State v. Oliver, 51188
| Decision Date | 31 March 1987 |
| Docket Number | No. 51188,51188 |
| Citation | 729 S.W.2d 560 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Michael OLIVER, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Dave Hemingway, St. Louis, for defendant-appellant.
William L. Webster, Atty. Gen., Colly Frissell-Durley, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Defendant was convicted by a jury of first degree robbery and armed criminal action and sentenced as a dangerous offender to two concurrent twenty-five year terms of imprisonment. He appeals; we affirm.
The sufficiency of the evidence is not in dispute; however, a short recitation of the facts is necessary for a resolution of defendant's points on appeal. On April 6, 1985, Terry Pruitt was working the night shift at a gas station on Dorsett Road at Interstate Highway 270 in St. Louis County. At about 3:45 a.m., defendant drove into the station, stopped his automobile near one of the gas pumps, and entered the building. At trial, Pruitt said he had never seen defendant before that night. Defendant asked Pruitt if he wanted to buy some marijuana. Pruitt testified that, because he was acquainted with a police officer and "was going to try to set up a deal where the police could see it go down at the gas station," he told defendant he was interested in making a purchase.
Defendant went back out to his car and then returned to the building. From his coveralls, he removed a light brown plastic bag which contained an article Pruitt thought might be a pistol. Defendant pointed the object at Pruitt, announced a robbery, and threatened to kill him. Defendant ordered Pruitt into an interior employee restroom at the rear of the building where defendant tied Pruitt's hands behind his back with tape. Pruitt said he then heard defendant grab a bank bag, containing about $790, which Pruitt had placed on the restroom sink earlier in his shift.
When a customer entered the building, defendant ordered Pruitt to sit on the stool and threatened to kill him if he said anything. Pruitt overheard defendant waiting on customers and then defendant reappeared to ask Pruitt how to operate the cash register and credit card machine. Pruitt said defendant became upset when he apparently could not understand Pruitt's instructions, repeated his threat to kill him if he said anything, and returned to the customers. While defendant waited on customers and continued having trouble operating the cash register and credit card machine, Pruitt was able to loosen the tape binding his wrists and cut it with the knife he had on his belt. Pruitt returned to the front, explained to the customers that "this was a robbery," told them to call the police, and began to scuffle with defendant. Defendant pulled the plastic bag out of his pocket and hit Pruitt in the head with it; the bag apparently contained a piece of metal pipe. Pruitt stabbed defendant twice in the arm with his knife. After the struggle, defendant left the building, got into his car, and drove away. Pruitt followed him out the door to the gas station lot, asked a customer to help him remember defendant's license plate number, and called police to report the robbery.
A short time later police officer George Hodak saw defendant driving on Interstate Highway 270 and placed him under arrest. Defendant and his vehicle matched the description given Hodak, and the license plate number was the same. Police found a bank bag containing $715 between the front passenger seat and the passenger door and $87 in loose currency under the driver's seat in defendant's car. Police took defendant to the gas station where Pruitt and several customers who had witnessed the robbery identified him.
Defendant's only witness was his former wife who testified defendant was at her home when a man named Terry called at approximately 2:30 a.m. on the night of the robbery and asked for defendant. According to her, defendant left her home approximately 15 to 20 minutes after the telephone call. She also testified that she had given defendant about $400 in cash earlier in the evening.
In his first point on appeal defendant alleges that:
The trial court erred in granting the state's motion in limine to prohibit evidence or reference pertaining to the subsequent robbery of the same gas station and attendant Terry Pruitt in September 1985, which evidence would have shown an unusually similar set of facts, in that both times Pruitt claimed he was alone at the station, the robber took him to the back room and tied him up but in a way that Pruitt was able to free himself....
Prior to trial, the state filed a motion in limine asking the court to forbid "defendant, his attorney and/or his witnesses from mentioning at any time during the trial of this cause or attempting to elicit any reference to a robbery which occurred at the Big G Hammond Texaco service station on September 28, 1985 ..." Following a brief hearing prior to selection of the jury, the court sustained the motion in limine. In his brief, defendant states that his counsel at the hearing on the motion in limine argued Counsel for defendant did not attempt to raise the issue of the subsequent robbery during the trial.
We believe the effect of a motion in limine was best described by Judge Titus in State v. Riggs, 586 S.W.2d 447 (Mo.App.1979), where he stated that such a motion is
nothing more or less than a highfalutin motion to suppress designated testimony or evidence. However, sustention of such a motion does not per se work as a permanent damnation of the evidence sought to be suppressed. Neither does sustention prevent the trial court from later changing its mind. The pretrial ruling is interlocutory only. Additional information or trial-produced evidence may prompt the trial court to alter its pretrial ruling by admitting the previously objected-to testimony.
Id. at 449 (emphasis ours). The Missouri Supreme Court followed Riggs on this point in State v. Woods, 639 S.W.2d 818, 820 (Mo.1982). See also, Frye v. Meramec Marina, Inc., 673 S.W.2d 451, 454 (Mo.App.1984); Annin v. Bi-State Development Agency, 657 S.W.2d 382, 385 (Mo.App.1983); and State ex rel. Westfall v. Gerhard, 642 S.W.2d 679, 681 (Mo.App.1982). In order to preserve the issue of admissibility of the excluded evidence for appellate review, the proponent must present it at the appropriate time at trial. Annin, 657 S.W.2d at 385; Westfall, 642 S.W.2d at 681. 1 Defendant here did not attempt to introduce evidence of the subsequent robbery after the trial began.
Defendant's point also concerns the motion in limine's limitation on his cross-examination of Pruitt. We believe that the trial court cannot be indicted for error where, as here, defendant failed to attempt to raise the question while Pruitt was on the stand and thus did not give the trial court an opportunity to rule on the issue in light of the evidence and circumstances as they appeared at that time. Counsel could have specified, out of the hearing of the jury, his proposed question and the court might have allowed counsel to ask the question if she could establish a good faith basis for the proposed cross-examination question. See, State v. Powers, 613 S.W.2d 955, 960 (Mo.App.1981).
The language in our recent case of State v. Williams, 724 S.W.2d 652 (Mo.App.1986), might appear to be contrary to our holding here and prior precedent regarding the effect of a motion in limine. In Williams, however, the state filed what it denominated a "motion in limine" during the course of the cross-examination of a witness; the motion was not a pretrial motion as in this case. 724 S.W.2d at 654. At issue in Williams was whether the defendant was required to make a formal offer of proof...
To continue reading
Request your trial
-
State v. Purlee
...is sustained, the proponent must then make an offer of proof. State v. Arbuckle, 816 S.W.2d 932, 938 (Mo.App.1991); State v. Oliver, 729 S.W.2d 560, 563 (Mo.App.1987); State v. Smith, 725 S.W.2d 631, 633 In reference to the attempt of a criminal defendant to introduce a declaration of anoth......
-
State v. Pendergraft, No. 18417
...is sustained, the proponent must then make an offer of proof. State v. Arbuckle, 816 S.W.2d 932, 938 (Mo.App.1991); State v. Oliver, 729 S.W.2d 560, 563 (Mo.App.1987); State v. Smith, 725 S.W.2d 631, 633 Id. at 592. Defendant's second point presents nothing for appellate review. It is denie......
-
State v. Brotherton, 57030
...The trial court has broad discretion in the admission of evidence and will only be reversed for abuse of discretion. State v. Oliver, 729 S.W.2d 560, 563 (Mo.App.1987). The existence of an outstanding warrant for Goins explains Sheriff Asher's conduct in trying to locate Goins and appellant......
-
State v. Miller
...It was the responsibility of defense counsel to request the trial court to instruct the jury to disregard the evidence. State v. Oliver, 729 S.W.2d 560, 564 (Mo.App.1987). Because there was no such request, the trial court, in ruling on the issue in Defendant's new trial motion, was limited......