State v. Pieron, 53220
| Decision Date | 07 June 1988 |
| Docket Number | No. 53220,53220 |
| Citation | 755 S.W.2d 303 |
| Parties | STATE of Missouri, Plaintiff/Respondent, v. Mark PIERON, Defendant/Appellant. |
| Court | Missouri Court of Appeals |
William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for plaintiff/respondent.
Dave Hemingway, St. Louis, for defendant/appellant.
Defendant, Mark Pieron, was found guilty by a jury in the Circuit Court of St. Louis County of one count of burglary in the first degree, § 569.160, RSMo (1986) (all further references shall be to RSMo (1986)), one count of burglary in the second degree, § 569.170, and two counts of stealing over one hundred and fifty dollars, § 570.030. Judgment was entered in accordance with the verdict and defendant was sentenced, as a persistent offender, to a term of 20 years imprisonment for burglary first degree, a term of 15 years imprisonment for burglary second degree, and two 15 year terms for stealing over one hundred and fifty dollars. All sentences are to run concurrent.
On appeal, defendant claims that the trial court erred in: (1) admitting the hearsay testimony of Detective Brian Forbes into evidence; (2) admitting Officer Nicholas Wild's pretrial identification of a picture of defendant into evidence; and (3) permitting Officer Wild's non-positive identification of defendant at trial. Judgment affirmed.
From the record we glean the following material facts in the light most favorable to the verdict. The charges against defendant stem from two separate burglaries of different homes in the early morning of December 17, 1985. At approximately 12:30 a.m. on the day in question, Mr. August Wegener was awakened by the sound of a loud "pop" as he and his wife slept in their home. A short while later, Mr. Wegener heard something moving in his living room and then saw, from his bedroom, a light come on. Alarmed, Mr. Wegener donned a robe and went into the hallway off his bedroom. He saw a man coming toward him from another bedroom, but as the lighting was very poor he could not see who the man was. All Mr. Wegener could determine was that the man had long hair and was a little taller than himself. Mr. Wegener is between five feet seven inches and five feet eight inches tall. Mr. Wegener "hollered" at the man who then ran, hitting the storm door on his way out.
Upon investigation, Mr. Wegener discovered that a window in his living room had been broken out, and that a sweater belonging to his wife and a telephone were missing from his home. Both items were valued at $207.00.
Mr. Wegener called the police five to ten minutes after the intruder left from a telephone in his basement. Officer Bobbie Thompkins responded to a radio report of the Wegener burglary at approximately 12:59 a.m. Officer Thompkins secured the scene and radioed for the police department's crime identification unit. On cross-examination Officer Thompkins testified that Mr. Wegener described the intruder as being a white male, about five foot eleven inches in height. She stated that Mr. Wegener did not mention that the intruder had long hair, because she would have included it in her report as something important. She said it was possible that she forgot to write it down.
When Officer David Mizell of the identification unit arrived, he photographed the scene and dusted for fingerprints. He testified that his search for prints yielded only one that was usable for identification purposes. The print was lifted from the inside portion of the storm door of the Wegener's home, which the intruder hit on his way out. The state's fingerprint examiner determined that the print obtained by Officer Mizell was of the left palm of the defendant.
The other home burglarized the morning of December 17, 1985, belonged to Bernice Kohm. Travel time from the Wegener home to the Kohm residence is approximately eight minutes by car. The distance between the homes is about five miles. At approximately 1:00 a.m. Ms. Kohm was awakened by the repeated ringing of her doorbell. Ms. Kohm did not turn on any lights and did not answer the door, but she looked out a side window. She saw a man reach into a car that had backed up into her driveway and withdraw a baseball bat. The man then approached Ms. Kohm's house. She could not see the man well and could not determine his race or if he had short or long hair. Upon seeing the man approach, Ms. Kohm fled her house at which point she heard a window breaking. She ran to a neighbor's house and called the police.
Three police officers arrived at the scene within a few minutes after the call was received. They saw the car backed up in the driveway and heard a loud banging noise from inside the house. A passerby informed the officers that someone was still inside the house. Officers Wild and Chesser went behind the house, while Officer Chasteen remained in front. A few minutes later a loud banging again came from inside the residence. Officer Wild yelled to the other officers that he believed that someone was coming out of the back of the house. Officer Wild saw a subject emerge from the back door and ordered him to stop, but the subject did not and took off running. A few seconds later a second suspect ran from the back door. Officer Chasteen, coming from the front of the house, drew his weapon and ordered the second person to halt and he did. Meanwhile, Officers Wild and Chesser gave chase after the first subject, but lost him in nearby woods. The person apprehended, Billy Thaxton, was taken into custody.
The crime scene identification unit was called to the scene of Ms. Kohm's residence. Officer Salamon took photographs and dusted for fingerprints. Again, only one usable print was found. This print was lifted from the rear view mirror of the car parked on Ms. Kohm's driveway. The evidence showed that this car belonged to defendant's girlfriend. The state's fingerprint examiner determined that the print obtained by Officer Salamon was that of the right thumb of defendant.
Ms. Kohm, upon returning to her house, discovered that a window by the front door had been broken and that her television, purse, and a broiler oven had been taken. Ms. Kohm valued the television at $150.00 and her broiler at $79.00. The police found her purse, television, and broiler on the sidewalk by her yard.
Billy Thaxton was taken to the fourth district police station where he was interrogated by Detective Brian Forbes. Detective Forbes was asked by the prosecutor if he had developed information that led to a second suspect at which point defense counsel interposed a hearsay objection. The trial court initially sustained the objection. However, following a bench conference wherein the prosecutor argued that the information obtained by Detective Forbes was needed to explain his subsequent conduct and therefore fell within an exception to the hearsay rule, the objection was overruled. Detective Forbes then testified that based on his investigation, he obtained the name of Mark Pieron, the defendant, as the individual who had escaped apprehension at the Kohm residence.
A week or so after the burglary, Detective Forbes showed Officer Wild a photo array containing four pictures, including one of defendant, to see if Wild could identify the defendant. Forbes told Wild that a suspect was in the array, although defendant's name was not mentioned. Wild knew from talk around the station that the suspect had the nickname "Speedy." Wild selected the photo of defendant as the person he had seen come from the back door of the Kohm residence.
Defendant filed a motion to suppress the photo identification testimony of Officer Wild. A hearing on the motion was conducted during the trial out of the hearing of the jury. Officer Wild testified that he had only seen the first subject that ran out of Ms. Kohm's residence for a period of a very short time, lasting just seconds, and that the subject had been no closer than fifteen to twenty feet away at the time. Wild testified that it was dark at the time and the lighting was poor, but that he had a personal flashlight trained on the door at the time a subject emerged. Wild testified further that as the subject made his exit, he looked at Wild a second or two after Wild had ordered him to stop. At the hearing on defendant's motion to suppress, Wild described the subject as a young white male, thin build, with "brown--blond--light colored" shoulder length hair. At trial on direct examination, however, Wild testified that the subject was of medium build and medium height. Neither description was contained in any of the police reports made on the incident. Wild testified that, "by far," his best view of the subject had been of the subject's back as he was running. The motion was overruled and Wild was permitted to testify.
Wild could not positively identify the defendant at trial as one of the persons he saw at the scene of the burglary of Ms. Kohm's house. However, he identified the photograph he had selected from the array and testified that he was positive the man there illustrated was the man he saw at the scene of the offense. He could not identify defendant independent of the photograph.
In his first point on appeal, defendant claims that the trial court erred in overruling his objection...
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