State v. Valentine

• Citation: 584 S.W.2d 92
• Decision Date: 17 July 1979
• Docket Number: No. 60349,60349
• Parties: STATE of Missouri, Respondent, v. David VALENTINE, Appellant.
• Court: United States State Supreme Court of Missouri

Page 92

584 S.W.2d 92

STATE of Missouri, Respondent, v. David VALENTINE, Appellant.

No. 60349.

Supreme Court of Missouri, En Banc.

July 17, 1979.

Norman A. Selner, Clayton, for appellant.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Eric M. Martin, Asst. Atty. Gen., St Louis, for respondent.

RENDLEN, Judge.

David Valentine appeals his convictions of robbery in the first degree, § 560.120, RSMo 1969, and armed criminal action, § 559.225, RSMo Supp.1976, contending: (1) the armed criminal action charge under § 559.225 violates the constitutional protection against being twice put in jeopardy for the same offense, the statute is invalid under art. III, §§ 23 and 28, Mo.Const., and finally it is impermissibly vague and indefinite; (2) the court erred in permitting an eyewitness' in-court identification and testimony as to her out-of-court identification; and (3) the court improperly admitted certain evidence seized in violation of appellant's state and federal constitutional rights. The action was brought and appeal taken prior to the effective date of the newly adopted judicial article of the Missouri Constitution (January 2, 1979) and because it arguably could be said to involve certain issues requiring construction of constitutional provisions, we will entertain the cause under our appellate jurisdiction established in Mo.Const. art. V, § 3 (as amended 1970). We affirm.

On December 17, 1976, about six o'clock in the evening, a black male 25-30 years in age, approximately six feet two inches in height with a thin build and short Afro-style haircut entered the Tip Top Cleaners on Clayton Road in Richmond Heights, Missouri. Showing the clerk, Patricia Edwards, a pair of tan slacks he asked whether they could be cleaned the following day and when told they could, he produced a pistol and demanded the cash in the register. As soon as Miss Edwards complied, he ran from the front door with the money. At the time of this incident it was dark outside and the interior of the establishment was lighted. No other individuals were present in that part of the building and a fellow employee in the rear was unaware of the robbery at the time. Patricia Edwards notified the police of the robbery and provided them the gunman's description.

Approximately one month later, on January 14, 1977, Detective Gerald Mueller of the University City Police was on a stakeout in an unmarked car about 5:30 p. m. in the 7500 block of Delmar Blvd. Several other officers were in the vicinity in unmarked cars near cleaning establishments in an effort to find the person or persons responsible for ten or eleven armed robberies in the preceding three to four weeks. Most of these robberies had occurred between five and six in the evening. The police thought two persons might be involved. Four composite pictures of holdup suspects had been prepared, and Detective Mueller was familiar with all of them. One of these pictures was prepared from Miss Edwards' description.

During the stakeout Detective Mueller heard another detective say in a radio transmission that he had observed a white Mustang make several passes in front of one cleaning establishment near Mueller's location. The detective stated it was suspicious and he was going to follow the auto; Detective Mueller moved in to help. A police captain patrolling in an unmarked car pulled behind the Mustang and stated in a radio transmission he intended to stop it and Mueller reached the location in time to assist. Detective Mueller observed no traffic violations or other infraction by the driver of the Mustang before it was stopped.

Appellant Valentine was driving the auto. The officers approached him with guns drawn and ordered him to the back of the car, where they patted him down for weapons. Shortly after he was stopped and before Detective Mueller searched the auto, appellant was advised he was under arrest. Observing appellant as he alighted from the car, Detective Mueller noted his resemblance to one of the composite photos. Also, appellant stated he was going to the Inner Belt (west of the arrest scene), but when arrested he was traveling eastward. One of the descriptions of suspects had mentioned a flat top hat, and when stopped, appellant was wearing a hat of that type.

Upon appellant's arrest, his car was to be towed and pursuant to the standard procedure of the University City Police, Detective Mueller searched the interior of the vehicle finding a .25-caliber automatic pistol hidden near the firewall just above the transmission hump where part of the heater was missing. Appellant was conveyed to the St. Louis County jail following booking at University City police headquarters. After having been given his "Miranda " warning and having signed a waiver form, appellant admitted that he participated in the robbery of the Tip Top Cleaners, but stated he merely drove the getaway car and that a friend, known to him only as Leroy, was his accomplice.

At the hearing on appellant's motion to suppress identification testimony and physical evidence, Patrica Edwards testified that about 10:00 p. m. on the night of appellant's arrest, Detective Ronald Pfeiffer of the Richmond Heights police stopped at Miss Edwards' residence and asked her to accompany him to a lineup. There she looked at each of the men and identified appellant as the man who had robbed her that day. Miss Edwards testified appellant was the only man in the lineup who fit her description of the robber.

At trial, witness Edwards identified appellant to the jury as the armed robber without objection and testified without objection to her previous identification of him at the lineup. In addition, the State introduced, over appellant's objection, the pistol found in defendant's automobile, and Patricia Edwards was quite positive in her identification of the pistol as that used in the robbery.

I.

Appellant's multi-faceted attack on the armed criminal action statute, § 559.225, ¹ RSMo Supp.1976, begins with the novel argument that the statute violates art. III, § 23 of the Missouri Constitution by addressing more than one subject, ² arguing that it does so by purporting to embrace every felony in which a weapon may be used and that these felonies comprise the numerous "subjects" of the armed criminal action law. Appellant's semantical argument is without merit. The armed criminal action statute no more addresses many subjects than does the conspiracy statute (§ 564.016, RSMo 1978), the aiding and abetting statute (§ 562.041, RSMo 1978), or the felony murder statute (§ 565.003, RSMo 1978). These and similar statutes make criminal and proscribe certain behavior done in connection with other crimes. Specifically, armed criminal action focuses on the use of dangerous or deadly weapons in felonies. This complies with the purpose of art. III, § 23, to limit a bill to one general subject and to afford reasonably definite information to legislators and the public concerning the subject matter of a legislative act. Accordingly, appellant's argument fails. State ex rel. Taylor v. Wade, 360 Mo. 895, 231 S.W.2d 179 (banc 1950); Graff v. Priest, 356 Mo. 401, 201 S.W.2d 945 (1947). Appellant further contends the title of the bill enacting the armed criminal action statute ³ violates the mandate of art. III, § 23, that "no bill shall contain more than one subject which shall be clearly expressed in its title . . . ." The argument is premised on his prior contention that the bill attempts to amend other statutes by indirect reference. For the reasons discussed above, appellant's argument as to the bill's title must also fail.

Appellant also claims that the statute, in violation of art. III, § 28 of the Missouri Constitution, invalidly attempts to amend many other statutes without setting forth in full the statutes so amended. This argument, as novel as the first, is similarly meritless. This Court in State v. Treadway, 558 S.W.2d 646, 652 (Mo. banc 1977), held that armed criminal action constitutes an offense separate and distinct from other offenses. Hence, the statute neither amends other felony statutes nor offends art. III, § 28.

It is next urged that charges of armed criminal action and armed robbery arising from the same incident put him twice in jeopardy for the same offense in violation of the fifth amendment to the United States Constitution and art. I, § 19 of the Missouri Constitution. Because the crime of robbery was committed only through the use of a deadly weapon that is, the "putting in fear" element of the crime of robbery was accomplished only by brandishing a pistol appellant argues the crime of armed criminal action does not comprise a distinct, separate offense in this case. In Treadway, this Court rejected an identical argument and in so doing compared the elements of first degree robbery (§ 560.120, RSMo 1969) (of which appellant here has been convicted) and armed criminal action, concluding that each crime contained elements not found in the other. 558 S.W.2d at 651-52. However, appellant claims that Treadway ignored the language of the penalty statute for first degree robbery, § 560.135, ⁴ RSMo 1969. That statute singled out robberies committed by means of dangerous or deadly weapons and explicitly set the same punishment for those robberies as well as for robberies committed "by any other means." Treadway in appellant's view ignores the legislative intent evidenced in § 560.135 that the punishment for robbery Not Be enhanced when a gun is used.

The principal flaw in appellant's attack on Treadway is that it does not advance his double jeopardy claim. Whatever the legislative intent as to punishment for first degree robbery, the legislative result of the armed criminal action statute has been (as held in Treadway ) to create a separate and distinct crime. Therefore appellant Valentine was not twice put in jeopardy for the same offense.

Finally, appellant presses the argument...