State v. Rains, 36265

Citation537 S.W.2d 219
Decision Date11 May 1976
Docket NumberNo. 36265,36265
PartiesSTATE of Missouri, Respondent, v. Paul David RAINS, Appellant. . Louis District, Division Two
CourtCourt of Appeal of Missouri (US)

Kenneth L. Waldron, John P. Lichtenegger, Jackson, for appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, A. J. Seier, Pros. Atty., Cape Girardeau, for respondent.

KELLY, Judge.

Paul David Rains, appellant, takes this appeal from a judgment of the Circuit Court of Cape Girardeau County, entered upon a jury verdict finding him guilty of Burglary, Second Degree, § 560.070, RSMo 1969. Rains' motion for new trial was timely filed, argued and denied. Allocution was granted and the trial court, having previously made a finding, after an evidentiary hearing, that appellant was a 'second offender' within the meaning of § 556.280 RSMo 1969, sentenced him to imprisonment in the custody of the Missouri Department of Corrections. § 560.095 RSMo 1969. Leave was granted for Rains to appeal as a poor person and a timely notice of appeal was filed.

The evidence in the record offered on behalf of the state is that on the morning of March 1, 1974, the manager of a motel called police between 1:30 and 2:00 a.m. to report that the motel had been broken into by a man whom he described as being light-haired, 5 6--8 tall, 165--180 pounds, and wearing a short jacket. When the police arrived, they gave Evans, the manager five or six photographs to look at, from which he chose the photograph of the defendant. The police then left, arrested the defendant approximately one-quarter mile from the motel and returned with him to the motel parking lot at about 2:30 a.m. After asking the defendant to stand up, the witness identified him as the man he had seen in the motel office some forty-five minutes before.

Defendant was charged with second degree burglary in violation of § 560.070 RSMo 1969. At the arraignment, held April 1, 1974, the trial judge gave the defendant fifteen days to file any pre-trial motions. A motion to suppress Evans' in-court identification of the defendant as the burglar was filed on May 9, 1974. A motion for disclosure, generally, of any evidence the state had which was favorable to the defendant was filed the morning of the trial, May 14, 1974. Both motions were denied without hearings as being untimely filed.

At trial, the state introduced, over defendant's objections, a screwdriver found approximately 60 feet from the motel in a public alley, and testimony attempting to connect that screwdriver to the crime. Evans was allowed, without objection from the defendant, to make an in-court identification of the defendant. When the defense attempted to cross-examine the witness about the identifications made by photograph and on the motel parking lot, the state objected and the trial court sustained the objections. The defense was allowed to cross-examine Evans about his ability to view the burglar during the crime. An offer of proof as to testimony regarding the two pre-trial identifications was made out of the hearing of the jury, but it was not admitted.

Appellant raises seven points relied on for reversal of his conviction. They are that the trial court erred in:

1) overruling his motion for disclosure and his motion to suppress without a hearing on the merits;

2) precluding his counsel from any cross-examination or oral argument to the jury concerning the basis of the in-court identification and the circumstances and procedures used in the identification of the appellant by the state's principal witness;

3) refusing to give the approved alibi instruction, MAI-CR 3.20;

4) admitting into evidence the state's principal witness' in-court identification of the defendant;

5) admitting into evidence a screwdriver found in a public alley some distance from the scene of the burglary, and

6) failing to sustain his objection to testimony relative to the ownership of the building which was hearsay;

7) failing to sustain his motion for judgment of acquittal at the close of all of the evidence because the evidence adduced by the state is insufficient to establish that the motel allegedly burglarized was the property of Quentin Parrish and that there was any personalty belonging to Mr. Parrish kept or deposited in the building as alleged in the Amended Information on which the cause proceeded to trial.

Appellant's first point is without merit. On April 1, 1974, when he was arraigned, the trial court, pursuant to the provisions of Rule 25.06 that any defense or objection capable of determination without trial of the general issue may be raised before trial by motion, and within such time before trial as the court may fix, entered an order granting the defendant 15 days to file motions and set them for argument on May 6, 1974. By this same order trial of the cause was set for May 14, 1974. On May 9, 1974, appellant's attorney filed a Motion for Disclosure requesting the trial court to order the prosecuting attorney to disclose to him 'all evidence material to guilt or punishment in his files, or otherwise known to him, which is or may be favorable to said defendant at the trial of this cause, . . .' (Emphasis supplied). On the morning set for trial the trial judge conducted a pre-trial conference commencing at 8:30 a.m. at which he heard evidence relative to the second offender allegations in the Amended Information and made his findings thereon. It was during this pre-trial conference that defense counsel advised the trial judge that with respect to his motion for disclosure he had, 'last Friday,' gone by the prosecuting attorney's office and saw 5 or 6 photographs purporting to be scenes of various areas of the building where the offense occurred and that these were the only items disclosed to him. The prosecuting attorney acknowledged his obligation to show defense counsel any favorable evidence he might possess and offered to him a copy of a lab report he had received from the Southeast Missouri University laboratory which reported that an examination of appellant's clothing revealed no glass in said clothing. Defense counsel replied: 'That's fine. We'd like to have that in evidence. We don't object to that at all, Judge.' During the state's case and while defense counsel was cross-examining Detective-sergeant James Crites of the Cape Girardeau Police Department, an officer who investigated the burglary, this laboratory report and the fact that no particles of glass were detected in appellant's clothes he was wearing at the time of his arrest was developed, and the report itself was marked as 'Defendant's Exhibit 4,' admitted into evidence at appellant's request, and passed to the jury for inspection. The trial judge, as appellant contends, denied appellant's Motion for Disclosure on the ground it was untimely filed.

The proceedings under review on this part of appellant's first point occurred prior to July 1, 1974, when the newly adopted Criminal Rule 25.31 and 25.32-- providing for requests or motions for discovery and disclosure by the state to the defendant without court order--went into effect. Prior to that date there was no general right to discovery in criminal cases. State v. Tressler, 503 S.W.2d 13, 17(4) (Mo.1973), cert. denied 416 U.S. 973, 94 S.Ct. 2000, 40 L.Ed.2d 563; State v. Mitchell, 500 S.W.2d 320, 324(9) (Mo.App.1973). The trial court was authorized to set a pre-trial date for the filing of motions and objections and appellant has not presented to the trial court, nor to this court, any explanation or reason why his counsel did not comply with the trial court's order. Nor has appellant's counsel revealed that he has any reason to suspect or to know that the prosecuting attorney has, or had, any evidence other than the laboratory report which is or might be favorable to his defense. He argues: 'The State (sic) failing to disclose resulted in great prejudice to the defendant. The State's principal witness testified that entry (sic) gained to the hotel by breaking a door glass. The evidence (laboratory report) which the prosecutor made available affirmatively showed that no particles of glass were contained in defendant's clothes.' This same laboratory report, which according to the record was received by the prosecutor on the day prior to the pre-trial conference--Monday, May 13, 1974--and was, during the cross-examination of Sgt. Crites, identified, marked, read from and passed to the members of the jury for their inspection and examination. Any prejudice which the appellant might have suffered was removed by this act of his counsel in getting the laboratory report in the record and before the jury.

We hold that under the facts of this case the trial court did not err in overruling appellants' Motion for Disclosure which was untimely filed.

Because of the result we reach in this case, and likelihood that it was be retried on remand, we consolidate the second alleged error contained in appellant's first point with those trial errors alleged in points 2 and 4, because they all rest on the question of appellant's identity as the culprit in this burglary.

Appellant's contentions on these points refer to the failure of the trial court to afford him a hearing on his motion to suppress the in-court identification of Mr. Evans prior to trial, admitting into evidence Mr. Evans' in-court identification, and the refusal of the trial court to permit him to cross-examine Mr. Evans relative to a photographic identification procedure and a 'one-on-one' confrontation on the motel parking lot some time thereafter, both within an hour after the burglary was reported to the police. Our source of information on these points is the offer of proof made by the appellant's counsel at the time his cross-examination was cut-off by the respondent's objection and testimony of the arresting officer, and while it is not extensive, it is sufficient to aid us in our ruling.

Appellant's attack in this court is...

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19 cases
  • State v. Avent
    • United States
    • Missouri Court of Appeals
    • April 1, 2014
    ... ... Time and time again, we have discouraged the practice of taking a motion to suppress "with the case." See State v. Ingram, 341 S.W.3d 800, 803 & n.1 (Mo. App. E.D. 2011); State v. Apel, 156 S.W.3d 461, 465-66, 466 n.1 (Mo. App. W.D. 2005); State v. Rains, 537 S.W.2d 219, 223 n.1 (Mo. App. 1976). The State would do well to review this court's relatively recent opinion in State v. Connell, 326 S.W.3d 865 (Mo. App. W.D. 2010), as the trial court's perceived concerns about this backwards process of ruling the motion to suppress after trial is a ... ...
  • State v. Avent
    • United States
    • Missouri Court of Appeals
    • June 24, 2014
    ... ... Time and time again, we have discouraged the practice of taking a motion to suppress “with the case.” See State v. Ingram, 341 S.W.3d 800, 803 & n. 1 (Mo.App. E.D.2011); State v. Apel, 156 S.W.3d 461, 465–66, 466 n. 1 (Mo.App. W.D.2005); State v. Rains, 537 S.W.2d 219, 223 n. 1 (Mo.App.1976). The State would do well to review this court's relatively recent opinion in State v. Connell, 326 S.W.3d 865 (Mo.App. W.D.2010), as the trial court's perceived concerns about this backwards process of ruling the motion to suppress after trial is a valid ... ...
  • State v. Moore, WD
    • United States
    • Missouri Court of Appeals
    • November 2, 1982
    ... ... and Specifically the Request for Polygraph Information and Mental Examination of Leonard Johnson" ...         Under this point, appellant merely contends he was entitled to the information because of the "prophylactic" provisions of Rule 25.03, as well as the rule in State v. Rains, 537 S.W.2d 219 (Mo.App.1976). It must be noted initially that Rains is misconstrued by appellant. That case did not address the precise issues attending the motion filed by appellant. The court in Rains acknowledged the right of an accused to discovery, but the determination in Rains was upon ... ...
  • State v. Edwards
    • United States
    • Missouri Court of Appeals
    • October 31, 2000
    ... ... Cases allowing motions to suppress to be heard with the case, in the presence of the jury, general address the suppression of physical evidence and identification evidence. See, State v. Taylor, 456 S.W.2d 9 (Mo. 1970); State v. Rains, 537 S.W.2d 219 (Mo. St. L. Dist. 1976); State v. Davis, 627 S.W.2d 308 (Mo. App. W.D. 1981); State v. Martin, 643 S.W.2d 63 (Mo. App. E.D. 1982); State v. Collins, 816 S.W.2d 257 (Mo. App. E.D. 1991) ...         Clearly, "the requirement of a preliminary hearing outside the presence of ... ...
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