State v. Neal, Nos. WD
| Decision Date | 09 March 1993 |
| Docket Number | Nos. WD |
| Citation | 849 S.W.2d 250 |
| Parties | STATE of Missouri, Respondent, v. Sam G. NEAL, Appellant. Sam G. NEAL, Appellant, v. STATE of Missouri, Respondent. 43803, WD 45904. |
| Court | Missouri Court of Appeals |
Raymond L. Legg, Office of the State Public Defender, Columbia, for appellant.
William L. Webster, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before BRECKENRIDGE, P.J., and SHANGLER and SPINDEN, JJ.
Sam Guy Neal appeals his convictions as a prior offender of the Class C felonies of burglary in the second degree and stealing. He also appeals the court's denial of his Rule 29.15 motion for post-conviction relief.
Neal asserts several points of error. He complains that the state's evidence did not establish beyond a reasonable doubt that he participated in the burglary. He also assigns error to the court's not permitting him to question a detective about fingerprints on the stolen merchandise; the state's defining reasonable doubt and labeling him a "criminal" during closing arguments; a conflict of interest in the Buchanan County Prosecutor's Office prosecuting him; and the court's definition of reasonable doubt. We do not find merit in any of his assertions.
In his Rule 29.15 motion, Neal complains that his attorney was ineffective. We conclude that the trial court properly denied the motion.
Viewing the evidence in the light most favorable to the verdict, it established that on December 7, 1989, at about 9:20 P.M., three men broke through a glass door of Bob Fay's T.V. and Appliance Store in St. Joseph. Sean Reeves and his girlfriend, Camille McClain, happened by and heard a burglar alarm and saw a bright light revolving above the store's front door. They observed three men. One of them was holding the glass up in the broken door while the other two men carried boxes and video equipment out of the store and loaded them in a brown car backed up to the building.
Reeves saw one of the men pull what appeared to be a gun out of the car's trunk. Reeves said the man wore jeans and a dark colored jacket which was unbuttoned and hung open. He described the man's mouth as "kind of droop[ing] open a little bit" and his hair was "scattered out," a "real mess," and he said the man had facial hair around his mouth.
The three men got into the brown car with a broken tail light and left. Reeves and McClain followed in their car. While Reeves and McClain chased the brown car, a St. Joseph police patrol car enroute to Bob Fay's went by. Officer Fisher was driving the patrol car, and he saw a brown Reeves and McClain followed the car for several blocks. They saw a man in the back seat pointing what they believed to be a gun out the back window. The brown car went south on Interstate 29 when black smoke began bellowing from it. It stalled on the highway shoulder. Reeves and McClain passed the car and returned to Bob Fay's to inform police about the car.
colored Buick with a broken tail light being chased by a little red sports car. Reeves was driving a red Beretta.
Police found the brown car abandoned on the interstate. Inside the car's trunk were boxes of video equipment. Labels on the boxes said, "Bob Fay's T.V. and Appliance." Officer Fisher recognized the car as the same vehicle he had seen earlier.
At about 3:00 A.M., Gary Murphy, a patrolman with the Buchanan County Sheriff's Department, investigated a report of a man lying on the shoulder of Interstate 29. About five or six miles from where the brown car had been abandoned, Murphy found Neal standing near the highway. The wind-chill factor was about 60-degrees below zero. Neal was wearing blue denim jeans and an unzipped, "fatigue green" Army field jacket. He told Murphy that he had gotten into a disagreement with his brother in St. Joseph and was walking back to Excelsior Springs. He said he lived on Belle Street in Kansas City. At Neal's request, Murphy took him to the Salvation Army shelter in St. Joseph.
Murphy learned of the burglary at Bob Fay's a brief time later. He returned to the Salvation Army shelter and detained Neal until Sergeant Edmund Schimmel of the St. Joseph police arrived. They arrested Neal and took him to police headquarters. There, while doing an inventory of Neal's belongings, Schimmel found what he believed to be glass fragments in the pockets of Neal's jacket. These glass fragments appeared to be the same as the glass fragments around Bob Fay's broken door.
From a photographic lineup, Reeves identified Neal as one of the men he had seen during the burglary. Reeves later identified Neal at trial as the man he had seen holding the gun.
Neal contends the trial court erred in overruling his motions for judgment of acquittal at the close of the state's evidence and at the close of all the evidence and in accepting the jury's verdict of guilty. He argues that the evidence was insufficient to prove beyond a reasonable doubt that he participated in the burglary because Reeves' identification of Neal was equivocal and the glass fragments found in Neal's pockets did not prove his involvement in the burglary. We disagree.
When reviewing the sufficiency of evidence, we consider all the evidence and its inferences in a light most favorable to the verdict, and we reject all contrary evidence and inferences. State v. Sladek, 835 S.W.2d 308, 310 (Mo. banc 1992). We neither weigh the evidence nor determine its reliability or the witnesses' credibility. Id.; State v. Hamilton, 817 S.W.2d 8, 11 (Mo.App.1991). Our review is limited to determining whether the jury had substantial evidence from which to find the defendant guilty beyond a reasonable doubt. State v. Dulany, 781 S.W.2d 52, 55 (Mo. banc 1989). The "testimony of a single witness may be sufficient to constitute substantial evidence to make a submissible case." State v. Sumowski, 794 S.W.2d 643, 645 (Mo. banc 1990). A jury may believe all, some or none of a witness' testimony, and the jury must resolve any contradictions or conflicts in that testimony. Dulany, 781 S.W.2d at 55.
Reeves identified Neal as one of the persons who broke into Bob Fay's. Although Reeves admitted that he told a friend that he was not sure whether Neal was involved in the burglary, Reeves had an explanation which the jury was free to accept: His friend was in jail with Neal at the time, and he did not want anything that he knew to get back to Neal.
In addition to Reeves' identification of Neal, the jury had other evidence: Neal's presence on I-29 at 3:00 A.M. a few miles from the abandoned getaway car, Reeves' detailed description of one of the men consistent We conclude that the evidence was sufficient for the jury to find Neal guilty beyond a reasonable doubt. Neal contends that because Reeves' girlfriend could not identify Neal and because Reeves could not identify the car used in the burglary with certainty raises doubt as to Reeves' ability to identify a person's face. These were factors for the jury to consider, not this court. Sumowski, 794 S.W.2d at 645. We deny Neal's point of error.
with Neal's appearance, and the discovery of glass fragments in Neal's pockets.
Neal complains that the trial court sustained the state's objection to his questioning of Detective Charles Przybylski about fingerprints on the boxes found in the brown car. During his cross-examination of Przybylski, Neal's attorney asked Przybylski:
Q. In the trunk of the car there were a number of camcorders still boxed up in new condition, is that right?
A. Yes.
Q. And did you find any fingerprints of Sam Neal?
Q. Did you lift any latent prints, Detective?
The court's rulings were proper. The state is not obligated to take fingerprints from articles allegedly touched by a defendant or to account at trial for the absence of fingerprint evidence. A trial judge may preclude a defendant from presenting evidence on such issues. State v. Keely, 791 S.W.2d 864, 866 (Mo.App.1990); State v. Beck, 785 S.W.2d 714, 720 (Mo.App.1990).
Neal relies heavily upon this court's decision in State v. Hall, 687 S.W.2d 924, 928 (Mo.App.1985), to suggest that his question was proper. Hall, indeed, contains discussion which suggests that a defendant may show that the state could have fingerprinted objects which the defendant was charged with possessing and did not do it. The Supreme Court of Missouri, however, has specifically rejected this notion. State v. Schneider, 736 S.W.2d 392, 402 n. 7 (Mo. banc 1987), cert. denied, 484 U.S. 1047, 108 S.Ct. 786, 98 L.Ed.2d 871 (1988). This court also has held, in State v. Cooper, 719 S.W.2d 20, 23 (Mo.App.1986), that Hall was not authoritative on that issue because the discussion was dicta, unsupported by any authority, and was contrary to existing precedent. Neal's point is without merit.
Neal contends the trial court erroneously failed to declare a mistrial, sua sponte, because of the state's closing argument. Neal argues that the state impermissibly defined reasonable doubt and lowered the state's burden of proof. He also complains that the state's reference to Neal as "this criminal" was inflammatory, prejudicial, implied special knowledge of Neal's guilt by the state, and improperly labeled Neal as a criminal. We disagree.
The state asserted in the rebuttal portion of its closing argument:
Here's the bottom line on all this: Reasonable doubt is a doubt based upon reason and common sense. You don't need to get all technical. You don't need to get all analytical about it. It's a doubt based on reason and common sense.
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