State v. Kerr

• Decision Date: 02 May 1977
• Citation: 548 S.W.2d 295
• Parties: STATE of Missouri, Respondent, v. Fred M. KERR, Appellant. No, KCD 28503.
• Court: Missouri Court of Appeals

Page 295

548 S.W.2d 295

STATE of Missouri, Respondent, v. Fred M. KERR, Appellant.

No, KCD 28503.

Missouri Court of Appeals, Kansas City District.

May 2, 1977.

Motion for Rehearing and/or Transfer Denied June 1, 1977.

Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.

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

Before SWOFFORD, P. J., and SHANGLER AND DIXON, JJ.

Appellant Fred M. Kerr (defendant) was charged by indictment with the crime of first degree robbery (Section 560.135 RSMo 1969). He was tried under an amended information invoking the provisions of the Second Offender Act, found guilty by a jury, and sentenced by the court to a term of twenty-five (25) years in the Department of Corrections.

Defendant makes one assignment of error upon which he seeks reversal of the judgment and sentence. He asserts:

"The trial court erred in permitting the rebuttal testimony of witnesses John Clayborne and Larry Bennett insofar as said evidence lacked proper foundation, was irrelevant, constituted proof of separate and distinct crimes and was improper rebuttal evidence."

Obviously, the defendant in this single point on appeal asserts four reasons for the charge of error in the admission of the rebuttal testimony, namely, 1. it lacked proper foundation; 2. it was irrelevant; 3. it constituted proof of separate and distinct crimes; and, 4. it was improper rebuttal. However, the argument portion of the defendant's brief is directed solely to the assertion that the rebuttal evidence complained of was improperly admitted because it did not tend to explain, counteract, repel or disprove evidence offered by the defendant.

A brief summary of the facts is sufficient for the purposes of this appeal.

On December 23, 1974, at about 8:00 p. m., John Clayborne, manager, and Donald Williams, clerk, were working in the Black Star Sundries, a liquor store located at 3301 Swope Parkway, Kansas City, Missouri. Two men entered the store and made some inquiry about the purchase of liquor. Both men then displayed guns and one of them said "This is it, lie on the floor." Clayborne did so and the robbers then ordered Williams to empty the contents of the cash register into a paper sack and he complied. The men then took Williams' watch, ring and wallet. One of the robbers then returned the wallet because there was no money in it, and then one of them went behing the counter and took Clayborne's money clip. Clayborne and Williams were then told to remain on the floor for two minutes or they would be killed. The robbers then left the store. The money from the cash register amounted to approximately $300.00. The robbery lasted about five minutes.

Both Clayborne and Williams made positive, untainted and unequivocal in-court identification of the defendant as one of the two robbers.

The defendant testified in his own behalf and stated that at the time of the robbery on December 23, 1974, he was at his mother's home at 5402 South Benton, Kansas City, Missouri, watching her house and listening to records while she was at work. He denied any participation in the robbery of the Black Star liquor store and stated that he had never been in that store. He admitted a prior conviction in 1971 on the charge of assault with intent to rob without malice.

On cross-examination, it was brought out that he had also been convicted of armed robbery in 1970. He further stated that a man named Euell Snow, who lived at 3222 East 32nd Street, was going with the defendant's cousin, who also lived at that address, and that he had stayed overnight there on several occasions during the month following December 23, 1974. He again denied any participation in the robbery and denied that he and Snow had been the robbers. He also denied that he had taken any identification from John Clayborne and left it at the Snow address He denied that he even knew of the existence of the Black Star Sundries Liquor Store. he stated that he "left the streets" , in 1971 and did not return until July 25, 1974, apparently serving time on the 1971 armed robbery conviction for which he had been sentenced to five years.

In rebuttal, over the defendant's objection that the proposed rebuttal evidence had no probative value, the state recalled John Clayborne. He identified State's Exhibit No. 2 as his personal permit to sell liquor. He stated that he carried this permit in his money clip. This money clip was the one taken from him during the December 23, 1974 robbery.

The state then called Larry Bennett, and officer on the Kansas City, Missouri Police Department, who testified, on direct cross-examination, that he conducted a search at 3222 East 32nd Street, the Snow residence, on January 15, 1975, during the course of which he discovered the liquor license of Clayborne, State's Exhibit No. 2.

On cross-examination, Officer Bennett in response to interrogation by defense counsel, testified that he gained access to the residence with the consent of Stephanie Snow, who was then under a charge of having possession of some property which had been stolen from Willie's Lounge; that it was one of some 25 or 30 other pieces of identification recovered; that he did not know that Mr. Snow is in the penitentiary under a...