State v. Moore
| Decision Date | 10 June 1968 |
| Docket Number | No. 2,No. 52920,52920,2 |
| Citation | 428 S.W.2d 563 |
| Parties | STATE of Missouri, Respondent, v. Richard Lee MOORE, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Jack V. Hoskins, Special Asst. Atty. Gen., St. Louis, for respondent.
Victor O. Coltrane, Jr., E. C. Curtis, Springfield, for appellant.
Defendant, Richard Lee Moore, was convicted of first-degree robbery under § 560.120 RSMo 1959, V.A.M.S., by a jury in the Circuit Court of Greene County, Missouri, and his punishment under the provisions of the Habitual Criminal Act, § 556.280 RSMo 1959 (as amended Laws 1959, S.B. No. 117, § 1), was assessed at imprisonment in the custody of the Department of Corrections for a term of ten years. Following rendition of judgment and imposition of sentence in accordance with the verdict, an appeal was perfected to this Court. We affirm.
According to the uncontroverted evidence, on the night of August 16, 1966, two men robbed a Ramey's Supermarket in Greene County, Missouri, of $4,715. Witnesses Dennis Kinser and Frank Gullett, employees of the supermarket, identified defendant at the trial as one of the two men who committed the robbery.
Defendant contends the trial court erred in permitting the prosecuting attorney, on the day of the trial, to endorse and use Frank Gullett as a witness, and in overruling defendant's motion for a continuance, 'because such evidence came as a surprise to defendant and he had no time to adequately prepare for such testimony.'
If defendant was not prejudiced, we may not convict the trial court of an abuse of discretion. S.Ct. Rule 24.17 V.A.M.R., State v. Arrington, Mo.Sup., 375 S.W.2d 186. The prosecuting attorney, on February 6, 1967, filed a motion to endorse Frank Gullett, and others, as witnesses. A copy of the motion was mailed to counsel for defendant. The trial began February 8, 1967. The record reveals that defendant, through able counsel, interviewed Frank Gullett the night before the trial, and that, based upon statements alleged to have been made by Gullett at that time, Gullett was subjected to probing cross-examination at the trial. The defendant was not prejudiced and his point is without merit.
Defendant next contends the trial court 'erred in permitting the State's witnesses to identify defendant, such identity being made partially on the basis of a lineup conducted when defendant was denied the right to consult with his counsel or to have counsel present, all in violation of the Sixth Amendment to the Constitution of the United States.'
Defendant cites United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. The record does not reveal when the lineup was held. However, it is apparent it was held prior to the trial on February 8 and 9, 1967. The law announced in the Wade and Gilbert cases, decided June 12, 1967, is not applicable because the confrontation for identification purposes was conducted prior to June 12, 1967. Stovall v. Denno, 388 U.S. 293, 87 S.Ct.1967, 18 L.Ed.2d 1199; State v. Blevins, Mo.Sup., 421 S.W.2d 263; State v. Williams, Mo.Supp., 423 S.W.2d 736; and State v. Keeney, Mo.Sup., 425 S.W.2d 85. The point is without merit.
Defendant complains of portions of the closing argument made in behalf of the State. The portion of the argument, to which objection was made, is as follows:
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