State v. Wright

• Citation: 476 S.W.2d 581
• Decision Date: 22 February 1972
• Docket Number: No. 2,No. 55350,55350,2
• Parties: STATE of Missouri, Respondent, v. Eddie Joe WRIGHT, Appellant
• Court: Missouri Supreme Court

Page 581

476 S.W.2d 581

STATE of Missouri, Respondent, v. Eddie Joe WRIGHT, Appellant.

No. 55350.

Supreme Court of Missouri, Division No. 2.

Feb. 22, 1972.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.

Ronald M. Sokol, Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant.

HENLEY, Judge.

This is an appeal from a judgment sentencing Eddie Joe Wright (hereinafter defendant) to imprisonment for a term of ten years on his conviction by a jury of robbery, first degree, by means of a dangerous and deadly weapon. Sections 560.120 and 560.135. ¹

The facts in support of the charge are brief and come from the state's witness, James J. Leary, night manager of the Market Basket Grocery Store, located at 3506 Troost, Kansas City, Missouri. Mr. Leary testified that on the night of September 30, 1968, between 9 and 9:30 o'clock, he was working at the store's check-out counter and had just closed the cash register drawer after checking the purchases of a customer when he turned to check the purchases of the last customer at the counter. The last 'customer' was the defendant who was holding a loaded revolver pointed at Leary. Defendant ordered Leary to give him all the money from the cash register and, at defendant's direction, removed the drawer, placed it on the counser between them, and helped defendant put all the money, estimated at in excess of $450.00, in a paper sack. This accomplished, defendant ordered Leary to walk with him outside the store. Upon reaching the street edge of the sidewalk, defendant turned and ran. Mr. Leary returned immediately to the store, called the police, and reported the robbery. He described the robber to the police as being a Negro male between 30 and 40 years of age, approximately six feet four inches tall and weighing over 200 pounds, with 'processed' hair, inset eyes and a goatee or chin whiskers. Mr. Leary further testified that the store was well-lighted, that defendant was facing him from across the counter only two or so feet away, that he got a good look at him then and during their walk to the street and that he is positive the man he identified in court is the man who robbed him.

Defendant assigns as error the court's overruling of his motion for judgment of acquittal. In this connection he asserts, first, that there is a fatal variance between the charge made in the information and the proof in that the information alleges that the money taken was the property of James J. Leary, whereas the evidence is that it was not Leary's money but was the money of the Market Basket, the property of someone else. In this same point he also contends that '* * * (t)he charges in this information will not protect * * * (him) against further prosecution for the same offense.' Second, he asserts that the testimony of Leary '* * * was so inconsistent, improbable and irreconcilably conflicting as to be legally insubstantial, (and), (l)acking that evidence, the evidence was insufficient for conviction as a matter of law.'

The allegations of the information, and the evidence as to ownership of the money, are as stated by defendant. However, the evidence is that the money was taken from Leary who was at the time the agent and employee of the owner and in charge thereof. Rule 26.04 provides that any variance between the allegation of the infomation and the evidence offered in proof thereof, as to the ownership of property described therein, shall not be deemed grounds for acquittal, unless it be found by the trial court that such variance is material to the merits of the case and prejudicial to the defendant. ² This variance between the charge and the proof was not found by the trial court to be material or prejudicial, and we do not so consider it. State v. Fitzsimmons, 338 Mo. 230, 89 S.W.2d 670, 672(2). The essence of the offense of robbery is the taking of the property of another from the person by violence or by fear; the ownership of the property taken is not material to and does not affect the offense. State v. Fitzsimmons, supra; State v. Pughe, Mo., 403 S.W.2d 635, 637(1); 77 C.J.S. Robbery § 44d, p. 483. Cf. State v. Andrews, Mo., 371 S.W.2d 324, 326(2, 3). The allegations and proof correspond as to the identity of the person from whose custody and control the property was taken and, in these circumstances, the variance as to ownership was not prejudicial to defendant. State v. Fitzsimmons, supra.

Defendant's assertion in this point that the allegations of the information are not sufficient to protect him against further prosecution for the same offense is not asserted as a ground in his motion for new trial and, therefore, is not preserved for review. He does not directly attack the information as being insufficient to charge a crime. However, we have examined the information and find it to be sufficient. Furthermore, the charge as alleged in the information would protect him against a subsequent charge based on the same act. State v. Richardson, Mo., 460 S.W.2d 537. See also Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469.

Defendant's point that the testimony of Leary was so inconsistent, improbable and conflicting as to be without sufficient substance to support the conviction has no merit. It appears from the argument portion of his brief that his point is, in fact, a contention that this witness is not believable and, therefore, no weight should be given his testimony. The credibility of the witness and the weight and value to be given his testimony are matters within the province of the jury and are not for review on appeal. Moreover, we have reviewed the evidence and, in particular, the testimony of this, the only witness to testify as to the facts of the robbery, and find it to be precise, cogent, consistent and substantial. It is sufficient to support the conviction.

Defendant's next assignment is that the court erred in overruling his pretrial motion to suppress evidence of his identication by the witness Leary at a lineup and his in-court identification by this witness, because, he says, (1) he was denied the right to counsel at the lineup, and (2) his exhibition in the lineup with two other Negro males of dissimilar physical description was unnecessarily suggestive and conductive to irreparable mistaken identification and, therefore, denied him due process of law. The lineup was conducted without counsel present representing defendant. Two other Negro men were in the lineup with defendant, but neither had 'processed' hair nor was quite as tall as defendant. In support of this point he cites 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.

In Wade and Gilbert the Supreme Court of the United States held that a post-indictment pre-trial lineup is a critical prosecutive state at which the defendant is entitled to the aid of counsel and that an incourt identification by a witness to whom the accused was exhibited before trial in the absence of counsel must be excluded unless it can be established that such evidence had an independent origin or that its admission was harmless error. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. In Gilbert the court adopted a per se exclusionary rule as to testimony by a witness that he identified an accused at a lineup. The court said that such testimony '* * * is the direct result of the illegal lineup, 'come at by explitation of (the primary) illegality' * * *' and '* * * (t)he State is therefore not entitled to an opportunity to show that that testimony had an independent source.' However, the court did soften the blow struck in Gilbert against the admission of what it says is relevant evidence; it held that Gilbert would not be entitled to a new trial of account of the admission of that evidence if the California Supreme Court is "able to declare a belief that it was harmless beyond a reasonable doubt,' Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.'

As to the first part of this point, that is, that the court should have suppressed the testimony of Leary that he identified defendant at a lineup, defendant's motion did not seek to suppress such evidence; it sought only to prevent the possible identification of defendant at the trial. Furthermore, at the trial, there was no objection by defendant to Leary's testimony that he had identified defendant at a lineup, nor was this part of the point assigned as error in the motion for new trial. As a matter of fact, defendant repeatedly made reference to this testimony in his cross-examination of Leary and thus himself enhanced '* * * the impact of (the witness') incourt identification on the jury * * *.' 388 U.S. at 273, 87 S.Ct. at 1957. This part of the point was not preserved for appellate review. State v. Brownridge, Mo., 459 S.W.2d 317, 320(8); State v. Franklin, Mo., 448 S.W.2d 583, 584(2).

At the close of the hearing on the motion to suppress, the trial court determined that the in-court identification of defendant was not the result of the lineup procedures, but had an independent source. The evidence, narrated above, supports a finding that the in-court identification was based on Leary's observation of defendant during and immediately after the robbery rather than the allegedly suggestive procedures of the lineup. State v. Cannon, 465 S.W.2d 584; State v. Mentor, Mo., 433 S.W.2d...