State v. Martin
| Decision Date | 01 October 1980 |
| Docket Number | No. WD,WD |
| Citation | 610 S.W.2d 18 |
| Parties | STATE of Missouri, Respondent, v. Jackie MARTIN, Appellant. 31116. |
| Court | Missouri Court of Appeals |
Clifford A. Cohen, Public Defender, Gary L. Gardner, Asst. Public Defender, Kansas City, for appellant.
John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before TURNAGE, P. J., and SHANGLER and MANFORD, JJ.
This is a direct appeal from a jury conviction for robbery, first degree, and the second offense of armed criminal action. The jury assessed punishment of nine years for the robbery conviction and seven years for the armed criminal action. Pursuant to § 546.430, RSMo 1978, the trial court reduced the sentences to seven years and five years respectively, said terms to run consecutively. The judgment is reversed in part and affirmed in part.
Two points are presented on this appeal. Appellant first alleges the trial court erred in its failure to dismiss Count II of the information, which alleged armed criminal action, because that count placed appellant in double jeopardy. As his second point of error, appellant charges the trial court committed plain error by admitting into evidence a black .38 caliber revolver, because the revolver was irrelevant to the offense charged and its admission was prejudicial.
On January 6, 1978, at approximately 3:30 p. m., appellant was observed by two employees of the Avis-Rent-A-Car offices in downtown Kansas City, Missouri. Appellant was observed looking up and down the street. He then entered the office and asked to rent a car. When appellant was asked for his driver's license, he produced a gun, demanded money and a car. Upon this demand, an employee handed appellant $266.00 and the keys to a rental automobile. At this point, a third employee entered the office, requesting assistance from his fellow employees to load a lawnmower into a motor vehicle. This third employee passed through the office, apparently unaware of the robbery in progress. This third employee then reentered the office and during his reentry, appellant passed this employee while making his escape.
The three employees then observed appellant enter a black Oldsmobile. Appellant departed that vehicle and then entered a black Monte Carlo. As appellant drove the Monte Carlo away, he was also observed by the three employees.
The police were alerted. The following day, appellant was observed driving the stolen vehicle and after a high-speed vehicular chase and a brief foot-chase, appellant was apprehended by the police.
Following his trial, conviction and the overruling of his timely filed motion for new trial, appellant lodged this appeal. At this juncture, appellant's first point is taken up and sustained. This court is bound to follow the last controlling decision of our State Supreme Court on any issue, see State v. Wood, 531 S.W.2d 543 (Mo.App.1975) and Mo.Const. Art. V, § 2.
In his point one, appellant alleges that conviction for armed criminal action, pursuant to § 559.225(1), RSMo Supp.1976, and in addition to conviction for armed robbery, first degree, places an accused in double jeopardy. It would serve no purpose to reiterate herein the debate which has ensued over this issue, and it suffices to state that upon a split decision, our State Supreme Court has decided the question on the basis that conviction for armed robbery and armed criminal action constitutes double jeopardy when the facts necessary to prove conviction for one offense also constitute the necessary facts to prove the second offense. An exhaustive analysis of the subject is to be found in and the reader is referred to Sours v. State, 593 S.W.2d 208 (Mo. banc 1980) (decision vacated by order of the United States Supreme Court on May 27, 1980 and reconsideration ordered) and the most recent decision, Sours v. State (No. 61458, handed down by the Missouri Supreme Court (en banc) on August 18, 1980), reinstating the original decision. Pursuant to the August 18, 1980 decision of Sours v. State, supra, point one raised by appellant is sustained.
Appellant's remaining alleged error charges the trial court with the commission of plain error in the admission of a black .38 caliber revolver because said revolver was irrelevant to the proof of the charge against appellant, and any probative value such evidence might have had was outweighed by its inherent prejudicial effect upon appellant's right to a fair trial.
Appellant invokes review for plain error. Such review could also be made upon the court's own motion pursuant to Rule 29.12(b) to determine any manifest injustice or miscarriage of justice.
In support of his second alleged error, appellant cites three cases for this court's consideration. These authorities are found to be distinguishable from and not controlling of the instant case. The first authority, State v. Williams, 543 S.W.2d 563 (Mo.App.1976) involved a conviction for carrying a concealed weapon and the court reversed and remanded the lower court's decision, holding that the introduction of a second weapon found in an automobile in which the accused was a passenger was irrelevant to a conviction for carrying a concealed weapon, and that repeated reference to the second weapon was prejudicial error. State v. Charles, 572 S.W.2d 193 (Mo.App.1978) involved a reversal for second degree murder and robbery where repeated questioning of the accused about the weapon he carried at a prior time (a weapon actually in possession of the police at the time of the present offense) and repeated prosecutorial comments about the particular weapon were improper. State v. Davis, 530 S.W.2d 709 (Mo.App.1975) involved a reversal upon admission of a sawed-off shotgun which was not found in the possession of the accused or his criminal associates or under circumstances that justified inference of likelihood or possibility of its having been available to defendant for use in robbery or otherwise connected with defendant.
In the instant case, appellant argues that the admission of a .38 caliber Smith & Wesson blue steel revolver was a plain error because the revolver was irrelevant to the proof of the offense charged. Appellant's argument is premised upon the testimony of the victims of the robbery.
Appellant contends that since two of the victims testified that they told the police the gun used in the robbery was silver in color, and that the gun recovered by the police was black, inherent prejudicial error was committed. If this court were to cease with such limited consideration of the evidence in the record of this case, appellant's argument might tend to acquire some semblance of merit. Reference to the entire evidence dispels appellant's contention however.
Two of the employees of the business that was robbed positively identified appellant as the robber. An additional employee witness observed appellant's flight from the scene of the crime. Regarding identification of the gun, the first witness testified:
"Q. (By Mr. Schaffer, prosecuting attorney) I'm going to hand you what has been marked State's Exhibit No. 5 and ask you if you can identify that?
A. It looks rather like the one that he had.
Q. Okay. When I hold it and it is empty. When I hold it in this position, is there anything different about it?
A. No.
Q. To the best of your knowledge, it is the same gun that he had in his possession that same day that he robbed you with?
A. To the best of my knowledge.
Q. Did he have anything on his hands while he was robbing you?
A. He was wearing gloves.
Q. By the way, I asked you to identify State's Exhibit No. 5 and you said it looks rather like the weapon that the defendant was carrying. Would you just for the record, would you say what that object is?
Q. Yes, what is it?
A. It's a gun."
That line of questioning was then followed by cross-examination of the witness as follows:
"Q. All right. Does this look like the gun?
A. Yes, it does.
Q. What color is this?
A. Well, it's black.
Q. Black?
A. Yes.
Q. Right?
A. Yes.
Q. That's the color you gave the police on the day of the robbery?
A. Well, I told them it was a silver color with the light shining on it. It does kind of look silver.
Q. I didn't ask you that. I asked you what did you tell the police on the day of the robbery?
A. That it was silver.
Q. Told them it was color, didn't you?
A. Not shiny.
Q. What color would you call silver? Is that silver enough for you?
A. Yes.
Q. You told them it was that color?
A. It's not shiny.
Q. Isn't silver usually shiny? That's black.
A. I have a silver car.
Q. Let me just ask you this, Mrs. S. What color did you tell the police the gun was?
A. Silver.
Q. Are you saying today that the gun was black or silver?
A. The gun here is black and I told the police that it was silver.
Q. All right.
A. Silver and gray to me are the same color.
Q. Well, is this silver gun that you think that you saw on that day?
A. It looks very much like the gun that I saw that day.
Q. All right. But you do know this gun is not silver?
A. Yes.
Q. Now, all I'm getting at Mrs. S is on the day Let's see, maybe it is. At any rate, you described the gun as a silver gun. Silver, gray and black all look the same or is it silver and gray?
A. Silver and gray.
Q. Is this the color of gray you're talking about?
A. With the lights the way they were, it did look gray. It's brighter there and the sun shines in the office a lot more than in here.
Q. So, you think that may have been the gun?
A. Yes, I do."
The foregoing testimony was then followed by another employee's testimony on the same issue:
"Q. Now, you mentioned that as he came in and stood in front of that counter he pulled a revolver. I'll show you what...
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