State v. Moten, 28059

• Decision Date: 30 August 1976
• Docket Number: No. 28059,28059
• Citation: 542 S.W.2d 317
• Parties: STATE of Missouri, Respondent, v. James A. MOTEN, Appellant.
• Court: Missouri Court of Appeals

Page 317

542 S.W.2d 317

STATE of Missouri, Respondent, v. James A. MOTEN, Appellant.

No. 28059.

Missouri Court of Appeals, Kansas City District.

Aug. 30, 1976.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Oct. 12, 1976.

Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.

John C. Danforth, Atty. Gen., Douglas G. Mooney, Asst. Atty. Gen., Jefferson City, for respondent.

Before TURNAGE, P.J., and WELBORN and HIGGINS, Special Judges.

ROBERT R. WELBORN, Special Judge.

A Jackson County Circuit Court jury found James A. Moten guilty of robbery in the first degree and fixed his punishment at seven years' imprisonment. This appeal is from the ensuing judgment and sentence.

On October 4, 1974, at 3:00 P.M., two black males entered the Manor Baking Company Thrift Store on East Highway 40 in Kansas City. They pretended to be customers until other customers left. Then one of the men produced a pistol and told the employee in charge 'All right, you know what this is. Don't move.' He forced the employee, Rhoda Pennington, to the floor, striking her once with the pistol. The contents of the cash register ($267.00) were emptied into a sack and after Mrs. Pennington was again struck with the pistol, knocking her unconscious, the men left.

Police were called to the scene of the robbery and Mrs. Pennington described the robbers. Some two weeks after the robbery, Mrs. Pennington went to police headquarters and, from a photograph, identified James Moten as one of the robbers. She picked Moten out of a three-man lineup that evening. At Moten's trial, Mrs. Pennington identified him as the robber who did not have the gun. She testified that she had seen Moten in the store several times previous to the robbery and had an opportunity to observe him for several minutes on the occasion of the robbery.

Moten produced testimony of fellow employees at the Mission East Nursing Center to show that on the date of the robbery he was at work from 7:45 A.M. until 4:00 P.M. Moten testified that he was at his place of employment until 4:00 P.M. and that he received his paycheck there at about 3:00 P.M.

On this appeal, appellant first contends that the trial court erred in admitting over his objection evidence of his work habits at the Mission East Nursing Center. This point might be disposed of summarily inasmuch as appellant's statement of his point does not point out 'wherein and why' the action of the trial court was erroneous. Rule 84.04(d). From the argument it may be found that appellant's contention is that such evidence was prejudicial, irrelevant and sought to prove appellant's 'work reputation' by 'specific acts of conduct.'

As above stated, the defense was alibi, with defendant attempting to show that he was at work at the time of the robbery. His first witness was the personnel clerk of the Mission East Nursing Center. She produced appellant's time card for October 4, 1974, which showed that appellant checked in at 7:45 and out at 4:01. On cross-examination, the witness stated, in response to the prosecutor's question, that appellant's work record was 'quite unsatisfactory.' Thereupon defense counsel stated: 'Your Honor, I am going to object to the work records of the defendant as not one of the issues in this trial. I am going to object to this entire line of questioning.' The objection was overruled and appellant cites this as one instance of error. Cross-examination of the witness proceeded to show that appellant's unsatisfactory rating was in part attributable to unexcused absences from work which did not necessarily appear on the time records.

The Executive Housekeeper at the Center, under whom appellant worked as a custodial worker, testified on direct examination by appellant's counsel that she 'caught' appellant and another employee leaving without permission by the side door to the institution at 9:30 A.M., October 4, and that she 'sort of bawled them out * * *.' She testified that she gave appellant his check that afternoon between 3:30 and 4:00 P.M. On cross-examination, the witness testified, without objection, that appellant's employment was terminated because his work was unsatisfactory. The witness also testified, without objection, that she had learned from other employees of appellant's absences during working hours. The specific question asked the witness and which appellant now finds objectionable was whether or not appellant would 'sneak off and watch T.V.' The witness stated, again without objection, that she 'caught him watching the T.V. a couple of times.' Appellant also points to another question on cross-examination in which the witness was asked whether a lot of times appellant failed to get his work done to which the witness responded, no objection having been made, 'That's right.'

A fellow employee who had also been discharged at the time of the trial testified that he saw appellant at work at 3:00 P.M. on October 4. This employee was asked on cross-examination whether he was caught with defendant watching T.V. on October 14. No objection to the question was made and the witness replied that he did not remember. This too is one of the incidents relied upon on this assignment of error.

Finally, on cross-examination of defendant, he was asked whether or not his employment at Mission East was terminated because for one reason he did not work when he was supposed to. The appellant replied: 'My work wasn't up to standards; * * *.' This is the final incident relied upon by appellant.

The objection now voiced that the prosecutor was trying to present evidence of poor character by specific acts was never stated to the trial court. At best, giving appellant the benefit of a continuing objection based upon his first objection, the ground of objection in the trial court was that of irrelevancy. However, the interrogation, though it went rather far afield in the absence of objection to specific questions, was relevant from the standpoint of testing the alibi witnesses' testimony that appellant was at work at the time of the robbery. The questions were designed to show that absence from work on the part of the defendant during the working day was not unusual and that the fact that the witnesses had seen defendant at work earlier and later on the date of the robbery did not necessarily mean that he was there at the critical time. That was the basic thrust of the cross-examination and as such it cannot be said to have been irrelevant. Certainly no abuse of discretion on the...