State v. Weekly

728 S.W.2d 664, 1987 Mo. App. LEXIS 3864
CourtMissouri Court of Appeals
DecidedMarch 31, 1987
DocketNo. 50996
StatusPublished
Cited by1 cases

This text of 728 S.W.2d 664 (State v. Weekly) 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. Weekly, 728 S.W.2d 664, 1987 Mo. App. LEXIS 3864 (Mo. Ct. App. 1987).

Opinion

KAROHL, Judge.

Defendant was charged and convicted of two counts of sodomy, § 566.060 RSMo Cum.Supp. 1984 and one count of felonious restraint, § 565.120 RSMo 1978. As a pri- or and persistent offender he was sentenced by the court to serve consecutive sentences on each count totaling 63 years.

Defendant claims to be entitled to a new trial because: (1) identification testimony of the complaining witness was the product of suggestive pre-trial identification procedures; (2) the court admitted “expert” testimony matching rock pebbles from the crime scene to similar pebbles found on defendant’s boots, but such evidence is not based on a reliable and recognized scientific basis; and, (3) the court refused to permit the jury to have the benefit of an admitted defendant’s exhibit, constructed during cross-examination of a state’s witness, during its deliberations.

This appeal does not question the sufficiency of the evidence. The complaining witness positively identified the defendant in a pre-trial lineup and at trial. She testified that on October 16, 1984, at approximately 6:45 a.m., she was walking from her home to school. Defendant forced her into a storage room under a highway viaduct. He there struck her, forced her to undress and committed one act of manual and one act of oral sodomy. The activities were interrupted by a passerby who testified, but was unable to identify defendant. The complaining witness testified that defendant was dressed in brown work clothing and the passerby testified that the assailant drove a white tow truck from the scene.

The passerby assisted the complaining witness and returned her to her home. Thereafter, the complaining witness and her mother reported the incident to the police. Between the location of the crime scene and defendant’s place of employment, a school crossing guard recognized the defendant who was then wearing brown clothing and driving a white tow truck. Later the same day the complaining witness identified defendant at a lineup as the responsible party.

Defendant did not testify, but presented an alibi defense. Defendant relied on the testimony of Vincent Branigan, a co-employee. Defendant routinely furnished Branigan a ride to work and usually arrived at 6:15 a.m., but on the day in question defendant arrived at 6:55 a.m. The driving time from the defendant’s home to Branigan’s home is about five minutes. The scene of the crime lies between defendant’s home and Branigan’s home.

The description provided by the complaining witness of her assailant was broadcast on police radio. In response a crossing guard attached to the Pagedale Police Department informed Sergeant Adler of the Wellston Police Department that defendant matched the description. Sergeant Adler [666]*666telephoned defendant at defendant’s place of employment and requested defendant to come to the Wellston Police Department. Defendant arrived at 10:15 a.m. and was given Miranda warnings. There is no evidence that the warnings were associated with an arrest.

Sergeant Adler informed Weekly that he was implicated in a reported assault. Weekly denied knowledge of the event and claimed that a co-worker would provide an alibi. The defendant was then conveyed to the St. Louis County Police Department in Clayton.

The St. Louis County investigation was conducted by Detective Reinhardt. Prior to that investigation defendant signed a waiver of Miranda rights and consented to a search of his home. At that time defendant was not dressed in brown work clothes. He had left work and returned home to change clothes before he received the call from Sergeant Adler. Detective Reinhardt drove defendant to his home where defendant was permitted to locate and produce the clothing he had worn to work earlier that day. Subsequently defendant surrendered his work boots to Reinhardt and was placed in the lineup at which the complaining witness made the identification.

Appellant’s first point contends that police authorities had no probable cause for arrest; that the lineup identification and therefore the trial identification is the product of an unlawful arrest and should have been suppressed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); State v. Thomas, 491 S.W.2d 328 (Mo.1973).

We reject defendant’s claim for two independent reasons. First, the evidence does not clearly support a finding that defendant was arrested prior to the lineup. Defendant voluntarily responded to Sergeant Adler’s request to come in and discuss the matter. He denied involvement and claimed a valid alibi. He cooperated in all respects with Sergeant Adler and with Detective Reinhardt. Detective Reinhardt did testify that during the investigation and before the lineup, defendant was under arrest, but Detective Reinhardt was not asked to describe when and by whom an arrest was made. He did not testify that he had arrested the defendant. He permitted the defendant to leave his presence at the defendant’s home to secure and surrender clothing. There is no evidence that defendant was not free to leave or resist the procedures either at the local police station or at the St. Louis County Police Department.

Second, there was probable cause to arrest without warrant based on the identification of the crossing guard that defendant was seen in the vicinity of the scene of the crime wearing clothing similar to that of the responsible party and driving a white tow truck furnished by his employer.

The violator was driving a white tow truck. Probable cause to arrest without warrant depends upon the particular circumstances and particular offense involved, the question being determined by factual and practical considerations of everyday life on which reasonable and prudent men act. State v. Allen, 684 S.W.2d 417, 420-422 (Mo.App.1984). See also, State v. Robinson, 484 S.W.2d 186, 189 (Mo.1972). Whether probable cause exists for an arrest is a pragmatic question to be determined on the facts of each case. State v. Cole, 662 S.W.2d 297, 302 (Mo.App.1983). Sergeant Adler had information conveyed by the crossing guard which suggested defendant was a reasonable suspect. This situation was the subject matter of Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). The court there held that police are entitled to act upon communications through official channels. Id. 401 U.S. at 568, 91 S.Ct. at 1037. The combination of the description of the complaining witness of her assailant, the type of vehicle described by the passerby, and the identification by the crossing guard that defendant was wearing the type of clothing and operating the type of vehicle previously described constitutes probable cause for arrest, if a de facto arrest occurred prior to the lineup. In the present case there is no complaint that the lineup itself was defective or suggestive and the identification was unequivocal. The complaining witness saw her attacker before the events and conversed with the man face to face prior to the attack. Extensive [667]

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Related

Weekly v. State
759 S.W.2d 312 (Missouri Court of Appeals, 1988)

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Bluebook (online)
728 S.W.2d 664, 1987 Mo. App. LEXIS 3864, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-weekly-moctapp-1987.