State v. Atkins

• Court: Missouri Supreme Court
• Writing for the Court: BARDGETT; HOLMAN, P.J., and FINCH; SEILER
• Citation: State v. Atkins, 494 S.W.2d 317 (Mo. 1973)
• Decision Date: 14 May 1973
• Docket Number: No. 57302,No. 1,57302,1
• Parties: STATE of Missouri, Respondent, v. David ATKINS, Appellant

Page 317

494 S.W.2d 317

STATE of Missouri, Respondent, v. David ATKINS, Appellant.

No. 57302.

Supreme Court of Missouri, Division No. 1.

May 14, 1973.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.

James W. Huck, Public Defender Bureau, St. Louis, for appellant.

BARDGETT, Judge.

Defendant-appellant David Atkins was found guilty of murder in the second degree, a felony, by a jury which assessed punishment at fifty years' imprisonment. The court entered judgment accordingly and defendant appeals. Notice of appeal was filed prior to January 1, 1972. This court has jurisdiction. Mo.Const., Art. V, § 31(4), as amended 1970, V.A.M.S.

Defendant does not question the sufficiency of the evidence.

On the evening of March 5, 1970, in an area known as the Wellston Loop which is located just to the west of Hodiamont Avenue, between Easton and Theodosia Avenues, in St. Louis, Missouri, Adam Shelton, Sr., was stabbed several times and died as a result thereof. Defendant was charged with first-degree murder and as stated was convicted of second-degree murder.

Defendant maintains two points on this appeal.

The first point is: 'It was error for the Court to overrule the defendant's objection to Detective James Dowd's testimony in which he stated that a witness (John Simmons) who did not testify at the trial had picked the defendant out of a police lineup as one of 'the people . . . having participated in that fatal stabbing.''

Defendant testified at trial and admitted that he and two of his companions were involved in a fight with the deceased and admitted he may have kicked deceased; however, defendant denied having a knife, denied stabbing the deceased, and denied seeing the deceased stabbed by anyone. One of defendant's witnesses and two of the state's witnesses testified that John Simmons was present. During the direct examination of Detective James Dowd by the prosecutor concerning a lineup conducted March 7, 1970, the following occurred:

'Q. Now, did anyone in your presence identify any of the people in that lineup as having participated in that fatal stabbing?

A. Yes.

Q. Could you name anyone who did?

A. Adam Shelton, Jr., a witness by the name of Lang, and a witness by the name of Simmons.

MR. HUCK (defense counsel): Objection, Your Honor. No foundation laid this man was even there.

THE COURT: What is your objection?

MR. HUCK: No foundation laid this man was ever even there.

THE COURT: What man?

MR. HUCK: Mr. Simmons.

THE COURT: Overruled.'

Defendant contends the testimony of Detective Dowd was prejudicial hearsay and places principal reliance on State v. DeGraffenreid, 477 S.W.2d 57 (Mo.Banc 1972) and State v. Wynee, 353 Mo. 276, 182 S.W.2d 294 (1944). The testimony complained of was hearsay and under the holding in State v. DeGraffenreid, supra, was objectionable as hearsay. In the instant case, there was no objection to either of the two questions quoted above even though both questions called for a hearsay answer. Furthermore, when an objection was made, it was made to an isolated portion of the answer given by the witness and the objection was not even remotely based on hearsay grounds.

The court will not review this assignment of error on hearsay grounds because the assignment raises an objection not made at the time the testimony was given. State v. Hale, 371 S.W.2d 249, 253 (Mo.1963), State v. Hernandez, 325 S.W.2d 494, 496 (Mo.1959). The point is overruled.

Defendant's second point is: 'It was error for the trial court not to allow the defendant to introduce into evidence for impeachment purposes the testimony given by Adam Shelton, Jr., and Armon Lang in a deposition taken in a companion case when the State of Missouri had stipulated to the use of said depositions.'

Depositions of state witnesses Adam Shelton, Jr., and Armon Lang were taken in a companion case. These depositions were used by defense counsel in the cross-examination of Shelton, Jr., and Lang for the purpose of asking the witnesses if they had made the prior statements and thereby laying the proper foundation for the admission into evidence of the prior statements the witnesses did not admit to having made. In this case each of the two witnesses, after having the alleged prior inconsistent statements read to them, and being asked if he made each particular statement, responded by admitting to having made some statements and denying or not recalling having made others. During the presentation of defendant's case, defense counsel desired to read to the jury certain questions and answers from the two depositions on the basis that they were contradictory to the witnesses' testimony at trial and the witnesses did not admit to having made the statements attributable to them in the depositions. In this connection, defense counsel stated, '. . . I want to prove by use of these depositions that these boys actually did say what yesterday I said (they) said.' This statement referred to defense counsel's cross-examination of these two witnesses during which he read certain deposition questions and answers to the witnesses and asked if they had made the statements read to them from the deposition. Defense counsel made an offer of proof by reading into the record the deposition questions and answers which he desired to read to the jury. The court sustained the prosecutor's objection to the offer on the grounds that Rule 57 sets forth the circumstances under which depositions may be read into evidence and none of...