State v. Kelly

• Decision Date: 12 July 1976
• Docket Number: No. 59298,59298
• Parties: STATE of Missouri, Respondent, v. Donald Lee KELLY, Appellant.
• Court: Missouri Supreme Court

Page 106

539 S.W.2d 106

STATE of Missouri, Respondent, v. Donald Lee KELLY, Appellant.

No. 59298.

Supreme Court of Missouri, En Banc.

July 12, 1976.

Ronald M. Sokol, Public Defender, Joe H. Scott, Asst. Public Defender, St. Joseph, for appellant.

John C. Danforth, Atty. Gen., by Paul R. Otto, Asst. Atty. Gen., for respondent.

HOLMAN, Judge.

Appellant, Donald Lee Kelly (hereinafter referred to as defendant), was charged with the offense of robbery in the first degree. See Sections 560.120 and 560.135, RSMo 1969 V.A.M.S. Upon trial he was found guilty. The jury being unable to agree on punishment such was fixed by the trial judge at imprisonment for a term of 40 years. Defendant appealed to the Kansas City District of the Court of Appeals. That court adopted an opinion which reversed the judgment and remanded the case for a new trial. Upon application of respondent we ordered the case transferred to this court. It will be finally determined here the same as on original appeal. Art. V, Sec. 10, Mo.Const. We affirm.

Since defendant makes the contention upon this appeal that the evidence was insufficient to support the conviction we will state the facts in some detail. Mary Reinert and Juanita Smith were sharing an apartment in St. Joseph, Missouri, on December 26, 1973. They both worked as nurses at a nearby hospital. At 3:10 a.m. on that date, Mary was awakened by a loud noise coming from the direction of the front door of their apartment. After calling to Juanita, who was asleep in a nearby bedroom, and ascertaining that she did not make the noise, Mary went into the living room to investigate. She saw a man in the living room and was immediately struck upon the head and knocked to the floor. The man then hit her repeatedly with some sort of stick or other instrument. Juanita also came into the living room and was beaten repeatedly by the assailant. It was stipulated by the parties that both Miss Reinert and Miss Smith 'took terrific beatings on the head and upper portions of their bodies.' After the beatings had continued for a time, Miss Smith stated, 'My God, if it is money you want, quit beating us. We will give it to you.' The assailant then took the women to the bedrooms and obtained their purposes. After he left it was determined that he had taken approximately $26 from the purse of Miss Reinert and also a red plastic case which contained a religious medal and a silver dollar. Seventy-five dollars was taken from Miss Smith's purse.

Because of the insufficient light and blood that accumulated in the eyes of the victims, they were not able to identify the defendant at the trial and provided police with only a general description of their attacker. They stated that he was a black male with a goatee and was approximately 5 7 tall and weighed somewhere between 140 and 165 pounds. They stated that he had on a dark colored jacket. When the police arrived, they found that the intruder had entered the apartment by breaking the glass in the front door. The two women were sent to the hospital where they were treated, operated upon, and confined for a considerable length of time. Miss Smith was not able to return to work for more than three months.

At 3:55 o'clock on that morning defendant awakened Wayne Wilson at the home of Pat Jennings where Wayne was staying with his girl friend, Sally Painter. When Wayne let defendant into the house, he saw that defendant was wearing a brown corduroy coat which was covered with blood. Defendant told Wayne that two men had jumped on him. At that time, defendant also showed Wilson a roll of bills, and they then went into a bedroom occupied by Sally Painter and defendant showed them a red case which contained a silver dollar and a religious medal. Defendant spent the remainder of the night in the next bedroom and at about 8:00 a.m. Sally observed him tearing up his corduroy coat. He had also been observed sleeping in that bedroom by Pat Jennings.

On December 28 the police found two pieces of a partially burned brown corduroy coat, which were spotted with blood, in the trash can located in the back yard of the home of defendant's mother which was not far from the Pat Jennings' house. There was evidence that blood tests revealed that the blood stains on the coat were of the same type as Miss Reinert's blood, and that a hair sample found on the coat was within the limits of variance to the hair of Juanita.

As a result of information obtained from the victims, who also viewed some photographs, a number of Negro males were questioned by the police. These included defendant and Wayne Wilson. In questioning Wayne Wilson the police obtained the information heretofore stated.

The defense of the defendant was based upon alibi and also upon the contention that Wayne Wilson was the guilty person. In his testimony, defendant denied any guilt. Defendant testified that he had shaved off his goatee on Christmas morning; that he had stayed home all that day but had gone to a tavern where his half-brother worked at about 8:30 p.m.; that he stayed at the tavern until it closed about 1:30 a.m. and left with his brother, Stanford Davis, and after visiting with him across the street for a short time went on home. He further testified that he was intoxicated when he left the tavern; that he is 5 5 tall and weighed 130 pounds; that Wayne Wilson is his cousin; that the only corduroy coat he owned was at Leron May's house at the time in question; that on the night here involved, he had worn a white trench coat; that his father and mother were both ill and he did not think they were able to appear at the trial. Other evidence may be stated in connection with some of the points briefed.

The first point briefed is that the evidence does not support the verdict because the money was taken with the consent of the owners. This point is so utterly devoid of merit that it hardly warrants discussion. It is obvious that the suggestion that defendant take the money was made in order to get him to stop the beatings. It is also reasonable to assume that the victims were acting under the belief that if defendant did not get the money he would again commence beating them. Under these circumstances the jury could reasonably find that the taking was accomplished by putting the victims 'in fear of immediate injury to their person and by violence to their persons' as alleged in the information. State v. Stephens, 66 Ariz. 219, 186 P.2d 346(4) (1947). The case cited by defendant, State v. Wright, 337 Mo. 441, 85 S.W.2d 7 (1935) is clearly distinguishable because in that case there was evidence that the victim invited the robbery as a part of a plot to defraud his insurance company.

The second point in defendant's brief is that 'the evidence in the cause only circumstantially implicates appellant as the perpetrator of the crime, fails to do so beyond a reasonable doubt as a matter of law, and fails to exclude the reasonable theory of innocence that Wayne Wilson was the perpetrator of the crime and attempted to shift the blame therefor to appellant.' This contention is primarily a challenge to the weight of the evidence and the credibility of the State's witnesses, Wayne Wilson and Sally Painter. The defendant appears to ignore certain well established rules of law that require a decision contrary to his contention. As stated in State v. Johnson, 510 S.W.2d 485, 487 (Mo.App.1974), 'In determining the sufficiency of the evidence in a criminal case after a verdict of guilty, we accept as true all evidence in the record tending to prove the defendant guilty, whether such evidence is circumstantial or direct in nature, together with all favorable inferences that can reasonably be drawn therefrom. State v. Simmons, 494 S.W.2d 302, 303 (Mo.1973); State v. Reed, 453 S.W.2d 946, 949 (Mo.1970). It is not the function of this court to weigh the evidence; our review is limited to determining whether there was sufficient evidence from which reasonable persons could have found defendant guilty as charged.' When the evidence in the case before us is viewed in light of the quoted principles there can be no doubt but that a submissible case was made.

The next contention of defendant is that the court erred in admitting in evidence the partially burned pieces of a corduroy coat. The objection seems to be that the exhibit was not properly identified since it was not shown to the victims nor to Wayne Wilson or Sally Painter. It should be noted, however, that the pieces were similar to the bloody coat described by Wayne and Sally which defendant was wearing a short time after the robbery. Also, the evidence indicated that defendant had been seen tearing up his coat the morning of the robbery and these pieces were found in the garbage can on his mother's property a short distance away. Moreover, the blood on the exhibit was of the same type as that of one of the victims and a hair found on it was similar to the hair characteristics of the other victim. All these facts and circumstances tend to indicate that the pieces were a part of the coat worn by defendant on the morning of the robbery. Those facts would make the exhibit relevant because it would tend to connect defendant with the offense. This court has held that the identification of an exhibit need not be wholly unqualified in order to make it admissible. See State v. Kern, 447 S.W.2d 571(3, 4) (Mo.1969). We have concluded that this exhibit was sufficiently identified and shown to be relevant in connecting defendant with the offense and hence was properly admitted.

Defendant also claims that the rulings of the trial court unduly limited his cross-examination of Wayne Wilson. An objection was sustained to this question: 'Mr. Wilson, did you make a rather large purchase within the recent past?' The offer of proof was that he was attempting to impeach the credibility of the State's witness by showing that he in fact has had large sums of money in the recent past with no...