State v. Wood, 31311
| Citation | 613 S.W.2d 898 |
| Decision Date | 02 March 1981 |
| Docket Number | No. 31311,31311 |
| Parties | STATE of Missouri, Respondent, v. Robert WOOD, Appellant. |
| Court | Court of Appeal of Missouri (US) |
John E. McKay, Kansas City, for appellant.
John Ashcroft, Atty. Gen., Catheryn B. Starke, Asst. Atty. Gen., Kansas City, for respondent.
Before PRITCHARD, P. J., and TURNAGE and CLARK, JJ.
Robert Wood was convicted of five counts of robbery in the first degree and the jury assessed punishment at twenty years on each count. The court imposed punishment at twenty years on the first count, twenty years on the second count, to run consecutive to sentence on the first count, and twenty years on the remaining counts to run concurrently with the first count.
On this appeal Wood contends the evidence was insufficient to sustain the conviction; that the court erred in failing to sever Count I from the remaining counts because Count I did not involve the same transaction or a common scheme or plan with the remaining counts; failure to suppress certain evidence; failure to suppress evidence of out-of-court identification and failure to give an instruction. Reversed and remanded.
On the night of March 26, 1979, at about 11:45 to 12:00 P.M., two black males entered the lobby of the Quality Inn Motel on East 31st Street in Kansas City and took the contents of the cash drawer from the clerk on duty at gunpoint. The two men were observed by an employee of the motel restaurant, although he did not see the actual robbery. The employee saw the two men enter the lobby and saw a green Pinto in the parking lot with a man behind the wheel gunning the motor. The employee noted the license number of the Pinto and later saw the same two men he had seen in the lobby run from the lobby, jump in the Pinto and saw the Pinto leave at a high rate of speed. The license number of the Pinto was given to the police department as Missouri CJM-15, with the last digit missing.
At trial the employee positively identified Wood as one of the two men who entered the lobby and who later ran from the lobby, jumped into the Pinto and left. There was no evidence of anyone else being in the lobby during this time except the clerk. The clerk was not able to identify Wood.
About 12:20 or 12:25 A.M. on March 27, 1979, two black males entered the lobby of the Four Acre Motel on South 71 Highway in Kansas City. One of the men produced a pistol and forced the clerk, Finnigan, to hand over the money belonging to the motel and also the money which Vicki Campbell, a bartender in the motel, had just given Finnigan. Standing at the counter with Campbell and Finnigan was one Herbert, a resident of the motel. The two men also took the money from Finnigan's billfold and his silver Timex, which had the days of the week in German. The two next took wallets from Herbert and Campbell, in addition to Herbert's glasses. The two men then ordered Finnigan, Campbell and Herbert into a back room. When the two returned to the lobby they found Denny, another motel resident, at the counter waiting for the clerk. One of the two men placed a gun at Denny's head and took Denny's wallet containing about $250. Denny noticed a green Pinto in front of the lobby while waiting for the clerk to return.
At trial Herbert, Campbell and Denny all identified Wood as one of the two robbers.
Officer Louden of the Kansas City Police Department had heard the police broadcast on a green Pinto occupied by three negro males with a Missouri license CJM-15, with the last number unknown, and was aware of the robbery at the Quality Inn and Four Acre Motels. Officer Louden saw a green Pinto occupied by three negro males with Missouri license CJM-135 and stopped it at 1:13 A.M. on March 27, 1979, in the same area of town as the Four Acre Motel. Officer Louden ordered the three out and looked into the car with a flashlight. He observed a small automatic weapon and a pair of glasses inside the car. Officer Louden searched Wood at the scene after he had placed all three under arrest and found about $203 in coins and currency. At the police station about $90 more was found on Wood. The officer testified he could not remove all of the money from Wood at the scene because he did not have enough bags to hold it.
Wood's contention that the evidence was insufficient to support his conviction is rejected. He was identified by the employee as being one of the two men in the Quality Inn during the time of the robbery and was identified by three people at the Four Acre robbery as being one of the two robbers. The testimony of a single witness to establish identity is sufficient if believed by the jury, as it obviously was in this case as shown by their verdict. State v. Graham, 527 S.W.2d 936, 947(14-16) (Mo.App.1975). Wood points to certain conflicts in the evidence, but, of course, those were for the jury to resolve.
Wood next contends the court should have sustained his pre trial motion to suppress evidence of the Timex watch, with the days of the week written in German, which was taken from one of the other men in the car and the gun which was taken from the car at the time it was stopped. As to the watch taken from one of the other men, it is apparent Wood has no standing to raise the legality of a search of a third party. State v. Taylor, 538 S.W.2d 761, 764(7-9) (Mo.App.1976). As to the gun which was taken from the car, Wood did not claim to be either the owner of the car or the gun. It appears he was a mere passenger in the car. Wood has failed to demonstrate that he had any reasonable expectation of privacy concerning the gun which was under the front seat. Failing to show a reasonable expectation of privacy, Wood may not raise any objection under the Fourth Amendment to the search and seizure. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); State v. Carter, 591 S.W.2d 219, 221(3) (Mo.App.1979).
Wood also complains of the search of his person at the time he was arrested when the car was stopped. It is well settled that if the arrest is valid a warrantless search may be conducted of the defendant's person. State v. Drake, 512 S.W.2d 166, 169(1) (Mo.App.1974). The validity of the arrest depends upon the existence of probable cause for the arrest.
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