Johnson v. State, 39689
| Decision Date | 21 November 1978 |
| Docket Number | No. 39689,39689 |
| Citation | 574 S.W.2d 936 |
| Parties | Harold Count JOHNSON, Appellant, v. STATE of Missouri, Respondent. . Louis District, Division Four |
| Court | Missouri Court of Appeals |
Doris Gregory Black, St. Louis, for appellant.
John D. Ashcroft, Atty. Gen., Paul Robert Otto, Stanley H. Robinson, Weldon P. Perry, Jr., Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Robert S. Adler, Asst. Pros. Atty., Clayton, for respondent.
Harold Count Johnson was found guilty by a jury of stealing property of a value over $50.00 and sentenced to imprisonment for a term of five years. 1
In this appeal Johnson contends that the trial court erred in nine respects. As appellant's eighth and ninth points challenge the sufficiency of the evidence, we shall consider them first.
Specifically, the eighth and ninth points relied on by the appellant contain the allegation that the trial court erred in overruling his motion for a judgment of acquittal at the close of the State's case, and at the close of all the evidence.
In reviewing such an issue we are required to interpret the evidence in a light most favorable to the State, drawing all reasonable inferences therefrom in favor of the State. The State's evidence is to be accepted as true, and inferences inconsistent therewith are to be disregarded. State v. Oldham, 546 S.W.2d 766 (Mo.App.1977).
The testimony adduced at trial revealed that the appellant was observed by two witnesses removing a leather coat from the store rack, and later placing it and two other coats in a shopping bag. Appellant was apprehended when he and another attempted to leave the store without paying for the coats.
We affirm the trial court's denial of appellant's motions for acquittal. There was substantial evidence to support the jury's verdict against the defendant.
In his first point, appellant contends that the trial court erred in overruling his objection to the jury panel, for the reason that the jury was not composed of his peers. At the heart of this allegation lies the assertion that the jury was unacceptable because it was composed of middle-aged white people.
At the outset, it must be noted that our State and Federal Constitutions provide that an accused is entitled to a jury which is impartial rather than one which is composed of the defendant's peers. State v. Jackson, 506 S.W.2d 424 (Mo.1974).
There is no evidence in the record which demonstrates that black people were systematically excluded from the panel of jurors sworn at appellant's trial. In fact, the record reveals that the trial court took judicial notice of the system by which the names of prospective jurors are obtained in St. Louis County. The names are furnished from a list of registered voters which is compiled by the St. Louis County Board of Election Commission, and a list of those who are registered to operate motor vehicles and who reside in St. Louis County, which is compiled by the State Director of Revenue.
As there is no substantiation in the record which supports appellant's contention, we rule this point against appellant.
Appellant's second point contains the allegation that the trial court erred in admitting into evidence, on cross examination, the transcript of a defense witness' guilty plea. In an earlier proceeding, the defense witness, Marcus Buckner, pleaded guilty to the crime for which appellant was being tried. The transcript contained a statement by Buckner which implied that he had an accomplice in the theft of the coats.
Appellant contends that the State had a duty under Rule 25 to make the transcript available to the appellant, following receipt of appellant's motion to produce written and recorded statements of a defendant or codefendant.
We are of the opinion that the State was not required by Rule 25.32 to disclose this impeachment evidence. Rule 25.32 mandates, Inter alia, the disclosure of statements made by the defendant, a codefendant, and prosecution witnesses. Similar discovery statutes which provide for the disclosure of statements of codefendant have been narrowly construed to include statements which are to be introduced at joint trial or which negate the guilt of the accused. § 2.1, ABA Standards Relating to Discovery & Procedure Before Trial, Approved Draft, 1970.
The statement at issue here, however, was neither favorable to the accused nor uttered by a member of the statutory categories enumerated in Rule 25.32. Here the impeachment testimony complained of was that of an accomplice called by the defense, and not a co-defendant. Accordingly, we rule this point against the appellant.
As appellant's third and sixth points share the same factual nexus, they have been consolidated for the sake of cohesive discussion. In his third point, appellant asserts that the trial court erred in admitting into evidence, a shopping bag similar to that used by the appellant in the perpetration of the felony. In his sixth point, appellant contends that the trial court erred in denying his motion for a mistrial following the State's calling of an unendorsed witness to explain the use of the duplicate bag.
These allegations of error stem from the admission into evidence of a duplicate of the shopping bag which was used by the appellant to contain the coats which were stolen from J. C. Penney. Appellant objected to the introduction of said bag because the State's witness identified the bag as the same as that used in the commission of the crime. In response to this objection, the State offered the testimony of an assistant prosecuting attorney to explain the absence of the original shopping bag. The witness testified that at the appellant's second trial, the original shopping bag was discovered missing following a discussion in chambers. The State's witness who had previously identified the bag had not been informed of the disappearance of the original bag.
If demonstrative evidence is not available at the trial, a replica of the absent...
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State v. Weeks, 11178.
...evidence such as photographs, an objection must be made at the earliest opportunity or the point is deemed waived. Johnson v. State, 574 S.W.2d 936 (Mo.App.1978). And, a point advanced on appeal as to the inadmissibility of evidence must be based on the objection as made at trial. State v. ......
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State v. Crews, 40041
...which may be drawn therefrom and reject evidence to the contrary. State v. Green, 575 S.W.2d 211 (Mo.App.1978); Johnson v. State, 574 S.W.2d 936 (Mo.App.1978). If there is substantial evidence to support the finding of the jury, the verdict will not be disturbed on appeal. State v. Fowler, ......
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State v. Acord
...witness's testimony, that replica may, in the discretion of the trial court, be introduced into evidence. See, e.g., Johnson v. State, 574 S.W.2d 936, 939 (Mo.Ct.App.1978) (shopping bag); Smith v. State, 683 S.W.2d 393, 404-405 (Tex.Crim.App.1984) (cash register drawer). We see no evidence ......
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State v. Williams
...to prove larceny. Larceny cases similar to the present case uphold the sufficiency of circumstantial evidence. See Johnson v. State, 574 S.W.2d 936(2) (Mo.App.1978); State v. Garner, 538 S.W.2d 937 (Mo.App.1976), and State v. G'Sell, 497 S.W.2d 882 We hold that the circumstances recited abo......