State v. Jones, KCD

• Citation: 575 S.W.2d 899
• Decision Date: 27 December 1978
• Docket Number: No. KCD,KCD
• Parties: STATE of Missouri, Respondent, v. Donald M. JONES, Appellant. 29900.
• Court: Court of Appeal of Missouri (US)

Page 899

575 S.W.2d 899

STATE of Missouri, Respondent, v. Donald M. JONES, Appellant.

No. KCD 29900.

Missouri Court of Appeals, Kansas City District.

Dec. 27, 1978.

Donald M. Harding, Terrell, Van Osdol & Magruder, Kansas City, for appellant.

John D. Ashcroft, Atty. Gen., Gregory W. Schroeder, Asst. Atty. Gen., Jefferson City, for respondent.

Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.

TURNAGE, Judge.

Donald Jones was found guilty by a jury of stealing property with a value of over $50.00. § 560.156, RSMo 1969. Jones was tried under the Second Offender Act and upon conviction was sentenced by the court to six years imprisonment. On this appeal Jones contends the court erred in (1) allowing a police officer to testify Jones gave a false name when arrested; (2) failing to require a witness to give the reasons he exercised his right to refuse to testify; (3) failing to find the State had suppressed evidence; (4) denying him the right to call a detective to elicit an unsworn statement of a third party; (5) refusing to give an instruction; and (6) ordering an assistant public defender to counsel a witness with respect to his right to refuse to testify when the public defender had previously represented Jones. Affirmed.

Jones does not question the sufficiency of the evidence. The jury could reasonably have found that on January 3, 1977, Randy Bent, a security officer at the Macy's store on East Meyer Boulevard in Kansas City, observed a man take several sets of boy's clothing from a rack and leave the store. Bent gave chase and saw the man jump into a car which proceeded east on 63rd. At the time the man ran from Macy's with the clothing, Officer Gary Parker of the Kansas City Police Department was driving east on 63rd Street. As he approached the Macy's store, he saw a man run out the door carrying an armload of clothing with the store tags visible. After this man jumped into a car that pulled in front of Parker the car continued on east with Officer Parker in pursuit. The car Parker was following pulled into a gas station, whereupon the man Parker had observed run from Macy's with the clothing jumped out and escaped. Officer Parker arrested Leroy Rivers, the driver, and recovered from the car the clothing which was identified as that stolen from Macy's. When arrested, Rivers stated the man who had fled was James Harris.

A few days later Officer Parker and Bent identified Jones from photographs as the man who had run with the clothing from the store. In February, 1977, Officer Donovan of the Kansas City Police Department stopped an automobile with only one Missouri license tag. The driver identified himself as Jake Walker but the officer checked the auto registration and found the car registered in the name of Donald Jones. The driver was taken to police headquarters and through fingerprints was identified as Donald Jones. Charges were then filed against Jones for the clothing theft.

On this appeal Jones first contends the court erred in allowing Officer Donovan to testify that Jones gave him a false name at the time the officer stopped him. Jones contends the fact he was arrested 40 days after the stealing occurred made the giving of a false name totally irrelevant. In State v. Duncan, 499 S.W.2d 476, 478(3) (Mo.1973) the court held the fact a defendant gave a false name to an arresting officer was a circumstance surrounding the arrest which was for the jury's consideration. 22A C.J.S. Criminal Law § 627, p. 472 states the rationale for allowing such testimony is that it is relevant to show consciousness of guilt. The fact Jones gave a false name when arrested some 40 days after the crime goes only to the weight and not the admissibility of the evidence. State v. Thomas, 526 S.W.2d 393, 395 (Mo.App.1975). Thus, it was proper to allow testimony that Jones gave a false name when arrested. The remoteness of the date of arrest from the commission of the crime would go only to the weight which the jury could give to such evidence.

Jones also complains because the court allowed evidence that he was driving a car with only one license plate and did not produce a valid driver's license when requested. However, no objection was made to testimony relating to these facts so nothing is preserved for review. State v. Jones, 523 S.W.2d 152, 155(4) (Mo.App.1975).

Jones next contends he should have been allowed to question Leroy Rivers about his reason for exercising his Fifth Amendment rights in refusing to testify about any bias or prejudice which Rivers had against Jones. When called as a witness by Jones, Rivers stated that he refused to answer any questions concerning the offense because he might incriminate himself. Jones' counsel then sought to elicit from Rivers the reason for exercising his right to refuse to testify, but the court held counsel could not so inquire. A full discussion of the extent to which a witness may be questioned about his reason for invoking the right not to testify is found in State v. Joyner, 571 S.W.2d 776, 779 (Mo.App.1978). Citing the cases which have discussed this subject, the opinion explains that under the Missouri decisions if the trial court can recognize any rational basis for exercise of the privilege it cannot compel the witness to give his reasons for so doing. Here, Jones wanted Rivers to testify that James Harris was the person who had stolen the clothing and fled from Rivers' car but he was obviously frustrated in this effort when Rivers refused to testify....