State v. Lee, 10544
| Decision Date | 21 March 1978 |
| Docket Number | No. 10544,10544 |
| Citation | 576 S.W.2d 341 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Thomas Eugene LEE, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
John D. Ashcroft, Atty. Gen., Philip M. Koppe Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Wayne C. Smith, Jr., Springfield, for defendant-appellant.
Defendant Thomas Eugene Lee was found guilty by a jury of robbery in the first degree (§ 560.120 RSMo 1969) and sentenced by the court under the Habitual Criminal Act (§ 556.280, RSMo 1969) to a 20 year prison term. In this appeal defendant complains of error in the admission of certain evidence. We affirm the judgment.
Defendant was identified by the robbery victim as one of the two men who took the victim's automobile after the victim was told by defendant's accomplice the two men were escaped convicts from Oklahoma and defendant had a gun at the victim's head.
The trial transcript shows the jury's verdict was received September 28, 1976, and defendant's motion for new trial was filed October 25, 1976. Rule 27.20, V.A.M.R., requires a motion for new trial to be filed within ten days after the return of the verdict, unless upon application of defendant and order of court the time is extended as limited by the rule. The transcript does not show an application or order for additional time within which to file the motion for new trial and, consequently, defendant's untimely motion for new trial is a nullity and preserves nothing for appellate review. State v. Richardson, 519 S.W.2d 15 (Mo.1975); State v. Watson, 511 S.W.2d 890 (Mo.App.1974).
We have, under our discretionary authority, examined defendant's points in this appeal to determine whether defendant is entitled to any relief by reason of plain error within the meaning of Rule 27.20(c), V.A.M.R., and conclude the plain error rule is not applicable.
The evidence defendant was an escapee from an Oklahoma prison was relevant to establish defendant's identity, motive, intent, and show a common scheme or plan, all of which are recognized exceptions to the general rule prohibiting evidence of other unrelated crimes. State v. Knighton, 518 S.W.2d 674 (Mo.App.1975).
The statement by defendant's accomplice that they were escaped convicts from Oklahoma, made during the course of robbery, was admissible as part of the res gestae. State v. Wren, 498 S.W.2d 806 (Mo.App.1973). It was also admissible as a declaration of a co-conspirator. State v. Peters,123 S.W.2d 34 (Mo.1938).
The Oklahoma prison records confirmed defendant was a recent escapee from that institution at the time of the instant crime and, as defendant told the victim, had a two-year-old son. The statement and the records were relevant to establish defendant's identity, to demonstrate defendant's motive for committing the crime of first degree robbery, to show a common scheme or plan of escaping the authorities, and intent to instill fear in the victim. State v. Knighton, supra; State v. Booker, 517 S.W.2d 937 (Mo.App.1974).
We do not find the pretrial photographic identification of defendant by the victim to offend constitutional boundaries. The procedures followed by the police were thoroughly explored in defendant's pretrial motion to suppress his identification and at trial. There was no evidence to support defendant's contention that the procedures ran afoul of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), by being "impermissibly suggestive." Furthermore, the record justifies the conclusion that the victim had an independent basis for defendant's identification at trial. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Madison, 537 S.W.2d 563 (Mo.App.1976). The victim was in the company of defendant for about an hour. The crime was committed during the daylight hours. The victim was close to the defendant and had a clear view of defendant's face. The victim made an unhesitating and positive identification of defendant at a pretrial...
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State v. Thompson, 14118
...or plan, all of which are recognized exceptions to the general rule prohibiting evidence of other unrelated crimes." State v. Lee, 576 S.W.2d 341, 342 (Mo.App.1978). It has also been held that evidence of flight was admissible to show guilt. State v. Triplett, 620 S.W.2d 398 (Mo.App.1981). ......
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State v. Lee, s. 63074
...Criminal Act, § 556.280, RSMo 1969, to a 20-year prison term. After an appeal to the Missouri Court of Appeals, Southern District, 576 S.W.2d 341, we ordered the case transferred to this We affirm and adopt, in this opinion, some portions of the opinion filed in the Court of Appeals without......
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State v. Barnett, WD
...of the separate crime of escape was admissible to prove the identity of the accused and to establish motive. See also State v. Lee, 576 S.W.2d 341, 342 (Mo.App.1978), permitting evidence of defendant's escape to "establish defendant's identity, motive, intent and to show a common scheme or ......