State v. Rutledge, 36237

Citation524 S.W.2d 449
Decision Date03 June 1975
Docket NumberNo. 36237,36237
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Timothy RUTLEDGE, Defendant-Appellant. . Louis District, Division Three
CourtCourt of Appeal of Missouri (US)

James Wynne, Charles D. Kitchin, Richard A. Knuston and James C. Jones, Public Defender Bureau, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., and Scott A. Raisher, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., and Nels C. Moss, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

SIMEONE, Presiding Judge.

This is an appeal by the defendant-appellant, Timothy Rutledge, from a judgment entered by the circuit court of the City of St. Louis, sentencing the appellant to twenty years in the Department of Corrections for the offense of robbery in the first degree by means of a dangerous and deadly weapon. §§ 560.120, 560.135, RSMo 1969, V.A.M.S. For reasons hereinafter stated, we affirm the judgment.

Since appellant does not question the sufficiency of the evidence, we will state only those facts necessary for the disposition of the appellant's points on this appeal.

On the morning of April 28, 1973, Mr. Roger Niebruegge, manager, and three other employees, James Sieker, Sue Walker and Sarah Frank, were present in the Steak and Shake restaurant located at 9009 Riverview Boulevard in the City of St. Louis.

At about 7:40 a.m., two men, each holding a gun, entered the restaurant. One of the men was tall (between 6 and 6 2 ) and the other was shorter (about 5 10 ). The shorter man, later identified as the appellant Mr. Rutledge, 'stuck a gun' in Niebruegge's ribs and said, 'this is a hold-up.' Niebruegge turned and saw the man. The man told him to open the safe. Niebruegge went to the safe in the store, '(p)ulled (money) out of the safe, and gave it to him, over my shoulder.' The amount taken was $200.00. The shorter person 'wore a stocking cap over the top of his head,' which covered his ears, but Niebruegge could see his face--nose, eyebrows, eyes and mouth. The shorter person was '(r)ight next to me (Niebruegge.)' At the time the two men were in the Steak and Shake, Niebruegge looked at the shorter man's face 'five seconds, or so.'

At the time of the entry, James Sieker (referred to in the defendant's brief as 'Sieber'), a manager trainee, was seated at a booth and was told to remain seated by the other person who entered the restaurant. As Niebruegge and the shorter person went to the safe, Sieker could see a 'side view' of the robber's face, and after the person obtained the money from the safe Sieker was able to see the other side of the shorter man's face.

After taking the money, which was put in Niebruegge's briefcase, Niebruegge was instructed to lie down on the floor. Sarah Frank, an employee who was sitting at the counter, saw the man grab Niebruegge by the arm. She went to the booth where Sieker was and put her head down on the table because she was so scared all 'I could do was cry.' Sieker attempted to calm her. Sue Walker, the kitchen or 'set up lady,' was also requested to lie on the floor.

The whole episode took about five minutes. After the men exited, Niebruegge got up, saw the two men pull off the parking lot in a LeMans Pontiac, and Niebruegge jotted down the license number. Sieker got into his car and attempted to follow the car, which he located some distance away on Duenke Road.

Niebruegge called the police and gave a description of the two men. He described the men; he described the shorter man, giving a description of his weight (160-170), his age (mid-twenties), build, race, clothing and complexion. When Sieker returned to the restaurant, he too described the two men--weight, height, age, clothing, etc.

On several occasions after the robbery on April 28, 1973, the police showed Niebruegge and Sieker several photographs to determine if they could identify the men who held up the restaurant. On each occasion, they were shown some two to six photos. Finally, on May 29, 1973, Officer Robert Priest came to the restaurant with some photographs, and both Niebruegge and Sieker separately identified the defendant as the shorter of the two who entered the restaurant and took the money. Niebruegge first looked at the photos, which were black and white with no identifying marks relating to names, heights, weights or ages. He identified defendant independently of Sieker. The photograph identified as the defendant by both Niebruegge and Sieker showed no mustache worn by the defendant. Sieker was not present when Niebruegge identified defendant from the photo, but was 'working on the line, up front . . ..' Sieker also viewed the photographs outside the presence of Niebruegge and recognized one of the photos as the shorter of the two men who entered the restaurant. He was 'certain that (he) was the shorter of the two robbers.' There was no discussion between the officer and the two victims.

Nothing then occurred until August 20, 1973. On that date, Officers Fred Armes and his partner Ronald Roach, together with an F.B.I. agent, saw Rutledge in his El Dorado Cadillac '(c)oming out of a driveway in the 10000 block of Belfontaine road.' 'We recognized the car and the driver, and we immediately pulled out of the driveway behind him, and he accelerated at a high rate of speed north.' When the car accelerated, the officers activated the siren. Rutledge's car went on to I-270 and attained speeds of 90 to 95 m.p.h. and speeded east toward Illinois. As it approached the bridge, the Cadillac crossed the median, made a U-turn and headed west. The officers did the same. As they were making a turn, the officers fired a shot. Rutledge swerved down the highway for 'possibly a hundred yards and pulled over and stopped.' In the Cadillac was Rutledge, his wife and their six-month-old baby.

Rutledge was taken into custody and conveyed to headquarters where a lineup was held with three other men. Niebruegge and Sieker, independently, viewed the lineup and recognized Rutledge as the shorter of the two men who came into the restaurant on April 28, 1973. At the lineup, Rutledge had a mustache. On the day of the Robbery, Niebruegge testified that he did not have a mustache, but at trial Niebruegge was 'certain' that Rutledge was the shorter of the two on that April day. At trial Niebruegge was 'certain that he was one of the robbers.'

Niebruegge viewed the lineup first outside of the presence of Sieker, and then Sieker viewed it. Niebruegge recognized the shorter of the two men who had come in the restaurant as one of the holdup men, although at the lineup he had a mustache. Sieker viewed the lineup and recognized just one person as one of the 'robbers that robbed us that morning'--'(t)he shorter one.' There was no communication between Niebruegge and Sieker between the viewings, and the officers conducting the lineup--Armes and Roach--never indicated whom they should identify.

Eventually, appellant was charged with a prior conviction and with the robbery which occurred on April 28, 1973. Trial began on February 28, 1974. At trial, Niebruegge identified Rutledge as one of the men who entered the restaurant and took the money. He was 'positive and certain.' Sieker also was 'positive and certain' that Rutledge was one of the individuals who took the money on April 28, although on that date he had no mustache.

The defendant's defense consisted of testimony of his wife, Diane Nelson, who was also known as Diane Rutledge, Diane's brother-in-law, Terry Mitchell, Diane's mother and a neighbor, Tony Carr.

Diane testified that on April 28, Rutledge awoke early in the morning and went fishing with Terry Mitchell in Festus. Diane also testified that she was in the car on I--270 on August 20, 1973, when it was speeding 90 to 95 m.p.h. but didn't hear a siren and didn't know why they were speeding, although she and the baby were on the floor. Terry Mitchell also stated that he and Rutledge went fishing and stayed until about midday. The thrust of the testimony of all those witnesses was that Rutledge had always worn a mustache from about November or December, 1972, and had a mustache in April 1973. Photographs of Rutledge taken during this period showing him with a mustache were introduced.

The State, in rebuttal, introduced the testimony of Officer William Miller. He testified that one week prior to the robbery, he saw Rutledge run a stop sign and gave him a traffic ticket. At this time, he said, Rutledge did not have a mustache.

Prior to rebuttal testimony, evidence was taken on the appellant's two pretrial mitions to suppress identification. Appellant moved to suppress (1) 'any identification testimony by the State's witnesses on the grounds that it would rest on a pre-trial confrontation which was unnecessarily suggestive and conducive to an irreparable mistaken identification,' and (2) the in-court identification, because the lineup 'did not contain a sufficient number of similarly appearing individuals so that by reason of physical characteristics the defendant was chosen by reason of his individuality rather that (sic) the knowledge of the witnesses as to appearance of the suspect,' and by reason of the lineup, 'the witness or witnesses who will identify the defendant in Court will base their identification on their memory of the identity of the defendant at the lineup rather than their memory of the identity of the individual who committed the offense.' At the evidentiary hearing on the motions, Rutledge testified he was not advised of his rights to be in a lineup or to have an attorney present and he requested an attorney. 1 No facts were presented as to how the confrontation was unduly suggestive.

The court gave a number of instructions including a circumstantial evidence instruction and a 'flight' instruction. 2

During the first half of the closing argument of the prosecutor, the prosecutor referred to the photographic identification. He said, 'Then, a month later both...

To continue reading

Request your trial
50 cases
  • State v. Berry, 61750
    • United States
    • Missouri Supreme Court
    • December 15, 1980
    ...(Mo. 1970); State v. White, 549 S.W.2d 914, 917 (Mo.App. 1977); State v. Holland, 534 S.W.2d 590, 592 (Mo.App. 1976); State v. Rutledge, 524 S.W.2d 449, 456 (Mo.App. 1975). During perpetration of the crimes, defendant was in the victim's presence for thirty to forty minutes. She first obser......
  • Rock v. McHenry
    • United States
    • Missouri Court of Appeals
    • September 30, 2003
    ...evidence of flight is relevant to show consciousness of guilt when a defendant flees in order to avoid arrest and prosecution. Rutledge, 524 S.W.2d at 458; Hawkins, 582 S.W.2d at 335; Wilson, 725 S.W.2d at 933-34. Similarly, in civil cases, other courts have held that flight evidence is adm......
  • State v. Csolak, 37826
    • United States
    • Missouri Court of Appeals
    • August 1, 1978
    ...been approved: Neil v. Biggers, supra (seven months); Davis, supra (two years); Ealey, supra (four and one-half months); State v. Rutledge, 524 S.W.2d 449 (Mo.App.1975) (nearly four Having established a positive in-court identification and that a substantial independent basis for the victim......
  • State v. Steward
    • United States
    • Missouri Court of Appeals
    • March 21, 1978
    ...State v. Taylor, 508 S.W.2d 506, 514 (Mo.App.1974); State v. Tiedt, 360 Mo. 594, 229 S.W.2d 582, 588 (banc 1950); State v. Rutledge, 524 S.W.2d 449, 458 (Mo.App.1975); State v. Tallie, 380 S.W.2d 425, 430-431 (Mo.1964). An argument may convey to the jury the necessity of law enforcement as ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT