State v. Tettamble

• Decision Date: 10 March 1988
• Docket Number: No. 15256,15256
• Citation: 746 S.W.2d 433
• Parties: STATE of Missouri, Respondent, v. Nicholas R. TETTAMBLE, Appellant.
• Court: Missouri Court of Appeals

Page 433

746 S.W.2d 433

STATE of Missouri, Respondent, v. Nicholas R. TETTAMBLE, Appellant.

No. 15256.

Missouri Court of Appeals,

Southern District,

Division One.

March 10, 1988.

Sidney T. Pearson, III, Sp. Asst. Public Defender, St. James, for appellant.

William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Chief Judge.

Nicholas R. Tettamble ("defendant"), tried as a prior offender, § 558.016.2, RSMo Cum.Supp.1984, and a persistent offender, § 558.016.3, RSMo Cum.Supp.1984, was found guilty by a jury of the class B felony of burglary in the first degree, § 569.160, RSMo 1978, and sentenced by the trial court to 30 years' imprisonment. Defendant appeals, averring that (1) his in-court identification by the sole eyewitness should have been suppressed, and (2) the trial court wrongly denied defendant's day-of-trial motion for a continuance.

The verdict was returned March 23, 1987. Immediately after the jury was discharged, defendant's attorney requested "the full twenty-five days" to file a motion for a new trial. The trial court stated: "The one hundred seventh day is Friday the 17th, Good Friday, and for that reason this Court is going to grant the defendant until Monday, April 20th to file his after trial motions."

Defendant's attorney filed a motion for new trial on April 20, 1987, and defendant filed sundry pro se motions that date.

Rule 29.11(b) ¹ provides:

"A motion for a new trial ... shall be filed within fifteen days after the return of the verdict. On application of the defendant made within fifteen days after the return of the verdict and for good cause shown the court may extend the time for filing of such motions for one additional period not to exceed ten days."

Rule 20.01(a) provides:

"In computing any period of time prescribed or allowed by these Rules, ... the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday, or a legal holiday...."

The trial court was without authority under the above rules to extend the deadline for filing defendant's motion for new trial beyond April 17, 1987 (the twenty-fifth day after the return of the verdict), unless such date was a Saturday, Sunday, or legal holiday. Friday, April 17, 1987, was neither a Saturday, Sunday, or legal holiday. ²

A trial court is not empowered to waive or extend the time to file a motion for new trial beyond that authorized by Rule 29.11(b), and a motion filed beyond the time the rule allows preserves nothing for appellate review. State v. Vedder, 668 S.W.2d 639, 640[1, 2] (Mo.App.1984); State v. Bailey, 645 S.W.2d 211, 212 (Mo.App.1983). We shall therefore consider whether the matters complained of in defendant's brief resulted in manifest injustice or a miscarriage of justice warranting plain error relief under Rule 29.12(b). State v. Sonka, 693 S.W.2d 215, 216[2, 3] (Mo.App.1985); Bailey, 645 S.W.2d at 212. We summarize only the evidence essential for that purpose.

On Saturday, October 5, 1985, Lester Ruble, Jr., was in a field at his parents' farm in Iron County. ³ He saw a station wagon drive up to his parents' house and stop. A man got out. Ruble went to the house. The man, identified as defendant by Ruble at trial, asked how to get to Annapolis. A three or four minute conversation ensued, during which Ruble and defendant were two or three feet apart.

Ruble observed a second man in the passenger seat of the station wagon, and a third man in the back seat. Ruble had never seen defendant or the other men before. As the station wagon departed, defendant driving, Ruble noticed it went the opposite way he had directed.

Ruble, who was at the house alone, entered and went upstairs. About 15 minutes later he looked out a window and saw the same station wagon pull into the driveway. Defendant got out, came to the house, and knocked on the front door. Ruble did not answer. Defendant then went to the back door and knocked. Again Ruble did not answer. Ruble then saw defendant kick in the back door and heard defendant walk through a hallway inside the house. Ruble, who was in a bedroom, locked the bedroom door, climbed out a window, made his way to his father's truck behind the house, and drove to the home of Iron County Deputy Sheriff Donnie Ivy a few miles away to report the incident.

Ivy went to the Ruble residence and observed that the storm door was torn off and the back door was kicked in. Ruble gave Ivy a description of the station wagon and its three occupants. Asked at trial about his descriptions of the men, Ruble recalled describing defendant as probably six feet tall, with brown hair and a thinning hairline. Ruble described the man in the front passenger seat as around 24 years old with a large build, short dark brown hair and a mustache. He looked like he had not shaved in a few days. The man in the back seat appeared to be around 20 years old, and had long blond hair.

Ivy recalled seeing a similar station wagon drive slowly past his home the day of the break-in, a short time before it occurred. The station wagon had passed within 20 feet of Ivy as he waited in his driveway to turn onto the road. Ivy saw the driver and two passengers. At trial, Ivy identified defendant as the driver.

Ruble's descriptions of the station wagon and its occupants were dispatched by Ivy to surrounding counties. A few hours later, Ivy was called to a location in Madison County, 35-40 miles from the Ruble residence. There, he saw the station wagon "broke down on the road" and two men in custody of law enforcement officers. The men matched Ruble's general description of the two passengers in the station wagon. Ivy arrested the duo (William Pratt and Clyde Staples) for the Ruble burglary. At the Iron County Sheriff's office the next morning, Ruble identified Pratt and Staples as two of the culprits.

Defendant was arrested in St. Louis within a week after the break-in. Two or three days after defendant's arrest, Ivy obtained photographs of the three arrestees and gave them to Ruble's father, Lester Cicero Ruble. Ivy recalled, "I told Mr. Ruble that these are the three that we had arrested, to take these pictures to Lester Ruble, Jr. and see if he could identify them." Ivy gave the elder Ruble no photograph of anyone else.

The elder Ruble took the photos to the State Bank of Greenville, where Lester, Jr., was employed as assistant cashier. The elder Ruble asked Lester, Jr., whether the photographs were "the boys that was up at the house." Lester, Jr., told his father they were the ones.

Prior to trial, defendant filed a motion to suppress any in-court identification of him by Lester, Jr. At a hearing on the motion, Lester, Jr., was asked whether his father, upon delivering the photographs, had stated: "These are the three that did the burglary." Lester, Jr., conceded his father could have said that, but that he (Lester, Jr.) did not remember.

The elder Ruble, testifying at the suppression hearing, denied telling his son that the photographs were of the three men who did the burglary.

At trial, Lester, Jr., again testified that his father, upon displaying the photographs, could have said they "were the three that did it," but that he (Lester, Jr.) did not remember.

The elder Ruble, testifying at trial, recalled that when Ivy furnished the photographs, Ivy said, "[T]hese are the ones that did it." Then, this:

"Q. Did you take those photographs to your son?

A. Yes.

Q. And did you give him that message?

A. Yes."

Defendant's first assignment of error maintains his in-court identification by Lester, Jr., was impermissibly tainted by "improper out-of-court identification procedures" in that Ivy utilized a "highly suggestive" photographic lineup procedure to influence Lester, Jr. Defendant complains that (a) no photographs of anyone except the three arrestees were shown to Lester, Jr., and (b) Lester, Jr., was told by his father that the photographs were of the men who committed the burglary. Defendant cites Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), where the accused contended that his pretrial identification by means of photographs was made under circumstances so unnecessarily suggestive and conducive to misidentification as to deny him due process of law. 390 U.S. 381, 88 S.Ct. 970. Simmons held that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. 390 U.S. at 384, 88 S.Ct. at 971.

The subject was explored further in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). There, an undercover police officer purchased narcotics from a man he did not know. The officer later described the seller to another officer, who surmised from the description that the seller was one Brathwaite. The latter officer obtained a photograph of Brathwaite from police records and left it at the office of the officer who had made the purchase. That officer, alone, viewed the photograph two days after the purchase, and determined that the person shown in the photograph was the seller. At Brathwaite's trial, the officer--who had not seen Brathwaite in the eight months since the sale--testified he had no doubt that the person in the photograph was Brathwaite, and the officer made a positive in-court identification of Brathwaite as the seller. Rejecting Brathwaite's contention that the admission of the identification testimony deprived him of due process of law, the Supreme Court held that reliability is the linchpin in determining the admissibility of identification testimony in such instances. ...