State v. Tomizoli

519 S.W.2d 713, 1975 Mo. App. LEXIS 1915
CourtMissouri Court of Appeals
DecidedFebruary 3, 1975
DocketNo. KCD 27052
StatusPublished
Cited by6 cases

This text of 519 S.W.2d 713 (State v. Tomizoli) 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. Tomizoli, 519 S.W.2d 713, 1975 Mo. App. LEXIS 1915 (Mo. Ct. App. 1975).

Opinion

TURNAGE, Judge.

Defendant appeals his conviction of robbery in the first degree. He was found guilty by a jury which assessed his punishment at twenty five years in prison; this was reduced by the trial court to fifteen years.

The events leading to defendant’s conviction had their genesis in a robbery occurring at the U-Totem Store on East Ninth Street, Kansas City, Missouri, on December 22, 1972. At that time, Lillian Schwenk was the lone clerk in such store. With no other customers in the store, a man entered at about 12:45 P.M. and proceeded to the beer cooler. He then went to the check out counter carrying a six-pack of beer. Mrs. Schwenk was standing behind the counter and after ringing up the beer sale, raised her eyes to ask the man if he desired to purchase anything else and found herself looking into the barrel of a small hand gun.

At this time the store was well lighted and the man was standing immediately across the counter from Mrs. Schwenk with no covering over his face. She described the gun as a small shiny pistol with a white handle.

[714]*714While pointing the gun at Mrs. Schwenk, the man told her he wanted money and she gave him about $33.00 from the cash register, part of it being in coins. He stated he also wanted cigarettes, and seeing a watch displayed which he liked, ordered her to give it to him. Mrs. Schwenk gave him a carton of cigarettes with a Lucerne watch in a watch case. While Mrs. Schwenk was getting the watch, the man reached over the counter and took a Ron-son cigarette lighter, also in a box. The man then told Mrs. Schwenk to stand by the register, and when he reached the door, told her, “I do not want to shoot you, but I will”. The man got into a dirty station wagon, which had been parked with the back toward the store and immediately in front of the front door. Mrs. Schwenk was able to see the license plate on this automobile and as the man got in she wrote the number on a piece of paper on the counter.

Mrs. Schwenk stated the man was in the store from five to six minutes during which he was standing just across the width of a counter from her, and the store was very brightly lit. Shortly after the man left the store, the first police officers arrived at the store and Mrs. Schwenk gave them the license number she had written down, together with a description of the man who had committed the robbery. She described him as being real skinny, medium height, and rather weatherbeaten. She also stated he was wearing dark trousers and a green jacket and he had put the small items he had obtained in the jacket pocket.

About 2:00 P.M. on the same day, two officers of the Kansas City Missouri Police Department saw a station wagon parked at Ninth and Hardesty in Kansas City, Missouri, bearing the license number which Mrs. Schwenk had given. These officers “staked out” the car and after waiting only about five minutes, observed two men and one woman emerge from a house and enter the station wagon. The officers called for another car to assist and began following the station wagon, and as soon as the other police car arrived, the station wagon was stopped. The defendant was riding in the front passenger seat and was told to get out of the car along with the other occupants. The officers advised the defendant he was under arrest for robbery and proceeded to search him. A shiny gun with a white handle, later found to be a blank pistol, was found in the defendant’s right front coat pocket. The defendant was also wearing a Lucerne watch, and a watch case for such watch was found under the driver’s side of the vehicle, together with an unopened carton of cigarettes. The lady in the car handed one of the officers a Ronson cigarette lighter and took one of the officers to her home where she handed him some coins which the defendant had given to her children when he had come to her home about noon on that day. This lady testified in behalf of the defendant and stated the defendant had been at her home early on that morning and had left and returned about noon at which time he gave her the cigarette lighter for a Christmas present. She noticed at the time he was wearing a new watch, later found to be a Lucerne.

The defendant was taken to the police station and after being given the Miranda warning, both orally and by signing a statement to that effect, gave to the police a full statement admitting his perpetration of the robbery. After giving the statement, the police arranged for Mrs. Schwenk to attend a line-up at police headquarters at about 5:00 P.M. on the same day, in which the defendant appeared with three other men. Mrs. Schwenk was given a card with numbers on it and she was asked to simply circle the number of the person she identified as the robber. She circled the number corresponding to the defendant.

At trial, Mrs. Schwenk identified the defendant as he was sitting at the counsel table and stated she had absolutely no doubt he was the man who had committed the [715]*715robbery. She also testified to the line-up and of her identification of the defendant there.

Defendant’s first point on this appeal is the action of the trial court in overruling his motion to suppress the pre-trial identification made by Mrs. Schwenk because it was made under circumstances so suggestive as to deprive the defendant of his constitutional guarantees.

The defendant relies on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). Defendant’s principal contention that the line-up was made under suggestive circumstances rests on his assertion that defendant was the only man in the line-up with a weatherbeaten face. Defendant points to no action on the part of any of the police officers suggesting to Mrs. Schwenk that she identify the defendant at the line-up, nor does he point to any other evidence indicating any leads, hints or actions by the police, or anyone else, which tainted her identification.

This court had recent occasion to speak on the subject of a line-up and the law concerning its proper conduct in State v. Ealey, 515 S.W.2d 778 (Mo.App.1974). There the applicable United States Supreme Court decisions were discussed. This court there noted the absence of any evidence showing any improper suggestions, leads, hints or actions by the police which tainted the identification. The test of the totality of the circumstances was discussed and it was concluded that the identification procedures utilized were fair and this, coupled with the all important independent basis for the in-court identification, showed the identification to have been properly made. The only real contention the defendant makes here is the absence of other men in the line-up with weatherbeaten faces. In Gaitan v. State, 464 S.W.2d 33 (Mo.1971) our Supreme Court stated: “[pjersons in a line-up cannot be identical, and to say that one was darker or taller than another does not establish unfairness”. It is obviously impossible for the police department to arrange a line-up consisting of persons who all have exactly the same physical characteristics or who may be wearing the same color and style of clothing as described by the victim of a crime. Under the holding in Gaitan,

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541 S.W.2d 327 (Missouri Court of Appeals, 1976)
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540 S.W.2d 167 (Missouri Court of Appeals, 1976)
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536 S.W.2d 523 (Missouri Court of Appeals, 1976)
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535 S.W.2d 602 (Missouri Court of Appeals, 1976)
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524 S.W.2d 449 (Missouri Court of Appeals, 1975)

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Bluebook (online)
519 S.W.2d 713, 1975 Mo. App. LEXIS 1915, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tomizoli-moctapp-1975.