State v. Hudson, s. 56177

Decision Date12 June 1990
Docket Number57226,Nos. 56177,s. 56177
Citation793 S.W.2d 872
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Isaac HUDSON, Defendant-Appellant. Isaac HUDSON, Movant-Appellant, v. STATE of Missouri, Respondent.
CourtMissouri Court of Appeals

Cheryl Rafert, Asst. Public Defender, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., John P. Pollard, Asst. Atty. Gen., for plaintiff-respondent.

JOSEPH J. SIMEONE, Senior Judge.


These proceedings are consolidated appeals by Isaac Hudson from his conviction for forgery, a Class C felony, and from an order denying his motion to vacate sentence filed pursuant to Rule 29.15. We affirm.

Appellant, Isaac Hudson, was charged, tried by a jury, convicted and sentenced for the offense of forgery, a Class C felony. Section 570.090.1(1), RSMo 1986. The trial court found appellant to be a persistent offender and sentenced him to the Department of Corrections and Human Resources for an extended period of ten years. Sections 558.011, 557.036.4, 558.016.3, RSMo.

Appellant raises numerous points for reversal, or in the alternative seeks a remand for a new trial.


The essential facts are rather bizarre. Mrs. Lynn Stewart, at the time of the events, was an employee of Famous-Barr department store in Northwest Plaza Shopping Center, and worked in the luggage department.

She testified that she had been an employee of Famous at the time of the incident January 10, 1987. On that date she received a telephone call from a customer who stated that he was Dr. John Benson. The caller wanted to purchase some Hartman luggage, a top grade type of luggage. Mrs. Stewart helped the caller decide on just what type of luggage he wanted. The caller said he wanted to put it on his charge account and gave his name, address and telephone number. Mrs. Stewart gave the caller her name. The caller never inquired about the price. He said that he was "sending someone [his nephew--Lewis] to pick up the luggage." Mrs. Stewart indicated that she would need some identification. After the call, Mrs. Stewart felt that "something didn't seem right." She looked up Dr. Benson's name in the phone book, and noticed that the number did not correspond to the one given by the caller. She called Dr. Benson's home and spoke to Mrs. Benson. Mrs. Benson told Mrs. Stewart that Dr. Benson was deceased. After speaking to Mrs. Benson, Mrs. Stewart called the department store security office and told security about her conversation. A member of security, Claude Randall, Jr., the security manager, told her to have the person who came to pick up the luggage sign for it after giving some identification.

About an hour later, the person called again and said that his nephew was not going to pick up the luggage, but that "Robert Darin" would do so. The caller asked if the luggage was ready. Then about an hour later, at about 2:45 p.m., appellant came into Famous, asked for Mrs. Stewart, and said he was there to pick up the luggage. She requested some identification. Appellant said he did not have any. She completed a sales receipt which indicated the sale of three pieces of luggage. She presented this sales receipt to appellant, on which she noted the name of Robert Darin, asked for "some I.D.," and asked appellant to sign the receipt. She requested to see his driver's license and the number. However, he did not give her any identification but wrote a number on the bottom of the receipt and signed it. The signature is illegible. Mrs. Stewart went to the stock room, obtained the luggage, and returned with it accompanied by a security officer--Officer Randall. Appellant began to take the luggage, but Randall and others, took appellant into custody. Earlier Randall had received information from Mrs. Stewart concerning the telephone call and decided to have the caller come into the store, identify himself and sign a receipt before the luggage was given to him. When the person came in Randall saw appellant approach Mrs. Stewart, sign the receipt and obtain the luggage. Randall encountered the appellant, identified himself and asked appellant to accompany him to the security office. When asked at trial whether appellant said "anything to you," Randall replied that he did not recall, and "not at that time." When asked what appellant told him, Randall replied that appellant told him that "someone on the street [pulled up in a car and] told him [appellant] to get the luggage for them and he would give him $20.00." Randall held appellant until officers from the St. Ann's police department came. Randall checked appellant for identification and found a card with the name of "Robert Darin" on it. In his testimony, Randall could not identify the signature on the sales receipt, although he believed the first letter looked like a "J" and another letter looked like a "B." The name of Dr. John F. Benson appears on the receipt.

Officer John Mueller of the St. Ann police department came to Famous. He went to the security office, where the appellant and Officer Randall were. After speaking to the security officer and learning the facts, Mueller advised appellant of his Miranda rights and placed appellant under arrest. Mueller asked his name. Appellant told him his name was Robert Darin. He searched appellant and in a pocket found two cards--a Missouri I.D. card and a library card. The I.D. card contained the name Robert L. Darin, and the other, a library card contained the name of Darin R. Lewis. The I.D. card had a photo of appellant. Mueller called a dispatcher to verify identity. The computer showed that appellant's name was Isaac Hudson. Appellant was then taken to the police station. Between the time appellant was arrested and the time he arrived at the station, Mueller testified that no statements were made by appellant other than giving his name. At the police station appellant said his name was Hudson.

Trial was held in December 1988. Prior to the introduction of testimony, a hearing was held on appellant's motion to suppress evidence and statements. Officer Mueller testified at the motion hearing that he responded to a call and went to Famous-Barr because a suspect was in custody. He went to the security office where a security officer and a black male subject were present. He explained to the subject that he was under arrest for stealing, deceit and forgery and advised him of his Miranda rights. Mueller did not have a Miranda form card with him and did not use a form card in advising appellant of his Miranda rights. Mueller testified that he did read each right printed on the form. After receiving his Miranda rights, appellant told Mueller his name was "Darin Lewis," and that he "hadn't done anything wrong."

Defense Counsel moved that the cards and appellant's statement that appellant's name was Darin Lewis be suppressed. The trial court overruled the motion as to both the cards and the statement.

At the beginning of the trial, and during voir dire, the court informed the jury panel of the identity of the assistant prosecuting attorney and defense counsel. The court asked if any of the panelists knew the assistant prosecutor or defense counsel. One panelist, Mr. V. _______, indicated he knew defense counsel. During voir dire examination by defense counsel, counsel queried the juror, Mr. V., about knowing him, and asked whether the fact that he was acquainted with the venireman would have any effect on his ability to "render an impartial verdict." The venireman replied, "No." At the end of the voir dire, it was stipulated that there were two black jurors on the panel. Defense counsel raised a Batson issue stating that the state peremptorily struck 50% of the black panelists. The state informed the court that the venireman, who was stricken, was struck because "first and foremost" he knows defense counsel, secondly because he was unemployed, thirdly because he seemed hostile toward the state, and lastly because defense counsel represented him in a case pending in St. Louis County. Defense counsel admitted that he represented the venireman in a pending case. The court accepted the state's explanation as to the purpose of exercising its peremptory challenge of Mr. V. and "felt absolutely no discriminatory motive behind the state's exercising its peremptory challenge" because there were sufficient reasons--(1) the venireman knew defense counsel, (2) the venireman is presently being represented by defense counsel and (3) the state's attorney felt "uneasy" about the general attitude of the venireman. The court therefore found no discrimination in the state exercising its peremptory challenge as to Mr. V.

During defense counsel's opening statement he indicated that the defendant, and perhaps others, would testify on behalf of the defense. The trial proceeded and the above facts were adduced through the testimony of Mrs. Stewart, Mrs. Benson, Officer Claude Randall, Jr., and Officer John Mueller. The appellant did not testify. At the close of the evidence, defense counsel moved for judgment of acquittal; the motion was overruled. Instructions were given, but the court refused to give an instruction on circumstantial evidence, MAI-CR3d 310.02.

In closing argument, the prosecutor argued that (1) appellant made a writing--a charge receipt which purported to have been made by another--and the receipt was not signed by Dr. Benson, and (2) that it was done with the purpose to defraud. The prosecutor commented on appellant's statement that someone asked appellant to pick up the luggage by stating:

... Suppose the defense is actually silly enough to doubt to [sic] anyone's intelligence how they can come to court and sort of present to you that they're going to put on evidence--

An objection was made on the ground that the defense has no burden of proof and a motion for mistrial...

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    ...that Rodriquez's illegible signatures on the summonses were additional indicia of his intent to defraud); see also State v. Hudson, 793 S.W.2d 872, 880 (Mo. Ct. App. 1990) (explaining that Hudson's illegible signature on a sales receipt was a circumstance supporting his forgery conviction).......
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