State v. Jones

• Decision Date: 08 December 1975
• Docket Number: No. KCD,KCD
• Citation: 531 S.W.2d 67
• Parties: STATE of Missouri, Respondent, v. Michael Archie JONES, Appellant. 27647.
• Court: Missouri Court of Appeals

Page 67

531 S.W.2d 67

STATE of Missouri, Respondent, v. Michael Archie JONES, Appellant.

No. KCD 27647.

Missouri Court of Appeals, Kansas City District.

Dec. 8, 1975.

Thomas M. Larson, Public Defender, Cenobio Lozano, Jr., Asst. Public Defender, Kansas City, for appellant.

John C. Danforth, Atty.Gen., Richard E. Vodra, Asst. Atty. Gen., Jefferson City, for respondent.

Before SWOFFORD, P.J., and WELBORN and HIGGINS, Special Judges.

SWOFFORD, Presiding Judge.

Defendant was convicted of Robbery First Degree on trial by jury and was sentenced to fifteen (15) years imprisonment. He raises four points upon this appeal. First, he asserts that the trial court erred in overruling his motion to suppress the testimony of the victim of the robbery of pretrial and in-court identification of the defendant because the pretrial photographic identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification and thereby tainted the subsequent in-court identification. Second, he urges that he was denied a fair trial because the court, over his objection, admitted 'mug shot' photographs of the defendant and one Reginald Woodruff into evidence and permitted these to be passed to the jury. Third, he claims that his conviction was obtained by false testimony given by Patrolman Wright, coupled with the knowing misrepresentation by the prosecutor to the jury as to the character of such testimony. Fourth, he asserts that the trial court denied him the effective exercise of his Sixth Amendment right to cross-examine adverse witnesses.

A resolution of these points requires a somewhat detailed summary of the evidence. From this evidence, the jury could reasonably have found the following facts:

On August 5, 1974, Brenda Robinson, also known as Brenda Fleeks, and her husband, Tommy Robinson, and their small daughter occupied an eighth floor apartment in the Wayne Miner housing project, 912 Euclid, Kansas City, Missouri. At approximately 12:30 a.m. on that date, Tommy Robinson and one Charles Tony, who had been visiting in the apartment, left to go to a nearby store, leaving Brenda and the child alone in the apartment.

Approximately 15 minutes later, Mrs. Robinson heard a knock on the front door, looked through an observation hole therein and saw a young girl at the door. She also saw a man, Reginald Woodruff, known to her and whose grandmother occupied an apartment on the eighth floor of the building, standing at the elevator door, four feet from her entrance, holding the elevator door open. Upon Mrs. Robinson making inquiry of the girl as to her business there and being advised that the girl wished to see Mr. Robinson, she opened her apartment door to permit the girl to enter. As the door was opened, four or five men rushed into the Robinson apartment. These men were brandishing pistols and wore women's stockings over their heads, mask-fashion. Woodruff, who was not wearing a mask, remained at the elevator.

One of the men held a gun to Mrs. Robinson's head, forced her down a hallway to a bathroom, where she and her daughter were restrained (Mrs. Robinson with her hands taped behind her) during the course of the robbery, a period of about 30 minutes.

Mrs. Robinson was acquainted with the defendant; he had been in the Robinson apartment about an hour before the robbery for about 20 minutes; at that time he was dressed in red plaid pants and an orange jacket; and she knew him by the name of 'Monk'. At the time the men rushed into her apartment, the ceiling light in the front room, with four light bulbs, was turned on and she recognized the defendant both facially (despite the stocking mask) and by reason of his dress during the approximate ten seconds before she was taken to the bathroom at gunpoint.

After the men left the apartment, she went to the bedroom window overlooking the project parking lot, illuminated by a 'big old huge spotlight', and saw the defendant and other males coming out of the apartment building carrying her television and stereo sets, which they placed in the trunk of a car in which they then departed. When she saw defendant in the parking lot, he was not wearing a stocking mask or anything over his face.

Upon the arrival of the police, Mrs. Robinson told Patrolman Wright that one of the persons who had burst into her apartment and robbed her she knew as 'Monk'.

When Mr. Robinson and his friend Charles Tony were leaving the elevator of the building on their trip to the store at about 12:15 a.m., he ran into his 'friends', Michael Jones (Monk) and Reggie Woodruff, and seveal other men. He had known the defendant about two months, having met him through Reggie Woodruff, both of whom had visited the Robinson apartment about an hour before this incident.

At about 1:45 p.m. in the afternoon of April 5, 1974, Mrs. Robinson went to police headquarters to view some photographs. Either before or after looking at these photographs, ¹ she was told that Monk's real name was Michael Jones. She was shown four 'mug shots' and she identified one of these as 'Monk' and another as Reggie Woodruff. She did not recognize the other two persons. There was no attempt on the part of the police to exert any influence or suggestions as to which of the four photographs (or that any one of them) was that of Michael Jones or 'Monk', or that the police engaged in any other impermissible activity with reference to this identification. ²

The jury could have reasonably found (and did find) the foregoing facts from the evidence offered by the state. However, these findings find further support from the testimony of the defendant, who took the witness stand in his own defense.

He testified in detail as to his activities on April 4, 1974, and the early morning of April 5, 1974. A substantial part of this time was spent in the company of Reggie Woodruff. He further stated that he had been acquainted with Mr. and Mrs. Robinson for several weeks prior to April 4--5, 1974, and that he had been in their apartment four or five times before that night. He stated that he and Reggie (and others) had visited the Robinson apartment at about 11:15 p.m. on the night of the robbery; that he and Reggie later returned to 912 Euclid at about 12:00--12:15 a.m. in order to pick up a jacket that Reggie had left at his grandmother's apartment on the same floor as the Robinsons; that at this time the defendant tried to visit his brother (who lived on the 9th floor) but found he was not at home; and, that he and Reggie then returned to the apartment of another friend at 3310 Woodland at about 12:45 a.m., where he slept for several hours. The defendant denied that he was dressed as described by Mrs. Robinson or that he was implicated in any way in the robbery. He thus sought to establish an alibi, as above noted, that he was at 3310 Woodland at the time of the robbery and that Mrs. Robinson's identification of him was wrong.

During the course of defendant's testimony, he admitted that he had previously been convicted for 'stealing from a person' for which he had served time. Other evidentiary facts and trial incidents necessary to the resolution of the points raised by the defendant will be hereafter noted.

Relying upon Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) defendant's first point on appeal deals with the photographic identification of him by Mrs. Robinson and his claim that such was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification and thereby tainted her in-court identification. Simmons holds that such a claim 'must be evaluated in light of the totality of surrounding circumstances.' In Missouri, when so viewed, the determination of whether or not pretrial identification was 'impermissibly suggestive' is governed by three cardinal principles. Consideration must be given to (1) the presence of an independent basis of identification; (2) the absence of any suggestive influence by others; and (3) positive courtroom identification. State v. Boothe, 485 S.W.2d 11, 13(2) (Mo. banc 1972); State v. Parker, 458 S.W.2d 241, 243--244(2) (Mo.1970); State v. Murphy, 508 S.W.2d 269, 274(1) (Mo.App.1974).

In applying these criteria to the facts in the case at bar, the record presents, at the outset, an unusual circumstance. Mrs. Robinson was not robbed by a stranger but by a 'friend'--at least, a person with whom she and her husband had been acquainted for several weeks; a person who admittedly had visited the Robinsons apartment on four or five occasions; and, whose last visit had been made about an hour before the robbery. This is not the usual situation where a victim is seeking to identify a stranger, a person theretofore unknown to her, and whose physical characteristics and appearance were not familiar to the victim prior to the crime. Further, Mrs. Robinson testified that she saw the defendant with the other intruders in her home, in a well-lighted room, for about ten seconds; that she recognized him as 'Monk' despite the stocking mask; and, that she later saw him unmasked in a well-lighted parking lot helping to load her stolen TV and stereo into an automobile. The first criteria was amply met. Mrs. Robinson had an independent basis for her identification of the defendant.

Neither is there any substantial evidence that Mrs. Robinson's pretrial photographic identification of the defendant was induced by any improper influence or suggestions of the police or others. The defendant's claim to the contrary is apparently based upon three contentions. First, the fact that Mrs. Robinson told the police that one of the men who robbed her was known to her as 'Monk' and that the police told her that 'Monk' was Michael Jones, the defendant. This was obviously merely conversation linking the nickname to the real name and there is no evidence that the police told her that a specific photograph, or that any of...