State v. Roberts, 41994

• Decision Date: 03 March 1981
• Docket Number: No. 41994,41994
• Citation: State v. Roberts, 622 S.W.2d 226 (Mo. App. 1981)
• Parties: STATE of Missouri, Respondent, v. Roy ROBERTS, Appellant.
• Court: Missouri Court of Appeals

Page 226

622 S.W.2d 226

STATE of Missouri, Respondent, v. Roy ROBERTS, Appellant.

No. 41994.

Missouri Court of Appeals, Eastern District, Division Three.

March 3, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Sept. 21, 1981.

Application to Transfer Denied Nov. 10, 1981.

Robert A. Hampe, Robert C. Babione, Public Defender, Sara T. Harmon, Richard Burke, Asst. Public Defenders, St. Louis, for appellant.

John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., George A. Peach, Circuit Atty., St. Louis, for respondent.

CLEMENS, Senior Judge.

A jury found defendant Roy Roberts guilty on two charges of armed robbery. Since defendant was a second offender the trial court imposed the sentences, concurrent terms of 12 and 18 years.

The jury also found defendant guilty of armed criminal action and the court imposed two three-year sentences on those charges. Pursuant to Sours v. State, 603 S.W.2d 592 (Mo. banc 1980), we reverse the judgment as to those two sentences. See State v. Collins, 607 S.W.2d 781(3) (Mo.App.1980).

On appeal defendant challenges the admission of rebuttal evidence to discredit a defense alibi witness and also challenges the admission of defendant's in-custody incriminating statements.

By defendant's first point he challenges the admission of the state's rebuttal evidence to refute the alibi testimony of Debbie Duvall. She had testified she was at a party with defendant at the time of the midnight robbery; that she had got off work at 7:30 and had arrived at the party about 8:30. On cross-examination she repeated these times and acknowledged she had punched a time-card when she left work. Then, in rebuttal and over defense objection the court permitted Ms. Duvall's employer to testify her time-card that night showed she had "clocked out" at 10:46 not at 7:30.

Defendant contends error in admitting the rebuttal time-card testimony, arguing it was collateral. Not so. In State v. Johnson, 536 S.W.2d 851(9-11) (Mo.App.1976), relying on State v. Huff, 454 S.W.2d 920(3-5) (Mo.1973), we squarely held the scope of rebuttal testimony is discretionary and further that the state's rebuttal of previous defense alibi testimony is not a collateral matter. We have considered defendant's cited cases. Basically they bar rebuttal testimony on collateral matters. His argument fails because disproof of alibi testimony is not a collateral matter.

By his other point defendant contends the trial court erred in admitting his in-custody confession because he had not been given his full Miranda warnings. Defendant has waived this point by omitting it from his after-trial motion. But we review the point of our own volition.

Defendant now contends the trial court erred initially in admitting defendant's oral confession to police officer Hill. This, because the warning given did not include the third Miranda requirement that during interrogation defendant had the...