State v. Thomas, 49005

• Decision Date: 14 January 1986
• Docket Number: No. 49005,49005
• Citation: 705 S.W.2d 579
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Van THOMAS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 579

705 S.W.2d 579

STATE of Missouri, Plaintiff-Respondent, v. Van THOMAS, Defendant-Appellant.

No. 49005.

Missouri Court of Appeals,

Eastern District,

Division Two.

Jan. 14, 1986.

Motion For Rehearing and/or Transfer

Denied Feb. 18, 1986.

Application to Transfer Denied

March 25, 1986.

Carrie Diane Francke, Jefferson City, for plaintiff-respondent.

Mark V. Clark, Columbia, for defendant-appellant.

SIMON, Presiding Judge.

Defendant, Van Thomas, was convicted in the Circuit Court of the City of St. Louis of three counts of robbery in the second degree, § 569.030 RSMo 1978. He was sentenced to 30 years imprisonment on each count, said sentences to run concurrently.

On appeal, defendant contends that the trial court erred in: (1) denying defendant's motion to suppress out of court identification of the three victims; (2) denying defendant's motion for judgment of acquittal at close of all evidence based upon insufficient evidence; (3) denying defendant's motion to dismiss for lack of jurisdiction based upon venue; (4) using defendant's suspended impositions of sentence to enhance defendant's sentences; (5) overruling defendant's objection to the prosecutor's statement in closing argument referring to defendant's right not to testify. We affirm.

At approximately 10:00 or 11:00 p.m. on September 17, 1983, Brian Scallan, Joseph "Greg" Gullick, and Dan Luna went to the Spaulding Racquetball Club on Hanley Road in St. Louis County to attend a Parks College fraternity party. They arrived in a car driven by Larry Billick. Scallan, Luna, and Gullick left the party at approximately 1:00 a.m. Because Billick was too intoxicated to drive and would not allow anyone else to drive his car, the three decided to walk. They walked onto Highway 40 from Hanley, but realizing this was not safe they began to look for a place to phone Scallan's roommate. After walking east at a fast pace for approximately 15 to 20 minutes, a white 1964 four-door Chevrolet pulled over just west of the Big Bend overpass on Highway 40. A man, later identified as Arthur Robinson, got out of the car and offered the three men a ride in exchange for gas money. They rejected the offer but Robinson persisted. Scallan testified that Robinson said in a "mean" fashion, "Get in the fucking car." Each of the three men testified they got into the car because they were afraid of being physically injured. Gullick got into the car first. Then Robinson grabbed Luna by the arm and guided him into the backseat. Robinson then entered the automobile's back seat followed by Scallan.

The car drove eastbound on Highway 40 at a rate of approximately 40 to 55 miles per hour. Scallan testified that after approximately 5 minutes, Robinson asked him to get his wallet out and give Robinson his money. Scallan also said that as he reached for his wallet Robinson told him not to pull a knife or he would "screw him up." Robinson then asked Gullick and Luna for their money. After taking $6.00 from Scallan's wallet, Robinson threw the wallet out of the car window around Deaconess Hospital. Scallan testified that Robinson took Gullick's money at the location of McCausland and Highway 40.

Robinson noticed Gullick putting his watch in his pocket. After Robinson said "Is that a watch?", the driver, later identified as defendant, turned around, held out his hand and screamed, "Give me the watch." After Gullick gave the driver his watch, the third man in the car, a passenger in the front seat, said "Let me out, this is uncool, I don't want any part of it." The defendant pulled over at Kingshighway and Oakland to let the passenger out and then returned to Highway 40 eastbound. Again Robinson and the defendant demanded Luna's money. Robinson then reached under the car's front seat. The defendant said emphatically, "Don't get the gun out, you don't need the gun, leave the gun there." Because Luna was frightened, he gave them his money. The defendant and Robinson then released the men.

At approximately 1:15 a.m. on September 18, 1983, Officer Charles Keifer of the St. Louis Police Department saw Scallan, Luna and Gullick climbing the incline from Highway 40 near the Boyle Avenue overpass. When Officer Keifer saw the men flagging him down, he pulled his patrol car over to them. The three victims told him they had been robbed and reported the license number of the robber's car, PZP-442. Kiefer radioed in a brief description of the robbers given by the victims. The victims described the driver as a black male in his twenties, about 5'9", and 170 pounds.

At a lineup held on September 19, 1983, the three victims identified Arthur Robinson as the man in the back seat during the robbery. On September 20, 1983, the three victims viewed a photographic array of individuals resembling the description of the driver of the car. On September 23, 1983, the three victims viewed a lineup to identify the driver. After each man in the lineup spoke the words "give me the watch," each of the three victims identified the defendant as the driver of the car.

Amrah Johnson testified at trial that on Saturday, September 17, 1983, he owned a white, four-door, 1964 Chevrolet. Johnson stated that he drove with Robinson in his car to the house of some of Robinson's friends. Johnson spent the night at his house. According to Johnson, Robinson told him the next morning that he had driven Johnson's car the previous night to Webster and Richmond Heights.

At the close of the evidence defendant's motions for acquittal or a new trial were denied. Defendant was convicted of three counts of robbery and sentenced to 30 years on each count to run concurrently.

In his first point on appeal, defendant alleges that the trial court erred in admitting the pretrial identification testimony by the victims in that the victims did not have a sufficient basis for a reliable identification, independent of an impermissibly suggestive photographic array identification. Defendant contends that the pretrial identification procedure was impermissibly suggestive in that the police showed one picture to the victims, suggesting that it was the photograph of the driver of the car.

At trial, Gullick, Luna, and Scallan each testified that the police did not influence them in the photo array selection. Gullick testified that he had been shown several photos. Scallan said he could not remember the number of photos he was shown. Luna testified that he was mistaken when he said in his deposition that he had been shown only one photo and that he had been shown several photos. Officer Hogan testified that four photographs were shown to the victims and the state introduced an array of four photographs into evidence. Defendant had full opportunity to cross-examine the victims and any inconsistencies in their testimony is for the jury to weigh. State v. Carey, 486 S.W.2d 443 (Mo.1972). Defendant has stated no other allegations of police interference or suggestiveness in the photographic display. Assuming defendant's allegation of only one photo to be true, the showing of a single photograph of a defendant to a witness where there is no improper comment or activity on the part of the officer showing the photograph does not result in impermissible suggestiveness. State v. McGrath, 603 S.W.2d 518, 520 (Mo.1980).

Further there is no want of due process in the trial court's admission of the witnesses' pretrial identifications if a reliable independent basis for admission exists. The reliability of identification testimony is determined in light of the "totality of circumstances" including: (1) the opportunity of the witnesses to view the criminal at the time of the crime; (2) the witnesses' degree of attention; (3) the accuracy of the witnesses' prior description of the criminal; (4) the level of certainty demonstrated by the witnesses at the confrontation; and (5) the length of time between the crime and the confrontation. State v. Charles, 612 S.W.2d 778, 780 (Mo. banc 1981). This rule applies to both pretrial and in-court identifications. State v. Green, 635 S.W.2d 42, 44 (Mo.App.1982). Applying this analysis, we find the pretrial identification to be reliable. Both Luna and Gullick testified they had an opportunity to view the defendant as they entered the car. Luna also stated they were in the car for 15 to 20 minutes. Scallan testified he was able to get...