State v. Garrett
| Decision Date | 27 February 1978 |
| Docket Number | No. KCD,KCD |
| Citation | 564 S.W.2d 51 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Willie GARRETT, Defendant-Appellant. 28765. |
| Court | Missouri Court of Appeals |
Clifford A. Cohen, Public Defender, Sixteenth Judicial Circuit, Lee M. Nation, Asst. Public Defender, Kansas City, for defendant-appellant.
Willie Garrett, appellant pro se.
John D. Ashcroft, Atty. Gen., Michael Finkelstein, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
Defendant Willie Garrett appeals his conviction and a court-imposed sentence of twenty years imprisonment under the Second Offender Act. His appointed counsel raises an issue concerning error in the failure to suppress lineup identification and in-court identification on the ground that it was impermissibly suggestive, and the defendant, by pro se brief, raises the issue of the propriety of the application of the Second Offender Act because of the nature of the offense relied upon as the prior offense. The judgment and conviction are affirmed.
The issue of submissibility is not raised, and a brief outline of the facts will suffice.
The robbery occurred at a convenience store in Kansas City, Missouri between 5:00 and 6:00 p.m. Two black men entered the store, one wearing a ski mask and the other covering his face with a stocking cap. They took money and three transistor radios. They were armed with a handgun.
Before proceeding to discuss the issue raised by appointed counsel, it should be noted that the motion for a new trial was out of time, having been filed more more than thirty days after the entry of the verdict in violation of Rule 27.20(a). Such a tardily-filed motion is a nullity and preserves nothing for review. State v. Brown, 543 S.W.2d 796 (Mo.App.1976); State v. McIntyre, 542 S.W.2d 793 (Mo.App.1976). The error was not briefed as plain error, and the only way in which the claim of error with respect to the trial court's action on the motion to suppress can be reviewed is sua sponte. When federally guaranteed constitutional rights of a defendant are involved, the court will sua sponte grant plain error review. State v. Jackson, 495 S.W.2d 80 (Mo.App.1973); State v. Heinrich, 492 S.W.2d 109 (Mo.App.1973); State v. Sockel, 490 S.W.2d 336 (Mo.App.1973). It is unnecessary in this case to make an extended analysis as to whether or not the error alleged in this case constitutes a matter of plain error that would be reviewed sua sponte because it is patent on this record that even if it were considered as plain error, the second requisite for granting relief under the plain error rule is absent. There is no manifest injustice because the admission of the identification testimony in this case, even if it were to be considered as plain error, is not prejudicial.
To illustrate this, a somewhat more detailed review of the facts is required. The identification testimony was the subject of a lengthy pre-trial motion to suppress. During that hearing, it was developed that the eye witnesses who identified at the lineup and at the trial were basing their identification upon the defendant's hair style, general build, and appearance since the mask prevented a clear view of the defendant's features. If that evidence stood alone as identifying the defendant as the perpetrator of this offense, a serious issue might be raised. However, the facts in this case indicate that it is almost a hot pursuit situation. At the time of the robbery, the two blacks left the store. Almost immediately thereafter a police car arrived on the scene, and the officer began what is described as an "area investigation." In the course of that, two children immediately across the street from the convenience store were queried, and they indicated that two men ran out of the store carrying two bags, and one of them had a ski mask on. The children watched the two run from the store to an apartment building in the immediate vicinity which they identified, both by street address and by taking the officer to the apartment building. The apartment building apparently consisted of two dwelling units having a common entrance. The officers entered and checked one of the dwelling units where only children were found. In the other dwelling unit, the one identified by the children by street number as being the place the men ran to from the convenience store, the officer found the defendant, another individual, and an adult female, as well as a small child. The officer made a cursory search for other individuals, arrested the defendant's companion pursuant to a computer check which revealed he had outstanding warrants and questioned the...
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