State v. Hicks, 50163

• Decision Date: 29 July 1986
• Docket Number: No. 50163,50163
• Citation: 716 S.W.2d 387
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Everlee HICKS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 387

716 S.W.2d 387

STATE of Missouri, Plaintiff-Respondent, v. Everlee HICKS, Defendant-Appellant.

No. 50163.

Missouri Court of Appeals,

Eastern District,

Division Eight.

July 29, 1986.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Aug. 27, 1986.

Application to Transfer Denied Oct. 14, 1986.

Frank R. Fabri, St. Louis, for defendant-appellant.

John Munson Morris, Kevin Bradley Behrndt, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

KAROHL, Presiding Judge.

Defendant Everlee Hicks appeals convictions by jury for first degree burglary, § 569.160 RSMo 1978, and sodomy, § 566.060 RSMo Cum.Supp.1982. Hicks was sentenced as a prior offender to two consecutive fifteen year terms of imprisonment.

Defendant Hicks does not contest the sufficiency of the evidence. In the early morning of November 2, 1984, Sujada Pittman was in the bathroom of her apartment in Normandy, Missouri. She heard noises on her patio and thought someone was trying to break in, so she called the police and then a neighbor for help. The intruder entered her apartment. Ms. Pittman was unable to see his face but saw the glint of a gun and could describe his clothing in detail. She testified that her assailant wore gloves, an army jacket, jogging pants, tennis shoes and a dark hat or mask.

After entering her apartment, the intruder came over to Ms. Pittman, put the gun to the back of her head, walked her to a love seat and told her he wanted to "make love" to her. He pushed her to the floor. Ms. Pittman told her attacker that she had called the police. He checked around briefly, then returned to the victim. She was lying on the rug face down and heard a sound as if velcro snaps were being undone. He pushed her robe up, fondled her for a few minutes and placed his fingers on her vagina. There was no penetration, however.

The victim's neighbor, Mr. Person, arrived and rang the doorbell. The intruder made a hasty exit out the patio door. Ms. Pittman let her neighbor inside as Officer Wagster of the Normandy Police Department arrived.

Officer Wagster testified that he responded to this burglary call at approximately 5:18 a.m. He walked up to the apartment, saw Mr. Person and heard the victim's screams. Wagster saw a negro male depart from the patio door. He heard the victim scream that the intruder had a gun. Wagster gave brief chase, ordered the intruder to stop and fired three shots when he did not. The assailant was unharmed and ran out of sight.

Wagster did not get a clear view of the intruder's face, but gave a detailed description of the man's clothing over the radio to other units. Wagster described the man as a negro male, approximately 5'6"' and 140 pounds, wearing a hood, dark jacket, blue jogging pants and white tennis shoes.

Officer Merklin heard the radio dispatch and stopped defendant, who matched the radio description, on a nearby street in a well-lit area. Merklin saw defendant Hicks running and, when Merklin told him to stop, the defendant did so but began doing jumping jacks and jogging in place. Hicks later testified in his defense that he had gone jogging that morning. Wagster then arrived at the scene, identified Hicks as the man he had pursued and told Merklin to arrest Hicks. Merklin seized a hood and glove tucked in Hicks' waistband, took him to the police station and booked him.

Mr. Person was at the scene and observed the arrest. He described the defendant as wearing a green army jacket and his hair was frayed, as if he had been wearing a hat or hood, with leaves or grass in it.

A later search of the Pittman apartment revealed a glove, which matched that seized from Hicks by Officer Merklin, but no weapon. Hicks' hood, also seized by Merklin, had velcro snaps on it. At trial, the victim identified defendant Hicks' clothing as that worn by her assailant. Officers Merklin and Wagster positively identified defendant's clothing and defendant. Finally, testimony at trial showed that the dirt from Hicks' tennis shoes was similar to that around Ms. Pittman's patio and that his sole print pattern seemed to match a print found outside the patio.

Based on this evidence, the jury found Hicks guilty of first degree burglary and sodomy. § 569.160 RSMo 1978 and § 566.060 RSMo Cum.Supp.1982. The jury found Hicks not guilty on two counts of armed criminal action, § 571.015 RSMo 1978, and one count of attempted rape, § 566.030 RSMo 1978.

Hicks appeals, claiming trial court error in four respects: (1) it was plain error to allow hearsay testimony of a third party police officer as to the positive identification of defendant by another officer; (2) it was plain error for the court to fail, sua sponte, to order a mistrial after the fourth reference to defendant's prior conviction; (3) it was error to refuse to set aside the jury verdict on Count I, first degree burglary, as defendant was acquitted of the burglary's "object crime" of rape; and (4) it was error to refuse defendant's offered instruction on first degree sexual abuse as a lesser included offense of sodomy. We address defendant's contentions in order.

Hicks argues his first three points for the first time on appeal. Thus, our review is limited to review for plain error. Rule 30.20. Defendant must make a strong, clear showing that the alleged error affected substantial rights to cause manifest injustice or a miscarriage of justice. State v. Arnold, 676 S.W.2d 61, 63 (Mo.App.1984).

Defendant Hicks argues in his first point that it was plain error to admit Officer Merklin's testimony concerning Officer Wagster's positive identification of defendant because it is third party hearsay testimony of an extrajudicial identification as prohibited by State v. Degraffenreid, 477 S.W.2d 57 (Mo. banc 1972). Merklin made three references to Wagster's identification, but two of these were elicited under cross-examination by defendant's attorney and so cannot be complained of by defendant.

Merklin testified during direct examination:

Q: And after that, what if anything did you do with the defendant?

A: The defendant and--I read the defendant his Miranda rights. He had been positively identified by Sergeant Wagster, and he was placed in the police car, and I took him to the Normandy Station.

A statement such as Officer Merklin's does not present a Degraffenreid problem because it is not hearsay, which is "in-court testimony of an extrajudicial statement offered to prove the truth of the matters asserted therein, resting for its value upon the credibility of the out of court declarant." State v. Harris, 620 S.W.2d 349, 355 (Mo. banc 1981). Instead, this statement is one offered to explain the subsequent conduct of the person testifying. State v. Calmese, 657 S.W.2d 662, 663 (Mo.App.1983). Merklin's testimony is offered to explain why he took defendant to the police station, not to prove that this defendant had been positively identified by Officer Wagster.

Even if this testimony was forbidden under Degraffenreid, defendant would not prevail. After the present case was argued our Supreme Court decided State of Missouri v. Harris, 711 S.W.2d 881 (Mo. banc 1986). In examining the rule of admissibility as to the testimony of a secondary witness introduced for corroboration of an identifying witness' unimpeached testimony concerning extrajudicial identification, the court noted that Degraffenreid has "produced a checkered pattern of appellate decisions seeking to apply or, in most cases, to avoid application of Degraffenreid, which has rarely been an impediment to affirmance of convictions." Harris, at 833. Thus, case results have been uniform under Degraffenreid, although the rationales have differed.

The court held:

The issue then, is whether testimony by a police officer or similar witness to a lineup or other extrajudicial identification should be admissible to the same extent as similar testimony by a crime victim who may testify that he identified the defendant in a lineup or other extrajudicial identification. There is no logical distinction between the victim's testimony and that of another person. To the extent that the Degraffenreid rule distinguishes these two classes of testimony based on hearsay considerations, the case is no longer to be followed. This does not foreclose the trial judge in his discretion from sustaining objections to such evidence based on other traditional grounds, but we hold today that such evidence is no longer presumptively inadmissible where declarant and the corroborating witness both testify and are subject to cross-examination. (our emphasis).

It must be noted that Degraffenreid was technically correct in categorizing the victim's testimony as non-hearsay based on matter within his knowledge, while the third person or police officer's testimony are hearsay statements of what the victim said or did out of court. 31A C.J.S. Evidence § 193, p. 530-31 (1964). Nevertheless, this facile distinction fails to address the fact that in neither case does this testimony significantly relate to the underlying truth of what is being asserted--namely, that the one named in pretrial identification is the perpetrator of the crime. What this testimony does have in common is that it goes to the fact and reliability of the pretrial identification itself, in a chain-of-custody sense. If the fact of lineup...