State v. Everly, 52797

• Decision Date: 08 July 1968
• Docket Number: No. 52797,No. 2,52797,2
• Citation: State v. Everly, 430 S.W.2d 156 (Mo. 1968)
• Parties: STATE of Missouri, Respondent, v. Latrell S. EVERLY, Appellant
• Court: Missouri Supreme Court

Page 156

430 S.W.2d 156

STATE of Missouri, Respondent, v. Latrell S. EVERLY, Appellant.

No. 52797.

Supreme Court of Missouri, Division No. 2.

July 8, 1968.

Norman H. Anderson, Atty. Gen., Jefferson City, Thomas J. O'Brien, Special Asst. Atty. Gen., Kansas City, for respondent.

Henry F. Luepke, Jr., James A. Singer, St. Louis, for defendant-appellant.

FINCH, Presiding Judge.

Defendant, charged under the Second Offender Act with stealing $40 from the person of one Hoefner without his consent, was convicted by a jury. The trial court made the necessary findings with reference to a prior conviction and sentenced defendant to imprisonment for a term of six years. Defendant appealed after his motion for new trial was overruled. We affirm.

The principal question for determination on this appeal is whether defendant was deprived of constitutional rights and was prejudiced as a result of his identification at the police station where he was placed in a lineup.

Defendant's brief complains that he was deprived of his constitutional right to counsel at the lineup, citing United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. The requirement of counsel at the lineup, established by Wade, is applicable only to confrontations for identification purposes after June 12, 1967. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. The date of the lineup here involved was April 18, 1966. Consequently, failure to provide counsel to defendant at that lineup did not violate his constitutional rights.

There remains the question of whether the identification procedures at the police station were so suggestive and unfair that they affected the 'in court' identification of this defendant at his trial and amounted to a denial of due process. This depends on the totality of the circumstances. Stovall v. Denno, supra. Accordingly, we recite so much of the evidence as is necessary to determine this question.

On the afternoon of April 18, 1966, one Hoefner, a rent collector, went to the Eagle Lounge on North Grand Boulevard, in the City of St. Louis, to collect a payment due from the owner of that establishment. When Hoefner opened the door and started to enter the Lounge, a young man, later identified as Clarence Mitchell, blocked his entrance by kneeling across the doorway. When Hoefner started to step over Mitchell, he was jostled by two young men who came up from behind. One of these men, subsequently identified as the defendant, jostled Hoefner on his left side and reached into his left-hand coat pocket, taking a paper folder containing $40 in cash (one twenty and two ten-dollar bills) and some rent receipts. The man who was on Hoefner's right disappeared immediately and was not thereafter seen.

When Hoefner was jostled, he turned around and looked at defendant. They stood facing each other for a period which Hoefner estimated at perhaps five seconds. Defendant and Mitchell then started south on Grand Avenue. Hoefner discovered that his packet was gone and he pursued the men and caught Mitchell. Defendant was with him and Hoefner got a good look at him again at that time.

Hoefner brought Mitchell back to the Lounge. He denied that he had taken Hoefner's money and explained that he was on the floor looking for a quarter which he said had gone behind the cigarette machine. Hoefner then released Mitchell and he again went south on Grand Avenue.

All of these proceedings were viewed by Beulah Kirkwood and Ruth Pate, two women employed at the Lounge. Both were waitresses and Ruth Pate was acting as manager. Both knew Hoefner and Ruth Pate had a check of her employer to deliver to him on that occasion. Both women saw Hoefner start in. Beulah Kirkwood saw Mitchell kneeling in front of the door and saw two other young men behind Hoefner who started to push him. She testified that she got a good look at defendant's face. She did not know how long the defendant was in her vision but testified it was long enough to get a good look at him. She was positive that defendant on trial was the man she saw at the tavern. She also described the third man who got away and was not seen thereafter.

Ruth Pate also saw Mitchell stooped in front of Hoefner and saw the defendant behind and that they had pinned him in the doorway. She saw that the defendant had a folder in his hand. He and Mitchell then both went south on Grand Avenue.

Ruth Pate went outside and observed an off duty policeman whom she knew. She hailed him and reported to him what had happened. As she was talking to Officer Holt, she observed Mitchell and a man whom she testified was the defendant down the street about a block from the Lounge. She pointed them out to Officer Holt and he and other officers then pursued them. They apprehended the defendant and Mitchell at a point about 350 yards from the Lounge. At that time Mitchell was walking on one side of the street and the defendant on the other. The two men were arrested and taken to the police station, where a twenty-dollar bill was found in one of the defendant's socks and a ten-dollar bill in the other. Some rent receipts and papers of Hoefner were found in a gangway into which defendant was observed to have gone.

That evening, Hoefner, Ruth Pate and Beulah Kirkwood went to the police station at the request of the police officer. They knew that two persons had been arrested that afternoon. The two women arrived and were taken back to the detectives' office. They observed Mitchell in a cell as they walked back but did not see the defendant at that time. A little later Hoefner and his wife arrived at the police station and he also was taken back to the same detectives' office. He also got a passing glance of Mitchell in a cell but did not see the defendant.

The officers then had the three witnesses view a lineup in which the defendant Everly, Clarence Mitchell and a third person were viewed by the witnesses. According to their best recollection, Mitchell was on one end, defendant Everly on the other end, and a third man was in the middle. Mitchell, who later entered a plea of guilty, appears to have been tall. The record does not disclose the height or size of the defendant except that he was a shorter man, and the record indicates that the man in the center also was a shorter man of perhaps medium weight. Both Mitchell and the defendant had on the same clothes at the time of the lineup which they had been wearing when arrested. The defendant was wearing what was described as a light tan raincoat or trench coat and a dark hat.

The three witnesses did not talk among themselves as to whether any of the ones in the lineup were the ones whom they had observed. Instead, they simply indicated to the officers the ones whom they recognized, and those were Charence Mitchell and the defendant.

After the lineup had been concluded Mitchell and defendant were brought, one at a time, into the detectives' room in the presence of the three witnesses, where they were questioned, but no admissions were made by the defendant, and at the trial no confessions or admissions of the defendant were offered in evidence against him.

The defendant contends that the occurrences at the police station were unfair and prejudicial in that they were suggestive and crystallized the...