State v. Collins
| Decision Date | 21 January 1975 |
| Docket Number | No. 35692,35692 |
| Citation | 520 S.W.2d 155 |
| Parties | STATE of Missouri, Respondent, v. Kirk J. COLLINS, Appellant. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
Donald L. Schmidt, Legal Aid Society of St. Louis, Charles E. Kirksey, Jr., St. Louis, for appellant.
John C. Danforth, Atty. Gen., K. Preston Dean, III, Neil MacFarlane, Asst. Attys. Gen., Jefferson City, Brendan Ryan, John F. White, St. Louis, for respondent.
Defendant was found guilty by a jury of murder first degree and assault with intent to kill with malice and was sentenced by the court to serve a life term for the murder conviction and 25 years for the assault.
The charges against defendant arose out of an incident which occurred early on the morning of September 19, 1972 when Byron Smith, his brother, Calvin Pitchford, and his brother's girlfriend were walking on McPherson near the intersection of Newstead and McPherson in St. Louis. As the three walked a camper truck approached from the east. Byron Smith stated that he heard shots and saw flashes of fire coming from the truck. Smith and Pitchford were struck by bullets and both men fell to the sidewalk.
Smith remained conscious and was able to observe the camper turn at the corner of Newstead and McPherson and stop. He saw three armed men exit from the rear of the camper and approach Pitchford who was lying on the sidewalk within reach of Smith. Smith recognized Kirk Collins as one of the three men, having seen him at a cousin's house about one week prior to the shooting and again at Smith's own home a few days before the shooting.
Smith testified that one of the men came up to Pitchford and started 'beating him in the head' and another tried to shoot Pitchford but was out of bullets. Finally the defendant shot two bullets into Pitchford's body and the three men returned to the camper and drove away. When defendant fired the two bullets into Pitchford he was standing facing Smith about a foot and a half away, enabling Smith to see him clearly. Pitchford had nine bullet wounds. He may have been dead before the three men left the camper. Byron Smith had seven bullet wounds and was critically wounded.
The initial contention tendered by defendant in his appeal is that the State failed to made a submissible case because the testimony of the prosecution's sole eyewitness, Smith, was so contradictory as to be incredible as a matter of law. An examination of Smith's testimony reveals no inconsistency with respect to his identification of the defendant as one of the men who alighted from the camper following the initial gunfire and approached Pitchford. Throughout the trial Byron steadfastly maintained that it was Kirk Collins who stood over Pitchford and shot him twice. During the trial of the present case Smith was confronted with his testimony in the earlier trial of Theodore Collins in which he appears to have said that Theodore Collins stood over Pitchford and fired two shots at him. Byron explained this apparent discrepancy by stating that he must have misunderstood the question asked on that previous occasion.
It is for the jury to determine what effect the prior inconsistent statement of a witness has upon his credibility. See State v. Spinks, 344 Mo. 105, 125 S.W.2d 60 (1939) (1, 2). The testimony of the victim of an assault, identifying the assailant based on a face to face confrontation with him, constitutes substantial evidence of guilt and where such evidence exists the jury must weigh it and assess the effect of inconsistencies in the testimony. State v. Austin, 496 S.W.2d 799 (Mo. banc 1973) (1). Such is the situation in the present case.
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State v. White, 62324
...289 (Mo. 1963); State v. Johnson, 347 S.W.2d 220, 222 (Mo. 1961); State v. Thomas, 595 S.W.2d 325, 328 (Mo.App. 1980); State v. Collins, 520 S.W.2d 155, 157 (Mo.App. 1975). Cf. State v. Lute, 608 S.W.2d 381 (Mo. banc 1980). Where, as in the present consideration, the wording of a new statut......
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State v. Mitchell, 61839
...to bring about." State v. Goodman, 482 S.W.2d 490, 492 (Mo.1972); State v. Thomas, 595 S.W.2d 325, 328 (Mo.App.1980); State v. Collins, 520 S.W.2d 155, 157 (Mo.App.1975). Cf. State v. Dodson, 556 S.W.2d 938, 950 (Mo.App.1977); State v. Lute, 608 S.W.2d 381 (Mo. banc 1980). In paragraph No. ......
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State v. Davis
...witnesses do not justify relief as plain error unless they are determined to have had a decisive effect on the jury. State v. Collins, 520 S.W.2d 155, 157 (Mo.App.1975). In Granberry, supra,% it is not clear whether timely and proper objections were made to the argument of the prosecutor. T......
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State v. Toney
... ... State v. Shepherd, 494 S.W.2d 53 (Mo.1973) (1); State v. Elmore, 467 S.W.2d 915 (Mo.1971) (3).' State v. Collins, 520 S.W.2d 155, 157(4, 5) (Mo.App.1975). Here the remarks now objected to were responsive to argument of appellant's counsel, the matter was not dwelt on at length or urged repetitively. Viewing this relatively minor incident in the light of the entire trial proceedings and the evidence ... ...