State v. McFall

737 S.W.2d 748, 1987 Mo. App. LEXIS 4702
CourtMissouri Court of Appeals
DecidedSeptember 30, 1987
Docket15019
StatusPublished
Cited by15 cases

This text of 737 S.W.2d 748 (State v. McFall) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. McFall, 737 S.W.2d 748, 1987 Mo. App. LEXIS 4702 (Mo. Ct. App. 1987).

Opinion

GREENE, Presiding Judge.

David E. McFall was charged with and jury-convicted of the class D felony of leaving the scene of a motor vehicle accident, § 577.060 1 (Count I), plus the misdemean *750 ors of failure to stop at a stop sign (Count II), and driving a motor vehicle without having a valid operator’s license (Counts III and IV). McFall was court-sentenced, after a finding that he was a prior offender, to five years’ imprisonment for Count I, and one year imprisonment each for Counts II, III, and IV, with the sentences to run consecutively, plus a fine of $2,500. We affirm.

The sufficiency of the evidence to sustain the convictions is not contested on appeal. A review of the record convinces us that the jury was presented with sufficient evidence from which it could have found beyond a reasonable doubt that McFall was guilty of the four charges against him. Viewing the evidence in the light most favorable to uphold the convictions, a brief summary of the facts is as follows.

On August 5,1985, at approximately 9:00 p.m., McFall was seen driving a 1979 Mercury Cougar automobile west on Mount Vernon Street in Springfield, Missouri. The automobile, traveling at a high rate of speed, failed to obey a stop sign at the intersection of Mount Vernon Street and West Bypass and struck a 1983 Chevrolet Chevette automobile being driven north on the Bypass by Curtis Mulholland. Mulhol-land was severely injured and his passenger, Edward Beitlich, died as a result of the collision. McFall was also injured in the accident, suffering a head cut which apparently bled profusely, since a considerable quantity of blood was found in the interior of his car. Moments after the accident, McFall was seen fleeing the scene on foot.

John David Bishop, Curtis Mulholland’s stepfather, happened to be traveling through the intersection in question shortly after the accident occurred and recognized Curtis’ car. Bishop who was acquainted with David McFall, through a brother of McFall’s, saw McFall standing near the rear of the wrecked Cougar, and then saw McFall flee on foot. Bishop told the authorities he recognized “Dave” McFall, and also recognized the McFall automobile.

Two eyewitnesses of the collision, Warren Robertson and Earl Wallace, after viewing a police photographic lineup, identified McFall as the driver of the Mercury Cougar at the time of the accident. A third eyewitness, State Highway Patrolman Billy Chadwick, after viewing the same photographic lineup, identified McFall as the person who fled on foot from the scene.

McFall was apprehended on August 31, 1985, after he was seen driving an automobile that did not have a current license plate visible. It was stipulated at trial that McFall did not have a valid license to operate a motor vehicle on either August 5 or August 31, 1985.

Blood samples taken by police from a shop towel found in the Mercury were compared by John Revell, a forensic serologist employed by the Springfield Police Department, with blood samples taken from McFall’s body after he was arrested. Re-vell testified, over objection, that approximately 5 people out of 10,000 would have the comparative counterparts of the two samples.

McFall’s defense was that he was not driving the Mercury Cougar at the time of the accident, but that someone else was. The jury evidently chose not to believe him.

McFall’s first claim of error is that a photographic lineup shown to state’s witnesses Warren Robertson, Earl Wallace, and Billy Chadwick was impermissibly suggestive, and that their identification of a photograph of McFall, shown to them by the Springfield police a few days after the accident, tainted their in-court identification of him as the driver of the Mercury Cougar.

At the time of the accident, Warren Robertson was driving south on West Bypass and noticed that a Mercury Cougar traveling west at a high rate of speed on Mount Vernon appeared not to be preparing to stop at the intersection stop sign. Robert son saw McFall’s Mercury crash into Mul-holland’s Chevrolet automobile. Robertson stopped his car, “went up to the car that went through the sign,” and “talked to the driver to see if he was injured.” He observed the person for “a minute, minute *751 and a half.” Robertson saw the driver of the Mercury get out of the car, and described him as about 510* in height, 160-180 pounds, with a full beard, dark hair, and a head wound. In court, Robertson identified McFall as the person he had seen driving the Mercury Cougar.

Earl Wallace testified that as he was driving south on Bypass 18 on the evening in question, he saw a “silver-grayish” car going west on Mount Vernon at a high rate of speed. Wallace saw the Cougar run through the stop sign and hit “a blue Che-vette” which was north bound on the Bypass. Wallace went to a nearby home to call for an ambulance, and came back to the scene. He saw a man who had shoulder length “[s]andy brown hair” get out of the gray car and walk away. In court, he identified McFall as being that man.

Billy Chadwick, a trooper with the Missouri State Highway Patrol, was in the vicinity of the accident scene when the collision occurred. When he heard on the scanner in his vehicle that an accident had occurred at the intersection of Mount Vernon and West Bypass, he drove to that intersection, arriving within 30-45 seconds. Shortly after he parked his patrol car, Chadwick saw “a medium-to-large size man with shoulder length hair and blood running down the right side of his face” run in front of the patrol car. Chadwick later identified a picture of McFall, which was part of a collage of four pictures introduced into evidence as state’s exhibit 25, as a picture of the man who had run in front of his patrol car on the night in question.

Robertson, Wallace, and Chadwick testified at a suppression hearing that they were shown the photographic array a short time after the accident and that the police asked them if they could identify any one of the pictures as the man they had seen at the scene on the night of the accident. All three testified that no one suggested or implied that the picture of McFall was a picture of the man who was involved in, and fled the scene of, the accident.

Police Officer Arthur Crist, who had shown exhibit 25 to the three witnesses, said, “They were told that we were investigating the accident itself, and they weren t told anything except that if they could identify anybody in the photographs. They were not told that the alleged suspects were in the photographs.”

In his point relied on, McFall fails to state what was “impermissibly suggestive” about the photo lineup, thus violating the “wherein and why” requirement of Rule 30.06(d). Therefore, the point was not properly preserved for appellate review. Even if it had been, the point has no merit. In considering out-of-court identifications, a two-step analysis is required. First, the police procedures used are considered to determine if they were impermissibly suggestive. Second, if such procedures were impermissibly suggestive, then the inquiry turns to whether the in-court identification was reliable and could have stood on its own without the benefit of the prior viewing of a lineup. State v. Toney, 680 S.W.2d 268, 275 (Mo.App.1984).

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Bluebook (online)
737 S.W.2d 748, 1987 Mo. App. LEXIS 4702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcfall-moctapp-1987.