State v. Macon

• Decision Date: 15 February 1977
• Docket Number: No. 37475,37475
• Citation: 547 S.W.2d 507
• Parties: STATE of Missouri, Plaintiff-Respondent, v. John Earl MACON, Defendant-Appellant. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 507

547 S.W.2d 507

STATE of Missouri, Plaintiff-Respondent, v. John Earl MACON, Defendant-Appellant.

No. 37475.

Missouri Court of Appeals, St. Louis District, Division Three.

Feb. 15, 1977.

Robert C. Babione, Public Defender, John M. Putzel, Neal P. Murphy, Asst. Public Defenders, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Donald A. Purdy, Jr., Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Raymond A. Bruntrager, Jr., Evelyn Baker, Asst. Circuit Attys., St. Louis, for plaintiff-respondent.

SIMEONE, Chief Judge.

This is an appeal by defendant-appellant, John Earl Macon, from a judgment of conviction entered by the circuit court of the City of St. Louis on October 6, 1975, sentencing him to the department of corrections for a period of twelve years for the offense of robbery in the first degree by means of a dangerous and deadly weapon. Sections 560.120, 560.135, RSMo. Appellant was found guilty by the jury for the offense; the jury could not agree on punishment so the court assessed punishment.

Appellant appeals and raises several points urging a reversal of the judgment of conviction and remand for further proceedings. For reasons hereinafter stated, we affirm.

The jury could reasonably find the following. In the early evening of November 25, 1974, Mrs. Jacqueline Sharp was engaged in her employment as a barmaid at the Barcelona Cocktail Lounge located in the City of St. Louis. The lounge was owned by Mr. Edward Mansfield. There were ten or fifteen customers in the lounge including Mr. L. C. Collins and Mr. Laird Mitchell. The lounge contained two bars one east and one west. At about 8:00 p. m. three men came into the lounge. Two of the men went to the bar on the west side and one came up to the east bar where Mrs. Sharp was standing and requested her to give him change for a dollar so that he could get some cigarettes and play the juke box. The man was in front of the bar. The lights were "clear enough where you could see someone clearly." The man was about seven or eight feet away from her. Mrs. Sharp saw the man's face. Mrs. Sharp gave the man change for a dollar which she obtained from the cash register behind the bar. She asked the other two men if they wanted anything and they replied, "No." After giving the man change, Mrs. Sharp "went to wait on a customer" and the man announced, "it's a holdup." He had a silver gun in his right hand. When she heard these words, she "froze." The man said, " 'I want all the money in the cash register.' " Mrs. Sharp "got all the green" and took "all the silverware silver and put it in a glass" and "handed it to him." One hundred and forty eight dollars and some change was taken. The other two men were "(m)essing with the customers" taking their money and jewelry. These two men also had guns. After that, the man who requested the change and announced the holdup ordered Mrs. Sharp and the customers into respective restrooms.

Mrs. Sharp eventually came out of the restroom and called the police. When the police came she gave them a description of the man who robbed her five feet five, light brown complexion, long sideburns, a mustache and a goatee.

One of the customers, Mr. L. C. Collins, had been in the lounge since mid-afternoon and was present when the three men came in. He was seated at the bar.

One of the men who came in stood behind him. After about "fifteen, maybe twenty minutes, some fellow hollered, 'stick-up,' so when I looked back, I looked back and this fellow had a gun." He did not see the man who took the money from the cash register (Macon) but testified that the man who stood behind him took from him "(f)ifty-two dollars and some change." He testified that he could not identify the appellant, did not see a man hold a gun on Mrs. Sharp, but did state that he lost his money. He corroborated the fact that the customers were forced into the restroom "after the stickup."

Another customer in the cocktail lounge was a student, Mr. Laird Mitchell. While he could not recall the exact time of the year this episode took place, he was in the lounge the night of the robbery. He was seated at the bar and was drinking beer. He noticed the three men come in "(b)ecause they were young like myself and normally no young guys about my age come in there." He saw two men with guns, and "(t)hey pointed them up at us, told us it's a stick-up, don't nobody move, all the money and wallets on the bar." He complied and put his wallet on the bar. At trial, Mr. Mitchell identified the defendant as one of the robbers and the one who robbed him. "I never forget his face, never." Mitchell testified that he "knew his (Macon's) face but not his name . . . (t)hrough a friend of his that is a friend of mine." He was "absolutely positive" that the defendant was the man. Mr. Mitchell did not tell the police that he had seen the defendant before "because I was afraid."

When Mrs. Sharp called the police, Officer Russell Nothdurft responded to the call and spoke to Mrs. Sharp. He received a description from Mrs. Sharp and put it on the police radio.

Later that evening of November 25, 1974, some policemen returned to the lounge and showed Mrs. Sharp some ten to fifteen photographs showing the faces of different men. She could not identify the defendant from any of these pictures. Sometime later, on January 14, 1975, (although at one point Mrs. Sharp indicated it was about a week or two weeks later but later said it was in January), she examined two photographs. One photo had four men and the other five. The photos were shown to her by Detective Wilbert Farrell. She examined the two photographs for about "fifteen minutes" and identified only the defendant. According to Detective Farrell, Mrs. Sharp picked out the defendant from one of the pictures and he was the only person she identified. Later, Detective Farrell participated in the arrest of the defendant at defendant's home. At one point in her testimony she indicated she picked out two men "one of the two gentlemen I think was at the door." Sometime later, on January 22, 1975, Mrs. Sharp was requested to view a lineup at the police headquarters. She viewed a lineup consisting of four men, one of whom was the defendant. She identified the defendant as the man who robbed her. The lineup was conducted with the assistance of Detective John Vardeman who had also participated in the arrest. At trial he was shown a photograph of the individuals who were in the lineup and indicated that the appellant was somewhat shorter than the others.

On February 13, 1975, the appellant was indicted by the grand jury. The indictment charged that he, with others, "did rob, steal, take and carry away, one hundred and forty-eight dollars . . . the property of Ed Mansfield in the care and custody of Jacqueline Sharp . . . ." Prior to trial, defendant moved to suppress the identification testimony "on the grounds that the conduct of identification procedures at a pretrial confrontation were so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of constitutional due process of law."

Prior to the opening statements at the trial, a hearing was held on the motion. Mrs. Sharp, Detective Vardeman and Detective Farrell testified. Mrs. Sharp testified that she viewed two sets of photographs one on the evening of November 25 and one sometime later. On the evening of the robbery she was shown ten-fifteen photos but did not identify the defendant. But, when asked by the court whether she identified anybody she saw in the tavern that night, she replied, "I picked a couple of other ones out, but that was other fellows, not that gentleman." (apparently referring to defendant) She further indicated she picked out "(t)wo or three" photographs that night. When she was shown the second set of two photographs later in January containing four or five men on each picture, she identified the defendant. She was later called to view the lineup, and when she did so she identified the defendant. She indicated they were not all the same height, did not have the same complexion and "really didn't look alike."

Detective Vardeman testified on the hearing on the motion. He testified that he participated in the conduct of the lineup which was held on January 22, 1975. There were three other persons in the lineup, all "approximately the same height." Mrs. Sharp viewed the lineup, but, before she did so, she was not shown any photographs. Detective Vardeman testified that the defendant was not the "smallest" in the lineup.

Detective Farrell also testified on the hearing on the motion. He stated that he participated in the investigation concerning the Barcelona Lounge and interviewed Mrs. Sharp on January 14, 1975. He showed her the second set of two full-length photos which included the picture of the defendant. While he was not present at the lineup on January 22, 1975, he was aware that a lineup took place. To his knowledge the only person who appeared in the lineup was the only person identified from the photographs.

The last witness on the hearing on the motion was Henry J. Rieke, employed by the public defender. He was present at the lineup when the defendant was identified. He indicated, from a photograph, that the subjects were not of the same height. And that "(s)ubject number two (the defendant)" was the shortest in the lineup.

At the conclusion of the hearing on the motion to suppress the identification testimony the trial court found that "there is no evidence to indicate that the identification procedures were in any way suggestive or tainted," and the court therefore overruled the motion. The trial then proceeded during which the above facts were brought out in the state's case. Mrs. Sharp, at trial, identified the man who announced the holdup and to whom Mrs. Sharp gave the money from the cash register as the defendant, John Earl Macon. When asked "Will you ever...