State v. Nimrod

• Citation: 484 S.W.2d 475
• Decision Date: 25 September 1972
• Docket Number: No. 2,No. 56751,56751,2
• Parties: STATE of Missouri, Respondent, v. Edward T. NIMROD, Appellant
• Court: United States State Supreme Court of Missouri

Page 475

484 S.W.2d 475

STATE of Missouri, Respondent, v. Edward T. NIMROD, Appellant.

No. 56751.

Supreme Court of Missouri, Division No. 2.

Sept. 25, 1972.

John C. Danforth, Atty. Gen., Stephen D. Hoyne, Asst. Atty. Gen., Jefferson City, for respondent.

John J. Cosgrove, Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant; Paul T. Miller, Executive Director, Willard B. Bunch, Chief Defender, Kansas City, of counsel.

DAVID J. DIXON, Special Judge.

The defendant, Edward T. Nimrod, was found guilty of robbery in the first degree and sentenced to twelve (12) years in the State Penitentiary by a jury. The trial court denied a motion for a new trial, but reduced the sentence to seven (7) years. The defendant asserts error on the sole ground that the trial court improperly refused an instruction limiting to impeachment only certain testimony offered by the defendant. The judgment of conviction is affirmed.

The case as presented by the state's witnesses may be summarized as follows: The Blue Valley Market at 43rd and Cleveland was robbed by two men armed with a sawed-off shotgun. The robbers, on entering, accosted the manager, Conforti, and one of them held the shotgun at his head and herded him into the rear storeroom. While this was being done, the accomplice rifled the cash register. The robber with the gun then threatened Conforti and demanded the location of the rest of the money. The man with the gun then gave it to his accomplice and the original gunman obtained more money from a box located under the counter. Conforti was placed in the storeroom and the door closed. He heard a shotgun blast and then one Watson, a customer, kicked the door to the storeroom open and released him. Watson testified that he entered the store while the robbery was in progress, saw the robbers place Conforti in the storeroom and saw the weapon exchanged. He also observed that as the robbers fled, the one who then had the shotgun tripped over a box and the weapon discharged.

When the police arrived they found blood and pieces of cloth embedded in the suspended ceiling, the cloth being blue in color. Within a few minutes another policeman apprehended the defendant in a stairwell within blocks of the store. The defendant had a makeshift tourniquet made from a blue shirt with white buttons, applied to a profusely bleeding wound in his shoulder. There was testimony that the blue shirt and the fragment of cloth from the ceiling were the same. These objects were in evidence and passed to the jury. Both Conforti and Watson unequivocally identified the defendant as one of the robbers. Watson and Conforti had described the defendant as wearing a blue shirt at the time of the robbery. Conforti and Watson both mentioned a peculiar gold band on the defendant's front teeth which aided the identification.

The single issue in this case is posed by the only evidence defendant offered. A lawyer on the staff of the public defender who had appeared for the defendant in the magistrate court was called as a witness. He denied any present recollection of the testimony but notes he took in what the witness described as 'gibberish' and immediately transcribed by him to legible form were offered as his 'past recollection recorded' of the witness Conforti's testimony at the preliminary hearing. The only objection by the state was that the notes were 'incomplete'. To the extent necessary to understanding, the notes read as follows: '* * * Defendant and another man entered store, they went toward milk department, Conforti felt hand grab him and saw a shotgun, the other man had the shotgun, defendant emptied cash register, at this time Conforti got good look at defendant, Lee Watson walked in on the robbery, Conforti after money taken was forced into back room by defendant, Conforti heard blast, * * *'.

This was the only evidence in the case offered by the defendant. There was no alibi evidence in the record. The sole issue was the identification of defendant as one of the robbers which in this case did not depend entirely upon the identifying witnesses. This identification is corroborated by the physical evidence of the wounding of one of the robbers, the piece of shirt in the ceiling, and the wounded defendant's apprehension within the half hour bearing a wound consistent with the accidental discharge of the robbers' weapon and using as a tourniquet a blue shirt of the same material as the cloth found in the ceiling of the store.

The instruction offered by the defendant is as follows:

'Evidence that on some former occasion a witness other than defendant made a statement consistent or inconsistent with his testimony in this case may be considered by you in deciding the credibility of the witness and the weight to be given to his testimony. However, any prior statement of the witness must not be considered by you as evidence of the matters referred to in that statement, except as to such matters, if any, as you may find were admitted to be true by the witness in his testimony in this case.' ¹

(Emphasis supplied.)

The defendant argues that this instruction is required when the state offers hearsay to impeach a witness citing State v. Carolla, 316 Mo. 213, 292 S.W. 721 (1926) and State v. Davenport, 342 Mo. 996, 119 S.W.2d 291 (1938) and that it follows such an instruction must be given at the request of the defendant when defendant offers such impeaching testimony. ²

The force of defendant's argument is predicated upon a determination that the notes of Conforti's testimony given in the preliminary in fact contradicted his testimony at the trial. The cases which have considered the admissibility of hearsay for impeachment purposes give guidance as to what constitutes such impeachment. To impeach the hearsay must be inconsistent with the whole effect and impression of the witness' testimony. Isolated words or phrases contained in the testimony or an omission of detail supplied at trial will not suffice as a basis for the necessary contradiction. Cain v. Orscheln Bros. Truck Lines, Inc., 450 S.W.2d 474 (Mo.App. 1970). Hall v. Phillips Petroleum Company, 358 Mo. 313, 324 S.W.2d 438, l.c. 442 (1948), Wigmore on Evidence, Vol. III, p. 725.

Viewing the testimony of Conforti in its entirety and for its general sense, it shows that the defendant entered the store, grasped Conforti by the neck and placed the shotgun against his head. The accomplice emptied the cash register and then as Conforti was placed in the back storeroom and threatened if he did not disclose the location of the last of the money, the defendant and his accomplice exchanged the gun and the defendant then emptied the cash box from under the counter. This view of Conforti's testimony is amply and completely corroborated by the testimony of the witness Watson, and when the evidence is viewed in this light, it is apparent that there is no contradiction between the so-called notes of Conforti's testimony and his testimony offered in the case. Conforti's trial testimony is that both of the bandits at one time or another were in possession of the gun. The meager statement of his testimony at the magistrate level can only contradict his testimony in chief on the assumption that the magistrate court testimony of Conforti was that the defendant did not have the gun at any time. Defendant argues that the...