State v. Berry

609 S.W.2d 948, 1980 Mo. LEXIS 390

• Court: Supreme Court of Missouri
• Decided: December 15, 1980
• Docket: 61750
• Status: Published

Opinions

RENDLEN, Judge.

Convicted of first degree robbery, class B rape and class B kidnapping, defendant’s punishment was assessed by the jury at life, 15 years, and 15 years imprisonment, respectively. Determining that defendant was a dangerous offender under § 558.016, RSMo 1978, the trial court ordered sentences of consecutive terms of 30 years for the rape and 25 for the kidnapping. A life sentence having been imposed, the cause falls within the exclusive appellate jurisdiction of this Court. Art. V, § 3, Mo. Const.

As error defendant alleges the trial court improperly (1) permitted the State to withhold from defendant a photograph of one of the lineups in which defendant participated; (2) denied defendant’s motion to suppress evidence illegally seized; (3) denied defendant’s motion to suppress the prosecutrix’s in-court identification, tainted by unduly suggestive lineup procedures; (4) permitted objectionable testimony by the prosecutrix’s sister; and (5) imposed an extended term of imprisonment under § 558.016, RSMo 1978, sans the hearing mandated by § 558.021, RSMo 1978.

On February 2, 1979, at 6:45 p. m., the victim parked her automobile under a street light near her apartment building at the intersection of Pershing and Newstead in the City of St. Louis. While removing a bag of groceries she was accosted by defendant who menaced her with a chrome-plated object appearing to be a gun with a narrow six inch barrel, stating he intended to rob her. Ordering her to get in the car, he forced her to drive to an empty lot, then told her to stop. After taking her jewelry and money, defendant forced her to crawl into the back seat. During this time the dome light in the car was on and the assailant stood part outside and part inside the car, hovering over the victim. He demanded she undress and after much protest she removed her shirt and pants. When she refused to undress further, defendant threatened to kill her, striking her head several times with the weapon and threatening to hit her with a soda bottle. Finally the victim disrobed fully and defendant raped her.

Subsequently, in accordance with her assailant’s instructions, the victim dressed and started the car. When she backed the automobile into the alley, it became stuck in the snow and remained so notwithstanding repeated attempts to move it. Eventually they abandoned the car and while leaving the alley, the victim consciously sized up defendant. Reaching Newstead Avenue defendant threatened his victim against calling the police and then fled. She crossed the street to a service station where she telephoned for help and her sister came to pick her up.

On the evening of February 9, 1979, Laird Kelley, an off-duty police officer working as a security guard in a posted area for Kingsberry Place Street and Terrace Association, observed movement in some shrubbery. As Kelley went to to investigate, defendant darted from the bushes and during the case that followed, tossed what appeared to be a gun into the snow. Cornering him in a dead end driveway, Kelley placed defendant under arrest for trespassing on Kingsberry Place. Recovering the discarded object, the officer discovered it was a large cigarette lighter shaped like a gun. Kelley also noted that defendant fit the description of a suspect in several recent nearby robberies.

At the outset, we examine respondent’s contention concerning procedural deficiencies in appellant’s brief. When initially filed, the argument portion omitted transcript page references supportive of appellant’s factual allegations, required by Rule 30.06(h). While such failure can preclude appellate review of the merits, State v. Laususe, 588 S.W.2d 719, 722 (Mo.App.1979), this result will not obtain because appellant by leave has submitted a corrected brief reaching the minimum standards of Rule 30.06. See Morris v. Reed, 510 S.W.2d 234, 238 (Mo.App. 1974).

Defendant first complains of the State’s alleged failure to relinquish a photograph of an original lineup in which defendant appeared with one Larry Williams. At the pretrial hearing on the motion to suppress the victim’s identification testimony, Williams testified that he was initially identified in a lineup as the assailant which he learned involved a rape case occurring on February 2,1979. He further asserted that when it was ascertained that he had been incarcerated on that date, he was returned for another lineup in which defendant participated and defendant was identified as the attacker in a rape on February 2, 1979. Williams did not know who made the identification in the original lineup, but defendant alleges in his brief he was denied a photograph taken of that lineup. Defendant filed two motions for new trial. The first, October 5, 1979, the final day for a timely motion, was silent on this point. Defendant filed a second motion October 11, raising as additional error, the prosecutor’s withholding of the photograph. The untimely motion for new trial was a nullity, preserving nothing for appellate review. State v. Collett, 542 S.W.2d 783, 785 (Mo. banc 1976); State v. Moore, 575 S.W.2d 253, 254 (Mo.App. 1978); State v. Harley, 543 S.W.2d 288, 292 (Mo.App. 1976).¹ Moreover, the point may not be saved by designating the second motion an "amendment” to the first thereby permitting its filing date to relate back to October 5. See, Lloyd v. Garren, 366 S.W.2d 341, 344 (Mo. 1963). Nevertheless, we examine for plain error to consider whether the alleged error rises to the level of “manifest injustice or miscarriage of justice.” Rule 29.12.

A prosecutor must, upon request, disclose to defense counsel any exculpatory evidence “which tends to negate the guilt of the defendant as to the offense charged ...Rule 25.32(A)(9) (1979), now Rule 25.03(A)(9) (1980); Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963); Lee v. State, 573 S.W.2d 131, 133 (Mo.App. 1978); State v. Brooks, 551 S.W.2d 634, 655 (Mo.App. 1977), cert. denied, 434 U.S. 1017, 98 S.Ct. 736, 54 L.Ed.2d 763 (1978). For nondivulgence to result in reversal, the evidence must be material and the nondisclosure prejudice defendant’s rights. Lee v. State, supra: State v. Brooks, supra. At trial, defendant sought discovery of a photograph allegedly taken of a lineup in which he and Larry Williams appeared,² contending it would discredit the victim’s identification testimony. However, at the suppression hearing the victim testified she viewed only one lineup and selected only the defendant as her assailant. She further identified State’s Exhibit 1 as a photograph depicting the lineup she viewed. Williams does not appear in this photograph. Officer James Brawley confirmed the victim’s identification of State’s Exhibit 1 and her testimony respecting her view of the lineup. Hence, defendant apparently sought a photograph depicting a lineup viewed by someone other than the victim he attacked and not germane to defendant’s contention of fallacious identification. It would not have discredited the victim’s identification testimony. It could only have corroborated Williams’ testimony that he and defendant appeared in the original lineup. We hold therefore that the State’s alleged refusal to relinquish the photograph cannot be said to have prejudiced defendant and the trial court’s action was not plain error.

Defendant next contends his person and the gun-like cigarette lighter should have been suppressed as tainted by a warrantless arrest made without probable cause.³ A warrantless arrest requires a showing of probable cause. When making the arrest, the officer must have known facts sufficient for a prudent person to believe defendant had committed or was committing an offense. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964); State v. Maxwell, 502 S.W.2d 382, 386 (Mo.App. 1973). The record is replete with such circumstances. As previously discussed, the arrest was made after a chase commencing when Officer Kelley observed defendant crouched in some bushes in a posted area. At the time, Kelley was working extra hours in an area where several robberies had recently occurred. His suspicions were aroused by defendant’s hiding in the bushes, fleeing when he approached and tossing an object appearing to be a gun into the snow. This activity justified the officer’s approach to investigate. Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, , 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); State v. Rankin, 477 S.W.2d 72, 75 (Mo. 1972).

When defendant was caught, the officer recognized he fit the description of a suspect in several recent robberies. Moreover Officer Kelley caught defendant flagrante delicto, trespassing in a neighborhood posted private. When an officer witnesses a crime, albeit a misdemeanor,⁴ in which the perpetrator acts in a highly suspicious manner and when cornered is recognized as fitting the description of a suspect in recent felonies, that officer has probable cause for a warrantless arrest. See, State v. Jefferson, 391 S.W.2d 885, 888 (Mo. 1965); State v. Moore, 580 S.W.2d 747, 750 (Mo. banc 1979); State v. Robinson, 484 S.W.2d 186, 190 (Mo. 1972); State v. Hill, 419 S.W.2d 46, 47 (Mo. 1967); Adams v. Williams, 407 U.S. 143, 149, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972).

Defendant next objects to the trial court’s denial of his motion to suppress the victim’s in-court identification as tainted by an unduly suggestive lineup identification. He argues the evidence showed that when viewing the lineup, the victim selected defendant only after learning that her first choice had an airtight alibi, and hence, the lineup was unnecessarily conducive to an irreparably mistaken courtroom identification.⁵ While prior to trial defendant moved to suppress the in-court identification and renewed this claim in his motion for new trial, he failed to object at trial when the victim was asked to identify her assailant. “[W]hen a pre-trial motion to suppress identification testimony is made and overruled, timely objection to the identification testimony must be made during the trial ... in order to preserve the issue for purposes of appellate review.’’ State v. White, 549 S.W.2d 914, 917 (Mo.App. 1977); State v. Holland, 534 S.W.2d 590, 591 (Mo.App. 1976). Though defendant’s claim of error is waived for failure to object, we exercise our discretion, as in the prior point, to examine for plain error. Rule 29.12. Defendant bears the burden of demonstrating the putative error rose to the level of manifest injustice or a miscarriage of justice. State v. Richards, 536 S.W.2d 779, 788 (Mo.App. 1976).

The State’s evidence (testimony by the victim, her sister and an officer) showed that the victim viewed only one lineup and immediately identified defendant as her assailant. However, assuming arguendo that the lineup identification was unduly suggestive because the victim selected defendant as her second choice, her in-court identification was not thereby rendered necessarily inadmissible. When an in-court identification is made upon a recollection independent of pretrial identification procedures, the in-court identification is proper. United States v. Crews, 445 U.S. 463, 473, 100 S.Ct. 1244, 1251, 63 L.Ed.2d 537 (1980). Consideration must be given to the presence of an independent factual basis for the identification and a positive courtroom identification. State v. Parker, 458 S.W.2d 241, 244 (Mo. 1970); State v. White, 549 S.W.2d 914, 917 (Mo.App. 1977); State v. Holland, 534 S.W.2d 590, 592 (Mo.App. 1976); State v. Rutledge, 524 S.W.2d 449, 456 (Mo.App. 1975).

During perpetration of the crimes, defendant was in the victim’s presence for thirty to forty minutes. She first observed him under a street light as she got out of her automobile. Her second opportunity for a good look at defendant occurred as he hovered over her in the car with the dome light on. Finally, as they walked down the alley, the victim consciously observed and painted a mental picture of defendant as the light from a street pole reflected from the snow. It has been aptly noted that “Virtually no other crime offers the opportunity for observation of the perpetrator as the crime of rape.” Grant v. State, 446 5.W.2d 620, 622 (Mo. 1969). When questioned by the police after the rape, the victim gave a detailed description of her attacker matching defendant’s appearance.⁶ At trial she unequivocally and positively identified defendant as her assailant. Hence it is clear the victim’s in-court identification rested on an independent recollection of her protracted encounter with the attacker and we cannot charge the trial court with error, a fortiori, not plain error, by its admission of the identification testimony.

Defendant’s next allegation of error merits little discussion. At trial, the victim’s sister testified that the victim “looked like she had been dead” when the sister picked her up at the service station, and that the victim attempted to leave upon viewing the lineup. Defendant objected to this testimony on grounds of relevancy and prejudice.⁷

Admission of evidence complained of as prejudicial or inflammatory rests within the sound discretion of the trial judge. The standard of relevance is the main criterion. State v. Thresher, 350 S.W.2d 1, 6-7 (Mo. 1961); State v. McCabe, 512 S.W.2d 442, 444 (Mo.App. 1974). Relevancy is found if the evidence logically tends to support or establish a fact in issue. State v. Moore, 435 S.W.2d 8, 11 (Mo. banc 1968). Because defendant pled not guilty, he put “in issue all facts constituting the corpus delicti as well as the defendant’s criminal agency.” Id. at 11-12. Hence, to establish guilt, all evidence related to any element of the crime of forcible rape became relevant. The victim’s condition after the rape was pertinent to the issue of force, and her flight upon viewing defendant in a lineup was proper for jury consideration in connection with the identification testimony. The trial court did not abuse its discretion admitting such evidence.

Defendant finally contends the trial court failed to follow required statutory procedures when imposing extended terms of imprisonment upon the rape and kidnapping convictions.⁸ Pursuant to § 558.016, RSMo 1978, at a sentencing hearing the trial judge found defendant had previously been convicted of a dangerous felony, forcible rape (see § 556.061(8), RSMo 1978) and defendant had “knowingly murdered or endangered or threatened the life of another person or knowingly inflicted or attempted or threatened to inflict serious physical injury on another person.”- (see § 558.016.-3(1), RSMo 1978). Having determined defendant was a dangerous offender, the trial judge sentenced him to terms of 30 years on the rape and 25 on the kidnapping. Defendant complains that the trial judge judicially noticed the trial proceedings (in which he had just presided) of this cause to support his finding under § 558.016.3(1), and maintains that § 558.021.1(2), RSMo 1978, mandates a second hearing in which the State must again prove certain elements of crime, i. e., “the threat to inflict serious bodily injury on another,” as well as additional information bearing on the issue of sentence.⁹

During trial, the victim testified that defendant struck her with the gun-like cigarette lighter, menaced her with a soda pop bottle and threatened to kill her. She was in fact extensively cross-examined by the defense on many aspects of the case, including the violence and threats of violence. In convicting defendant of robbery in the first degree, the jury necessarily found he threatened the victim under the robbery submission¹⁰ and resorted to “forcible compulsion” to commit the rape.¹¹ Additionally, the trial and the sentencing hearing occurred within 10 days before the same tribunal, involving the same prosecutor and defense counsel. Under § 558.021.3, at the sentencing hearing, “both the state and the defendant [were] permitted to present additional information bearing on the issue of sentence.” (Emphasis added.) There is no requirement that any or all prior trial testimony be repeated. Hence it cannot be said that the trial court’s judicial notice of its prior proceedings and consideration of evidence adduced there was violative of the statutory procedures or defendant’s constitutional rights. See, California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); State v. Brooks, 551 S.W.2d 634, 652-653 (Mo.App. 1977), cert. denied, 434 U.S. 1017, 98 S.Ct. 736, 54 L.Ed.2d 763 (1978).

Section 558.021, RSMo 1978, was enacted to comply with the mandates set forth in Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967). See, The New Missouri Criminal Code: a Manual for Court Related Personnel, § 3.4, page 8. There, the Supreme Court held that when the imposition of an extended term goes beyond finding guilt of the felony and involves making new findings of fact, due process requires those safeguards essential in a criminal prosecution. Specht, at 608-610, 87 S.Ct. at 1211-1213. In the case at bar, it was determined at trial that defendant acted in a violent manner under § 558.-016, RSMo 1978. Since the question of defendant’s violence and the offense charged did not require a new finding of fact, it was not incumbent on the State to present additional evidence on the issue and the trial court could properly take judicial notice of its earlier proceedings in this very cause. This is not to say that a defendant may be foreclosed from presenting “additional evidence on the issue” but the trial court may not be condemned for proceeding as it did.

Judgment affirmed.

DONNELLY, WELLIVER, MORGAN and HIGGINS, JJ., concur. BARDGETT, C. J., concurs in part and dissents in part in separate opinion filed. SEILER, J., dissents in separate dissenting opinion filed.

1 . Defendant suggests as excuse for his tardiness, late receipt of a police report disclosing the photograph’s existence. Assuming arguen-do that late receipt of this report justifies the tardiness of the second motion, see State v. Harley, 543 S.W.2d 288, 292 (Mo.App.1976), nonetheless we find defendant’s allegation mer-itless. The report substantiates that a photograph was taken of a lineup including Larry Williams and defendant. However, the report confirms the State’s allegation that the victim in the case at bar did not view that lineup. Instead, three other victims viewed this lineup, and Williams testified that he and defendant appeared together twice which Williams described as “one lineup.”

2 . There is conflict in the record as to whether any such photograph existed or if so was in the custody of the State. This conflict could be said to have been resolved favorably for the State by the trial court’s ruling. However, for our purposes we will assume such a photograph existed.

3 . If it were determined that defendant’s arrest was illegal, the suppression sought by defendant was not available. During the chase by Officer Kelley, defendant tossed his cigarette lighter into the snow, where it was subsequently retrieved by the officer. Thus the lighter was not discovered through an “unreasonable search of defendant.” When, as here, a suspect abandons property, dropped during a chase, and it is found, he cannot claim an unconstitutional invasion of his rights. State v. Boykins, 434 S.W.2d 484, 485-486 (Mo. 1968); State v. Hill, 419 S.W.2d 46, 48 (Mo. 1967); State v. Jefferson, 391 S.W.2d 885, 888 (Mo. 1965); State v. Hall, 534 S.W.2d 508, 510 (Mo. App. 1976).

As to the suppression of defendant’s body, it is unclear what defendant requests. If he is asserting that an illegal arrest deprives the trial court of jurisdiction to try the case such assertion must clearly fail. See State v. Moore, 580 S.W.2d 747, 749 (Mo. banc 1979). If, on the other hand, he is asserting that his face is a species of evidence suppressible as “the fruit” of an illegal arrest, this contention must also be rejected. See United States v. Crews, 445 U.S. 463, 477, 100 S.Ct. 1244, 1253, 63 L.Ed.2d 537 (1980).

4 . See § 569.150, RSMo 1978, Trespass in the second degree.

5 . In its brief, the State points out that defendant’s argument misstates portions of the transcript, violative of Rule 30.06(c). We have perused the transcript and found justification in the States criticisms. However, we decline to invoke sanctions on the assumption the misstatement was a mistake, not intentional.

6 . Defendant makes much of the fact that the victim described her assailant as wearing prescription eyeglasses, though his evidence showed that defendant had never’worn glasses. This testimonial conflict was resolved by the jury. Further, the alleged conflict was diluted by the victim’s testimony that her attacker wore glasses initially, but removed them before reaching the alley.

7 . Defendant also maintains in his argument that the sister’s testimony “was largely hearsay,” though he fails to inform this Court in what respect the particular conduct and/or statements of the victim constituted hearsay. He further fails to assert this error in his point relied on. Since the victim was available and subject to cross-examination on her sister’s testimony, we are not shown how prejudice could have resulted. See, State v. Robinson, 484 S.W.2d 186, 189 (Mo. 1972).

8 . Pertinent provisions of the Dangerous Offender Statutes are as follows:

§ 557.036.3:

If the jury returns a verdict of guilty and declares a term of imprisonment as provided in subsection 2 of this section, the court shall proceed as provided in subsection 1 of this section except that any term of imprisonment imposed cannot exceed the term declared by the jury unless: ... (2) The defendant is found to be a persistent or dangerous offender as provided in section 558.016, RSMo, in which case: (a) If he has been found guilty of a class B, C, or D felony, the court shall proceed as provided in section 558.016, RSMo; or (b) If he has been found guilty of a class A felony, the court may impose any sentence authorized for a class A felony.

§ 558.016:

1. The court may sentence a person who has pleaded guilty to or has been found guilty of a class B, C, or D felony to an extended term of imprisonment if it finds the defendant is a persistent offender or a dangerous offender.

* * * * # *

3. A ‘dangerous offender’ is one who: (1) Is being sentenced for a felony during the commission of which he knowingly murdered or endangered or threatened the life of another person or knowingly inflicted or attempted or threatened to inflict serious physical injury on another person; and (2) Has been previously convicted of a class A or B felony or of a dangerous felony.

§ 558.021:

1. The court shall not impose an extended term under section 558.016 unless (1) The indictment or information, original, amended or in lieu of an indictment, pleads all essential facts warranting imposition of an extended term; and (2) After a finding of guilty or a plea of guilty, a sentencing hearing is held at which evidence establishing the basis for an extended term is presented in open court with full rights of confrontation and cross-examination, and with the defendant having the opportunity to present evidence; and (3) The court determines the existence of the basis for the extended term and makes specific findings to that effect.

2. Nothing in this section shall prevent the use of presentence investigations or commitments under sections 557.026 and 557.-031, RSMo.

3.At the sentencing hearing both the state and the defendant shall be permitted to present additional information bearing on the issue of sentence. (Emphasis added.)

9 . Defendant does not allege error respecting the finding of his previous conviction, as this was adequately proved at the sentencing hearing by court records of defendant’s prior plea of guilty.

10 . The jury was instructed that, to find defendant guilty of robbery in the first degree, it must find that in stealing from the victim defendant “threatened the immediate use of physical force on or against” the victim and “displayed or threatened the use of what appeared to be a deadly weapon or dangerous instrument ...”

11 . To convict of rape, the jury was instructed they must find defendant had sexual intercourse with the victim “without her consent by the use of forcible compulsion ...”