State v. Redd, 37551

• Decision Date: 05 April 1977
• Docket Number: No. 37551,37551
• Citation: 550 S.W.2d 604
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Franklin D. REDD, Defendant-Appellant. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 604

550 S.W.2d 604

STATE of Missouri, Plaintiff-Respondent, v. Franklin D. REDD, Defendant-Appellant.

No. 37551.

Missouri Court of Appeals, St. Louis District, Division Three.

April 5, 1977.

Motion for Rehearing or Transfer Denied May 6, 1977.

Robert C. Babione, Public Defender, Joseph W. Warzycki, Asst. Public Defender, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Robert M. Sommers, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Richard G. Callahan, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

KELLY, Presiding Judge.

The appellant, Franklin D. Redd, was convicted by a jury in the Circuit Court of the City of St. Louis of burglary in the second degree, § 560.045 RSMo 1969, and sentenced by the trial court to five years imprisonment pursuant to the Second Offender Act, §§ 560.095(2) and 556.280 RSMo 1969. On appeal he assigns two points of error which he contends entitle him to a new trial. We affirm.

Appellant does not attack the sufficiency of the evidence to support a verdict of guilty of burglary in the second degree and therefore a short statement of the facts is sufficient for disposition of this appeal.

Theresa Jackson, a 14 year old girl, resided in an apartment, 4240 West Cote Brilliante Avenue in the City of St. Louis, with her parents. This was a four-family apartment building and Miss Jackson's aunt lived in the downstairs apartment in the building known and numbered as 4238 West Cote Brilliante. Mrs. Deborah Cleveland lived in the apartment upstairs over that occupied by Miss Jackson's aunt. On the evening of March 13, 1975, at approximately 8:30 p. m. Miss Jackson was visiting in her aunt's apartment when she observed through the curtains on the front door of her aunt's apartment a man standing and knocking on the front door of Mrs. Cleveland's apartment. When no one answered, the man commenced rattling the front door to Mrs. Cleveland's apartment. At this time Miss Jackson left her vantage point at the front door of her aunt's apartment but soon thereafter heard noises coming from Mrs. Cleveland's apartment. Shortly thereafter she observed the same man leaving Mrs. Cleveland's apartment carrying something small. It was dark outside and she could not identify what it was that he was carrying.

Mrs. Deborah Cleveland testified that she had left her apartment at about 6:00 p. m. that evening, locking the door as she did so, and when she returned at 11:30 p. m. she found the front door open, the lock and the door frame damaged, and her portable television set missing.

The incident was reported to the police who later that evening arrested the appellant as he was about to enter his home around 12:11 a. m., March 14, 1975. The basis for appellant's arrest was "more or less a composite description" from the eyewitness and Mrs. Cleveland, who was acquainted with him. After appellant was taken into custody he was given his Miranda warnings and taken directly to the police station. At approximately 2:00 a. m. defendant was once again given Miranda warnings and about 10 minutes later, after he had been advised what charges were going to be lodged against him, inquired what he could do to get rid of the cases. The police officers advised him that if he wished to waive his rights, make a complete statement and cooperate, it might be to his advantage, but that they could not drop the charges. Appellant then admitted taking the television set from Mrs. Cleveland's apartment and stated that he would take the police to recover it. However, after he was taken out of the police station and put in a car to go to where the television set was, he changed his mind and said he did not wish to go anywhere. He was thereupon returned to the police station.

Shortly thereafter the appellant was put in a three-man lineup with two other Black men, both prisoners detained at the police station. He resisted going into the showup room and had to be carried into it. Throughout the showup appellant remained seated on the floor of the room while the other two men remained standing. Miss Jackson was brought into the viewing room where she could observe the lineup and after studying the lineup for a minute, pointed out the appellant as the man she had seen earlier that evening at Mrs. Cleveland's front door.

At trial Miss Jackson also identified the appellant as the culprit.

Prior to trial the appellant's counsel filed a motion to suppress identification on the grounds "that the conduct of identification procedures at a pre-trial confrontation were so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of due process." A hearing was had on this Motion on May 29, 1975. Appellant did not testify. On the same date the Motion was overruled because the trial court found "beyond a reasonable doubt that the principles of Wade v. U. S. were not violated, and that under a totality of the circumstances shown in this cause, the identification of the defendant has a source independent of any alleged illegal lineup." At trial, after Miss Jackson took the stand and gave her name, appellant's counsel renewed his motion to suppress identification "which was made and filed by our office in this cause of action." The trial court overruled counsel's "objection" for a hearing outside the jury on the question of the motion because the matter was decided at a prior time by another judge after an evidentiary hearing. In his Motion for New Trial appellant raised this same point as follows:

"2. It was error for the Court to deny the motion to suppress identification which was renewed at the time of trial because testimony at trial supported the allegation that the conduct of identification procedures at the lineup were so unnecessarily suggestive and conclusive to irreparable mistaken identification as to be a denial of constitutional due process of law."

Appellant, in the Points Relied On section of his brief, raises this Point as follows:

"The trial court erred in denying the motion to suppress identification of appellant because the pre-trial identification procedures were so unduly suggestive and conducive to the irreparable mistaken identification as to be a denial of due prosess (sic) of law."

Respondent, correctly, contends that appellant has failed to preserve anything for this court to review because both his Motion to Suppress Identification and Motion for New Trial consist of bare conclusional allegations, absent any factual support. It is incumbent upon the movant in his motion to suppress identification to state facts of such specific nature as to enable the court to conclude that a serious claim is presented. State v. Rutledge, 524 S.W.2d 449, 454(2) (Mo.App.1975); State v. Jordan, 506 S.W.2d 74, 80(7) (Mo.App.1974); State v. Parker, 413 S.W.2d 489, 494(6) (Mo. banc 1967), cert. den. 390 U.S. 906, 88 S.Ct. 823, 19 L.Ed.2d 874 (1968). It is also incumbent upon a defendant to set forth in detail and with particularity the specific grounds or causes which he contends entitle him to a new trial in his Motion for New Trial, Rule 27.20(a) V.A.M.R. Rule 84.04(d) requires that Points Relied On in an appellant's brief state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous. Appellant's Point here is nothing more than a mere abstract statement of the law applicable to criminal trials where the question is raised whether a witness's identification testimony should be admitted at trial in accord with the principles of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and its progeny. The purpose of Rule 84.04(d) is to facilitate the work of the appellate court and the...