State v. Powell, KCD

• Decision Date: 12 October 1976
• Docket Number: No. KCD,KCD
• Citation: 542 S.W.2d 588
• Parties: STATE of Missouri, Respondent, v. Melvin POWELL, Appellant. 28182.
• Court: Missouri Court of Appeals

Page 588

542 S.W.2d 588

STATE of Missouri, Respondent, v. Melvin POWELL, Appellant.

No. KCD 28182.

Missouri Court of Appeals, Kansas City District.

Oct. 12, 1976.

Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Sixteenth Judicial Circuit, Kansas City, for appellant.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.

Before DIXON, P.J., PRITCHARD, C.J., and WASSERSTROM, J.

PRITCHARD, Chief Judge.

By the verdict of a jury appellant was found guilty of robbery in the first degree and his punishment was fixed by it at 58 years imprisonment. Appellant filed a motion for reduction of punishment which was sustained by the trial court and he was sentenced to 40 years imprisonment in the Department of Corrections.

The indictment of the Grand Jury charged appellant with the robbery of Greg Melenson of $932.00 in his care and custody, which was the money of A & P Grocery Store, a corporation, which store, as the evidence shows, was located at 99th and Holmes Streets, in Kansas City, Missouri. The robbery of the A & P store occurred about 8:15 p.m., on March 13, 1975, and appellant's sole contention here is that the trial court erred in overruling his pre-trial motion not to permit testimony of another robbery occurring about the same time of the Bisceglia Drugs store which was near to the A & P store. That evidence was received at trial, and appellant's point is that it had no probative value, and was evidence of another crime and was unduly prejudicial, within the prohibition of cases such as State v. Ingram, 286 S.W.2d 733 (Mo.1956); State v. Holmes, 389 S.W.2d 30 (Mo.1965); and State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (1954), all cited by him. Under the facts as detailed below, this case comes within two exceptions to the exclusionary rule of the cases cited: (1) To identify appellant as a participant in the robbery with which he was charged; and (2) to show a common plan embracing the commission of the two robberies. (There were four men involved in the two robberies.)

The occurrences of March 13, 1975, began when Thomas J. Howard, assistant manager of A & P, received information from the police that the store might be held up. About 2:00 p.m., he saw a man fitting the description of a possible robber get into a black over beige Cadillac with three other men. As the car drove away he wrote down the license number and called the police and gave them that information. About the same time, Mary Waldrop, an employee of A & P, saw two black men enter the store separately, make small purchases and leave. She identified the two in a lineup after the robbery.

Sharon Stevens was a checker in the A & P store at the time of the robbery. Two black men entered the store and one of them ordered Sharon to get the money out of the cash register, which she did, and dumped the money into an A & P grocery sack, which she testified was like State's Exhibit 4. Sharon could not positively identify either man in a lineup, but did identify one man's clothing, and she was able to identify one man from a photograph of the lineup.

Gregory Melenson was a clerk for A & P. He saw two men enter the store, one of whom was wearing a blue stocking cap and the green plaid suit, which Melenson identified as State's Exhibit 3. Melenson was told to hit the floor which he did, remaining there throughout the robbery, during which he heard the man in the front of the store tell the one in back, 'Come on, man. We have been here too long. Let's go.' Melenson later identified Larry Washington in a lineup.

Peggy Poland was a customer in the A & P when the robbery took place. Someone came up behind her with a gun and told her to 'hit the floor.' While on the floor she heard the person with the gun speak to someone else, calling him 'Mel.' After the robbery, Peggy's billfold was missing from her purse.

Roger L. Jacobs, a customer of A & P, walked into the store while the robbery was in progress and was told to lie on the floor by a black man. He heard the man calling to another man referring to him as 'Mel.' Later at Police Headquarters, he identified the man as Larry Washington.

Gayland Rindt was in charge of A & P the night of the robbery, prior to which he walked outside and noticed a brown Cadillac with a dark top and motor running backed into a parking place. When Rindt went back into the store he saw two men and was instructed to hit the floor by one of them. He was then ordered to get in the office and get the money, which he did and gave it to the other man. Both men were black and armed with guns. One was wearing a green suit with white flecks, identified as like State's Exhibit 3, and a ski mask. After the men were gone Rindt noticed the Cadillac which he had seen was gone. From a photograph shown at trial, he identified Larry Washington as one of the robbers.

Francis P. Bisceglia owned the pharmacy at 99th and Holmes next to the A & P store. About 8:15 p.m., on March 13, two armed black men entered his store. Both wore stocking caps and one wore sunglasses. A robbery took place with narcotics, money and postage stamps being taken and placed in a white pillow case. Bisceglia identified State's Exhibit 6 (drugs) as coming from his store, and testified...