State v. Rima
| Decision Date | 08 November 1965 |
| Docket Number | No. 51037,51037 |
| Citation | 395 S.W.2d 102 |
| Parties | STATE of Missouri, Respondent, v. John Samuel RIMA, Appellant. |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Thomas J. O'Brien, Special Asst. Atty. Gen., Kansas City, for respondent.
Kenneth K. Simon, Robert G. Duncan, Simon & Pierce, Kansas City, for appellant.
Defendant was convicted of robbery, first degree, and sentenced to eight years' imprisonment in accordance with the verdict of the jury. Secs. 560.120 and 560.135. (Statutory references are to RSMo and V.A.M.S.) Defendant has appealed and alleges error in refusing to sustain his motion for acquittal at the close of the evidence.
The robbery was at the Kansas City Star Credit Union, a few minutes after Brink's made a delivery of money, and $34,350.00 was taken by four masked men about 11:45 A.M., July 22, 1963. The masked men ran to a pink and white 1962 Buick in the street. Witness Larkins, driving north on Grand Avenue, saw the four masked men run to and get in the Buick and he stopped at its left rear as it pulled out from the curb. The driver of the Buick, who was not masked, looked back for two or three seconds toward Larkins, who was within 15 or 16 feet from him, and then drove north. Larkins identified defendant at the trial as the driver of the get-away car. Larkins followed the Buick to a parking lot on 15th Street at Main and then returned to the Star Building and contacted the police. Another witness, Hernandez, followed the Buick to the parking lot at 15th and Main and saw the men get out of the Buick, some going to a 1960 white Oldsmobile and some to an early 1950 red Plymouth. He could not identify any of the men. The license plate on the Buick was identified as one used on another car by a man who had previously been seen with defendant. Other material facts will be hereinafter stated.
The basis of defendant's claim for a directed verdict is his contention that the credible evidence was unsubstantial and insufficient to sustain a conviction and that there was reasonable doubt of his guilt as a matter of law. His argument is that Larkins had only a 20-200 vision without glasses (it does not appear he was without glasses); that he looked at the driver of the get-away car for only two or three seconds that when his deposition was taken he identified two photographs as pictures of defendant which were pictures of defendant's twin brother; and that the testimony of Larkins and Hernandez was in conflict as to which of their cars was directly behind the get-away car while it was driven from the Star Building to 15th and Main. (Hernandez said the closest he got to the Buick was about half a block.) Defendant also points out the testimony of his ten alibi witnesses who said they saw him or were with him at the City Market from 10:30 A.M. to 12:20 P.M. Defendant says an appellate court should reverse where the evidence clearly does not warrant conviction, citing State v. Mahan, 138 Mo. 112, 39 S.W. 465 (); or where the testimony is irreconcilable with human experience, citing State v. Sechrist, 226 Mo. 574, 126 S.W. 400 (); or where the evidence is so weak that the necessary inference is that the verdict is the result of passion, prejudice or partiality, citing State v. Caviness, 326 Mo. 992, 33 S.W.2d 940 (); and State v. Hancock, 340 Mo. 918, 104 S.W.2d 241 () Defendant further argues the court's duty to pass on credibility to determine whether the testimony is sufficient to permit belief of guilt beyond a reasonable doubt, to grant relief where denial would shock the sense of justice and to see that no conviction shall stand which is the result of prejudice of the jury, citing State v. Dupepe, Mo.Sup., 241 S.W.2d 4 (); State v. Sarten, Mo.Sup., 344 S.W.2d 1 (); State v. Spraggins, Mo.Sup., 368 S.W.2d 407 (); and State v. Webb, 254 Mo. 414, 162 S.W. 622 ().
In this case, the essential fact issue was identification and Larkins' identification of defendant as the driver was positive both at the police station on the day of the robbery and at the trial. As stated in State v. Reece, Mo.Sup., 324 S.W.2d 656, 659: Alibi witnesses can be mistaken as to dates and the jury could reasonably have found that those in this case did not satisfactorily fix the particular date. Moreover, the state had testimony of two officers who arrested defendant a few hours after the robbery that he gave them a different account of his whereabouts between 10:30 and noon on that day from that given by his alibi witnesses. Our conclusion is that it was not error to refuse defendant's request for a directed verdict.
Defendant also claims error in denying his motion for mistrial because of witness Larkins' statement regarding seeing defendant in 'mug-books' at the police station. This testimony of Larkins was as follows:
The answer concerning defendant's picture was not responsive to the question asked but there was no motion to strike or request for action of any kind at the time. However, the next morning defendant filed a written motion for mistrial and when it was overruled asked the court to instruct the jury 'to disregard any testimony concerning this photo identification.' The court refused, stating the basis of its ruling to be that there was no objection of any kind or character at the time the testimony was given; and under the circumstances we consider this refusal to take any action at that time to be a proper exercise of the court's discretion. Reopening the matter at that time could have been harmful rather than beneficial to defendant. The trial court was in a better position than we are to determine whether there was any prejudicial effect from the answer of this witness.
However, defendant relies on State v. Baldwin, 317 Mo. 759, 297 S.W. 10, which involved testimony identifying a photograph of the defendant therein by the prosecuting witness, and we further consider defendant's claim because we find the Baldwin case unsound on this issue. The theory of the Baldwin case was that testimony of a witness concerning his identification of a photograph of the defendant therein was inadmissible because it was considered as a prior consistent statement for corroboration before any impeachment of the witness. (297 S.W. 1. c. 15, 16.) The Baldwin case overlooked the fact that the...
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State v. Donnell
...that Officer Reddick had it along with other photos) that the photograph was of a person convicted of a crime. Compare State v. Rima, Mo., 395 S.W.2d 102, 104--105, which distinguished State v. Baldwin, 317 Mo. 759, 297 S.W. 10, where testimony showed the photograph was from the 'Bertillion......
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State v. Tyler
...the party thus pictured as a criminal there can be no valid objection to an identification based on such a picture. State v. Rima, Mo., 395 S.W.2d 102, 105(3). Instruction 2 was 'that, if there is any evidence before you that raises in your minds a reasonable doubt as to the presence of the......
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State v. Bibee
...have been upheld where the defense was an alibi as in this case where the identification was no more positive than here. State v. Rima, 395 S.W.2d 102, 104(1) (Mo. banc 1965); State v. Hill, 438 S.W.2d 244, 248(7) (Mo.1969); State v. Kaner, 338 Mo. 972, 975, 93 . s.W.2d 671, 673(3) (1936). ......
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State v. Hill
...province of the jury to disbelieve defendant's alibi witness, Gary Cornell Wyms. State v. Reece, Mo., 324 S.W.2d 656, 659; State v. Rima, Mo., 395 S.W.2d 102, 104. Defendant's last allegation of error is in the giving of Instruction Number One, the pertinent parts of which are as 'The Court......