State v. McGee

• Decision Date: 24 March 2009
• Docket Number: No. ED 90630.,ED 90630.
• Citation: 284 S.W.3d 690
• Parties: STATE of Missouri, Respondent, v. Thomas McGEE, Appellant.
• Court: Missouri Court of Appeals

284 S.W.3d 690

STATE of Missouri, Respondent, v. Thomas McGEE, Appellant.

No. ED 90630.

Missouri Court of Appeals, Eastern District, Division One.

March 24, 2009.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 28, 2009.

Application for Transfer Denied June 30, 2009.

Michael A. Gross, St. Louis, MO, for appellant.

Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.

PATRICIA L. COHEN, Judge.

Introduction

Thomas McGee ("Defendant") appeals from the judgment of the Circuit Court of the City of St. Louis, following a jury trial, convicting him of second degree robbery, kidnapping, attempted stealing over $25,000, stealing by deceit, and two counts of false impersonation of a police officer. The trial court sentenced Defendant as a prior and persistent offender to consecutive terms totaling forty-two years' imprisonment. The judgment is modified in part and affirmed as modified.

Background

Defendant was charged by information for crimes against Marilyn Sharpe, J.B. Tidwell, and Alice Stith. At the time of the crimes, all three victims were approximately eighty-years old. The State alleged that while posing as a police officer Defendant stole money from Ms. Sharpe and Ms. Stith, kidnapped and robbed Ms. Sharpe, and attempted to steal over $25,000 from Mr. Tidwell. The State also charged Mr. Andrea Wilks as Defendant's accomplice in committing the offenses against Ms. Sharpe and Mr. Tidwell. Beginning on August 24, 2007, Defendant and Mr. Wilks were tried together by jury. The evidence at trial viewed in the light most favorable to the State revealed the following:

A. Ms. Sharpe—Robbery, Kidnapping, & False Impersonation of a Police Officer

On October 8, 2003, as Ms. Sharpe was driving to the grocery store, two men approached and stopped her vehicle. The heavier man knocked on the driver's side window, displayed a badge, and indicated that he was an off-duty police officer. The heavier man then entered the vehicle on the front passenger side, and the other man entered the vehicle from the back seat. Ms. Sharpe later identified the heavier man as Defendant and the other man as co-defendant Wilks.

After assuming control of the car, the men told Ms. Sharpe to drive to the Bank of America on Lindell to withdraw money from her bank account. Upon arriving at the Bank of America, Mr. Wilks placed a "pen" on Ms. Sharpe's shirt and explained that it would monitor her conversation while inside bank. Then, Ms. Sharpe and Defendant exited the vehicle and walked towards the bank. Defendant instructed Ms. Sharpe to withdraw $9,000 and not to converse with the tellers. Defendant waited while Ms. Sharpe went in the bank and obtained a cashier's check for $9,000. Surveillance footage from the Bank of America at Lindell showed Ms. Sharpe inside the bank, making a transaction, and wearing the "pen" that had been placed on her to monitor her conversations.

When Defendant and Ms. Sharpe returned to the vehicle, Defendant took over driving and drove to a number of other banks. Surveillance footage from the Bank of America located in downtown St. Louis showed Ms. Sharpe inside the bank. Defendant was also seen inside the bank as he stood by the front doors while Ms. Sharpe cashed the $9,000 cashier's check she received at the first bank. Later that day, surveillance footage showed Ms. Sharpe at the Bank of America on Brentwood where she withdrew $500 cash. Finally, surveillance footage showed Ms. Sharpe making a transaction at the Bank of America in Warson Woods where she withdrew $5,000. Ms. Sharpe gave the money she withdrew from the several banks to Defendant.

At some point, Ms. Sharpe noticed that Mr. Wilks was no longer in the vehicle with her and Defendant. Later she observed Mr. Wilks driving behind them in a different car. While Mr. Wilks was following them, Ms. Sharpe saw that Defendant maintained contact with Mr. Wilks using a "radio or telephone" device. During Defendant and Mr. Wilks' conversation, Ms. Sharpe overheard Defendant mention the name "Callahan."

Throughout the encounter, Defendant did not explicitly threaten Ms. Sharpe and Ms. Sharpe never actually saw a weapon. However, while traveling to the several banks, Defendant drove with his right hand and kept his left hand in his pocket which led Ms. Sharpe to believe that he possessed a weapon. Additionally, when warning Ms. Sharpe not to make any conversation with the tellers at the bank, Defendant indicated that she needed to "keep quiet because something would happen ... to [her] family or whatever."

At various times throughout the day, Ms. Sharpe told Defendant that she was hungry, but Defendant did not give her anything to eat. Ms. Sharpe also told Defendant on three or four occasions that she wanted to go home, to which Defendant replied that they "would go home later."

Finally, after Ms. Sharpe made her last transaction at the Warson Woods Bank of America, Defendant drove Ms. Sharpe to a location in downtown St. Louis where Defendant exited the vehicle and ran to the car that had previously been following them. Subsequently, Ms. Sharpe used a passerby's cellular phone to call the police. Soon thereafter, Detective Michael Regan arrived and interviewed Ms. Sharpe. Ms. Sharpe described the events of the day to Detective Regan, and based upon that information, Detective Regan began his investigation. Detective Regan seized the "microphone pen" that had been placed on Ms. Sharpe, and he reviewed the surveillance footage and business records from the banks Ms. Sharpe had visited. Because part of the robbery occurred outside of his jurisdiction, Detective Regan contacted Detective James Simpson from the Brentwood Police Department who later interviewed Ms. Sharpe and assisted in the investigation.

B. Mr. Tidwell—Attempted Stealing Over $25,000

About one and a half years later, on April 5, 2005, Mr. Tidwell reported to the police that two men posing as police officers were attempting to steal money from him. Detective Thomas Neske responded and Mr. Tidwell informed him that two men had visited his house that morning, displayed badges, and identified themselves as "Callahan" and "Stone." Mr. Tidwell said that the men asked him "[t]o obtain money from his personal checking account and hand it over to them." Mr. Tidwell also indicated that the men were going to contact him by phone that evening, and, subsequently, Detective Neske arranged to have a recording device placed on Mr. Tidwell's telephone. That night, a man identifying himself as "Sergeant Stone" called and instructed Mr. Tidwell to go to his bank in the morning, withdraw $9,000 in cash, and obtain two cashier's checks for $9,000 apiece.

The next day, Detective Neske staked out Mr. Tidwell's bank and arrested Defendant and Mr. Wilks in the parking lot of a service station nearby. When searching Defendant, Detective Neske discovered a piece of paper in Defendant's shirt pocket with Mr. Tidwell's name, address, and telephone number written on it. In Defendant's suit coat pocket, Detective Neske retrieved a leather badge case containing a photo identification card and a gold badge with the inscription "Special Police." Defendant's photograph was on the identification card, which indicated that the badge belonged to "Lieutenant Richard Callahan." Also in Defendant's possession was $2,050 in cash and a Tennessee driver's license issued in Defendant's name. On Mr. Wilks, the police seized a pair of handcuffs, a "Private Investigator" badge, $1,596 in cash, and a Tennessee driver's license issued in Mr. Wilk's name. In the car occupied by Defendant and Mr. Wilks, the police found a receipt for the Travelodge motel with Mr. Tidwell's name and partial address written on it, a two-way personal radio, and, Tennessee license plates.

Following the arrest, Detective Neske entered Defendant's and Mr. Wilks' information, along with information regarding the encounter with Mr. Tidwell, into the Missouri Uniform Law Enforcement System ("MULES"), a computer system that asks other police departments whether incidents have been reported that involve persons matching the same description. Detective Regan, who had access to MULES, read Detective Neske's message and noticed that the crime against Mr. Tidwell was similar to the crime perpetrated against Ms. Sharpe. Specifically, he noticed that the suspects were two men who had instructed an elderly victim to withdraw large sums of money from a bank and that one of the perpetrators possessed a badge and ID with the name "Callahan." Detective Regan remembered that, in 2003, Ms. Sharpe told him that the heavier man in the front seat "showed her a badge," and she "remembered seeing the name Callahan on it."

Subsequently, on April 20, 2005, Detective Regan visited Ms. Sharpe at her home and showed her two photographic lineups, one containing Defendant's photograph and one containing co-defendant Wilks' photograph. Ms. Sharpe identified Defendant as the heavier man who drove her to the several banks and recognized Mr. Wilks as the man who had been in the back seat at the beginning of the encounter.

C. Ms. Stith—Stealing By Deceit & False Impersonation of a Police Officer

On November 23, 2005, two men came to Ms. Stith's apartment complex and rang her intercom. Ms. Stith answered and one of the men identified himself as "Sergeant James" and explained that he wanted to talk about certain fraudulent $20 checks Ms. Stith had cashed. Once inside her apartment, the man told Ms. Stith that he and his partner were investigating counterfeit money and that they needed her to withdraw money from her bank account so they could compare serial numbers. Believing that she was assisting the police, Ms. Stith complied and went with the men to two banks where she withdrew $1,900 from one bank and $5,150 from the other. Ms. Stith gave the money she had withdrawn to the first man, and the two men then drove Ms. Stith home.

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