State v. Ross, 57351
| Decision Date | 10 December 1973 |
| Docket Number | No. 57351,No. 1,57351,1 |
| Citation | 502 S.W.2d 241 |
| Parties | STATE of Missouri, Respondent, v. Cleotis ROSS, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Vincent F. Igoe, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
James R. Wyrsch, Koenigsdorf, Kaplan, Kraft, Fox & Kusnetzky, Kansas City, for appellant; Robert Jaquith, Warrensburg, of counsel.
HIGGINS, Commissioner.
Cleotis Ross, jointly charged with Willie Baker and Alfrd Glasco with robbery, first degree, by means of a dangerous and deadly weapon, was, upon severance, convicted by a jury of robbery, first degree, as charged in the information as amended at the close of the evidence. The jury assessed defendant's punishment at five years' imprisonment; sentence and judgment were rendered accordingly. §§ 560.120, 560.135, RSMo 1969 V.A.M.S. Rule 24.02, V.A.M.R. (Appeal taken prior to January 1, 1972.)
Appellant contends (III) that the court erred in refusing to direct a verdict of acquittal. His argument is that the evidence shows 'only that witness Charles W. Riley believed defendant was present at Riley's T.V. when it was robbed and that a ring taken in the robbery was later found in close proximity to defendant after he was observed 'tugging' at his finger.' He argues also that there was no proof of criminal agency of defendant by way of an exertion of force and a taking, and that the evidence fails to show any more than defendant's presence at the scene of the crime.
Mary Frances Riley, wife of Charles W. Riley, Sr., was a secretary at Riley's House of Television, 6009 Swope Parkway, Kansas City, Jackson County, Missouri. On November 16, 1970, at about 6:15 p.m., she was seated at her desk behind a counter when two young, well-dressed colored men opened the front door, walked toward her, came around the counter and asked 'where the men was.' Both men had guns in their hands. About that time Mr. Riley stepped in from another room and 'the one in the white coat put his hand up against my head and the gun up against the other side.' She was told not to move or make a sound. Mr. Riley '' At this time the men disarmed Mr. Riley and shortly after this, James Lafferty walked in and sensed something was wrong. Mr. Lafferty was also placed under gun point and he and Mr. and Mrs. Riley were 'shoved into the shop area'; and while 'talking very rudely and using very foul language,' they 'shoved us to the floor and told us to lay (face) down and tied our hands behind us.' Mrs. Riley could hear other men in the room but saw only the two who confronted her. 'They threatened us that if we turned around and looked, they would kill us.' Her husband was removed from time to time during the robbery. Mrs. Riley made an inventory of items taken which included television sets, money from the safe, Mr. Riley's gun, and one of the technician's watch and ring, all of a value of 'close to five thousand dollars.' Mrs. Riley was not able to identify defendant as one of the two men whom she observed.
Charles W. Riley, Sr., was a stockholder, vice president, and manager of Riley's House of Television, a corporation. (His son, Michael Riley, was president of the company.) On November 16, 1970, at about 6:15 p.m. two men came in with guns. One had a gun at his wife's head and, as he entered the office area, one stood there with a gun on him. He started to draw his gun and was told by the man holding a gun on his wife that he would kill her if he continued. He was disarmed and, at that time, the repairman, James Lafferty, came into the office. They put him under gun point also and the three 'were herded into the television repair shop * * * (and) were told to lay on the floor with our faces down and * * * were tied up with electrical cords taken from the T.V. shop.' Later, Mr. Riley was untied and told to lock the front door. He was taken at gun point to the front door which he locked and then to the back door where he showed them how it operated and locked. He was returned to the repair room, bound again, and later untied in order to unlock the safe under threat that he would be killed if he did not unlock the safe.
During his trip to the front door he discovered the presence of two other participants. While at the back door he noted that
Mr. Riley identified defendant as one of the second two assailants whom he saw on his forced trips to the front door, safe, and back door. He first saw defendant when he was taken to the front door. 'He came up to ask the man that was taking me to the door, he asked him a question.' He saw defendant's face at that time, and he was ordered not to look at the men's faces. He next saw defendant in the safe room. 'I passed him; he was in this room; they took me directly past him.' The safe room was small and well-lighted and Mr. Riley again saw defendant's face. He next saw defendant The dock was also well-lighted and Mr. Riley was able to observe defendant's face.
Mr. Riley estimated that the four men took two black and white television sets, several color television sets, and $1207 in money, a total value of not less than $4,500. All such property, including his wallet, was removed by use of the Ford van belonging to the company.
Most of Mr. Riley's cross-examination was devoted to testing his opportunity to observe and identify defendant and to the description he gave of defendant to the police. It appeared that Mr. Riley had described defendant as being six feet, one inch tall; he appeared by standing at trial to be closer to six feet, six inches in height. Cross-examination also showed that Mr. Riley did not recall defendant being armed.
Dilton Joe Nichols was employed at Riley's House of Television as a television technician. On November 16, 1970, he returned to the store from a service call. 'I walked through the door, why they stuck a gun in back of my head and said, 'Lay down'; and I laid down. * * * they pulled my ring and watch off.' He did not have an opportunity to see the faces of any of his assailants. He identified Exhibits 2 and 3 in evidence as his Timex watch and diamond ring taken from him by the robbers. The watch, valued at $15, was the only one of its kind he had seen. The ring was gold, contained dive diamonds, and had been 'cut down so to fit my little finger.'
Detective Tom Sooter of the Kansas City Police Department arrested defendant November 20, 1970. He was driving a car with two passengers, one in the right front seat and one in the rear seat. Officer Sooter stopped the car at 31st and Highland; it had been headed in a westerly direction. Defendant got out of the car on the driver's side; the passengers (Alfred Glasco and Willie Baker) got out of the right-hand door. Defendant After defendant got out of the car, 'I observed him pulling at what appeared to be his little finger, as I can remember, probably the left hand; he was tugging at an object or something at--on his little finger.' Officer Sooter approached defendant, ordered him to put his hands on the car, and found a goldcolored ring, Exhibit 3, 'lying a few inches from his feet, between him and the car.'
Officer Sooter also identified Exhibit 2 as a 'wristwatch that I found on the Number Two suspect, Willie Baker, who was the one that fled from the car and was captured shortly thereafter.'
Cross-examination of Officer Sooter revealed that defendant was unarmed when arrested. It also showed that the officer, in his observations of Willie Baker, did not see him make any tugging motions at his fingers.
The defense was by way of exoneration and alibi.
Willie Baker, jointly charged with defendant, was confined to the Intermediate Security facility of the Department of Corrections, Moberly, Missouri, serving a term of ten years assessed upon his plea of guilty to the November 16, 1970, robbery of Riley's House of Television. According to him, the robbery was committed by himself, William Bacon, Joseph Cowley, and one of William Bacon's friends. He identified Exhibit 2 as a watch he got from the robbery and which he was wearing when arrested on November 20, 1970. He identified Exhibit 3 as a ring he got from the robbery and which was in his possession prior to his arrest. 'When the police stopped us, I threw it under the car and I ran.'
Cross-examination revealed that Willie Baker also had a prior conviction for stealing from the person. He admitted lying with respect to failure to reveal the name of Joseph Cowley when he pleaded guilty to his own charge arising from the robbery.
Detective Robert Dodds of the Kansas City Police Department investigated the robbery at Riley's House of Television, arriving there at approximately 6:40 p.m. He interviewed Mr. and Mrs. Riley and two of their employees, and, with his partner, Detective Bobby Thurman, compiled a composit description of the suspects. There was no mention of a man six feet, six inches tall.
Willis Martin, defendant's uncle, was with defendant ...
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