State v. Robertson, 46955
| Citation | 667 S.W.2d 18 |
| Decision Date | 24 January 1984 |
| Docket Number | No. 46955,46955 |
| Parties | STATE of Missouri, Respondent, v. Donald ROBERTSON, Appellant. |
| Court | Missouri Court of Appeals |
Robert A. Hampe, St. Louis, for appellant.
John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, George R. Westfall, Pros. Atty., Clayton, for respondent.
Defendant appeals after a conviction by a jury of robbery in the first degree, a violation § 569.020, RSMo 1978. The court found defendant to be a prior offender and sentenced him to thirty years' imprisonment.
On appeal, defendant challenges the sufficiency of the evidence to support his conviction.
The State's principal witness was an employee of the Butler Hill Food Shop. On April 12, 1981, three men entered the shop and one, described by the principal witness as approximately six feet tall, heavy set with a moustache and full beard, came behind the counter, displayed a gun and demanded money. The employee gave the man several hundred dollars and then was locked in a storeroom while the men made their escape.
Police drew a composite sketch of the gunman from the employee's description. After seeing the composite, a police officer suggested to investigating detectives that defendant might be the perpetrator of the crime. Consequently, defendant's photograph, along with others, was shown to the victim. The photograph pictured defendant without a beard; however, one was drawn on the photograph. The victim selected defendant's photograph, saying that it could be the robber. Subsequently, a lineup was held in which defendant was pointed out by the witness.
The robbery victim's in-court testimony concerning the identification of her assailant is highly significant in this case. The witness stated that she had given police a description, they had drawn a composite and she had identified a photograph. The prosecutor then questioned her concerning the line-up she had viewed. The following transpired when she was shown a photograph of the line-up:
Moreover, concerning her photographic identification, the victim on cross examination was asked:
She was then asked "[c]ould you say for sure that he is the [robber] today?", to which she answered "no."
The state attempted to impeach the witness by establishing that subsequent to the robbery, her son had been dating defendant's cousin. As further impeachment, the state offered the testimony of the officer who had shown her the original photograph and was present at the line-up. Concerning the photograph shown to the victim, the officer was asked:
As to the identification at the line-up, the officer stated as follows:
There was no other testimony or evidence tying defendant to the robbery. Clearly the State could not make a case solely on the basis of the victim's in-court testimony since she only said that she could not state with certainty that defendant was the robber.
As to other evidence, there is only the testimony of the officer present at what the State contends were her out-of-court identifications. Concerning the photograph, the officer said that the victim had stated that she believed that was the man who came in the store. As to what occurred at the line-up, he stated that she said that she was certain that the defendant was the man who robbed her; however, the officer qualified his statement in response to the next question by saying "she said that it would have been better if he had the beard on but she did believe that he was the person."
It is well settled that prior statements of a witness inconsistent with her in-court testimony are admissible to impeach or discredit. E.g. State v. Davis, 566 S.W.2d 437, 446 (Mo. Banc 1978), State v. Granberry, 491 S.W.2d 528, 534 (Mo. Banc 1973). However, it is equally well settled that testimony such as that offered by the officer cannot be relied upon to make a submissible case. E.g. State v. Davis, 566 S.W.2d at 446; State v. Granberry, 491 S.W.2d at 530; State v. Darty, 619 S.W.2d 750, 753 (Mo.App.1981). In this regard, in State v. Granberry, the Supreme Court reaffirmed what is known as the "orthodox" rule. The rule is that while a prior inconsistent statement of a witness who is not a party is admissible to impeach the credibility of the witness, it is not competent as...
To continue reading
Request your trial
-
State v. Hood
...defendant as the culprit. Consequently, defendant's point would fail even had Ms. Moore not testified at all. State v. Robertson, 667 S.W.2d 18, 20 (Mo.App.1984); State v. Bailey, 651 S.W.2d 599, 601 The testimony of defendant and Stacy Gipson that defendant was at Big Spring at the time of......