State v. Green, 12680
| Decision Date | 22 February 1983 |
| Docket Number | No. 12680,12680 |
| Parties | STATE of Missouri, Respondent, v. Albert GREEN, Appellant. |
| Court | Missouri Court of Appeals |
John D. Ashcroft, Atty. Gen., John M. Morris, III, Asst. Atty. Gen., Jefferson City, for respondent.
Richard T. Martin, Martin & Harned, Gainesville, for appellant.
Charged as a persistent offender under § 558.016-2 1, defendant was jury-convicted of second degree burglary, a class C felony per § 569.170, and stealing, a class C felony per § 570.030. He was court-sentenced to imprisonment on each crime for a term of 10 years to run consecutively. Defendant appealed.
On appeal defendant has two points relied on: (1) Defendant was notified only two days before trial that the state intended to amend its information to state the charged crimes occurred August 24, 1981, rather than August 25, 1981, as originally alleged, and the trial court erred in denying his motion for continuance to permit him to secure attendance of alibi witnesses for the new date and (2) the trial court erred in overruling defendant's motion to suppress the identification testimony of Kenneth Coats and in overruling his trial objections to such testimony because the testimony was impermissibly tainted with suggestive police procedures making the in-court identification highly unreliable and extremely prejudicial, thereby depriving defendant of a fair trial.
Whether or not an application for a continuance because of defendant's inability to present witnesses should be sustained is within the sound discretion of the trial court. Rules 24.09 and 24.10 require that applications for continuances on account of absent witnesses be in affidavit form and show certain particulars. The "Motion for Continuance" filed on defendant's behalf was not verified, neither did it undertake to show who the absent witnesses might be. It only averred that said unidentified witnesses would testify "that defendant was in Kansas City, Kansas on August 24, 1981 at the time the crime was committed." The motion was likewise deficient in not stating any grounds for believing the appearance or testimony of the alleged but unidentified witnesses could be obtained within a reasonable time. The motion was deficient not only as to form but as to substance and the trial court did not abuse its discretion in denying a motion that came so far from complying with the applicable rules. State v. McGinnis, 622 S.W.2d 416, 420[6, 7] (Mo.App.1981). "A 'very strong showing' is required to induce an appellate court to interfere with a trial court's ruling on a request for a continuance." State v. Winston, 627 S.W.2d 915, 918 (Mo.App.1982). As no such showing was made here, defendant's first point relied on is denied.
Near 9 p.m. August 24, 1981, Kenneth Coats, half-owner of an appliance store in Mountain Grove, and a deputy sheriff was at the police station when advised that someone had broken into the store. Driving his white Ford Bronco with burning headlights, Coats reached the store in "Less than a minute." Mounted on poles at the east and west front ends of the building were two burning mercury vapor "big lights" whose beams were directed on the store for security purposes. Upon reaching the store Coats saw a man, later identified as defendant, coming from the building through a broken plate glass door carrying "two CB radios" and "a videotape player." In the glare of Coats' headlights and the security lights, defendant dropped the radios and tape player he had stolen from the store and ran to the side of the store where Coats stopped him with his vehicle. Defendant tried to hit Coats with a hammer but it was knocked from his hand when he struck the vehicle's CB antenna. This was the second time Coats got a "good look at" defendant. After dropping the hammer, according to Coats, defendant ran to a barbed wire fence behind the store where Coats again pursued and pinned defendant against the fence with the front of his Ford. After a short time, Coats testified, he backed from defendant and the fence because "I didn't want to hurt anybody." Defendant then escaped over the fence.
Ten days after the burglary defendant was in the sheriff's...
To continue reading
Request your trial
-
State v. Fullwood
...384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). See, e.g., State v. Knox, 529 S.W.2d 455, 462 (Mo.App.1975); see also State v. Green, 647 S.W.2d 902, 905 (Mo.App.1983).9 We note with regard to this pretrial confrontation, it has been stated that "it is always necessary to 'scrutinize any pr......
-
State v. Brooks, 13305
...] and a very strong showing is necessary to induce an appellate court to interfere with the trial court's ruling. State v. Green, 647 S.W.2d 902, 904 (Mo.App.1983). As no such showing was made, defendant's point is In another point relied on defendant contends the trial court erred in not c......
-
State v. Casey, 13631
...required to cause an appellate court to interfere with the ruling of the court nisi on a request for a continuance. State v. Green, 647 S.W.2d 902, 903-904 (Mo.App.1983); State v. Winston, 627 S.W.2d 915, 918 (Mo.App.1982). Defendant's first point relied on is Defendant's second and final p......
-
State v. Morin, 18747
...motion for continuance which was deficient in that respect was held not to constitute an abuse of discretion in State v. Green, 647 S.W.2d 902, 903-04 (Mo.App.S.D.1983). Appellant's motion set forth the testimony he expected to adduce from Best. At trial, the prosecutor stipulated to some, ......