State v. Young, 48867

• Decision Date: 22 October 1985
• Docket Number: No. 48867,48867
• Citation: State v. Young, 701 S.W.2d 490 (Mo. App. 1985)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Bruce YOUNG, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 490

701 S.W.2d 490

STATE of Missouri, Plaintiff-Respondent, v. Bruce YOUNG, Defendant-Appellant.

No. 48867.

Missouri Court of Appeals,

Eastern District,

Division Four.

Oct. 22, 1985.

Motion for Rehearing and/or

Transfer Denied Nov. 21, 1985.

Application to Transfer Denied

Jan. 15, 1986.

Cathy R. Gilbert, Asst. Public Defender, St. Louis, for defendant-appellant.

Leah A. Murray, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

KELLY, Judge.

Defendant was convicted by a jury of first degree robbery, § 569.020.1 RSMo 1978, and armed criminal action, § 571.015.1 RSMo 1978. He was sentenced to the custody of the Missouri Department of Corrections and Human Resources for a term of twenty (20) years on the robbery conviction and fifteen (15) years on the armed criminal action conviction. These sentences to be served concurrently.

Defendant contends on appeal that the trial court erred: (1) in admitting into evidence clothing seized from defendant and a photograph and testimony relating the line-up identification of defendant in that they were fruits of an illegal arrest; (2) in denying defendants motion to suppress the pre-trial line-up identifications and the in-court identifications of two of the robbery victims because the line-up procedures were so impermissibly suggestive that they undermined the reliability of the in-court identifications; (3) in admitting into evidence a .38 caliber revolver and cartridges which were seized from the apartment where defendant was arrested and the testimony relating to said items because there was no evidence connecting the weapon or the ammunition to the defendant or the crime thereby rendering their admission into evidence irrelevant, non-probative, and prejudicial; (4) in denying defendant's motion to strike for cause one of the jurors who intentionally failed to admit to knowing defense counsel, or to the fact that he had dealt with her on a professional basis when she was an assistant circuit attorney; (5) in arbitrarily excluding defendant's young daughter and cousin from the courtroom; and (6) in denying defendant's motion for a mistrial when several jurors were overheard discussing the case before it was formally presented to them for deliberation. We affirm.

Defendant does not challenge the sufficiency of the evidence. However, a brief recitation of the facts is necessary to resolve the issues presented on appeal. Viewed in the light most favorable to the state the record reflects the following facts.

On January 14, 1983 around 4:30 p.m. defendant entered Les' True Buy Supermarket in St. Louis, Missouri. He went over to the male cashier at register four, pulled a gun from his pocket, and pointed it at him. Consequently, the male cashier ran to the back of the store and hid in the cooler area. Subsequently, defendant approached a female cashier working at the register in the next aisle. He pressed the gun to her side, cocked the hammer, and threatened to shoot her if she didn't open up the cash register. She opened the cash register, removed the money and passed it to the defendant. The female cashier then fainted, losing consciousness for a few seconds. Defendant fled from the supermarket. He was observed by a third witness running from the supermarket to the passenger side of a green Buick, license plate number GYZ 737 and driving away with an accomplice.

Two officers responded to the scene of the robbery and investigated the incident. One of the officers interviewed the male cashier who described the robber as "a negro male, in mid-thirties, medium build, wearing a dark plaid jacket." The other officer interviewed the female cashier and from her obtained the following description, "a negro male, approximately 35 years of age. He was five feet seven inches tall; medium build; and had on dark clothing; and was armed with a .38 caliber revolver." Another description was given by the third witness. He described the culprit as "a negro male, about 35, about five-seven to five-nine, 170 pounds, dark complected, and he was wearing a dark plaid jacket, and a dark skull cap."

The police officers determined that the vehicle in which defendant fled was registered to an Andrea Mosley. At the conclusion of their investigation one of the officers broadcast the information regarding the car and the description of the suspect over the police radio.

Later that same evening, at approximately 9:00 p.m., two police officers, in the course of their investigation into an unrelated larceny case, went to the apartment building where the registered owner of the car allegedly involved in the supermarket robbery resided. While knocking on the door of the apartment which was the address of the juvenile suspect involved in the larceny case, the policemen were met by the woman who leased the apartment, her husband, and the defendant. They identified themselves to the police. The police officers explained they were looking for a juvenile who was the woman's son. After the woman's husband identified himself, the police recognized him as the registered owner of the car which was sought in connection with the supermarket robbery. The police found the automobile parked outside near the apartment complex. Consequently they detained the occupants of the apartment. Approximately five minutes later two detectives arrived and took over the investigation. After the detectives requested from the woman who was the lessee of the apartment for permission to search the premises, she signed a Consent to Search Form. A .38 caliber revolver, fully loaded with 6 live rounds was recovered during the subsequent search of the apartment.

Defendant and the owner of the car were arrested and taken to the police station. That same night the two cashiers identified the defendant in two separate line-ups as the person who robbed the supermarket.

Defendant was charged with first degree robbery and armed criminal action.

During voir dire, one of the jurors failed to voluntarily reveal that he knew and had dealings with the defense attorney when she was with the circuit attorney's office. However, when this juror was confronted by the defense attorney the following colloquy took place:

MS. GILBERT: Mr. Pietraschke, I used to work for the prosecutor's office and I believe that I met you; that you came in for a warrant application.

JUROR: That is correct.

MS. GILBERT: And that warrant application involved a suspect that you had apprehended, is that correct?

JUROR: Correct again.

MS. GILBERT: Okay. And, actually, I believe that I refused the warrant on the case, didn't I?

JUROR: That is also correct.

MS. GILBERT: How do you think that's going to make you feel sitting on the jury in this case and I'm the lawyer in the case? Do you think that's going to affect the way you approach this?

JUROR: Well, if I may be frank and speak.

MS. GILBERT: Please do so.

JUROR: I mean, first of all, I would feel that bygones have been bygones insofar in the due process of law. All of this was taken care of and that individual was no longer seen. And I feel if I would be permitted to serve as a juror in this particular case I would be fair and impartial. Again, that's the only way I can explain.

MS. GILBERT: Do you think there's any point in the trial that you might hold it against me, the disposition of that case that you were involved in?

JUROR: No, ma'am; I have an open mind.

MS. GILBERT: Okay. I have no other questions of Mr. Pietraschke.

MR. KRAMER: I don't have any questions.

THE COURT: Can you put that experience aside, is that correct?

JUROR: Yes, sir, I surely would, Your Honor.

Defendant moved that this juror be struck for cause; the trial court overruled the motion.

On the last day of trial the defendant's mother claimed she overheard two female jurors discussing the case. She testified that she heard them debating whether there was enough evidence to convict her son. However, she could not clearly identify the jurors. The trial court separately interviewed each of the female jurors as to whether they had violated the instruction not to discuss the case among themselves. All jurors denied doing so. As a result the trial court denied defendant's motion for a mistrial.

The case was submitted to the jury which returned a verdict of guilty on both charges. It is from these convictions defendant now appeals.

Defendant first contends on appeal that the police lacked probable cause to arrest him for the robbery of the supermarket, therefore the clothing which was seized from him, and the photograph and testimony concerning the line-up identification of him were fruits of the poisonous tree and should have been excluded. We disagree.

An arrest, with or without a warrant requires probable cause, which simply means a knowledge of facts and circumstances sufficient for a prudent person to believe the suspect is committing or has committed an offense ... While the quantum of information necessary to fashion probable cause means more than mere suspicion, existence must be determined by practical considerations of everday life on which reasonable persons act and not the hindsight of legal technicians. All information known to the officers and the reasonable inferences therefrom bear on this determination of that issue.

State v. Heitman, 589 S.W.2d 249, 253[3-5] (Mo. banc 1979) (cites omitted).

Additionally, probable cause is to be determined on the facts available for consideration by the agencies or officers participating in the arrest; and the collective knowledge and the available facts are the criteria in assessing probable cause. It is not necessary for the arresting or detaining officer to possess all of the available information. State v. Morris, 662 S.W.2d 884, 893[17, 18] (Mo.App.1983).

Defendant asserts that the only reason he was arrested in connection with the supermarket robbery was because he was in the company of the owner of the car used in the perpetration of the crime. It is...