State v. Fitzgerald
| Decision Date | 07 November 1989 |
| Docket Number | 55960,Nos. 53761,s. 53761 |
| Citation | 781 S.W.2d 174 |
| Parties | STATE of Missouri, Respondent, v. Tommy FITZGERALD, Appellant. Tommy FITZGERALD, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
William L. Webster, Atty. Gen., Deborah L. Ground, Ronald L. Jurgeson, Asst. Attys. Gen., Jefferson City, for respondent.
Robert C. Wolfrum, Asst. Public Defender, St. Charles and Henry B. Robertson, Asst. Public Defender, St. Louis, for appellant.
This is a consolidated appeal under Rule 29.15(l ) of appellant's direct appeal of his convictions for robbery in the first degree in violation of § 569.020 RSMo 1978 (Count I), armed criminal action in violation of § 571.015 RSMo 1978 (Count II), and unlawful use of a weapon in violation of § 571.030.1(4) RSMo Cum.Supp.1984 (Count III), and his appeal from the dismissal of his Rule 29.15 motion without an evidentiary hearing. Appellant was sentenced as a prior and persistent offender to consecutive terms of life imprisonment for Count I, life imprisonment for Count II, and five years imprisonment for Count III.
On direct appeal, appellant contends that the trial court erred: (1) when it overruled his written and oral objections to the application of § 558.019 RSMo 1986 (effective January 1, 1987), entitled "Minimum prison terms for certain repeat offenders," to appellant in this case when the alleged offenses occurred on June 1, 1985; (2) when it overruled his motion to suppress out of court and in court identifications, thereby violating appellant's Fourth, Fifth, Sixth, and Fourteenth Amendment rights; and (3) in violating his Sixth and Fourteenth Amendment rights to due process and to present witnesses in his own behalf when it refused to allow appellant to present the testimony of John Torrence and Brandon Eakright and refused to allow appellant to present an offer of proof as to Brandon Eakright's testimony. On his appeal from the dismissal of his Rule 29.15 motion without an evidentiary hearing, appellant contends that the motion court erred in: (1) overruling his objection to the state's verdict forms because there was no evidentiary basis for referring to appellant therein by two aliases; (2) overruling his Rule 29.15 motion because appellant was subjected to double jeopardy in being convicted of unlawful use of a weapon in addition to robbery in the first degree and armed criminal action, in that the act of exhibiting a weapon was the same forcible conduct used to prove all charges, and therefore, was part of and coterminous with robbery in the first degree and armed criminal action; and (3) overruling his claims of ineffective assistance of counsel without an evidentiary hearing because appellant stated prima facie grounds for relief in that the existence of viable trial strategy cannot be established without a hearing, and appellant has sufficiently alleged prejudicial omissions on the part of counsel. We affirm in part and reverse and remand in part.
The record reveals the following facts viewed in the light most favorable to the jury verdict and disregarding any contrary evidence. State v. Picone, 760 S.W.2d 471, 473[1-4] (Mo.App.1988). An amended information charged appellant with committing the felonies of robbery in the first degree, armed criminal action, and unlawful use of a weapon on June 1, 1985, in connection with an incident occurring at Gasaway Pharmacy in St. Charles County, Missouri. The amended information additionally charged that:
Defendant is a prior offender under Sections 558.016 & 557.036.4 RSMo, in that he has pleaded guilty to or has been found guilty of a felony. Defendant is also a persistent offender punishable by sentence to an extended term of imprisonment under Sections 558.016 and 557.036.4 and further is a persistent offender under Section 558.019, RSMo, in that he has pleaded guilty to or has been found guilty of two or more felonies committed at different times.
Appellant filed a pretrial motion to suppress out of court and in court identifications alleging that: (1) he was arrested without warrant or probable cause to believe that he had committed a crime, therefore the out of court identifications were the poisonous fruit of the unlawful arrest; (2) the circumstances surrounding the out of court identifications were so inherently suggestive and conducive to mistaken identification as to violate his right to due process under the United States and Missouri Constitutions; (3) witnesses' testimony regarding in court identifications has been fatally infected by the tainted out of court identifications; and (4) said confrontation constituted a violation of appellant's rights under the United States and Missouri Constitutions. At the hearing on the motion to suppress, the trial court received the testimony of three witnesses: Robert Shipley, Michelle Snyder, and Jack Shipley.
Robert Shipley, a pharmacist at the Gasaway Pharmacy, testified that, on June 1, 1985 at 6:30 p.m., he was working at the pharmacy counter in the back of the store, while his son, Jack Shipley, was working as the front cashier. Robert was speaking with a customer, Michelle Snyder, when a man carrying a gun suddenly appeared and announced, "This is a holdup; I want your drugs and money." The man listed the drugs that he wanted. Robert went to a safe, removed the drugs, and placed them in a bag, while the man remained "a foot and a half away" from him. Robert then removed drugs from a shelf. The man next instructed Robert to get down on the floor in front of the pharmacy counter. The altercation lasted approximately three to four minutes. It was daylight outside with fluorescent lighting inside. Robert testified that he had a clear view of the man's face.
Sometime later, Robert viewed a videotape lineup from which he made an identification in the home of Detective Shirley Blankenship. He testified that the people in the videotape lineup resembled the person at the Gasaway Pharmacy to the extent of "normal similarity that you would see in society." Before viewing the videotape lineup, he was not asked to "look at number so and so," but rather was told to see if the suspect appeared on the videotape lineup. In addition to identifying appellant from the videotape lineup, Robert also identified appellant in court, and the following ensued:
Q. Are you positive on this identification?
A. Yes.
Q. Any doubt in your mind?
A. No.
Michelle Snyder testified that she was at the Gasaway Pharmacy on June 1, 1985 at 6:30 p.m. picking up a prescription and speaking with Robert. A man entered the pharmacy announcing a holdup and told her to get down on the floor. Michelle was stunned, and the man pointed a gun at her face again telling her to get down on the floor. She had a "pretty good look at him."
Michelle viewed a videotape lineup at Detective Blankenship's home where she was told, "Now, I'm just going to show you a video and you tell me if you recognize anyone in this video." During the hearing, she identified appellant as the man who had pointed the gun in her face and told her to get down on the floor.
Jack Shipley testified that he was the cashier at the Gasaway Pharmacy on June 1, 1985 at 6:30 p.m. Jack stated that while the appellant was in the back area, an accomplice, stationed in the front of the store, brought Jack to the back area telling him to get down on the floor. Jack had a clear view of appellant, whom he noticed was carrying a gun.
Jack later viewed a videotape lineup with the instructions to "pick a person out that was there on June 1st." He testified in court that appellant was the man he saw in the back area of the Gasaway Pharmacy. At the conclusion of the evidence, the trial court denied the motion to suppress.
After the denial of his motion to suppress and prior to trial, appellant filed a Memorandum of Law and Objection to the application of § 558.019 RSMo 1986 (effective January 1, 1987) arguing that, since the alleged offenses occurred on June 1, 1985, application of the statute violates constitutional provisions regarding due process and equal protection and forbidding ex post facto laws. The trial court entered a specific finding denying appellant's objection stating, Further, the trial court added:
In addition to that--and the Court bases it's [sic] finding on the Court's ruling that the Court finds at this time beyond any reasonable doubt that the Defendant is a prior and persistent offender in that he committed two or more felonies at different times, to-wit: Having pled guilty to the felonies of burglary in the second degree and stealing in the Circuit Court of Jackson County, Missouri, on July 1, 1983; that he served more than a hundred and twenty days in the Department of Corrections of Human Resources on that offense; that he also pled guilty, on July 1, 1983, to the offense of stealing a motor vehicle in the Circuit Court of Jackson County, having occurred at a different time, and that he served more than a hundred and twenty days in the Missouri Department of Corrections of Human Resources. The Court finds the same beyond any reasonable doubt.
The case proceeded to trial. Robert, Jack, Michelle, and Detective Blankenship testified for the state. Robert's testimony essentially duplicated his earlier testimony at the hearing on the motion to suppress. He added that he observed appellant for two to three minutes. Appellant was not wearing glasses, nor was he disguised in any manner. There was another individual in the store besides appellant, and when they left, Robert saw a white car leave the parking lot in a hurry.
Jack also repeated his earlier testimony at the hearing...
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