State v. Hunn, No. 58985

• Decision Date: 24 December 1991
• Docket Number: No. 58985
• Citation: 821 S.W.2d 866
• Parties: STATE of Missouri, Respondent, v. Gordie Odell HUNN, Appellant.
• Court: Missouri Court of Appeals

Page 866

821 S.W.2d 866

STATE of Missouri, Respondent, v. Gordie Odell HUNN, Appellant.

No. 58985.

Missouri Court of Appeals,

Eastern District,

Division Three.

Dec. 24, 1991.

Judith LaRose, Lew A. Kollias, Brad B. Baker, Columbia, for appellant.

William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

STEPHAN, Judge.

Gordie Odell Hunn appeals from the judgment of the trial court sentencing him to eight years' imprisonment pursuant to the jury's verdict. The jury found him guilty of second degree robbery in violation of section 569.030 RSMo 1986. Appellant raises six points alleging trial court error concerning an instruction and the admission of certain evidence, including the in-court identification of appellant by victim, oral and written statements to the police by appellant, references to appellant's purchase and use of drugs, and certain hearsay testimony by a police officer. We discern no error and affirm the judgment and sentence of the trial court.

On September 7, 1989, about nine o'clock in the evening, Dr. Joseph Mueller, a St. Charles chiropractor, was mugged after he had left his office and started to get in his car. A man came around from the rear of the car, shoved Dr. Mueller into the front seat, held an object Dr. Mueller thought was a gun to Dr. Mueller's back, mumbled something unintelligible and then said, "I'll get your billfold or I'll blow your head off." He took the doctor's wallet and then fled on foot. The wallet contained about $270.00, credit cards, and the doctor's driver's license.

The doctor described his assailant to the police as a young black man, early to mid-twenties, medium or rather light complexion, medium height, stocky build, between 180 and 200 pounds and wearing a white tee-shirt. The only light was from overhead in his car and rather dim. Although he could see only a portion of his attacker's face, Dr. Mueller thought that the man looked familiar and that he had seen him in the neighborhood before. On September 8, the day after the robbery, one of the officers investigating the crime showed a composite picture of the suspect based on the description provided by Dr. Mueller to people in the neighborhood where the robbery had occurred. The officer spoke with Paris Brown, a professional bondsman, who lived near Dr. Mueller's office. Mr. Brown recalled that he had seen appellant in the neighborhood between 8:00 and 9:00 p.m., the night of the robbery. Mr. Brown called his sister to tell her the police were looking for someone named Andre who had driven appellant across the river to get cocaine. His sister called her son Andre Savage who agreed to meet with detectives that evening.

Savage told the officers that he had met appellant at someone's house on Olive Street near the robbery location in St. Charles around 10:30 p.m. or later the night of the robbery. Appellant told Savage that he had a "large portion of money" and asked Savage to drive him over to Hanley Road in St. Louis County because he had dropped something there and wanted to look for it. The location was significant because a passer-by had found Dr. Mueller's wallet on Hanley Road the day after the robbery. Savage also told the police he thought appellant had committed the robbery. He gave the police a white tee-shirt appellant had left in Savage's truck the night of the robbery.

Savage also agreed with the police to arrange for appellant to be in Savage's truck later that evening. As planned, the police pulled over Savage's truck a few hours later around 9:00 p.m. They recovered some rock crystal-like substances on appellant. They took appellant to the police station where, about 11:30 p.m., after less than three hours in custody, he confessed to the crime.

Appellant's first point asserts that the State failed to make a submissible case because it did not establish the element of his criminal agency beyond a reasonable doubt. Dr. Mueller had failed to select appellant as his assailant from a photographic array containing appellant's picture on the day after the robbery. Nine months after the robbery during appellant's trial, Dr. Mueller made a positive in-court identification of appellant based upon appellant's facial features. Appellant characterizes Dr. Mueller's trial testimony as equivocal and insubstantial evidence. Appellant acknowledges that the State proved both appellant's presence in the neighborhood of the crime scene and his opportunity to commit the offense, but concludes such evidence was insufficient circumstantial evidence to convict him.

We note at the outset that the basic premise underlying appellant's argument is that the identification is the only evidence of appellant's criminal agency. Such an assumption is flawed. Appellant's own confession is additional evidence of his criminal agency.

Notwithstanding appellant's confession, Dr. Mueller's inability to make a positive identification from a photographic array does not undermine the reliability of his positive in-court identification. Such discrepancy goes, instead, to the credibility of the witness and is a proper subject for cross-examination. See State v. Clark, 756 S.W.2d 565, 574 (Mo.App.1988). Reliability of the in-court identification is to be assessed under the totality of the circumstances. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972); State v. Tettamble, 746 S.W.2d 433, 437 (Mo.App.1988). Factors to be considered in determining reliability include the opportunity of the witness to view the defendant at the time of the crime, the witness's degree of attention, the accuracy of the witness's prior description of the defendant, the degree of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Clark, 756 S.W.2d at 574; State v. Reasonover, 700 S.W.2d 178, 182 (Mo.App.1985).

Here, Dr. Mueller had an opportunity to view his attacker's face, primarily his profile, illuminated by the car's interior lights for several seconds; the doctor was attentive; his description to police despite some discrepancy in weight, closely matched appellant; his in-court identification was not equivocal, and only nine months had elapsed since the robbery occurred and his in-court identification. The totality of the circumstances fully supports a conclusion that Dr. Mueller's in-court identification of appellant as his assailant was reliable. Appellant's first point is denied.

Appellant's second point challenges the admission of his oral and written statements made to the police after his arrest. He argues that his arrest was illegal because no probable cause supported it, so his statements should have been excluded as the fruits of an illegal arrest.

The State correctly observes that appellant's point was not raised in the motion for new trial, and, thus, is not properly preserved. State v. Wright, 810 S.W.2d 86, 89 (Mo.App.1991). We review for plain error. Rule 30.20. The defendant bears the burden of proving that an alleged error is of such magnitude that it constitutes plain error. State v. Vanzandt, 809 S.W.2d 881, 883 (Mo.App.1991). The assertion of plain error places a much greater burden on a defendant than when he asserts prejudicial error. Id. A defendant must not only show that prejudicial error resulted, he must further show that the error so substantially affects his rights that manifest injustice or a miscarriage of justice will inexorably result if left uncorrected. Id.; State v. Miller, 604 S.W.2d 702, 706 (Mo.App.1980). Against this legal backdrop we review appellant's second point.

Probable cause to arrest exists when the facts and circumstances exist within the knowledge of the arresting officers, and of which they have reasonably trustworthy information, are sufficient to warrant a belief by a person of reasonable caution that the person to be arrested has committed the crime for which he is being arrested. State v. Sidebottom, 753 S.W.2d 915, 923 (Mo. banc) cert. denied 488 U.S. 975, 109 S.Ct. 515, 102 L.Ed.2d 550 (1988).

Probable cause was supplied by the information police had obtained from the informant Andre Savage. A police officer testified Savage had been a reliable informant in the past. Savage told one detective that he believed appellant was responsible for the robbery because the night of the robbery appellant had told Savage that he had made two hundred dollars in a short period of time, appellant wanted Savage to drive him to Hanley Road to pick something up and appellant had left a white shirt in Savage's truck. The police knew from Dr. Mueller's description of his assailant that the robbery suspect had worn a white shirt during the robbery and also that Dr. Mueller's wallet had been recovered on Hanley Road.

Paris Brown, another witness, had also told the officers that he had seen appellant in the neighborhood near Dr. Mueller's office the night of the robbery. In addition, one of the arresting officers had personal knowledge that appellant had a drug problem and lived in the neighborhood where the robbery occurred.

We hold that the foregoing evidence reflects that the facts and circumstances within the knowledge of the arresting officers were reasonably trustworthy and, thus, sufficient to warrant their belief that appellant was a likely suspect in the robbery. Appellant's second point is denied.

Appellant's third point, like his second point, disputes the admissibility of his oral and written statements, but on a different ground. He argues the statements were inadmissible because the police had physically and psychologically coerced him to make the statements. We disagree.

The test for voluntariness of a confession is whether, under the totality of the circumstances, the defendant is deprived of a free choice to admit, deny or refuse to answer, and whether physical or psychological coercion was of such a degree that defendant's will was...