State v. Davis, 35398
| Decision Date | 03 December 1974 |
| Docket Number | No. 35398,35398 |
| Citation | 516 S.W.2d 784 |
| Parties | STATE of Missouri, Respondent, v. Frederick Joseph DAVIS, Appellant. . Louis District, Division One |
| Court | Missouri Court of Appeals |
John C. Danforth, Atty. Gen., Preston Dean, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, J. Brendan Ryan, Circuit Atty., David P. McDonald, Asst. Circuit Atty., St. Louis, for respondent.
Daniel P. Reardon, Jr., St. Louis, for appellant.
Defendant was charged with shooting two brothers, Henry and Sam Gipson. A jury found him guilty of the first-degree murder of Henry Gipson and guilty of malicious assault with intent to kill Sam Gipson. The court imposed punishment of two concurrent life sentences, and defendant appeals. We affirm.
The State's case: On the evening of March 11, 1973 Henry and Sam Gipson were in a restaurant/lounge in St. Louis. The defendant walked in, accosted Henry Gipson and shot him three times. Henry later died. When Sam Gipson intervened, defendant shot Sam twice. Sam continued to grapple with the defendant and struck his face, but Sam's strength soon failed. The defendant fled.
Two customers described defendant to police and later identified him in a lineup and in court. Sam Gipson also identified defendant as the assailant. Defendant interposed and alibi defense and attributed his bruised face to an assault suffered the night of the crime but some distance away.
On appeal, defendant contends the court erred in (1) admitting in-court identification testimony based upon assertedly improper line-up procedures, (2) admitting a witness' rebuttal testimony and (3) denying defendant's motion for new trial on the ground the verdict was against the weight of the evidence.
We may not review the issue of admissibility of identification testimony. At the trial's start, defense counsel moved to suppress line-up identification testimony, but withdrew the motion before the court could rule. He did not object to the testimony during trial and did not raise the issue in his motion for a new trial. The issue has not been preserved for review. State v. Jackson, 500 S.W.2d 306(15, 16) (Mo.App.1973); State v. Obie, 501 S.W.2d 513(3) (Mo.App.1973).
The second issue, admissibility of a witness' rebuttal testimony, was not briefed in accordance with Supreme Court Rule 84.04(d), V.A.M.R., made applicable here by Criminal Rule 28.18. The rule declares '. . . points relied on shall state . . . what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous.' Defendant's point relied on merely asserts error in admitting rebuttal testimony, without explanation; it is an abstract statement not in compliance with the Rule and not...
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...conclusions.' Griffith v. State, 504 S.W.2d 324, 327(3) (Mo.App.1974). They preserve nothing for appellate review. State v. Davis, 516 S.W.2d 784, 785(2) (Mo.App.1974); State v. Robbins, 455 S.W.2d 24, 25--26(1) (Mo.App.1970). However, we will examine the points for plain Appellant contends......
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State v. Potter, 10047
...v. Chase, 444 S.W.2d 398, 401(1) (Mo. banc 1969)), and indulge all reasonable inferences favorable to the state (State v. Davis, 516 S.W.2d 784, 785(3) (Mo.App.1974)), bearing in mind that in a cause such as this where the conviction depends upon circumstantial evidence, the circumstances m......
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Search Warrant of Property at 3552 Gravois, Matter of, s. 36082
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