State v. Felton, 38206
| Decision Date | 23 January 1979 |
| Docket Number | No. 38206,38206 |
| Citation | 579 S.W.2d 636 |
| Parties | STATE of Missouri, Respondent, v. Michael Edward FELTON, Appellant. |
| Court | Missouri Court of Appeals |
Richardson & Carnasiotis, Scott Richardson, St. Louis, for appellant.
John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Gordon L. Ankney, Asst. Pros. Atty., Clayton, for respondent.
A jury found defendant Michael Felton guilty of robbery and rape. As a prior felon, defendant was sentenced by the court to imprisonment for concurrent terms of ten and twenty-five years. On appeal, defendant first contends the court erred in admitting his photograph into evidence because it was not disclosed before trial. Defendant also contends the court coerced the jury during prolonged deliberations.
We consider defendant's objection to the identifying photograph in the light of the state's evidence: Defendant burglariously entered the victim's home, raped her and stole money orders. A bystander saw defendant approaching the home and the victim viewed him when raped. Both witnesses identified defendant from a photographic display, a police lineup and in court. Later, on the day of the offenses, an unidentified man using defendant's driver's license, cashed a stolen money order while buying shoes. The defense was alibi.
As said, defendant complains of the undisclosed use of an identification card bearing his photograph that came in during his evidence. On direct examination the victim had described defendant's clothing, one item being an off-white, short-brimmed hat. The challenged photograph first came into question during the state's cross examination of a defense witness, a police officer who testified defendant carried the photograph when arrested. It was so identified but not then offered. Next, on cross examination defendant said he never wore hats, but the photograph did show him wearing a light-colored, short-brimmed hat, just as the victim had testified. Defendant objected to the photograph on the ground it had not been disclosed in response to his purported request for discovery.
We find no error in the trial court's having admitted the photograph over the objection of non-disclosure. First, defendant's transcript contains no requests for disclosure, so we decline to speculate on the alleged non-disclosure. There is no adequate basis for considering defendant's appellate contention. State v. Simpson, 529 S.W.2d 19(1, 2) (Mo.App.1975). Second, from counsels' colloquy the trial court could have concluded that before trial the state did make available to defendant all of his personal effects, which included the challenged photograph. We find no wrongful non-disclosure. Compare State v. Gadbury, 558 S.W.2d 426(3) (Mo.App.1977). In sum, the...
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Felton v. State, 53910
...was convicted in 1976 of robbery and rape and sentenced to a total of twenty-five years imprisonment. We affirmed in State v. Felton, 579 S.W.2d 636 (Mo.App.1979). In his Rule 27.26 motion, movant alleges that his counsel was ineffective in failing to preserve alleged error in his trial for......