State v. Long, 36587

• Decision Date: 16 December 1975
• Docket Number: No. 36587,36587
• Citation: 532 S.W.2d 814
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Larry Darnell LONG, Defendant-Appellant. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 814

532 S.W.2d 814

STATE of Missouri, Plaintiff-Respondent, v. Larry Darnell LONG, Defendant-Appellant.

No. 36587.

Missouri Court of Appeals, St. Louis District, Division Three.

Dec. 16, 1975.

Charles D. Kitchin, Public Defender, James C. Jones, Joseph W. Warzycki, Asst. Public Defenders, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Chief Counsel, Timothy Verhagen, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Nels C. Moss, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

McMILLIAN, Judge.

Defendant-appellant Larry Darnell Long was found guilty by a jury of robbery in the first degree by means of a dangerous and deadly weapon. The trial court found him to be a second offender and imposed sentence at fifteen (15) years imprisonment. He appeals. For reasons hereinafter stated we affirm.

Since appellant does not question the sufficiency of the evidence, only those facts necessary for the disposition of the points raised on this appeal need be related.

The evidence produced by the state reasonably supports the following statement of facts:

At approximately 4:26 P.M., on October 29, 1973, Melvin White, an employee of the AFCO Wholesale Grocery Company located at 5022 Martin Luther King Drive, heard a knock at the store's rear door. Through a window in the door he could see two men standing outside. He called the manager, Frank Friedman, to let them in. ¹ Mr. Friedman admitted the two men and 'they immediately pulled guns.' They directed Friedman and White to lie on the floor. Two other employees, James Lee and William Parker and some customers who were present were directed to the 'counter area' and held there at gunpoint. One of the robbers, subsequently identified as defendant Long, was wearing a gray overcoat, a black hat, and was carrying a revolver. His accomplice, later identified as Rodney Jones, wore a black overcoat, a multi-colored hat, and was carrying an automatic pistol. The two men went through Friedman's pockets and ordered him to give them money. Jones ordered Friedman to get up and marched him to the cash register area. The defendant guarded the others at the rear of the store. Jones took some money out of the cash register and then went through Friedman's desk drawers, removing some money from Friedman's wallet which was in one of the drawers. The defendant then forced Friedman to the warehouse area of the store where he was forced to lie down on the floor and was threatened with his life unless he gave them some more money.

At that point, Detective Anthony Pona entered the store and observed that there was a holdup in progress. Pona ordered the robbers to drop their guns, but instead they ran out the back door with Pona in pursuit. Pona chased the two through an alley, firing a couple of shots in their direction as they ran. At the mouth of the alley Jones and the defendant split up. Pona pursued the defendant without losing sight of him until he finally caught up to him at a nearby White Castle restaurant. Defendant dropped his revolver as he entered the White Castle building. At the trial Detective Pona testified that the revolver dropped by defendant was fully loaded and cocked when he found it. The state's attorney asked Pona if the ammunition was live over defendant's objection. Pona answered that the ammunition was live. Defendant's basis for his objection was that only a firearms expert was qualified to answer that question.

While Detective Pona was in the process of apprehending the defendant, Patrolman Jerry Jones arrived at the AFCO store. He heard gunshots and then spotted Rodney Jones emerging from the alley. He chased Jones through the streets and apprehended him a few minutes later. Both suspects were brought back to the AFCO store and were identified by Friedman and his employees. At the trial, Patrolman Jones was asked by the state's attorney whether Rodney Jones, at any time after his arrest, stated to him that the defendant was not involved. Patrolman Jones answered that he had not. The defendant objected to the question and answer. The trial court initially sustained the objection on hearsay grounds. The defendant also pointed out that there had been no indication that the suspect Jones had been apprised of his Miranda rights at the time. The trial court subsequently reversed its decision and overruled the objection on the assurance that Rodney Jones was to testify later.

Testifying in his own behalf, the defendant stated that: (1) he was at the White Castle at approximately 4:30 P.M., on October 29, 1973, (2) he did not have a hat or coat on, (3) Detective Pona entered the White Castle with his gun drawn and arrested him while he was standing in line for food, (4) other officers standing outside gave him the gray overcoat and black hat and made him put them on, and (5) Detective Pona then escorted him to the AFCO grocery. Mary Long, the defendant's mother, testified that defendant was living at home at the time of the robbery and that he did not, at that time, own a gray overcoat or a black hat like the one allegedly worn by him during the robbery. Rodney Jones testified that it was not the defendant, who participated with him in the robbery, but a friend of Jones' named Kevin. On cross-examination, Jones was asked whether at any time after his arrest he told the police or any of the other people present at the grocery that defendant was not involved. Jones answered that the officers didn't ask him any questions or give him any time to talk. Jones had previously pled guilty to a charge arising out of the robbery of the AFCO store.

In rebuttal, the State presented Margaret Bresnahan, the official court reporter, who had transcribed Jones' guilty plea. Reading from the notes that she had taken on July 30, 1974, when Jones entered his plea, Ms. Bresnahan testified that after the Circuit Attorney had finished reading the facts which the State hoped to prove if the case went to trial, that Jones indicated that the facts were correctly stated. Among the facts read was the statement that Jones had committed the robbery along with Long. Ms. Bresnahan further testified that the trial judge then specifically asked Jones if he committed this robbery along with Larry D. Long, to which Jones answered in the affirmative.

When the trial began on September 24, 1974, the State introduced as its first witness William Swyers, a laboratory technician assigned to the Graphic Arts Section. Defendant objected to the testimony of Swyers on the ground that he had not been formally endorsed as a witness. The trial court overruled the objection and permitted Swyers to testify.

On this appeal, appellant raises four points: (1) that the trial court erred in denying defendant's motion for a mistrial when the State opened its case with Mr. Swyers because Mr. Swyers was an unendorsed witness and defendant was prejudiced by the lack of endorsement, (2) that it was error for the trial court to overrule defendant's objection to the prosecutor's asking Patrolman Jones 'whether he heard Rodney Jones state after his arrest that defendant Long was not his partner in the commission of the robbery,' because the question solicited hearsay testimony and the answer was prejudicial to defendant's case, (3) that the trial court erred in overruling defendant's objection to the testimony of Detective Pona that the gun allegedly used by the defendant 'contained live ammunition and was a deadly weapon,' because these subjects were not susceptible of opinion testimony and defendant was prejudiced by the testimony, and (4) that it was plain error for the trial court to 'comment on the evidence to the effect that the jurors themselves knew the ammunition was live,' because 'this concerned a matter directly in issue' and 'it was highly prejudicial to the defendant.'

In his first point, appellant contends that he was prejudiced by the failure of the State to endorse Mr. William Swyers as a witness as required by Supreme Court Rule 24.17. It appears from the record that on September 16, 1974, eight (8) days prior to the trial, the State endorsed as a witness 'Technician, Graphic Arts Section Wilbert Shatmer.' On September 24, 1974, the State began its case by calling as a witness Mr. William Swyers who is also a graphic arts technician with the St. Louis Police Department. Mr. Swyers was to testify concerning two diagrams he drew of the scene of the crime and the surrounding area. Defense counsel objected to this witness on the grounds that he had never been formally endorsed. In the colloquy which followed at the Bench, defense counsel admitted several times that he was aware of the content of the testimony that was to be presented by Mr. Swyers and was not surprised by the fact that the State was going to 'put a plat man on.' Defense counsel further admitted that he had never made any attempt to contact anyone from the Graphic Arts Section including Wilbert Shatmer. Defense counsel maintained that the basis of the objection was that he believed Wilbert Shatmer was going to testify and the man in fact introduced, Mr. Swyers, was not an endorsed witness. ² The court overruled the objection.

Rule 24.17 provides that the names of all material prosecution witnesses shall be endorsed on any indictment or information filed. The names of other witnesses may be added at any time upon order of the court and after notice to the defendant or his attorney. There is no doubt that the trial court has broad discretion in permitting the endorsement of the names of additional witnesses, State v. Thost, 328 S.W.2d 36, 38 (Mo.1959), and a judgment of conviction will not be reversed because of a late, irregular or imperfect endorsement absent an abuse of that discretion. State v. Strawther, 476 S.W.2d 576, 579 (Mo.1972); State v. Fraley, 369 S.W.2d 195 (Mo.1963) and State v. Whaley, 512 S.W.2d 431 (Mo.App.1974).

In State v. Fraley, supra, the trial...