State v. Nickens

• Decision Date: 08 October 1985
• Docket Number: No. WD,WD
• Citation: State v. Nickens, 701 S.W.2d 478 (Mo. App. 1985)
• Parties: STATE of Missouri, Respondent, v. Reginald L. NICKENS, Appellant. 36361.
• Court: Missouri Court of Appeals

Page 478

701 S.W.2d 478

STATE of Missouri, Respondent, v.Reginald L. NICKENS, Appellant.

No. WD 36361.

Missouri Court of Appeals Western District.

Oct. 8, 1985.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and

Denied Dec. 3, 1985.

C.J. Larkin, Columbia, for appellant.

William L. Webster, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Kansas City, Mo., for respondent.

Before DIXON, P.J., and SOMERVILLE and NUGENT, JJ.

NUGENT, Judge.

DefendantReginald Nickens appeals his conviction of assault in the first degree.He challenges the sufficiency of the evidence and complains of errors in cross-examination and of the comments made by the prosecutor during cross-examination and closing argument.We affirm.

In assessing the sufficiency of the evidence after a guilty verdict, an appellate court must accept as true all the evidence and reasonable inferences to be drawn from it that support the verdict.State v. Morgan, 592 S.W.2d 796, 805(Mo.1980)(en banc).The evidence that tends to prove the defendant's guilt follows.

On January 31, 1984, as James B. Robinson, the victim of the alleged assault, was painting the inside walls of an apartment, a "heavy set" black man came in and sat down on some paint cans.The two men talked while Robinson continued to work.The heavy set man suggested that he would like to drink a beer.Mr. Robinson offered to buy a six-pack of beer if someone could go get it.The heavy-set man stated that his brother had a car and would go with him to buy the beer.He left the apartment and returned with his brother, the defendant, a "skinnier" and "younger" man.Robinson gave the defendant a twenty dollar bill to buy the beer, and he left the apartment and returned with a six-pack of beer and a half-pint bottle of J.W. Dant whiskey.When the defendant gave Mr. Robinson the change, Robinson asked why he purchased the whiskey with his money.From his seat on the paint cans, the heavy set man assured Mr. Robinson that he would pay him back.

A short time later, Robinson went up the apartment stairs to get a paint brush.As he came down the stairs, his eyes fixed on the heavier man, he was hit in the side of the head with a metal object.

Although at the instant of the attack Robinson did not see his assailant's face, he believed that the "skinnier one" had hit him because only three people were in the apartment when he was struck.He was looking at the heavier man sitting on the paint cans, and the defendant was the only other person in the room.Robinson also caught a glimpse of the attacker's clothing and profile.The attacker's facial features looked like the defendant's.Robinson recognized his clothing as "work" clothing, the same clothing the defendant wore.

The blow knocked Robinson to the floor.He tried to focus and looked toward the paint cans to find the heavier man, but he had disappeared.The heavier man then started kicking Robinson in the head and neck.Robinson said that he was about to lose his mind as both men continued beating him.Robinson vaguely remembered that a young black woman came in and said she would call the ambulance.

At the end of his direct examination, the prosecutor showed Mr. Robinson a photograph of the defendant's brother, Rodney Nickens, and asked him if he recognized the man in the picture.Mr. Robinson then mistakenly identified the man in the photo as the defendant.He then said that it was one of the two men in the apartment.When the prosecutor asked, "Which one is it?"Robinson replied that it looked like "the heavier set one."

Upon cross-examination, defense counsel established that the photograph was of Rodney Nickens and that Mr. Robinson had at first misidentified it as the defendant.Robinson then admitted that he never saw the attacker's face but said that he saw his shoes and clothing.He had difficulty describing the clothing but did say that the attacker was wearing clothes he described as "work clothes" and "dungarees."

Mr. Robinson's testimony during cross-examination was somewhat confused; however, he repeatedly stated that he"believed"the defendant to be the person who struck him.Defense counsel then asked Robinson if he recalled being interviewed on several occasions by various persons.Robinson had difficulty remembering the interviews.Defense counsel also asked Robinson several times whether he had been shown photographs of either the defendant or his brother.Robinson said that the police had probably shown him some photographs.He later said that he could not remember being shown any photographs by the prosecutor or the police.He could not remember the date when defense counsel came to his home to interview him, but he remembered parts of their conversations.Counsel then pressed Robinson about the subjects of those discussions.Robinson remembered little of what was said and told defense counsel that he had been "out of his head" for thirty-five days after the incident.

The defendant recalled Mr. Robinson as a witness.Counsel told Mr. Robinson that he would bring a man in for Robinson to view.He then brought in Mike Nickens, another of defendant's brothers.Counsel repeatedly asked Robinson whether he had seen that man on the night he was beaten.He answered several times that he thought the man was the "heavier set guy" in the apartment, but that he could not be certain.

The state also called Sgt. Phillip Herbert who with another police officer had answered the call to the scene of this assault.Upon arrival at the apartment, he found Mr. Robinson unconscious on the living room floor, covered with blood and paint.

The two policemen then made a detailed inspection of the apartment and its contents.Sgt. Herbert testified that they found an oven lying face down beside Robinson partially covering his face.When the oven was pulled upright, the door fell off.The thirty-pound door was splattered with Robinson's blood and hair.The officers also found Robinson's wallet on the floor, empty.Beer and paint cans were also strewn about the apartment, and the officers discovered one half-pint bottle of J.W. Dant whiskey.A large pool of blood was near the stove and the body, and blood was splattered throughout the apartment with a large smear on the wall.

Sgt. Herbert, who knew both Reginald Nickens and his somewhat smaller brother, Rodney Nickens, saw the defendant the next day in the hospital; he was being treated for a broken right hand.

The state also called Crystal Smith, the defendant's cousin.She had wandered into the apartment the night of the incident and found a man lying on the floor covered with blood.Crystal first stated that she saw the defendant in the apartment with the victim, but later upon cross-examination, she said that no one was in the apartment with the victim.Much of Ms. Smith's testimony was confused and conflicting.She avoided many questions by answering that she did not remember what happened.She stated several times that she was drunk and could not remember what happened.Near the end of her testimony, Ms. Smith admitted that she saw a man, whose face was bloody, lying on the floor of an apartment on Sycamore Street and that Reginald Nickens was in the apartment with the injured man and that she saw Reginald hit or kick the man.

Finally, the state called Steven Wolfe to testify.He lived next door to the apartment in which Mr. Robinson was found.He stated that on the evening of January 31he heard voices from the apartment and heard somebody say something about money.He also said that he was acquainted with the defendant and saw his car in front of the apartment before he heard the voices.Later he heard a woman scream and he ran to the apartment.He found Jim Robinson on the floor, but the defendant's car was gone.He then ran home and called an ambulance.

The prosecutor recalled Sgt. Herbert and asked him if he had ever shown a set of photographs to Mr. Robinson.Sgt. Herbert stated that he had on two occasions.Defense counsel objected to the line of questioning as hearsay.The prosecutor argued that Mr. Robinson's credibility had been attacked on the issue of identification, and, therefore, she was entitled to introduce Robinson's prior consistent statements.The trial judge permitted the prosecutor to ask the sergeant why he had selected those particular pictures, but cautioned that she should not inquire about Robinson's responses.The prosecutor then asked about the pictures themselves.

Shortly thereafter, the prosecutor asked Sgt. Herbert whether Mr. Robinson had selected any photographs from the group.Defense counsel objected that such testimony would be hearsay.The prosecutor again argued that such testimony would show Robinson's prior consistent statements.The prosecutor argued, "Your honor, that's admissible to show that he made the prior statements.Now, unfortunately, defense counsel's client has beaten up Mr. Robinson....And he can't remember that."Defense counsel promptly objected to the prosecutor's statements, arguing that they were the prosecutor's opinion couched to prejudice and inflame the jury and moved for a mistrial.Defense counsel also moved that "[a]t the very least, ... the jury be advised to disregard that statement."The trial judge cautioned the prosecutor to make no further statements of that type and advised the jury to disregard the statements.The court then overruled defense counsel's hearsay objection.

Sgt. Herbert then testified that he showed a set of pictures to Mr. Robinson while he was in the hospital.As he looked through, Robinson set the picture of the defendant on the bed.He continued through them and selected the photo of Rodney Nickens and said, "This is a bad one", and put it back in the pile.When Mr. Robinson sifted through the pile a second time, he started crying when he came to the photos of Reginald and Rodney Nickens.The officer asked Robinson if those were the men who injured him but...