State v. Lee

• Decision Date: 12 March 1973
• Docket Number: No. 57013,57013
• Citation: State v. Lee, 491 S.W.2d 317 (Mo. 1973)
• Parties: STATE of Missouri, Respondent, v. Calvin LEE, Appellant.
• Court: Missouri Supreme Court

Page 317

491 S.W.2d 317

STATE of Missouri, Respondent, v. Calvin LEE, Appellant.

No. 57013.

Supreme Court of Missouri, En Banc.

March 12, 1973.

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

James R. Wyrsch, Koenigsdorf, Kaplan, Kraft & Fox, Kansas City, for appellant.

BARDGETT, Judge.

Calvin Lee was convicted of robbery in the first degree, a felony, by a jury. The jury was unable to agree on punishment and the court sentenced Lee to twelve years in the custody of the Department of Corrections. Defendant's motion for new trial was overruled and Lee appeals. The notice of appeal was filed in this court prior to January 1, 1972, and therefore this court has jurisdiction under Art. V, § 3, Const. of Mo.1945, V.A.M.S.

The information charged Lee with first-degree robbery of William Walden on October 8, 1970, in Kansas City, Missouri. The information was filed December 2, 1970, and the trial began April 26, 1971.

Immediately prior to trial and in the court's chambers, the prosecutor advised the court that, 'I know I am not required to do this, but just so it won't be a surprise I have informed the defense counsel, I am going to ask leave to endorse the custodial records of the Standard Oil Co. by Mr. Schmitt.' Defendant's attorney objected to the endorsement of Mr. Schmitt stating he had just been informed of such a proposal at 12:30 or 1:00 p.m. that same date. Defendant, alternatively to his objection to the endorsement of the witness, moved for a continuance in order to take the witness's deposition.

The prosecutor represented to the court that the purpose of the proposed endorsement was 'to bring in some records of the Standard Oil Company' and reiterated that he was not required to 'endorse people who are to identify records' and that Mr. Schmitt had no knowledge of this affair. The objection to the proposed endorsement and the motion for a continuance were overruled and the cause immediately proceeded to trial.

The robbery victim, William R. Walden, was the single eyewitness. He testified that on October 8, 1970, he was at work on the REA Express Company premises at 8th and Wyoming, Kansas City, Mo. He was on the truck parking area which was illuminated by floodlights. At about 12:15 a.m., a car occupied by four Negroes stopped on the lot. Three of the men got out and walked toward the loading dock near where Walden was standing and looked around. Two of the men then walked up to Walden and each pointed a handgun at Walden. Walden identified defendant as one of the men who held a gun on him and who said, 'All we want is your money'. Walden gave them his billfold containing about $5 in cash and several credit cards, including a Standard Oil Co. credit card. The length of time Walden observed the robber he identified as defendant Lee was 'Just a few seconds, less than a minute.' The robbers then left.

The police were called and Walden described the men as being about 5 9 tall, approximately 150 pounds, Negro males in their late teens or early twenties, and he thought the car they were in was a 1968 or 1969 Ford. Walden went to the Kansas City Police Department where he looked at numerous photos but was unable to identify anyone. He notified the credit card companies of the theft later that same morning.

At the end of October 1970, Mr. Walden received his bills from Standard Oil for credit card purchases. Among the credit card purchase receipts was a receipt for a $4 charge for dismounting two tires at Inter-City Standard Station, 500 North 5th Street, Kansas City, Mo., dated October 14, 1970, on which Missouri automobile license No. KC 8167 was written. It bore a signature purporting to be that of W. R. Walden. Mr. Walden testified he did not make this purchase because his Standard Oil credit card had been taken in the robbery of October 8, 1970, and had no knowledge as to what used the stolen card.

Mr. Walden took this receipt to the Kansas City Police Dept. Detective John Wilson, by checking license registration records, determined that license No. KC 8167 was issued to Calvin Lee. Detective Wilson testified that sometime later he took a photograph of Calvin Lee from the files and put it with three other photos of Negro males and showed the four photos to Mr. Walden. Mr. Walden identified the photo of defendant as the man who robbed him. An arrest order was then put out and on November 20, 1970, defendant Lee was arrested while driving a Cadillac bearing license No. KC 8167. The defendant was brought to the Kansas City Police Dept. and placed in a lineup that same day along with three other Negro males. Defendant was 33 years old. The other three in the lineup were ages 33, 22, and 17. Defendant is 5 8 tall and the other three men were 5 9 , 5 8 , and 5 6 tall. Defendant weighed 145 pounds; the other three weighed 160, 160, and 155 pounds. Mr. Walden identified defendant in the lineup as one of the men who robbed him.

Mr. Schmitt testified that he was employed by Standard Oil Co. as a credit card fraud investigator. He identified state's exhibit 4 as a record or receipt for a credit card purchase which purchase was made by the use of a Standard Oil Co. credit card issued to William R. Walden. The receipt reflected a purchase made on October 14, 1970, at the Inter-City Standard Station in Kansas City, Mo. It came into Mr. Schmitt's possession because he is the credit card fraud investigator for Standard Oil Co. The receipt is a record kept in the normal course of business by Standard Oil Co. At the time a credit card purchase is made, the station attendant has the purchaser sign the receipt in the lower right-hand corner and the attendant lists the amount of the purchase. In this instance the receipt reflected the dismounting of two tires for $4. The receipt also listed Missouri automobile license No. KC 8167. Other receipts Mr. Schmitt brought into court did not have any license numbers written on them. State's exhibit 4 bore a purchaser's signature purporting to be either a W. C. or W. R. Walden. Mr. Schmitt did not know who wrote the purported signature of Walden.

Mr. Walden was recalled and testified that the signature appearing on state's exhibit 4 was not written by him and that he did not authorize anyone else to make the purchase reflected thereon.

There was no direct evidence that defendant was the person who signed Walden's name to the credit purchase receipt nor was there evidence as to who wrote the license number on it.

Defendant repeatedly objected to the evidence concerning the credit card purchase of October 14, 1970, on the basis that such evidence did not establish that defendant was the person in possession of the stolen card on October 14, 1970, and moved to strike the same. The objections and motion to strike were overruled.

Defendant's first point is that the court erred in admitting into evidence state's exhibit 4 and testimony concerning the credit card purchase of October 14, 1970, on the grounds that such evidence was insufficient to show that defendant was in possession of the stolen card; that such evidence constituted a showing of a separate and independent crime (fraudulent use of a credit card); and that such evidence permitted the jury to indulge in a speculative inference that defendant was the person in possession of the stolen card.

Evidence of separate crimes is not admissible unless such evidence has a legitimate tendency to directly establish the defendant's guilt of the charge for which he is on trial. State v. Reese, Mo., 274 S.W.2d 304.

Possession by a defendant of recently stolen property is admissible in evidence as a fact which the jury may consider in determining whether or not the defendant was the person who committed the robbery or burglary with which he is charged. State v. Cobb, Mo.Banc, 444 S.W.2d 408; State v. Sallee, Mo., 436 S.W.2d 246; and when this possession is established, it gives rise to a permissible inference of guilt of the robbery or burglary he is charged with committing. State v. Cobb, supra; State v. Fields, Mo., 442 S.W.2d 30, 35; State v. Kennedy, Mo., 396 S.W.2d 595, 598.

Possession of a stolen credit card may be proven by evidence that a defendant used the card. In State v. Sallee, supra, such possession was one factor which made a submissible case for the jury and led to Sallee's conviction. The fact that the use of the card constituted a separate crime from the robbery does not render such evidence inadmissible. It is the 'possession' of recently stolen property that permits the jury to infer that the person in possession stole such property. Unless the 'possession' is established, the inference of guilt of the robbery is not permissible. In order to reach the basic point of beginning--possession of the Standard credit card by defendant on October 14, 1970, the date of the charge sale--the jury would have to infer from the existence of defendant's license plate number on the receipt that it was the defendant who used that card.

In the instant case the state sought to establish possession of the stolen credit card by circumstantial evidence. The circumstantial evidence relied on here was the presence of defendant's license number on the credit card receipt and nothing more. No cases or authorities are cited and none have been found to support a holding in a felony case that this singular fact would constitute sufficient circumstantial evidence to permit a jury to infer possession of the card in defendant and then to utilize the inference of possession as the foundation upon which to additionally infer that defendant is guilty of committing the robbery in which the card was stolen.

Old Fortress Inc. v. Myers, Mo.App., 453 S.W.2d 692, involved the question of whether certain circumstantial evidence was sufficient to support a finding that the managing officer of a tavern knew that gambling was taking place on the premises. In holding that the circumstantial...