidly, going north on Woodson at a high rate of speed. Warren pursued the fleeing vehicle at speeds of up to 100 miles per hour. He had his red warning signal flashing, and, with the spotlight and headlights of his vehicle, kept the fleeing vehicle in view. After a chase of some six miles on Woodson, the vehicle reached the dead end of Woodson Road at the Interstate 70 access road. The driver attempted to turn to the right at a high speed, but the car spun, did not make the turn and went backward against a chain link fence.

The officer stopped his vehicle about ten feet from the pursued auto. He saw that it was occupied by a Negro male. The occupant got out of the car on the driver's side and the officer placed him under arrest for traffic violation. The driver, the defendant Melvin Coleman, was handcuffed and the officer noticed in his auto a green metal box, similar to that which, according to the police broadcast, had been taken in the robbery. Coleman was then notified that he was under arrest, suspected of robbery. The officer also found money on the floor of the car and a blue and white bandanna handkerchief with a large steel bolt wrapped in it. $73 was found in Coleman's pocket, $50 of it in a brown envelope with the word 'Joe' written on it. A total of $227.43 was found on the driver and in the auto. At the police station, a Waltham wristwatch was removed from Coleman's pocket.

Tucker saw Coleman at the station about an hour after the robbery. Not having seen the face of his assailant, he was unable to identify Coleman by sight. However, Tucker did identify the green box At Coleman's trial on a charge of robbery in the first degree, the state's evidence showed the matters set out above. Coleman testified in his own behalf. His version of the events was as follows: After getting off work at midnight, he went to a restaurant in Gaslight Square where he met a person whom he had met the previous weekend, known to him only as 'Lucky.' He and Lucky went to a night spot in East St. Louis and then returned to St. Louis. Coleman's automobile was not operating properly. The valve lifters were making a lot of noise. Lucky suggested that driving the car at a high rate of speed might clear up the motor trouble. Coleman was driving out Olive Streed Road, looking for a place where he could 'open up' the car, when a tire went flat. They were in the vicinity of Woodson and Olive Street Roads at the time, around 2:00 A.M. Coleman stopped the car, jacked it up and took off the wheel, while Lucky stayed in the car. Coleman rolled the wheel to the Clark station at 8341 Olive Street Road, where he tried to inflate the tire. He stated that he saw Tucker at the station and that Tucker told him the 'air wouldn't work.' Coleman returned to his car and told Lucky that he would try to flag a ride to a station where he could inflate the tire. He stopped a white station wagon on Olive, driven by a Negro man with a Negro woman as a passenger. The driver took Coleman to a Clark station on Page, where the tire was inflated. His benefactor returned Coleman to his auto and Coleman paid him $2 for his assistance. While Coleman was replacing the wheel, Lucky gave him some money to repay for expenses of the evening. Coleman paid no attention to the amount and put it in his pocket, with $122 of his own money. When the wheel had been replaced, Coleman started to go north on Woodson and began to accelerate to a speed of 40 to 50 miles an hour. When he did so, he saw the red flashing light of a police car. Because he had previously been convicted of felonies, Coleman attempted to outrun the police car, but at the end of Woodson Road he failed to make a turn and the police car overtook him. According to Coleman, when his auto came to a stop, Lucky opened the door and slid out before the police car arrived and was never seen again by Coleman.

found in the car as the one taken from the station. He also identified the brown envelope, stating that he had written the word 'Joe' on it, and that he had placed $50 in currency in the envelope, preparatory to placing it in a floor safe, shortly before the robbery. He also identified the Waltham watch found on Coleman as the one taken from him.

Coleman stated that he had never seen the green box until the officer removed it from the auto. He said that he noticed the watch on the console between the seats and put it in his pocket. He identified the handkerchief as one which had been in his work clothes in the car. He also identified the bolt as one used in his work. The last he had known of those items, they were in his work clothes which he had removed and placed in the rear seat of the auto when he finished work.

Upon consideration of the evidence, the jury found Coleman guilty of robbery in the first degree. The trial court, finding that Coleman, by reason of prior conviction for robbery and rape, was subject to the Second Offender Act, sentenced him to 20 years' imprisonment. This appeal followed.

MOTION FOR DISCLOSURE AND SUBPOENA DUCES TECUM

Prior to trial, defendant filed a motion, requesting the court to order the prosecuting attorney to disclose to defendant's counsel all evidence material to guilt or punishment in his files, or otherwise known to him, which is or may be favorable to defendant in the trial of this Those cases do stand for the proposition, recognized and applied by the court en banc in State v. Thompson, Mo., 396 S.W.2d 697, 'that the suppression of (or failure to disclose) evidence in the possession or control of the prosecution which is favorable to defendant and which might be persuasive to a jury, constitutes such a fundamental unfairness as to invalidate a conviction because violative of due process.' Id., 396 S.W.2d 700. However, those decisions do not have the effect of prescribing discovery rules in criminal cases. State v. Reynolds, Mo.Sup., 422 S.W.2d 278, 281. See State v. Miller, 35 Wis.2d 454, 151 N.W.2d 157, 166--169(14), (15); United States v. Gleason, U.S.D.C., S.D.N.Y., 265 F.Supp. 880, 883, et seq. There being no rule authorizing the attempted discovery here employed, the trial court's denial of the motion was not error. State v. Reynolds, supra; State v. Aubuchon, Mo.Sup., 381 S.W.2d 807, 813--815.

cause. The motion was overruled. On the day of trial, defendant served a subpoena duces tecum for the production of the police reports of the University City Police Department. On motion of the state, the subpoena was quashed. On this appeal, the appellant assigns the court's ruling on these matters as error. He states that his motions and subpoena were based upon Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, and Giles v. Maryland, 383 U.S. 941, 86 S.Ct. 1194, 16 L.Ed.2d 205.

When the state moved to quash the subpoena duces tecum for the police reports, no response was made by defense counsel to show the reason for the issuance of the subpoena. Nothing in appellant's brief here sheds any light upon what, if any, proper purpose the subpoena might have served. In such circumstances, we would not, in view of the discretionary nature of the trial court's control of the matter (State ex rel. Phelps v. McQueen, Mo.Sup., 296 S.W.2d 85, 89(4)), hold the trial court's ruling erroneous.

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