State v. Phillips, 40924

• Citation: 596 S.W.2d 752
• Decision Date: 18 March 1980
• Docket Number: No. 40924,40924
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Richard T. PHILLIPS, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 752

596 S.W.2d 752

STATE of Missouri, Plaintiff-Respondent, v. Richard T. PHILLIPS, Defendant-Appellant.

No. 40924.

Missouri Court of Appeals, Eastern District, Division Three.

March 18, 1980.

Gary Wagner, Colson & Wagner, James G. Freer, Farmington, for defendant-appellant.

John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Gary E. Stevenson, Pros. Atty., Farmington, for plaintiff-respondent.

DOWD, Presiding Judge.

Defendant, Richard Phillips, appeals from his conviction by a jury of Robbery in the First Degree by means of a Dangerous and Deadly Weapon contrary to § 560.120, RSMo 1969 and § 560.135, RSMo Supp.1975. He was sentenced to thirty-five years imprisonment.

On the evening of October 16, 1977, the Mason Zephyr Station at Bonne Terre, St. Francois County, was robbed of $131.22. At the trial of defendant, Timothy Edgar, an attendant at the Zephyr station, testified that on the night of the robbery a man wearing a blue jean jacket and with a two week growth of beard, entered the service station carrying a sawed-off shotgun and demanded cash. Edgar, on duty alone at the station, had a full-faced view of the man under fluorescent light for approximately five minutes, at a distance of about two feet, while he filled a brown paper bag with paper money and change from the cash register. After Edgar handed the bag of money to the holdup man, he ran from the office and fled the station in a 1963 or 1964 brown Chevrolet driven by another person.

John Wright, a part-time cab driver, testified at Phillips' trial that on the night of the robbery he saw a man carrying a shotgun run out of the Zephyr station. Wright had a full-faced view of the man in good light, at six to ten feet for twenty to thirty seconds. Wright testified that the man was bearded, but it was not a full beard. The man climbed into the passenger side of the 1965 Chevrolet and was driven away.

Gary Mueller, on duty as a Highway Patrol Trooper on October 16, 1977, was driving northbound on U.S. Highway 67 when he heard a radio transmission that an armed robbery had occurred. Mueller turned his vehicle onto Old U.S. 67, and as he was driving south, he spotted two pedestrians walking north alongside the highway. When Mueller approached the pedestrians, one of them, bearded and wearing a jacket, ran into the nearby woods. Mueller apprehended the other pedestrian, a Mr. Williams. Two tenths of a mile south of where Williams was apprehended, Mueller found an abandoned 1964 Chevrolet. The vehicle was dusted for fingerprints without any results.

Several hours after the robbery both Edgar and Wright were summoned to the police station. Detective Wilkinson showed Edgar and Wright a photograph of the defendant without a beard and asked if either witness could identify the man. Neither Edgar nor Wright identified the man in the photograph. With a pencil, Wilkinson added a beard onto defendant's photograph, and asked Edgar and Wright if either could now identify the man. Edgar positively identified the man in the photograph as the man who robbed the Zephyr station earlier that morning. Wright remained uncertain about the photograph.

The day after the robbery, Detective Wilkinson returned to the point of Williams' apprehension and found a brown paper bag with a nickel inside it. That same day defendant was arrested in a tavern. He was fully bearded, and had $124.00 in his possession. A complaint was filed charging defendant with armed robbery.

Witnesses Edgar and Wright conferred together in the hall immediately preceding defendant's preliminary hearing, and both witnesses positively identified defendant as the holdup man at the preliminary hearing, on December 30, 1977. Neither Edgar nor Wright had seen Phillips between the date of the robbery and the date of the preliminary hearing.

A Motion to Suppress the identification testimony of witnesses Wright and Edgar was overruled.

Defendant's first point on appeal is that when the officer pencilled a beard onto a photograph of defendant the resulting identification was impermissibly suggestive and caused witnesses Edgar and Wright to misidentify the defendant at trial. Defendant contends that the trial court's decision denying the Motion to Suppress the in-court identification testimony is reversible error entitling him to a new trial.

In Simmons v. U. S., 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Supreme Court stated that an eyewitness identification at trial following a pretrial identification by photograph will violate a defendant's right to due process only if the photographic identification procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. State v. Rutledge, 524 S.W.2d 449, 455 (Mo.App.1975). Consistent with this decision, the Missouri rule is that where a positive courtroom identification is made upon a factual basis independent from a suggestive photographic or lineup procedure, the identification testimony is admissible. State v. Harris, 571 S.W.2d 443, 445 (Mo.App.1978); State v. Little, 572 S.W.2d 871, 873 (Mo.App.1978); State v. Rutledge, supra, at 456.

Witness Edgar stood two feet from the holdup man for approximately five minutes under fluorescent lighting. Edgar related in detail the conversation and interactions that occurred in the station. Witness Wright had a full-faced view of the holdup man for twenty to thirty seconds at a distance of six to ten feet. At trial, nine months after the robbery, both Edgar and Wright, without hesitation, positively identified Phillips as the holdup man.

The ample opportunity of both Edgar and Wright to observe the defendant during and immediately after the...