State v. McGraw, 38340

• Decision Date: 12 September 1978
• Docket Number: No. 38340,38340
• Parties: STATE of Missouri, Respondent, v. Walter Earl McGRAW, Appellant. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 802

571 S.W.2d 802

STATE of Missouri, Respondent, v. Walter Earl McGRAW, Appellant.

No. 38340.

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

Sept. 12, 1978.

David M. Johnson, Hayes & Heisler, Clayton, for appellant.

John D. Ashcroft, Atty. Gen., Jerry L. Short, Asst. Atty. Gen., Jefferson City, for respondent.

GUNN, Presiding Judge.

Defendant Walter McGraw appeals his conviction for stealing over $50. His allegations of error are based on the admission of opinion testimony as to the value of the stolen items, refusal to instruct on stealing under $50, and the admission of identification testimony. We find no error and affirm.

As St. Louis police officer Jessie Nash was on evening patrol at Thirteenth Street and Warren Avenue, he observed two men loading tires onto a pickup truck in the Fleet Deliveries, Inc. parking lot. Officer Nash was able to observe the faces of the two men assiduously at their work. He noticed several large tires in the truck bed, and as the pickup left the lot, Officer Nash followed. He ultimately stopped the truck and ordered the occupants outside for a confrontation, at which time he was again able to see their faces clearly. The two men, later identified as defendant and his brother, were directed to return with their truck to the Fleet Deliveries lot. Upon reaching the lot, defendant leaped from the truck and fled from the scene. Officer Nash remained with the other suspect until reinforcements arrived. An assisting policeman, Officer Schrum, immediately identified the defendant's brother as Harry "Cookie" McGraw. After hearing a general description of the escaped accomplice, Schrum stated that the escapee resembled the defendant. An all points bulletin was broadcast, both naming and describing defendant. Shortly thereafter, he was arrested in a tavern and transported back to the lot. Nash identified defendant as the man he had earlier apprehended. Defendant and several alibi witnesses testified that he was elsewhere during the incident leading to his arrest.

An investigation revealed that four truck tires and rims had been unlawfully removed and taken by defendant and his brother from a trailer under lease to Fleet Deliveries, Inc. The president of Fleet Deliveries, relying on his thirteen years experience in the trucking business and the purchase within the past three years of "a couple of hundred" tires and rims similar to those stolen, testified without objection that the value of each of the four tires and rims was $108 as used. Defendant now complains that the president of Fleet Deliveries was not qualified to testify as to the value of the stolen property. As the objection was not raised at trial it is not preserved for review. ¹ State v. Hulsey, 557 S.W.2d 715 (Mo.App.1977); State v. Holman, 556 S.W.2d 499 (Mo.App.1977). Moreover, defendant's attorney cross-examined the witness in substantial detail, and we find that the witness' declaration of value did not result in any manifest injustice to defendant. State v. Sanders, 541 S.W.2d 530 (Mo. banc 1976); State v. Hatten, 561 S.W.2d 706 (Mo.App.1978). Further, in view of the witness' experience, there is scarce ground for asserting abuse of the trial court's discretion in admitting such testimony. See State v. Cook, 557 S.W.2d 484 (Mo.App.1977) and State v. Andrade, 534 S.W.2d 595 (Mo.App.1976), for the principle that admission of opinion testimony rests in the considerable discretion of the trial court.

Defendant next claims that the trial court erred in failing to instruct on the offense of stealing under $50. All the evidence concerning the value of the stolen property was that it greatly exceeded $50. There was no evidence to support an instruction of stealing under $50; hence, there was no error in failing to do so. State v. Burrage, 418 S.W.2d 101 (Mo.1967); State v. Thornton, 557 S.W.2d 1 (Mo.App.1977); State v. Brame, 542 S.W.2d 591 (Mo.App.1976); State v. Matzker, 500 S.W.2d 54 (Mo.App.1973).

Defendant relies on State v. Nicholas, 222 Mo. 425, 121 S.W. 12 (1909), and State v. Enochs, 339 Mo. 953, 98 S.W.2d 685 (1936), in arguing that he should have been allowed the stealing under $50 instruction. But Nicholas is not apt, as in that case there was conflicting evidence as to whether the stolen property was worth only $10 or $15. Not so, here. Nor does Enochs apply, for it was found that "the state's evidence in this case did not establish beyond question that the value of the stolen property was $30 or more." ² State v. Enochs, supra at 688. Here, the evidence clearly established the value of the stolen property to be substantially in excess of $50. ³

Finally, defendant claims that the trial court improperly admitted invalid identification testimony. Defendant argues that Officer Nash's in-court and out of court identification testimony was irreparably tainted by Officer Schrum's remarks about the possible identity of the escaped suspect. No motions to suppress identification testimony nor objections at its presentation were made during the trial. However, defendant relies on "plain error," Rule 27.20(c), to preserve the issue for the court's consideration.

As was stated earlier, Rule 27.20(c) will not be invoked unless the...