State v. Phillips, No. 40924

CourtCourt of Appeal of Missouri (US)
Writing for the CourtDOWD
Citation596 S.W.2d 752
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Richard T. PHILLIPS, Defendant-Appellant.
Docket NumberNo. 40924
Decision Date18 March 1980

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.

Page 753

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.

Page 754

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...

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11 practice notes
  • State v. Johnson, No. 61612.
    • United States
    • United States State Supreme Court of Missouri
    • November 12, 1980
    ...dissent but do not reach the other points on appeal at this time. --------Notes: 1 Representative cases include: State v. Phillips, 596 S.W.2d 752 (Mo.App.1980); State v. Beavers, 591 S.W.2d 215 (Mo.App.1979); State v. Mountjoy, 585 S.W.2d 98 (Mo.App.1979); State v. Williamson, 584 S.W.2d 6......
  • State v. Laws, No. 18384
    • United States
    • Court of Appeal of Missouri (US)
    • June 7, 1993
    ...upon a factual basis independent from a suggestive pretrial procedure, the identification testimony is admissible. State v. Phillips, 596 S.W.2d 752, 755 Here, Mobley had ample opportunity to view the Defendant when business was "pretty slow" during the graveyard shift. The check cashing tr......
  • State v. Carey, No. 56949
    • United States
    • Court of Appeal of Missouri (US)
    • March 12, 1991
    ...None of these arguments are supported by the record. As such, they are pure conjecture, which we cannot consider. See State v. Phillips, 596 S.W.2d 752, 755, n. 1 We find no evidence of coercion on the jury's part. We note MAI-CR3d 312.10 contains the phrase, "... no juror should ever agree......
  • State v. Belcher, No. 16070
    • United States
    • Court of Appeal of Missouri (US)
    • January 16, 1991
    ...attached to a brief may not be used to expand the record. State v. Brown, 744 S.W.2d 809, 812 (Mo. banc 1988); State v. Phillips, 596 S.W.2d 752, 755 and n. 1 (Mo.App.1980). The articles which appeared are not properly before the court and we refuse, in this case, to exercise our discretion......
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11 cases
  • State v. Johnson, No. 61612.
    • United States
    • United States State Supreme Court of Missouri
    • November 12, 1980
    ...dissent but do not reach the other points on appeal at this time. --------Notes: 1 Representative cases include: State v. Phillips, 596 S.W.2d 752 (Mo.App.1980); State v. Beavers, 591 S.W.2d 215 (Mo.App.1979); State v. Mountjoy, 585 S.W.2d 98 (Mo.App.1979); State v. Williamson, 584 S.W.2d 6......
  • State v. Laws, No. 18384
    • United States
    • Court of Appeal of Missouri (US)
    • June 7, 1993
    ...upon a factual basis independent from a suggestive pretrial procedure, the identification testimony is admissible. State v. Phillips, 596 S.W.2d 752, 755 Here, Mobley had ample opportunity to view the Defendant when business was "pretty slow" during the graveyard shift. The check cashing tr......
  • State v. Carey, No. 56949
    • United States
    • Court of Appeal of Missouri (US)
    • March 12, 1991
    ...None of these arguments are supported by the record. As such, they are pure conjecture, which we cannot consider. See State v. Phillips, 596 S.W.2d 752, 755, n. 1 We find no evidence of coercion on the jury's part. We note MAI-CR3d 312.10 contains the phrase, "... no juror should ever agree......
  • State v. Belcher, No. 16070
    • United States
    • Court of Appeal of Missouri (US)
    • January 16, 1991
    ...attached to a brief may not be used to expand the record. State v. Brown, 744 S.W.2d 809, 812 (Mo. banc 1988); State v. Phillips, 596 S.W.2d 752, 755 and n. 1 (Mo.App.1980). The articles which appeared are not properly before the court and we refuse, in this case, to exercise our discretion......
  • Request a trial to view additional results

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