State v. Mayes, 45051

• Decision Date: 31 May 1983
• Docket Number: No. 45051,45051
• Parties: STATE of Missouri, Plaintiff-Respondent, v. James MAYES, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 926

654 S.W.2d 926

STATE of Missouri, Plaintiff-Respondent, v. James MAYES, Defendant-Appellant.

No. 45051.

Missouri Court of Appeals,

Eastern District,

Division Four.

May 31, 1983.

Motion For Rehearing and/or Transfer to

Supreme Court Denied July 15, 1983.

Application to Transfer Denied

Aug. 16, 1983.

Toby H. Hollander, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., Kelly Klopfenstein, Kris Green, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

KELLY, Judge.

James Mayes, hereinafter the appellant, appeals his conviction of robbery in the first degree, § 569.020 V.A.M.S. and a sentence of ten years imprisonment in the custody of the Missouri Department of Corrections imposed upon him in accordance with the verdict of a jury in the Circuit Court for the City of St. Louis.

Appellant initially challenges the sufficiency of the evidence to support the verdict and contends that the trial court erred in denying his motion for judgment of acquittal at the close of all of the evidence. The thrust of his argument is that the only evidence connecting him to the commission of the crime--eye-witness identification--is so insufficient and unsatisfactory that it fails to remove all reasonable doubt as to his guilt of the crime charged.

In deciding whether there is sufficient evidence to support a conviction the reviewing court must distinguish between the weight of the evidence and the substantiality of the evidence of the defendant's guilt. The weight of the evidence is for the jury if, but only if, the reviewing court can first say that there was substantial evidence of guilt to support the verdict of the jury. City of Kansas City v. Oxley, 579 S.W.2d 113, 116 (Mo. banc 1979); State v. Harvey, 641 S.W.2d 792, 799 (Mo.App.1982); State v. Talbert, 524 S.W.2d 58, 59 (Mo.App.1975). We must, in each case, scrutinize the record to ascertain whether a finding of guilt was supported by substantial evidence. id. See also State v. Gregory, 339 Mo. 133, 96 S.W.2d 47, 51 (1936).

The phrase "substantial evidence" was analyzed by the Court in Gregory, supra, when it said:

"To amount to more than a scintilla, that is, to be substantial, it has been said: 'The evidence must be of a character sufficiently substantial, in view of all the circumstances of the case, to warrant the [trier of the facts] in finding from it the fact to establish which the evidence was introduced' [citing cases]. In other words, substantial evidence is evidence from which the triers of the fact reasonably could find the issue in harmony therewith." 96 S.W.2d at 52.

When this issue is properly presented, an appellate court cannot escape its responsibility by shifting it to the jury. State v. Talbert, supra, l.c. 59.

In determining the sufficiency of the evidence to support a conviction the reviewing court considers as true the evidence favorable to the state and the favorable inferences reasonably to be drawn therefrom, and evidence to the contrary is rejected; the Court's function is not to substitute its judgment for that of the jury but to determine only whether the evidence, considered in a light most favorable to the state and all inferences therefrom, disregarding evidence to the contrary, is sufficient to make a submissible case. State v. Cain, 507 S.W.2d 437, 438 (Mo.App.1974).

Viewing the evidence in this light, the jury could find that on the morning of December 12, 1980, sometime between 9:00 a.m. and 9:30 a.m. a black male waited in a check-out line at Mateker's Market, in the City of St. Louis, ordered and paid for a pack of Benson & Hedges cigarettes, and then pulled a small, shiny pistol and robbed Ralph Christman, owner-operator of the store of $143.00.

Officer Robert Schoenecker answered a call to Mateker's Market at approximately 9:30 a.m. where he spoke to Mr. Christman and Darryl Becker, a witness, on the scene. He also later spoke with Earlean Tharp, a witness to the robbery on the telephone. He received about the same description of the robber from these three witnesses. This description was that the robber was "a negro male, approximately 20 to 23 years of age, approximately 6', 6'2"' tall, thin build, light colored jacket, dark pants, sunglasses, long sideburns and he was also wearing a baseball cap, black and yellow of the Pittsburgh type ..."

The only state witness to make an in-court identification of the appellant as the robber was Earlean Tharp, and she testified that she was standing in the check-out line directly behind the robber when the robbery occurred. After the robbery she gave her name and telephone number to Mr. Christman and then went to her home. Approximately thirty minutes after the robbery police officers arrived at her apartment and showed her a series of photographs in an effort to ascertain the identity of the robber. Mrs. Tharp recognized appellant from one of the photographs shown to her as the man who robbed the store.

Almost two weeks after the robbery she viewed a pre-trial identification line-up conducted by the police in an effort to identify the robber. She identified the appellant as the man who robbed Mateker's Market at this identification line-up.

She testified in court that the robber was about 5'6"', 5'7"', taller than I were [sic] ... because I'm 5'4"' tall and gave his weight as "about a hundred thirty, forty" pounds. She stated the robber wore long side burns and had a goatee. She further acknowledged that during her deposition on May 8, 1981 she had compared the height of the robber with that of another customer standing in line at the same time by saying that the customer was about 6', much taller than the robber. When asked during deposition how the "mug shot" of defendant varied from the appearance of the robber, she said that the person in the picture was larger and his facial hair was cut shorter. She further testified that the robber's appearance varied from that shown to her in the "mug shot," because "he" had a bald head, but the testimony in the record is not clear whether she thought it was the robber or the person in the photograph who had the bald head. When asked in court whether she had told police that the robber was 6'2"', 140 pounds and had long side burns she answered in the affirmative.

Mrs. Tharp also testified that she had seen the appellant once or twice prior to the robbery working in the Scarsdale Apartment complex which is adjacent to Mateker's Market. Her best estimate as to the time she saw him there was three or four months earlier during the summer. According to Mr. Christman the residents of the Scarsdale Apartments made up the major source of his business. He also testified that at the time of the robbery two persons were in line ahead of the robber and Mrs. Tharp was directly behind the robber. He described the robber as 20 to 23, no taller than 6'2"', thin, with side burns to the bottom of his ears. Darryl Becker, an employee of the Scarsdale Apartments for seven years testified that he was waiting to cash his pay check when the robbery took place, and, although he had not been aware of the fact a robbery was taking place, he had seen the robber in line and could describe him. He also testified that he had seen James Mayes in the Scarsdale Apartment complex prior to the day of the robbery and he recognized him sitting in the court room. He could not however identify defendant as the robber.

On December 29, 1980,--seventeen days subsequent to the robbery--the police officers went to the appellant's home at approximately 11:45 p.m. to place him under arrest. The arresting officers had no warrant for the appellant's arrest. Appellant was removed from his home in handcuffs and held in custody over night. The next morning he appeared in a line-up at the police headquarters in downtown St. Louis. The police report prepared at the time appellant was booked described him as being 5'11"' tall, 162 pounds, medium build, with a mustache and beard.

Appellant's defense was alibi. According to defendant and his witnesses he was at home with his family at the time of the robbery and talked with his employer about 9:15 a.m. that morning concerning the days work.

Appellant concedes that appellate courts in Missouri do not weigh identification testimony and that issue is the function of the jury. State v. Timmons, 584 S.W.2d 129, 132 (Mo.App.1979); Eichelberger v. State, 524 S.W.2d 890, 893 (Mo.App.1975). He cites no Missouri cases to the contrary. He, however, relies on United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149 (1967) and articles from law books and law journals ¹ attacking the vagueries of eye witness identification. He also cites two cases from our sister state of Illinois for the proposition that if an identification is so improbable or unsatisfactory that all reasonable doubt is not removed, it is the duty of the appellate court to reverse. People v. Hister, 20 Ill.App.3d 933, 314 N.E.2d 562 (1974) Aff'd 60 Ill.2d 567, 328 N.E.2d 531 (1975) and People v. Gardner, 35 Ill.2d 564, 221 N.E.2d 232 (1966). Appellant also argues that Timmons and Eichelberger, supra, are distinguishable because in each of those cases (1) there was evidence corroborating the identification of the defendant; (2) there was independent evidence of the defendant's guilt; (3) the descriptions of the perpetrator of the crimes given at the time of same match the physical appearance of the defendant on trial.

Unlike the Illinois appellate courts it is not the function or prerogative of the appellate courts of Missouri to weigh the evidence to determine whether a charge has been proven beyond a reasonable doubt; that is the function of the jury in this state. State v. Smith, 527 S.W.2d 731, 733 (Mo.App.1975). Nevertheless, our scope of review of a conviction in the trial courts of this state does extend to a determination of whether there is sufficient substantial evidence to support the verdict, State v. Sherrill, ...