State v. McDaniel
| Decision Date | 12 July 1965 |
| Docket Number | No. 1,No. 51122,51122,1 |
| Citation | 392 S.W.2d 310 |
| Parties | STATE of Missouri, Respondent, v. Howard Lee McDANIEL, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Richard E. Crowe, Sp. Asst. Atty. Gen., Clayton, for respondent.
No brief filed for appellant.
Defendant, charged by information with robbery in the first degree by means of a dangerous and deadly weapon, was found guilty by a jury and his punishment assessed at five years in the custody of the Department of Corrections. Secs. 560.120 and 560.135. (All references to statutes and to Rules are to RSMo 1959 and V.A.M.S., and V.A.M.R., respectively.) His motion for judgment of acquittal or, in the alternative, for a new trial was overruled. Judgment was entered sentencing him in accordance with the verdict and he appeals.
He was represented throughout the trial by able counsel, who also prepared, presented evidence on, and argued his above-mentioned after-trial motion. A brief has not been filed in his behalf in this court; therefore, we consider such points as may be preserved for review in his motion for new trial. Rule 27.20. In his after-trial motion consuming twenty pages of the transcript he has as many numbered paragraphs, some with subdivisions. Some paragraphs comply with Rule 27.20; others do not. Generally speaking, he says the court erred: (1) in overruling his motions for judgment of acquittal filed at the close of the state's case and at the close of the whole case, (2) in the admission and exclusion of evidence, (3) in giving, refusing to give, and in failing to give certain instructions, (4) in permitting improper argument by counsel for the state, (5) in restricting the location of counsel for defendant during his examination of a witness, and, (6) in permitting the jury to consider improper evidence acquired by one of the jurors during an unauthorized visit to the scene of the alleged crime as a result of the court's failure to instruct the jury to not visit the scene.
Evidence presented by the state would warrant the jury finding: That on the evening of October 7, 1963, at about 8:30, three negro men, one armed with a revolver, robbed Henri Tron in his place of business, taking furs of the approximate value of $9,000. Tron's business was known as 'Henri Tron Furrier' and was located at 8600 Ward Parkway in the Ward Parkway Shopping Center in Jackson County. While working on furs with his helper, Marvin Vaughn, in the back room or shop, they heard the buzzer signal indicating someone was entering the front door. Tron got up from his sewing machine to go to the front or sales portion of the store. At a doorway of a partition separating the two areas he met a negro man wearing a rubber Halloween-type mask, who carried a revolver in his hand. In inquiry by Vaughn as to whether this was a Halloween trick, the negro replied, 'No, sir, this is a stick-up', and commended the two men to lie face down on the floor. In this position they were bound, hands and feet, with adhesive tape; their hands behind their back. They then heard the buzzer sound twice more, indicating two other persons had entered the front part of the store. Tron moved his body and was struck on the head with the revolver. The man with the revolver went to the front of the store from which Tron and Vaughn could hear their voices and see the legs of the three robbers moving about as they removed furs with their hangers from the racks. Both testified that the hand of the man with the revolver was that of a negro; that the three voices they heard in the front part of the store had negro accents. Apparently the robbery took only a few minutes. Shortly after the robbers left the two men managed to get loose from the tape, and Tron immediately reported the robbery to the police. Neither Tron nor Vaughn saw the faces of the three men and could not identify them.
On this evening Mrs. Cheryl Fanner Costley was working at the Elko Camera Store three doors North of The Promenade, onto which the entrance door of Henri Tron Furrier opens. Mrs. Costley had stepped outside onto the walkway in front of her store to determine whether an electric sign overhead was on And was getting a breath of fresh air when she saw three negro men with their arms loaded with furs running out The Promenade doorway. One of these men she positively identified as defendant. As they came through this doorway, the three turned to their right taking two or three steps toward her. She could see their faces. They then turned to their left to go to an automobile parked approximately 50 feet distant on the other side of the driveway adjacent to the Camera store. She said she also saw their faces as they glanced back over their shoulders enroute to the automobile. Apparently the whole area, including the driveway and parking area, The Promenade, and the walkways in front of the store, is well lighted. Two witnesses said: Reaching their automobile the three men threw the furs into the back seat, got in, and on their way out of the shopping center passed within a few feet of Mrs. Costley. Defendant was sitting in the back seat behind the driver and as the automobile passed by her she saw his face again for a few seconds. The automobile was a Chevrolet bearing Missouri license number ZY5-042. Mrs. Costley immediately went into her store and wrote this license number on a piece of paper. The police arrived within a few minutes and she talked with Officer Sidney Vaughn to whom she gave the paper bearing this license number. The Halloween mask was found in the Tron store, and a mink skin was found on The Promenade floor where it had apparently been dropped by the robbers. A few days later Mrs. Costley went to police headquarters and examind books of photographs from which she selected and identified a photograph of the defendant as one of the robbers. Several weeks later she identified defendant in a 'line-up' at police headquarters. She again identified defendant as one of the robbers at the trial. Two days after the robbery a 1961 Chevrolet bearing this license number was recovered by police detective John McLaury at 53rd Street and Indiana. Inside the automobile the officer found a garment tag bearing the name 'Henri Tron Furrier' and nearby in the area he found thirteen wooden hangers with long metal necks commonly used for hanging furs, a partly used roll of adhesive tape, and a man's suit on which was found what he described as animal hair.
The defendant did not testify. He offered evidence, but this consisted chiefly of photographs of the shopping center taken at night to show the general layout of the area, a plat showing distances from stores and different points in the area to other points, all explained by testimony of the photographer, and Naval Observatory data showing the time of sunrise and sunset on the date of the robbery.
The evidence is sufficient to support the verdict and judgment. In paragraphs numbered 1 and 2 of his motion for judgment of acquittal or for a new trial defendant contends that the court erred in overruling his motions for judgment of acquittal filed at the close of the state's case and at the close of the whole case. Defendant offered evidence in his own behalf at the close of the state's case and, of course, waived any claim of error in overruling his motion made at the close of the state's case. State v. Spraggins, Mo., 368 S.W.2d 407. The allegations of paragraphs 1 and 2 are long and rambling covering over eight pages of the transcript; basically, these allegations constitute a contention and argument that the verdict was against the weight of the evidence and that the testimony of certain witnesses, particularly Mrs. Costley, was not credible, for which reasons defendant says the court should have directed a verdict of acquittal. This court will not weigh the evidence where, as here, there is substantial evidence to support the finding of the jury and the judgment of the trial court. State v. Spraggins, supra.
Defendant assigns as error action of the court in sustaining an objection by the state to the following inquiry or request of Mrs. Costley during her cross-examination by defense counsel. 'Q * * * Mrs. Costley, how would you describe the defendant's nose?' [Counsel for the State]: 'Your honor, I will object to that; the defendant is right in front of this jury.' This occurred after defense counsel had handed Mrs. Costley a photograph which she identified as a picture of defendant. We assume this photograph and defendant's true facial features were not the same as the witness had described them in a deposition. That is the implication of counsel's questions. By subsequent questions counsel caused her to admit she had previously testified that defendant had a sharp or thin pointed nose. How this witness who had thus described defendant in her deposition would now describe defendant's nose with him apparently in full view of both the witness and the jury may be one method of attacking the witness' credibility, but there are others, and this objection to the court's ruling is hypertechnical and the result immaterial. No doubt defendant got his point across to the jury by his subsequent method of having her admit her previous description which, as indicated, probably conflicted with defendant's features as seen by the jury. The court did not err in thus restricting the method or latitude of cross-examination. A similar complaint is made to the action of the court in sustaining an objection to another question asked this witness in an attempt to attack her credibility. The court sustained an objection to an inquiry as to whether the witness had been asked in her deposition if she had before that occasion ever seen counsel for defendant. By an offer of proof at this point it appears that counsel sought to...
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