State v. Morant, 53091

• Decision Date: 02 August 1988
• Docket Number: No. 53091,53091
• Citation: 758 S.W.2d 110
• Parties: STATE of Missouri, Respondent, v. Christopher MORANT, Appellant.
• Court: Missouri Court of Appeals

Page 110

758 S.W.2d 110

STATE of Missouri, Respondent, v. Christopher MORANT, Appellant.

No. 53091.

Missouri Court of Appeals,

Eastern District,

Division Four.

Aug. 2, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Sept. 7, 1988.

Application to Transfer Denied Oct. 18, 1988.

William L. Webster, Atty. Gen., Elizabeth Levin Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.

T. Patrick Deaton, Margulis & Grant, P.C., Clayton, for appellant.

SIMON, Presiding Judge.

Appellant, Christopher Morant, was convicted by a jury of five counts of first degree robbery, § 569.020, RSMo (1986) (hereinafter all further references shall be to RSMo (1986) unless otherwise noted), and five counts of armed criminal action, § 571.015. The trial court found appellant to be a prior and persistent offender and sentenced him to a total term of seventy-five years in prison.

On appeal, appellant contends the trial court erred: (1) in denying appellant's motion to sever offenses because appellant was prejudiced by trying all the charges together; (2) in denying appellant's motion to suppress out-of-court photographic and lineup identification which were unduly suggestive and tainted the in-court identification; (3) in failing to grant appellant's request for a mistrial after the court remedied the state's peremptory challenges of two black venirepersons by placing them back on the jury and replacing two white petit jurors whom the state was allowed to strike, which resulted in violation of appellant's right to a fair and impartial jury, due process of law, and his right to a full panel from which to exercise his peremptory challenges under § 546.180.3 which resulted in stimulating racial prejudice unrelated to the issues at trial; (4) in giving the "hammer instruction," MAI-CR 3d 312.10, after inquiring into the numerical division of the jury which prejudiced the appellant by coercing the jury to return guilty verdicts on the counts. We affirm.

Appellant was charged by a fifteen count information filed in lieu of indictment, and tried for crimes he committed in five incidents occurring on May 6, 8, 14, 15, and 16, 1986.

The sufficiency of the evidence is not in question. Viewed in the light most favorable to the verdict, the facts are as follows: On May 6, 1986, at approximately 10:00 a.m., appellant entered House of Morgan's Jewelry, a retail jewelry store, located in St. Louis County. Appellant was described as approximately six feet tall, of medium build, with closely cropped hair, wearing mirrored sunglasses and carrying a briefcase. After looking at various items in a display case, he chose to purchase an item. When appellant was asked by a clerk, Monica Vischer, for his credit card, he reached into his briefcase, pulled out a nickel or chrome-plated revolver, and ordered everyone to lie on the floor. He then ordered everyone to stand up and to put display case items into his briefcase. Once this was completed, he ordered everyone to lie down on the floor again and left the store. Present during the robbery were three employees, Monica and Jackie Vischer, and Glenn Wingbermuehle.

On May 8, 1986, at approximately 10:50 p.m., appellant entered Thrifty Car Rental at 4140 Cypress Road in St. Louis County. Appellant, again described as approximately six feet tall, of medium build, with closely cropped hair and wearing mirrored sunglasses, pulled a nickel or chrome-plated revolver from his clothing and told the employees, Karl Heitzenroeder and Kevin Vaughn, to lie down. He then had Karl Heitzenroeder open the safe, retrieve the money bag, and take the telephones off the wall. After taking the cash bag, appellant ordered the employees to lie on the floor for ten minutes and then left the premises.

On May 12, 1986, at approximately 2:30 p.m., Robert Lee, a Clayton police officer, received an anonymous telephone call concerning the House of Morgan robbery. The caller identified appellant and stated that he had possibly used a red Camaro during the robbery.

On May 14, 1986, at approximately 11:00 a.m., appellant, matching the same general physical description given in the earlier robberies and wearing mirrored sunglasses, reentered Thrifty Car Rental on Cypress Road, pulled a nickel or chrome-plated revolver from a newspaper and ordered the employees, Sue Brockel and Sue Zwygart, and a customer to lie down on the floor. He cut the telephone wires and told one of the employees to open the safe. While waiting for the safe to be opened, appellant took the customer's wallet. Appellant took the money bag and left the premises.

On May 15, 1986, at approximately 11:00 p.m., James Pate, an employee of Town and Country Cleaners, which is directly in front of Thrifty Car Rental at 4156 Cypress Road, entered the premises and left the keys in the door. Pate heard the door close and went to the door to investigate. He saw the appellant leaving the doorway. At Pate's approach, the appellant turned around, pointed a gun at Pate, and told him to "get back in there." After appellant left, Pate found that the keys were missing out of the door. Pate described the robber as approximately six feet tall, of medium build, with short hair. Pate also testified that appellant had driven a red Camaro by the cleaners the day before.

On the evening of May 16, 1986, an area resident, who was aware of the Thrifty Car robberies and knew that the police were looking for a person in a red car, reported a red car in the parking lot by the Town and Country Cleaners. She stated that a black man had gotten out of the car, walked around the corner and walked back.

Later that evening, Officer Kincaid received a dispatch that a red Camaro driven by a black male was seen in the area where the previous robberies had occurred. He saw the red Camaro with two black males pass by as he sat on the shoulder of eastbound I-70. He followed the red Camaro and stopped the car for speeding. The car left the scene while Officer Kincaid was waiting for backup. Officer Kincaid proceeded to pursue the red Camaro in a high speed chase down I-170, then exited westbound onto Delmar, where the passenger, appellant, fired two shots "in the direction of" the police car. The chase ended at Price and Olive when the red Camaro was involved in a collision. Appellant was arrested at the scene and mirrored sunglasses and a gun with two spent cartridges were found under the seat of the car.

On May 12, 1986, Monica and Jackie Vischer, and Glenn Wingbermuehle looked at a photo array. Only Monica Vischer made a positive identification of appellant. All three House of Morgan employees identified appellant in a lineup on May 19, 1986. They also identified appellant in court as the robber.

On May 16, 1986, Karl Heitzenroeder, a Thrifty employee from the first robbery, and Sue Brockel, a Thrifty employee from the second robbery, identified appellant from a photo array. Also present was Sue Zwygart, another Thrifty employee from the second robbery, who could not identify appellant at that time. Kevin Vaughn, from the first robbery at Thrifty, identified appellant's photograph on May 19. All four of the Thrifty employees identified appellant in court as the robber in the Thrifty Car robberies.

On May 15, 1986, James Pate identified appellant's photograph as the person at Town and Country Cleaners. He also identified appellant in court.

At trial appellant did not testify and did not offer evidence.

In his first point, appellant contends that the trial court erred in denying his motion to sever offenses. Appellant's contention requires a two-part inquiry on review. The first issue that must be addressed is whether the offenses were properly joined in the information. Assuming that proper joinder exists, the second issue is whether the trial court abused its discretion in refusing to sever the offenses and ordering them tried in a single prosecution. State v. Harris, 705 S.W.2d 544, 547 (Mo.App.1986). Joinder is either proper or improper under the law while severance is discretionary. State v. Smith, 682 S.W.2d 861, 863 (Mo.App.1984).

A defendant in a criminal case does not have a federal or state constitutional right to be tried on only one offense at a time. State v. Bextermueller, 643 S.W.2d 292, 295 (Mo.App.1982). Joinder is governed by § 545.140(2) which provides as follows:

Notwithstanding Missouri supreme court rule 24.07 [1986], two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or infractions, or any combination thereof, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

Joinder of more than one offense in a single information is also provided for in Supreme Court Rule 23.05 (1986), which states:

Misdemeanors or Felonies--Indictment or Information--Joinder of Offenses

All offenses that are of the same or similar character or based on two or more acts that are part of the same transaction or on two or more acts or transactions that are connected or that constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts.

Liberal joinder of criminal charges is favored in order to achieve judicial economy. State v. Smith, 682 S.W.2d at 863. In determining whether joinder is proper, we consider only the state's evidence. State v. Clark, 729 S.W.2d 579, 582[3-5] (Mo.App.1987).

For joinder to be proper, the manner in which the crimes were committed should be so similar that it is likely that the same person committed all the charged offenses. State v. Clark, 729 S.W.2d at 581. Under § 545.140(2), similar tactics are sufficient to constitute acts "of the same or similar character." State v. Harris, 705 S.W.2d at 550. In order to find a "common scheme or plan" under...