State v. Cosby, s. 69759

• Decision Date: 02 June 1998
• Docket Number: 72558,Nos. 69759,s. 69759
• Citation: 976 S.W.2d 464
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Brian COSBY, Defendant/Appellant. Brian COSBY, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
• Court: Missouri Court of Appeals

Page 464

976 S.W.2d 464

STATE of Missouri, Plaintiff/Respondent, v. Brian COSBY, Defendant/Appellant.

Brian COSBY, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.

Nos. 69759, 72558.

Missouri Court of Appeals,

Eastern District,

Division Two.

June 2, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 26, 1998.

Application for Transfer Denied Oct. 20, 1998.

Deborah B. Wafer, Asst. Public Defender, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Gregory L. Barnes, Asst. Atty. Gen., Jefferson City, for respondent.

JAMES R. DOWD, Judge.

On August 5, 1994, Brian Cosby was indicted by a St. Louis City grand jury on one count of first degree murder in violation of section 565.020.1 RSMo 1994, two counts of first degree robbery in violation of section 569.020 RSMo 1994, and three counts of armed criminal action in violation of section 571.015 RSMo 1994. On September 26, 1995, Cosby was convicted by a jury of second degree murder, first degree robbery, attempted first degree robbery, and three counts of armed criminal action. Cosby was sentenced by the trial court to a total prison term of life plus twenty years. Cosby then filed a pro se motion for post-conviction relief. This motion, as amended, alleged that Cosby's trial counsel was ineffective and that Rule 29.15 is unconstitutional. This motion was denied without an evidentiary hearing.

In his appeal, Cosby alleges that: (1) the trial court erred in overruling his motion for judgment of acquittal on the robbery count and on the accompanying armed criminal action count, (2) the trial court erred in overruling defense objections to the admission of evidence, (3) the trial court erred in permitting the state to question a defense witness about her testimony as an alibi witness in another murder trial, and (4) the motion court erred in denying his post-conviction motion. We affirm.

In the light most favorable to the verdict, the facts are as follows. As Roger Wiseman was walking home at noon on June 2, 1994, Cosby tapped him on the shoulder and said, "Where's my money?" After Wiseman turned and found Cosby pointing a small silver handgun in his face, Cosby repeated his demand for money. Wiseman noticed that his assailant was wearing a heavy blue coat.

At this point, Brian Jones approached Wiseman, pushed him against a wall, and, with Cosby, began searching his pockets. Wiseman had only keys and business cards in his possession at the time. One or both of the assailants discovered these items, removed them from the victim, and threw them to the ground. Further searching by the assailants confirmed that Wiseman had no money. At this point, Cosby picked up the keys and cards, gave them back to Wiseman, and ordered him to run down the alley.

Later that day, Cosby and Jones saw Wilbert Mehlberg walking down the street. Believing that he was going to cash a check, the two planned on robbing him on his return trip. Thirty minutes later, they observed him returning. Cosby then asked Fred Edwards for the same silver automatic that Cosby and Jones had used in the attempt against Wiseman. The two then attempted to rob Mehlberg. When Mehlberg did not respond to their demands, Cosby pushed him and shot him twice in the back and once in the leg. The two assailants took no money from Mehlberg and ran off. Mehlberg later died of one of the gunshot wounds to the back.

During the police investigation, Wiseman participated in three lineups. In the first lineup, the police brought him to an address and told him to pick out the person on the porch who looked most like his assailant. Wiseman pointed out the person whom he believed most resembled his assailant. Neither Cosby nor Jones were on the porch at the time. In two separate, subsequent lineups, Wiseman identified Jones and Cosby. Wiseman also identified the blue coat that his assailant wore during the incident.

I. Overruling of Motion for Judgment of Acquittal

Cosby contends that the robbery conviction and the accompanying armed criminal action conviction are erroneous because no robbery occurred. According to Cosby, he and Jones attempted to rob Wiseman but found only keys and business cards. Because Cosby did not plan to take these items, he never removed them from Wiseman with the intention of retaining them. He merely moved them out of the way so that he could continue his search through Wiseman's pockets. Cosby's intent not to steal the cards and keys is further shown by his return of the property to Wiseman at the conclusion of the incident. Because he never had the intention to take the cards and keys, he lacked the intent to forcibly steal those items. Consequently, Cosby argues that he could not have committed robbery. We disagree.

Cosby and the state both rely on State v. Bradshaw, 766 S.W.2d 470 (Mo.App. W.D.1989). In that case, a robber took a wallet from the victim, looked through it, informed his accomplices that the wallet contained no money, and returned the wallet to the victim. Id. at 472. The court of appeals held in that case that the robbery was complete when the robber gained control of the wallet, even for a moment. The fact that the robber returned the wallet when no money was found did not retract the crime already completed. Id. at 473. Cosby attempts to distinguish Bradshaw from the instant case by arguing that the robber in Bradshaw intended to take the wallet from the victim and actually did so. In the present case, however, Cosby contends that he never had any intention to take the cards and keys from Wiseman.

The present case cannot be meaningfully distinguished from Bradshaw. Whatever Cosby's motives were for removing the cards and keys from Wiseman, he used the threat of force to steal property from his victim. Even if he only removed these items from Wiseman in order to further search his victim, he still removed the items from the victim with the intention of gaining control of them in disregard of Wiseman's right of possession. This activity constitutes robbery within the meaning of section 569.020.1 RSMo 1994. Point I denied.

II. Evidence of Prior Bad Acts

Cosby also contends that the trial court erred in overruling defense objections and allowing the state to adduce evidence and argue that Fred Edwards had loaned his handgun to Cosby on previous occasions. Cosby contends that this evidence and argument impermissibly involved prior uncharged crimes and bad acts. As a result, Cosby argues that he was denied due process and a fair trial as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution and by Article 1, Section 10, of the Missouri Constitution. We disagree.

As a preliminary matter, Cosby does not distinguish what, if any, uncharged crime this evidence and argument alludes to. The only testimony allowed on this matter concerned occasions in which Edwards loaned his handgun to Cosby for protection purposes. It is not clear what crime Cosby violated by borrowing the weapon. Assuming, however, that this does constitute evidence of prior uncharged crimes or bad acts, Cosby's argument still falls short due to failure to preserve the alleged error and the lack of plain error.

The testimony that Edwards had previously loaned the handgun to Cosby was first presented during the redirect examination of Edwards. At that time, the defense objected on the grounds that the state's question alluded to prior uncharged crimes. The court overruled the objection and allowed the state to elicit testimony that Cosby had previously borrowed the handgun for protection purposes.

The second instance occurred during the direct examination of Jones, at which time the defense failed to object. The third instance occurred during the state's cross-examination of Cosby, at which point the defense objected, but the objection was overruled. Finally, during closing argument, the prosecution reiterated that Edwards had previously loaned the handgun to Cosby. Based on his motion in limine to exclude evidence of uncharged crimes and sporadic objections at trial, Cosby argues that the trial court fully and carefully considered the matter when it was first presented during Fred Williams's testimony and that the matter is preserved for appeal. We disagree.

Despite the pretrial motion, to preserve the issue for appeal, Cosby's counsel needed to object to the testimony at trial. A motion in limine, in and of itself, preserves nothing for appeal. State v. Purlee, 839 S.W.2d 584, 592 (Mo. banc 1992). Failure to object at the earliest opportunity to the admission of evidence or argument of counsel constitutes a waiver of the claim. State v. Borden, 605 S.W.2d 88, 90 (Mo. banc 1980).

In the instant case, testimony was first presented during the redirect examination of Edwards:

PROSECUTOR: Had you ever given the gun to Brian Cosby before?

EDWARDS: Brian Cosby?

PROSECUTOR: Yes.

EDWARDS: Yes, sir.

PROSECUTOR: How many times?

DEFENSE COUNSEL: Objection, your Honor. May we approach.

The prosecutor clarified the question and asked a follow up question before the defense counsel objected. Defense counsel did not object at all to the prosecutor's closing argument. Because defense counsel failed to object to either the testimony or the argument of opposing counsel at the earliest opportunity, the issue is not preserved for appeal.

We nevertheless review for plain error affecting substantial rights resulting in manifest injustice or miscarriage of justice. Rule 29.12. As a general rule, evidence of prior uncharged crimes and prior bad acts are inadmissible for the purpose of showing the propensity of the defendant to commit such crimes. State v. Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993). However, evidence of prior bad acts is admissible if it is both legally and logically relevant. State v. Roberts, 948 S.W.2d 577, 591 (Mo. banc 1997), cert. denied, --- U.S. ----, 118 S.Ct. 711, 139 L.Ed.2d 652 (1998). If the increased probative value of...