State v. McKinney
| Decision Date | 10 September 1973 |
| Docket Number | No. 57233,No. 1,57233,1 |
| Citation | 498 S.W.2d 768 |
| Parties | STATE of Missouri, Respondent, v. Leroy McKINNEY, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., David Robards, Asst. Atty. Gen., Jefferson City, for respondent.
John L. Gillis, Jr., St. Louis, Armstrong, Teasdale, Kramer & Vaughan, St. Louis, for appellant-defendant.
Leroy McKinney was charged under the second offender act, § 556.280, RSMo 1969, with one prior conviction and robbery in the first degree by means of a dangerous and deadly weapon, a felony, § 560.135, RSMo 1969. He was found guilty of the charge by a jury and sentenced by the court to 30 years' imprisonment. Notice of appeal was filed prior to January 1, 1972. This court has jurisdiction. Art. V, § 31, Const. Mo. 1945, as amended, V.A.M.S.
The state's evidence was, in part, as follows.
On November 27, 1970, at about 6:30 p.m., two men robbed Smiling Henry's Clothing Store in the City of St. Louis, Missouri, of about $300.00. The store manager and a woman employee were present. One robber was armed with a pistol and the other had a shotgun. The manager was shot in the back with the shotgun and was taken to a hospital. On December 15, 1970, a police officer showed eight photographs to the manager while he was still in the hospital. The defendant's photo was among them but the manager could not identify anyone in the photos as the defendant. During the trial the manager identified defendant as the robber who had the pistol.
The money was taken from the drawer of a metal cabinet. The cabinet was located behind a counter where customers are not permitted to go, although it would be possible for a person to go behind the counter to the cabinet. The robbers ordered the woman employee to get the key to the cabinet from the manager which she did. After the robbery the cabinet drawer was found on the floor with its contents strewn about the store. The police lifted fingerprints from the cabinet drawer and one of the prints was identified by an expert witness as the left thumbprint of defendant.
Defendant did not testify. Two female witnesses testifying for defendant stated that defendant had been in Smiling Henry's with them on occasions prior to the robbery; that defendant was in the apartment of one of the witnesses throughout November 27, 1970, the date of the robbery that he was ill throughout that day and that he could not have been in Smiling Henry's on November 27, 1970.
Defendant's first point is that the court erred in admitting the evidence concerning the shooting of the store manager on the grounds that it was irrelevant to the charge against defendant; that is was of no probative value, and highly inflammatory and prejudicial.
The evidence was that two men acting in concert committed the robbery. The manager was not shot by defendant but by the other robber. This shooting was part of the robbery and admissible in evidence as part of the res gestae. State v. Williams, 369 S.W.2d 408, 417 (Mo. banc. 1963). The point is overruled.
The second point is that the court erred in admitting the in-court identification testimony of the manager on the ground that the manager's identification of defendant was tainted by his failure to identify defendant from photographs shown to the manager shortly after the robbery.
In support of this point defendant cites Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); United States v. Wade, 388 U.S. 218 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); United States v. Marcey, 142 U.S.App.D.C. 253, 440 F.2d 281 (1971), and State v. Parker, 458 S.W.2d 241 (Mo.1970). This line of cases concerns situations where the pretrial identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.
In the instant case there was no pretrial identification. The manager's failure to identify defendant from a photograph obviously could not be suggestive of...
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