State v. Knox
| Decision Date | 16 September 1975 |
| Docket Number | No. 36108,36108 |
| Citation | 529 S.W.2d 455 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Raymond Augustus KNOX, Defendant-Appellant. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
Charles D. Kitchin, Public Defender, James C. Jones, Asst. Public Defender, St. Louis, for defendant-appellant.
John C. Danforth, Atty. Gen., Neil MacFarlane, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Thomas C. Muldoon, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
Raymond Augustus Knox appeals from a conviction of Robbery in the First Degree by Means of a Dangerous and Deadly Weapon, §§ 560.120 and 560.135 RSMo 1969. At trial it was also charged that he was a Second Offender within the provisions of § 556.280 RSMo 1969 and after an evidentiary hearing the trial court made a finding in accord with the requirements of the statute and sentenced the defendant, following the verdict of the jury and overruling of his motion for new trial, to 15 years in the custody of the Missouri Department of Corrections.
On this appeal Knox contends that the trial court erred in two respects which entitle him to have his conviction reversed and the cause remanded to the trial court for a new trial. His first Point is directed to the denial of the trial court of his motion to suppress the in-court identification of Knox as one of the robbers. His second Point is that the trial court erred in not giving the verdict directing instruction in the form approved by MAI-CR. We affirm.
Defendant, as Knox shall hereinafter be identified, does not question the sufficiency of the evidence to support the verdict of the jury and we may therefore set forth the facts in the light most favorable thereto, disregarding any evidence which does not support it. State v. Stapleton, 518 S.W.2d 292 (Mo.banc 1975).
From the State's evidence the jury could find that on February 24, 1973, at approximately 4:00 p.m. Joseph Welch and Steve Ehrhart returned to their apartment from some grocery shopping, accompanied by Mark Wiggins. The three carried some groceries into the apartment and put them in the kitchen, after which they proceeded down a hall toward a stairwell. As they were proceeding down the hallway Xanthamas Sledge, hereinafter referred to as Sledge, came out of one of the bedrooms off the hallway, pointed a gun at them and told them to 'freeze.' They did, and while they remained standing in the hallway, a second man--this defendant--came out of the same bedroom from whence Sledge had emerged, and then Sledge and the defendant ushered the three young men from the hallway into the front bedroom where Ehrhart and Wiggins were tied up with their hands behind their backs. Wiggins was then also tied up and forced to lie on top of his companions. Defendant did the actual tieing and while doing so removed from the bound victims their wallets and watches. Defendant and Sledge then ransacked the apartment, leafing through boxes and emptying drawers while doing so. Both defendant and Sledge were in the apartment with the victims for almost twenty minutes, after which they left the three young men still bound and lying on the floor, Making good their escape from the scene of the crime.
At trial both Welch and Ehrhart unhesitantly identified the defendant as the robber who tied them up. Wiggins was unable to identify him as one of the culprits. The manager of the sporting goods store also testified that he saw the defendant and Sledge in his store on the 31st day of July, when Sledge purchased a shotgun using Welch's name and driver's license. Another employee of the sporting goods store corroborated the testimony of the manager of the store in these respects. Defendant presented alibi witnesses to establish that on the date when the robbery occurred he was at a party at his sister's home from 12:30 p.m. until 8:00 p.m.
Defendant had filed a motion to suppress evidence prior to trial which was taken up at the outset of the trial out of the presence of the jury. At this evidentiary hearing the prosecutor who conducted the photographic show-up testified that on August 14, 1973, during the course of a preliminary hearing in a magistrate court in St. Louis County on a check charge against Xanthamas Sledge, Joseph Welch identified Sledge as one of the two men who had robbed him on February 24, 1973. The prosecutor was aware of the fact that this defendant had been arrested with Sledge and that the second robber in the Welch robbery had not as yet been identified. Armed with this information plus the knowledge that the defendant was in the custody of the police charged with riding in a motor vehicle without the owner's consent, a misdemeanor, §§ 560.175 4 and 560.180 2, arising out of the arrest of both Sledge and the defendant, and that the defendant would soon be released from police custody, the prosecutor undertook to arrange for a lineup so that Welch could view the defendant to see whether he could identify him as the other robber.
At about 5:00 p.m. the afternoon of the preliminary hearing the prosecutor attempted to arrange a lineup at the St. Louis County Jail where the defendant was in custody, but due to streneous objections by defendant's counsel--at that time one of the public defenders of St. Louis County--to the makeup of the lineup, the three volunteers who had been enlisted by someone in the St. Louis County Welfare Depatment to participate in the lineup refused to do so. The prosecutor then decided on a photo showup in lieu of the lineup he had initially planned. A photo of the defendant was obtained and seven 'mug shots' of other black men were also procured, and the lower portions of the 'mug shots' on which the name and descriptions of the person photographed were cut off. In describing the persons portrayed in the photos the prosecutor testified at the evidentiary hearing that although some of the persons portrayed had different hair styles, facial hair, and other distinctive features, they were not so different as to be suggestive. Mr. Welch identified the photo of the defendant from among the eight photos shown to him as the photo of one of the men who had robbed him. Mr. Welch also testified at the evidentiary hearing on the motion that he was able to view the robbers during the robbery for approximately 20 minutes, that the faces of the robbers were not covered at any time throughout, and that the robbery occurred during the daylight hours.
The assistant public defender who represented the defendant at the time of the aborted lineup testified at the evidentiary hearing on defendant's motion to suppress that he made several objections to the other persons who were going to participate in the lineup because of the differing physical characteristics of the men, as compared to the defendant. He testified that he requested that men with features similar to defendant's be used in the lineup, but this was not done. He also testified that he was theretened with arrest for obstruction of justice by reason of his objections and his efforts to obtain what he considered would be a fair lineup. He requested that he be allowed to be present for any viewing of pictures of the defendant by the victim, and when shown the pictures which were going to be used he stated that he did not approve of the pictures due to the difference in the features of the men. He testified: He concluded: 'I was shown the pictures, and I said you are going to go on with this anyway, and I just acquiesced to what they did.'
The public defender also testified that at one stage of the preliminaries to the photo showup a county police officer passed close by Mr. Welch--'within a foot or two'--with a picture of the defendant in his possession. He admitted that he could not 'say for sure' whether Mr. Welch saw the picture, but he didn't know how he could have missed seeing it. He said that he had seen the picture as it went by and Mr. Welch was looking in the same direction. At the evidentiary hearing defendant's counsel did not inquire of Mr. Welch while he was on the stand whether he saw defendant's picture and there is no other evidence in the record to support any finding that he did.
At the conculsion of the evidentiary hearing the trial court denied defendant's motion to suppress identification testimony.
Defendant's first Point on appeal is directed to what he contends is a violation of his Fifth and Fourteenth Amendment rights under the United States Constitution by reason of the admission into evidence of an overly suggestive pretrial photo identification. He argues that viewed in the totality of the circumstances one must conclude that there was a 'suggestive influence by others' in the pre-trial identification of the defendant and there was no substantial 'independent basis of identification' to overcome this infirmity in the identification process used here.
The totality of the circumstances to which defendant refers are:
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