State v. Kirkland, 56218

• Decision Date: 11 October 1971
• Docket Number: No. 1,No. 56218,56218,1
• Citation: 471 S.W.2d 191
• Parties: STATE of Missouri, Respondent, v. Levon KIRKLAND, Appellant
• Court: Missouri Supreme Court

Page 191

471 S.W.2d 191

STATE of Missouri, Respondent, v. Levon KIRKLAND, Appellant.

No. 56218.

Supreme Court of Missouri, Division No. 1.

Oct. 11, 1971.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.

Samuel T. Vandover, Asst. Public Defender, Clayton, for appellant.

BARDGETT, Judge.

Defendant Levon Kirkland was found guilty by a jury of robbery in the first degree by means of a dangerous and deadly weapon and the jury assessed punishment at five years. Judgment and sentence were entered thereon and defendant appeals.

The sufficiency of the evidence is not challenged. The issue dispositive of this appeal concerns the admission into evidence of certain hearsay testimony tending to identify defendant as one of the robbers.

The victim of the robbery, Robert McGuire, a cab driver for Suburban Cab Company in St. Louis County, testified that on December 23, 1969, about 10 p.m., he picked up a person, who he later identified as the defendant, and a female later identified as Pamela Reynolds, at 6211 Ella, Wellston, Missouri, and drove them to 1911 Arlington in St. Louis where defendant got out and went into the house to get money for the cab fare. He returned in a few minutes accompanied by another Negro male later identified as Davis. Defendant paid the fare. Both men got into the cab with Pamela. McGuire did not know any of these people. Davis told McGuire to drive them to Kinloch. When they arrived in Kinloch, Davis put a gun to McGuire's head, ordered him to stop and get out. McGuire complied and while Davis held the gun on McGuire the other man, allegedly the defendant, went through McGuire's pockets and took his wallet containing about $55, some change and keys. Davis told McGuire to walk across a field and, as McGuire did so, Davis shot him in the leg. Defendant, Davis and Pamela left the scene on foot. McGuire got a look at defendant's face on several occasions in the cab and just before defendant went through McGuire's pockets.

After reporting the robbery to his dispatcher and going into the cab office for a few minutes, McGuire went to the Kinloch police department and gave a description of his assailants. He described Kirkland, whose name was then unknown, as being a Negro, short, wearing a dark car coat, bushy-haired, rather young--20 or 21; Davis, name then unknown, as being somewhat taller, a Negro, and wearing a brown overcoat; and he also gave a description of the girl. McGuire then left the police station, received treatment for his leg, went home, and returned to the Kinloch police station a few hours later as a result of receiving a phone call from the police about 1:30 or 2 a.m.

The cross-examination of McGuire was principally directed at attempting to disparage McGuire's identification of defendant Levon Kirkland as being the same man who participated in the robbery.

Officer George Jones of the Kinloch police department testified that he received the report from McGuire. His direct examination continued as follows:

'Q After receiving the report from Mr. McGuire what, if anything, did you do? A I went down to Mr. Simmons' house and found out a phone number, then came back and made a call. Q What number did you call? A I don't recall the number, but I know the person. Q Who was that person? A Miss Mayo. Q Mrs. Mayo? A Yes. Q Did you have a conversation with her at that time? A Yes. Q What did you ask her? A I asked her who called a cab and got in and left in a cab. Q What did she reply to you?

'MR. VANDOVER: I object to that as calling for hearsay.

'MR. HARTENBACH: I'm not asking this question--the answer is not for the truth of the matter stated but merely to determine that it was said and that this police officer relied on it.

'MR. VANDOVER: I think the best evidence would be Mrs. Mayo's testimony.

'MR. HARTENBACH: The best evidence rule does not apply to testimony of witnesses but only to documents.

'MR. VANDOVER: This is gross hearsay. She's apparently available.

'THE COURT: (To Reporter): Will you read the last questions?

'(Reporter reads: * * *.)

'THE COURT: Overrule the objection with the cautionary statement to the jury that I'm admitting this testimony as to what she replied not to prove what she said was true but in order to present some evidence for the jury's evaluation as to what was told to this witness and upon which I am given to understand by the prosecuting attorney that this witness did rely.

'MR. HARTENBACH: Q What did she reply to your question? A She says that Pamela Reynolds and Pete Kirkland got into the cab and left. Q Did she tell you approximately what time that was? A I really don't remember exactly what time it was. Q After your conversation with Mrs. Mayo did you remain at the police station? A No; she told me where she lived at. Q You say you did not remain at the police station. Where did you go? A To Pamela's house.'

Officers Forrest and Clark accompanied officer Jones to Pamela's house. Officer Forrest testified they went to Pamela's house looking for Levon Kirkland, found him there and arrested him. Kirkland and Pamela were then brought to the Kinloch police station where they were identified by McGuire.

Defendant offered no evidence at trial. The principal question for the jury was one of identification--was defendant one of the two men in the cab who robbed McGuire.

No other person in the case identified the persons by name who allegedly called for, got into, and left in McGuire's cab except 'Mrs. Mayo' through the testimony of officer Jones. When Jones's testimony as to what Mrs. Mayo told him is considered with the context of McGuire's testimony, then it becomes apparent that if the statements attributal to Mrs. Mayo are true, then Kirkland was the man who participated in the robbery and Mrs. Mayo's statements are powerful corroborating evidence of identification. If Mrs. Mayo's statements are incorrect, then it is equally obvious that defendant is probably not one of the men who robbed McGuire. The source of the information--the person on whose credit the assertion that Kirkland and Pamela got into the cab depends--was Mrs. Mayo. She did not testify and therefore was not subject to the test of cross-examination.

The essential principle of the hearsay rule is to secure trustworthiness of testimonial assertions by affording the opportunity to test the credit of the witness, and it is for this reason that such assertions are to be made in court subject to cross-examination. State v. Chernick, Mo.,278 S.W.2d 741, 748(5, 6). Wigmore on Evidence, Third Edition, Vol. V, § 1362, p. 3, puts it as follows: 'The fundamental test, shown by experience to be invaluable, is the test of Cross-examination. The rule, to be sure, calls for two elements, Cross-examination proper, and Confrontation; but the former is the essential and indispensable feature, the latter is only subordinate and dispensable. * * * The theory of the Hearsay rule is that the many possible deficiencies, suppressions, sources of error and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best brought to light and exposed by the test of Cross-examination. * * * It is here sufficient to note that the Hearsay rule, as accepted in our law, signifies a rule rejecting assertions, offered testimonially, which have not been in some way subjected to the test of Cross-examination:'

State v. Chernick, Mo., 278 S.W.2d 741 (assault with intent to kill with malice), and State v. Chernick, Mo., 280 S.W.2d 56 (robbery in the first degree with a dangerous and deadly weapon) are analogous. In both cases this court held that the state made a prima facie case but reversed and remanded because of the erroneous introduction into evidence of certain hearsay testimony. There the circuit attorney was allowed to testify that immediately after he questioned one Scholl, a participant in the crimes, he directed the issuance of an arest order for Chernick, all over defendant's objection of hearsay. This ocurt ruled that: 'The subsequent statements of Scholl to the...