State v. Glessner, s. 19407
| Decision Date | 27 February 1996 |
| Docket Number | Nos. 19407,20075,s. 19407 |
| Citation | 918 S.W.2d 270 |
| Parties | STATE of Missouri, Respondent, v. Eddie Warren GLESSNER, Appellant. Eddie Warren GLESSNER, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Appeals from Circuit Court, Greene County; David P. Anderson, Judge.
David Simpson, Office of the State Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Attorney General, David G. Brown, Asst. Atty. Gen., Jefferson City, for respondent.
A jury found Appellant, Eddie Warren Glessner, guilty of three crimes:
Count I: attempt to commit robbery in the first degree;
Count II: armed criminal action;
Count III: tampering in the first degree.
The jury assessed punishment at nine years' imprisonment on Count I, seven years' imprisonment on Count II, and two years' imprisonment on Count III. The trial court imposed those sentences, ordering that they run consecutively. Appellant brings appeal 19407 from that judgment.
While that appeal was pending, Appellant filed a motion to vacate the judgment and sentences per Rule 29.15. 1 Following an evidentiary hearing, the motion court issued findings of fact and conclusions of law, and denied relief. Appellant brings appeal 20075 from that judgment.
We consolidated the appeals, Rule 29.15(l ), but address them separately in this opinion.
Two of the four points relied on in Appellant's brief pertain to this appeal. Point I avers the trial court erred in overruling Appellant's objection when the prosecutor, during cross-examination of Appellant, asked why Appellant "failed to make an exculpatory statement after his arrest." Point II maintains the trial court erred by failing to exclude the victim's "in-court identification" of Appellant in that "its reliability was tainted by impermissibly suggestive pretrial identification procedure."
Because Appellant does not challenge the sufficiency of the evidence to support the verdicts, we set forth only the evidence essential to a discussion of the claims of error.
Viewed favorably to the verdicts, State v. Silvey, 894 S.W.2d 662, 673 (Mo. banc 1995), the evidence establishes that Steven Michael Appleby, a part owner of Woodside Surplus City, arrived by automobile at that site between 6:50 and 7:00 a.m., Saturday, October 13, 1990. As he exited his vehicle to open the gate of a security fence, a man approached on foot holding a handgun. The gunman was wearing a "military type boony hat" that covered his forehead. Appleby observed the gunman "had a beard and moustache growth."
The gunman demanded that Appleby "go in the store and get the ... money."
Appleby told the gunman he (Appleby) could not get into the store.
The gunman persisted in his demand. Appleby gradually backed away and, when 25 to 30 feet from the gunman, turned and ran. He looked back and saw the gunman enter his (Appleby's) automobile and drive away (Appleby had left the motor running).
Appleby ran across a street to Frank's Market. A Ford automobile driven by a blond woman drove away from the market at high speed, "almost brushing" Appleby. He "wrote down the license plate number," then entered the market and phoned the Greene County sheriff's office. 2
Deputy Sheriff Bill Harp was one of the officers dispatched to the scene. Appleby gave Harp the Ford's license number.
Within an hour after the gunman fled, officers found Appleby's automobile, abandoned, two blocks south and a block and a half east of Woodside Surplus City. 3
At the sheriff's office, Appleby described the gunman to Detective Tom Thorson, who used an "identikit" to construct a "composite likeness" of the gunman.
Meanwhile, Deputy Sheriff Harp had learned the license number on the Ford was registered to Paula Jager, 1107 South Colgate, Springfield. Jager had been employed at Woodside Surplus City from May to August, 1990.
Harp went to the South Colgate address, a single family home some ten blocks from Woodside Surplus City. Arriving around 9:00 a.m., Harp knocked on the door but "couldn't raise anyone." He saw no vehicle in the driveway. A single car garage had "something over the windows, so you couldn't see in."
Around 10:30 a.m., Deputy Sheriff Gary McMurtrey was on patrol when he received a dispatch regarding the license number seen by Appleby on the Ford that sped from Frank's Market.
McMurtrey, northbound, saw a Ford bearing that number ahead of him, also northbound. He followed it until it stopped where a crowd had gathered at a garage sale, some nine blocks from Paula Jager's residence. Appellant was the Ford's driver and sole occupant.
McMurtrey summoned Appellant to McMurtrey's vehicle, noting Appellant "had some nicks on the side of his face and ... was clean shaven and it looked like he had cut himself on the side of his neck." McMurtrey took Appellant into custody.
Harp and other officers arrived. Appellant was taken to the sheriff's office, and the Ford was towed to the sheriff's "service center."
Around noon, Appellant was placed in a lineup of "six or seven" men at the sheriff's office. Appleby viewed the lineup, but did not identify Appellant or anyone else as the gunman. Appleby's testimony:
"Q. What do you recall about the lineup ... how it was conducted?
A. ... a deputy sheriff ... told me not to be upset, not to be nervous, but try to be positive to identify, and ... when I actually went in to the lineup the suspect seemed to have changed his appearance.
Q. Well, which one of those at the time appeared to be the one?
A. I ... told them ... that none of them really appeared to be him with the change that had taken place.
Q. What change did you think had taken place?
A. A real, very clean shaven gentleman. The outfit he had on was not there. He had a hat over his forehead where I couldn't tell if he had, you know, balding hair or long hair or what. So I actually said, you know, there's quite a bit of a change from the morning of the suspect I had seen and that afternoon.
Q. Well, were you referring to any particular person?
A. I actually just said they all looked clean shaven....
Q. And after you looked at this ... lineup at the Sheriff's Office, after you were done and couldn't pick anybody out, that was when Detective O'Neal said you didn't pick him out?
A. Yes. I told him one gentleman looked like it, you know, in the lineup, but I said, 'I don't think that's him.'
Q. Okay. And his response to you was?
A. He said, 'Well, that's not him.' ..."
By early afternoon, Detective Thorson had obtained a search warrant for Paula Jager's residence and the impounded Ford.
Thorson, accompanied by Detective James O'Neal and other officers, went to the residence. No one was inside.
The officers conducted a search. In the bathroom, they found a razor, shaving soap, scissors, and other items. According to O'Neal, the scissors had hair "sticking out the right side ... an inch above the screw." The razor also had "hair in it."
After searching the house, Thorson and O'Neal searched the impounded Ford. They found a loaded handgun in a bag in the trunk. O'Neal described the gun as a ".380 Walters nine millimeter Kurz." Thorson showed the gun to Appleby, who concluded it was "like the gun that I saw that morning."
Dwayne Alan Hayes, a "floor manager" at Woodside Surplus City, and Robert Brian Fairless, a sales clerk there, knew Appellant by having seen him in the store during Paula Jager's employment. Hayes explained: "[Appellant] would come in ... basically every day to pick [Paula] up at dinner time, eat dinner with her on the front parking lot at the store."
Hayes was on duty at the store Friday, October 12, 1990, the day before Appleby's encounter with the gunman. Sometime after 7:00 that evening (October 12), Hayes saw Appellant enter the store and walk "back towards the office area." Hayes noticed Appellant "had a rough beard." Hayes recalled, "I'd never seen Eddie with a rough beard, I'd always seen him pretty clean shaven in the past."
According to Hayes, Appellant was in the store "ten to fifteen minutes." When Appellant exited, Hayes saw him enter a Ford and drive away. At trial, Hayes was shown a photograph of the Ford Appellant was driving when arrested by Deputy Sheriff McMurtrey. Hayes avowed it looked like Paula Jager's Ford, and was the vehicle Appellant drove upon leaving the store October 12.
Like Hayes, sales clerk Fairless was on duty at the store Friday evening, October 12. When Appellant arrived, Fairless was outside and saw the vehicle Appellant was driving. Fairless followed Appellant into the store and watched as Appellant walked "back by the office." Fairless noticed Appellant "had a ... beard growth, like going deer hunting." At trial, Fairless was shown a photograph of the Ford Appellant was driving when arrested. Fairless identified the vehicle in the photograph as the one Appellant "drove up in on Friday night, the 12th."
Fairless was at the store the next day (October 13) when Appleby was describing the gunman to investigators. Upon hearing Appleby's description, Fairless told the investigators that the gunman "was in the night before," and gave the investigators Appellant's name.
On October 23, 1990, ten days after Appleby's encounter with the gunman, Detective O'Neal showed Appleby five or six photographs. Each was of a different individual. All of the individuals "had moustaches, beards." The individual in one of the photographs was Appellant. Appleby identified that photograph as a photograph of the gunman.
At trial, Appleby pointed to Appellant and swore he was the gunman. Asked how he was able to identify Appellant's photograph, Appleby explained: "[H]e had a moustache and a beard growth and it just appeared to be the same gentleman that I had seen the morning of October 13th, less the boony hat covering his head, his hairline."
During Hayes' testimony, the prosecutor showed him the photograph of Appellant identified by...
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