State v. Claypool, 53784

• Decision Date: 06 December 1988
• Docket Number: No. 53784,53784
• Citation: 763 S.W.2d 313
• Parties: STATE of Missouri, Respondent, v. Edward CLAYPOOL, Appellant.
• Court: Missouri Court of Appeals

Page 313

763 S.W.2d 313

STATE of Missouri, Respondent, v. Edward CLAYPOOL, Appellant.

No. 53784.

Missouri Court of Appeals,

Eastern District,

Division Two.

Dec. 6, 1988.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Jan. 4, 1989.

Application to Transfer Denied

Feb. 14, 1989.

Michael D. Burton, St. Louis, for appellant.

William L. Webster, Atty. Gen., Christopher M. Kehr, Asst. Atty. Gen., Jefferson City, for respondent.

KAROHL, Judge.

Defendant Edward Claypool was convicted by jury of robbery in the first degree, § 569.020 RSMo 1986, and sentenced as a prior offender to twenty years imprisonment. Defendant claims three points of error. He contends the trial court erred by: (1) allowing a police officer to testify as to extrajudicial witness identifications of the defendant; (2) allowing the officer on redirect to testify as to the victim's account of the crime as recorded in the officer's police report; and, (3) refusing to admit two police reports into evidence. We affirm.

In the early morning of December 25, 1986 two men robbed Leroy Winston at gunpoint. Mr. Winston had parked his car on the street and was walking towards his home when two men approached him from behind, put a gun in his back, and told him to "[b]e still, old man, and you won't get hurt." The two men took Mr. Winston's watch, ring, and wallet, which contained approximately $50. The two men pushed Mr. Winston into his car, drove the car approximately ten blocks, and then let him out of the car. Mr. Winston walked home and sometime after he arrived home his wife called the police.

Two police officers went to Mr. Winston's home later that day to take his statement about the robbery. Mr. Winston told the officers that two men had attacked him and taken $50 in cash. The report did not contain any statement from Mr. Winston that a watch or ring had been stolen. Mr. Winston gave a description of the two men to the police, but he did not say he recognized either of his attackers.

On December 29, 1986, Mr. Winston talked with a third police officer, Detective Brogan, about the crime. This time, Mr. Winston reported several men had attacked him. He also said he recognized the robbers as two men from the neighborhood. Mr. Winston told the officer that one of the men who robbed him was known as "Nookie," or Edward Claypool, the defendant. He also reported that a watch and a ring had been taken along with the money. Mr. Winston told Detective Brogan that at the time of the robbery he had been "nearly scared to death," and had neglected to provide the police with all of this information.

The police later arrested defendant. Mr. Winston identified him in a police lineup. Two of Mr. Winston's neighbors, Cervie Jackson and Juanita Lee, witnessed the robbery. Some months later both identified defendant in a photo array.

At trial, Mr. Winston testified two men robbed him in the early morning of December 25, 1986. He stated there was an overhead streetlight and a porch light on at the time of the robbery giving him sufficient lighting to view his attackers. Mr. Winston identified the defendant as one of the attackers. He also testified the two men had taken a ring, a watch and $50 in cash from him.

Juanita Lee and Cervie Jackson testified. Both women stated they had witnessed the robbery and although their testimony differed as to the time of the robbery, the exact location of Winston's car and which robber pushed Winston into his car, both identified the defendant as one of the men who robbed Mr. Winston. Ms. Lee stated she was looking out of her window a little after midnight and "I seen Nookie [defendant] pushing Leroy [Winston] in the back of the car and his friend jumped in on the other side, and Nookie got in the car and drove off with it." She said the street lights were on, giving her sufficient lighting to view the robbery, and identified defendant. Ms. Jackson testified she looked out of the window at her home and "I saw them putting Leroy [Winston] in the back of the station wagon and closing the door." She stated she recognized defendant as one of the men who robbed Mr. Winston. Ms. Jackson testified the robbery had occurred at approximately 8:30 or 9:30 in the evening of December 24, 1986.

Detective Brogan testified Mr. Winston had identified defendant in a police lineup and Cervie Jackson and Juanita Lee had identified defendant in a photo array. Brogan also testified that after arresting defendant, the police seized a watch from him, and Mr. Winston identified the watch as the one which was taken from him on December 25, 1986. On redirect, Brogan testified about some of the statements contained in his police report, including statements from Mr. Winston regarding the identity of the men who robbed him and what items were taken during the robbery.

Defendant's first claim on appeal is that the trial court erred in permitting Detective Brogan to testify regarding Ms. Jackson and Ms. Lee's extrajudicial identifications of defendant. He claims the testimony of the victim and the two eyewitnesses was contradictory and the officer's testimony improperly bolstered the identification testimony. Defendant relies on State v. Degraffenreid 477 S.W.2d 57 (Mo. banc 1972) as a primary authority. Brogan's testimony was admitted over a hearsay objection. Ms. Jackson and Ms. Lee had previously testified about these same matters. The claimed contradictions related to the time of the crime, the location of Winston's car and which robber pushed Winston into his car. The ladies did not agree on these details. However, the positive identification of defendant by Winston and by both eyewitnesses was not inconsistent or contradictory.

This issue was considered and decided in State v. Harris, 711 S.W.2d 881 (Mo. banc 1986). In Harris, the court stated "[t]here is no logical distinction between the victim's testimony and that of another person. To the extent that the Degraffenreid rule distinguishes these two classes of testimony based on hearsay considerations, the case is no longer followed." Harris, 711 S.W.2d at 884. The Harris court recognized that the primary concern involving third party testimony of suspect identification is that such testimony may bolster the identifying witness' testimony, but held that when the third party is subject to cross-examination such testimony is not inadmissible. Id. at 883-85. See also, State v. Lloyd, 750 S.W.2d 589, 591-92 (Mo.App.1988); State v. Farmer, 719 S.W.2d 922, 925-27 (Mo.App.1986).

A police officer may testify, without improperly bolstering witness testimony, about an identification made by a witness if the officer viewed the identification procedure. State v. Acklin, 737 S.W.2d 743 (Mo.App.1987). In Acklin, the trial court allowed the prosecution to admit into evidence a show-up report utilized by a witness who made an extrajudicial identification. A police detective testified regarding the contents of the report. The objection was hearsay and bolstering. The court rejected the argument solely on the authority of Harris. Id. at 748.

Here, Detective Brogan witnessed the photo identification of the defendant by both Ms. Lee and Ms. Jackson. He was therefore competent to testify as to the identifications. Both ladies were previous trial witnesses. Defendant had the opportunity to cross-examine the identification witnesses and Detective Brogan. Brogan's testimony did not improperly bolster the identification testimony of Ms. Lee and Ms. Jackson. Nor did it deprive defendant of the contention that the identifications were arguably suspect because of related "contradictions" because: (1) Winston and the identification witnesses all knew the defendant from the neighborhood, and (2) the testimony of Brogan did not rebut any inconsistencies. The...