State v. Johnson, 9999

• Citation: 538 S.W.2d 73
• Decision Date: 10 June 1976
• Docket Number: No. 9999,9999
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Johnny JOHNSON, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 73

538 S.W.2d 73

STATE of Missouri, Plaintiff-Respondent, v. Johnny JOHNSON, Defendant-Appellant.

No. 9999.

Missouri Court of Appeals, Springfield District.

June 10, 1976.

James A. DeReign, DeReign & DeReign, Caruthersville, for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Before BILLINGS, C.J., and STONE and TITUS, JJ.

STONE, Judge.

Johnny Johnson, charged with two counts of first-degree robbery by means of a dangerous and deadly weapon, was convicted on both counts by a jury which assessed his punishment on each count at five years' imprisonment. §§ 560.120 and 560.135, RSMo 1969, V.A.M.S.; Rule 24.04, V.A.M.R.; State v. Johnson, 499 S.W.2d 371, 373 (Mo.1973). Following presentation and denial of defendant's motion for new trial and the granting of allocution, sentences and judgment were rendered pursuant to the verdicts and the court ordered that the sentences run consecutively.

During the early evening of October 30, 1974, Miss Carolyn Mitchell, the clerk on duty, and Leonard Smith, a regular customer who 'came by every night and bought cigars and . . . a newspaper,' were the only two persons in the Sportster Liquor Store in Caruthersville, Missouri, when two men entered and walked to the counter, where each asked the clerk for a package of chewing gum. As she was handing the gum to them, a third man entered, 'pulled a pistol and said, '(t)his is a stickup," and 'they' ordered the clerk and the customer to lie down on the floor and then proceeded to appropriate the contents of the cash register aggregating approximately $500 and to take customer Smith's billfold and some $50 therein. When one of the robber trio said 'somebody is coming,' they ran. However both clerk Mitchell and customer Smith remained on the floor until the robbers had 'time to get away' and the clerk had 'crawled over and closed the big door and locked it.' Then, so Smith declared upon trial, 'I run down to my place (apparently a nearby used car lot) to get my car, and I tried to follow them but they were too far gone then.' The robbery was promptly reported to the Caruthersville police about 8:00 P.M.

Having picked up a description of the robbers on his car radio, Sheriff Thad Shelly immediately began to cruise around Caruthersville. Near 'The Grill' on the opposite side of town from the Sportster, Shelly observed three men, namely, Johnny Johnson (defendant herein), Robert Jones (subsequently identified as the gunman in the Sportster robbery), and Larry 'Tuck' Wilson (not implicated in that robbery by the record under review). In response to Sheriff Shelly's request, this trio accompanied him to the Sportster for the particular purpose (so Shelly testified) of enabling Miss Mitchell to view them. However, when Shelly and the accompanying suspects arrived at the Sportster, Miss Mitchell was not there and another clerk had taken over her duties. Leonard Smith was one of those then in the store ¹ but at that time Shelly did not know Smith personally and was not aware that he had been in the sportster when the robbery occurred. Smith himself readily agreed that he was in the Sportster when '(t)hey brought some people out there' perhaps an hour after the robbery, but he iterated and reiterated that he was 'mad,' 'all mad,' 'mad and all upset,' and 'pretty dang angry,' and that 'I just glanced at them and that's all I know'--'I was upset and I didn't try to identify any of them at that time.'

Clerk Mitchell graphically described Smith's condition thusly, 'when (the robbery) happened he (Smith) went all to pieces.' And John Yerby, a Caruthersville police officer who was at the Sportster when Sheriff Shelly brought the three suspects there after the robbery, declared that Smith was 'emotionally upset' and, 'being upset . . . and more or less mad,' he did no more than glance at the suspects. Defendant Johnson testified that Sheriff Shelly had 'asked this guy, Leonard Smith (whom Johnson did not then know by name or otherwise), if he could identify us (the three suspects), and the dude said, no.' Shelly shortly returned the suspects to a point near 'The Grill' and released them.

Several days after the robbery, clerk Mitchell was asked to view, and did view, four male subjects individually in a showup ² at the Caruthersville City Hall. In this showup, the officers brought in each subject more than once, sometimes behind and sometimes in front of a glass window. The four men viewed in this showup were the three suspects (of whom instant defendant, Johnny Johnson, was one) brought to the Sportster by Sheriff Shelly on the night of the robbery and another named Benny Johnson. The only one of the four men identified by Miss Mitchell was Robert Jones who (so she asseverated) was the gunman in the bandit trio. Whereupon, Jones was arrested and the other three were released. Customer Smith 'was out buying cars' at an auction and hence did not attend this showup at Caruthersville City Hall. Subsequently Smith stopped at the jail to talk with an officer; and, when invited by him to view a prisoner, Smith walked by the cell in which Jones was confined and immediately exclaimed 'why, there's the boy right there.'

At the trial Miss Mitchell still did not identify instant defendant as one of the bandit trio and did no more than point to him as a man of the same race and 'approximately the same age' as the members of that trio. However, when asked on the witness stand '(i)s there any doubt in your mind as to whether this defendant was there during the armed robbery,' customer Smith confidently and unhesitantly responded, 'Not a bit in the world. He was there. He is the one that ordered the gum the first time . . ..' In sum, prior to the trial there was (insofar as the record discloses) no identification of defendant Johnson as a member of the bandit trio and no direct accusation that he was a coconspirator in the Sportster robbery, and at the trial the only identification of Johnson was by customer Smith.

Momentarily moving out of the main evidentiary stream, we observe briefly that, by the testimony of himself and five other witnesses (of whom two were defendant's sisters, two were his cousins, and one was a brother-in-law), defendant Johnson presented a defense of alibi, to wit, that from about 6:30 P.M. to 9:30 P.M. on the evening of the Sportster robbery, he attended a party at the home of his cousin, one Bobbie Wilson (not a witness), 'in the rear of 1504 Vest' where the divertissements of the evening were outlined by defendant as '(d)rinking wine and beer, and talking and dancing and stuff like that' but were left entirely to the imagination and/or experience of the hearer or reader by the laconic open-end report offered by one of the female participants, '(w) hat people do do at parties, I guess, and funning, I guess.'

With this sampling of defendant's evidence, we return to the State's case, more particularly to that portion thereof which affords the basis for the sole point upon which defendant here relies for reversal, to wit, that prejudicial error was injected into the trial when Sheriff Thad Shelly was permitted to testify, in substance, that Robert Jones, after his identification as the gunman and his subsequent arrest, made a statement to Shelly, whereupon he or other officers acting at his direction arrested instant defendant, Johnny Johnson. Jones did not testify at the trial under review here. The point presented on this appeal rests upon the gravity of the inference that Johnson was implicated in the robbery by Jones' statement to Sheriff Shelly, a result violative of and repugnant to the hearsay rule and the correlative right to cross-examine an accuser.

The relevant segment of Sheriff Shelly's testimony follows:

'Q. Now, did Robert Jones (theretofore identified as the gunman) ever make any statement?

'MR. DeREIGN (defendant's counsel): Now, I object--

'A. Yes, sir, he did.

'MR. DeREIGN: Your Honor, that is hearsay and not binding in this case, what Mr. Jones said.

'THE COURT: Well, he can answer whether or not he made any statements but not what they were.

'Q. Did Robert Jones make any statements?

'A. Yes, sir, he did.

'Q. Who did he make the statement to?

'A. To myself and Art Stephenson.

'Q. After hearing this statement what, if anything, did you do?

'A. I then arrested, or called the City Police and had arrested Johnny Johnson--

'MR. DeREIGN: I object to that, Your Honor--

'A. And Benny Johnson.

'MR. DeREIGN: He is implying from the statement here that those names were obtained in that statement and he is basing his statement on hearsay as to this defendant.

'THE COURT: The object will be overruled.

'Q. Mr. Sheriff, after taking (the) statement, what, if anything, did you do or any of the other officers do?

'A. We arrested two other subjects after--

'Q. Who did you arrest?

'A. Johnny Johnson and Benny Johnson.

'Q. This defendant, Johnny Johnson?

'A. Yes, sir.'

The above-quoted testimony was reviewed and emphasized thusly in the closing argument of the Prosecuting Attorney:

'(W)hen Carroll Mitchell (the Sportster clerk) did see Robert Jones and positively identified him, Robert Jones was placed under arrest. The other suspects were let go. You heard Sheriff Thad Shelly testify that Robert Jones made a statement; after the Sheriff took this statement he went out and arrested two more-- 'MR. DeREIGN: I object, Your Honor, as this is hearsay.

'THE COURT: I can't hear you. Are you objecting to it?

'MR. DeREIGN: I am objecting to the hearsay statement, Your Honor. I am objecting to it.

'THE COURT: Objection will be overruled.

'MR. HAZEL (Prosecuting Attorney): You heard Thad Shelly testify that Robert Jones, the man who was positively identified by Carroll Mitchell gave a statement; that after the Sheriff took this statement he went out and arrested two other individuals, one being a Benny Johnson and one being this defendant; and this...