State v. Simmons, 35382
| Decision Date | 18 September 1973 |
| Docket Number | No. 35382,35382 |
| Citation | 500 S.W.2d 325 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Leroy SIMMONS, Defendant-Appellant. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
Robert C. Babione, David V. Uthoff, Public Defender Bureau, St. Louis, for defendant-appellant.
John C. Danforth, Atty. Gen., Mark D. Mittleman, Jefferson City, Brendan Ryan, Circuit Atty., John Fred White, James J. Barta, St. Louis, for plaintiff-respondent.
Appellant was convicted of Robbery in the First Degree, Section 560.120 R.S.Mo.1969, V. A.M.S. 1 after a jury trial and was sentenced to 15 years in the custody of the Missouri Department of Corrections by the trial judge under the provisions of Section 556.280. He has appealed.
The points presented to this court for review are that the trial court erred in the following respects:
1. in overruling appellant's motion to suppress the in-court identification;
2. in permitting a police officer to corroborate the identification by the victim by testifying to the conclusion that the victim had previously identified the appellant as a participant in the robbery; and
3. in that the procedure of assessing appellant's punishment on the sole criteria of a prior conviction violated appellant's due process rights and constitutes cruel and unusual punishment.
The evidence, viewed in the light most favorably in support of the verdict of the jury, is that on Saturday afternoon, July 31, 1971, at about 5:25 p.m., Daniel Bennett, the assistant-manager of the Famous-Barr Garage in downtown St. Louis, Missouri, was en route from the cashier's station to the garage office carrying a metal box containing approximately $304.00 in currency, the property of the May Department Stores Company, Incorporated. He entered an elevator on the fifth level of the garage and when the elevator reached the second level he stpped out of the elevator. Almost immediately he was hit in the head from behind and knocked to the floor by one of the passengers who had been in the elevator with him. A struggle ensued and the metal box and the currency were wrenched from his grasp. Two men participated in the fracas with Mr. Bennett. The larger of the two grabbed the metal box from him and fled while the smaller of the men became entangled with Mr. Bennett and a wrestling match between them followed until that robber too made good his escape. Mr. Bennett had ample time to view both of the men while on the elevator and also while on the floor of the garage during the scuffle. The entire occurrence took almost five minutes. He positively identified appellant as the smaller of the two men. He immediately reported the robbery to the police, and they arrived on the scene within 5 to 10 minutes. He described the robbers, telling the police officers that appellant was 5 8 --5 9 tall and weighed about 140 to 145 pounds.
Almost three months later, on October 30, 1971, Detective Larry Lade went to the Famous-Barr Garage and showed Mr. Bennett some photographs of some suspects in a robbery which had happened just a few days previously, and Mr. Bennett recognized one of the men portrayed in the photo. Later that same morning Mr. Bennett went to Police Headquarters on Twelfth and Clark Streets where he viewed a line-up, and he selected appellant from that line-up as the smaller of the two men who had robbed him on July 31, 1971.
An evidentiary hearing was conducted by the trial court relative to the alleged prior felony conviction of the defendant, viz., stealing property of a value of more than $50.00, and the court made a finding in accordance with the requirements of Section 556.280 and submitted to the jury the issue of the guilt or innocence of the charge of Robbery in the First Degree, reserving to itself the imposition of punishment.
With respect to appellant's first point, a pre-trial hearing was conducted out of the presence of the jury and the trial court made a finding that since the line-up was conducted prior to the filing of an information or the return of an indictment the defendant, although afforded the opportunity to have counsel, knowingly waived said right; that appellant was not required to be furnished counsel at a preinformation line-up, State v. Richardson, 495 S.W.2d 435, 437--438(1) (Mo. banc 1973); State v. Petrechko, 486 S.W.2d 217, 219(5) (Mo.1972); State v. Walters, 457 S.W.2d 817, 819(1) (Mo.1970); Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). He further found that the conduct of the officers both prior to and during the conduct of the line-up was not improper nor the line-up unduly suggestive and that the victim had an independent source for the in-court identification dehors the display of the photograph and the line-up. The evidence both at the pre-trial hearing and in its entirety during the trial supports this finding of the trial court.
This robbery occurred during the daylight hours and under flourescent lights. The appellant and his accomplice entered the elevator immediately behind Mr. Bennett; they stood on opposite sides of the elevator, facing one another, so he had an excellent opportunity to observe them, and he testified that he did look them in the face. During the scuffling he got a good look at both of the men, and most particularly the appellant while he held him in a headlock on the floor and when the appellant looked back while making his escape. According to Mr. Bennett this all took about five minutes. We find this to be ample evidence to admit the in-court identification and we therefore rule this point against appellant. State v. Richardson, supra, l.c. 438.
Appellant's next point is the admissibility of the police officer's testimony relating to Mr. Bennett recognizing someone (quite obviously the appellant) in a photograph displayed to him on October 30, 1971, at the garage. This evidence was elicited during the State's case in chief while the assistant circuit attorney was interrogating a State's witness, Detective Larry Lade, concerning the officer's visit with Mr. Bennett at the garage on that date. After inquiring of the officer what occasioned his visit with Mr. Bennett, the following occurred:
'A. We just showed him some photographs of some suspects in a robbery that had just happened there a few days ago or prior to that time.
Q. When you showed him a photograph or photographs, did he recognize anybody in the photograph?
A. Yes, sir.
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