State v. Tehee
| Decision Date | 13 October 1969 |
| Docket Number | No. 2,No. 54400,54400,2 |
| Parties | STATE of Missouri, Respondent, v. Laverne Dale TEHEE, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Dale L. Rollings, Asst. Atty. Gen., Jefferson City, for respondent.
J. Arnot Hill, Kansas City, for appellant.
BARRETT, Commissioner.
This is a direct appeal from a conviction of robbery in the first degree and a sentence of 10 years' imprisonment.
The facts as the jury could find them from the state's undisputed evidence were that on March 1, 1968, the appellant, Laverne Dale Tehee, and another entered the A & P Store at 7131 Prospect Avenue, about closing time, and at gun point held up the store's employees and robbed the cash registers of $882.00. The employees gave police a description of Tehee as either 'Mexican or Indian' (he is said to be a Cherokee Indian), 5 feet 7 or 8 inches tall, weighing about 150 pounds and wearing a blue billed cap, blue short coat and wash and wear trousers. Two weeks later and because of the description Detective Wilson went to the vice unit with another robbery victim and there he saw the defendant who had been arrested for carrying concealed weapons.
Two of the appellant's points on appeal are somewhat related, an objection to the prosecutor's argument and the principal claim of an unfair lineup identification, chiefly because appellant did not have counsel at the lineup, a claim that police suggested to one of three witnesses that two others had identified him and finally that no other Mexicans or Indiana were included in one of the police lineups. It is said that the lineup identification violated the guidelines laid down in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 and, recently, Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402.
There was here a motion to suppress the lineup evidence and a hearing on the subject but in view of the indisputable record it is not necessary to consider the validity of the finding or to spend time distinguishing the Wade, Stovall, Gilbert or Foster cases. There were three employee witnesses to the robbery, descriptions of Tehee, and his in-court identification--all without reference to a lineup. The fact of the lineups was developed on cross-examination and one of the witnesses did not attend a lineup, he happened to see the appellant in a police station. In any event, on the motion to suppress evidence and on redirect examination, two of the witnesses testified that on the night before the robbery Tehee and another entered the store and because of their behavior, particularly in the neighborhood of the caged office, one employee was directed to and did follow and observe the appellant until without mishap he left the store, and so the next night when they were held up and robbed they had no difficulty in remembering and identifying Tehee or in giving the police an accurate description of their assailant. Thus by 'clear and convincing evidence' the in-court identifications were 'based upon observation of the suspect other than the lineup identification' (United States v. Wade) and, of course, although the third witness did not rely on a lineup identification and was not present in the store the night before, the introduction in evidence of any identification of appellant 'was harmless error.' Gilbert v. California, supra.
As to the argument appellant's counsel says that the prosecutor said, '' Counsel urges that there was no such evidence, that the prosecutor's argument was a prejudicial misstatement of the evidence. This assignment need not be considered in depth and distinguishing cases of manifestly improper argument of matters not in evidence noted. The prosecutor was arguing the identification of the appellant, the fact of his being an Indian and he said that the jury should be guided by the evidence: 'What the witnesses said from the stand and the only, the sole and only evidence in this case, is that this man was the robber.' And then he did say, 'In each of...
To continue reading
Request your trial
-
State v. Wrose, 55851
...that the retaliatory phase of the argument was so manifestly inflammatory as to outweigh the right to reply.' Likewise, in State v. Tehee, Mo.Sup., 445 S.W.2d 285, 287, the defendant's claim of improper argument by the state was overruled by this court for that same reason. In this case, th......
-
State v. Johnson
...Wade and Stovall are not applicable.' State v. Franklin, Mo., 448 S.W.2d 583, 584. Robbery cases all but directly in point are State v. Tehee, Mo., 445 S.W.2d 285; State v. Williams, Mo., 448 S.W.2d 865; State v. DeLuca, Mo., 448 S.W.2d 869; State v. Batchelor, Mo., 418 S.W.2d 929; State v.......
-
State v. Williams
...1940, 18 L.Ed.2d 1149. l.c. 1164, 1165. This point is ruled against defendant. State v. Mentor, Mo.Sup., 433 S.W.2d 816; State v. Tehee, Mo.Sup., 445 S.W.2d 285; State v. DeLuca, Mo.Sup., 448 S.W.2d 869 (decided this date); State v. Franklin, Mo.Sup., 448 S.W.2d 583 (decided this date); Fit......
-
State v. Franklin, 54527
...had, as the trial court found it would have, an independent basis and Wade and Stovall are not applicable. State v. Tehee, Mo.Sup., 445 S.W.2d 285, 286(1); State v. Mentor, Mo.Sup., 433 S.W.2d 816; State v. DeLuca, Mo.Sup., 448 S.W.2d 869, decided this Defendant contends that the trial cour......