State v. Scott, WD

• Decision Date: 03 September 1985
• Docket Number: No. WD,WD
• Citation: 699 S.W.2d 760
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Arlester SCOTT, Defendant-Appellant. 35598.
• Court: Missouri Court of Appeals

Page 760

699 S.W.2d 760

STATE of Missouri, Plaintiff-Respondent, v. Arlester SCOTT, Defendant-Appellant.

No. WD 35598.

Missouri Court of Appeals Western District.

Sept. 3, 1985.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

Oct. 22, 1985.

Application to Transfer Denied Jan. 15, 1986.

Lee M. Nation, Kansas City, for defendant-appellant.

William L. Webster, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Kansas City, for plaintiff-respondent.

Before SHANGLER, P.J., and TURNAGE and BERREY, JJ.

BERREY, Judge.

The defendant was charged with robbery, first degree. He was convicted by the jury and punishment was assessed at twenty-five (25) years.

Judgment affirmed.

This is the second time this case has been before us. State v. Scott, 647 S.W.2d 601 (Mo.App.1983). The court reversed that conviction when the trial court admitted the testimony of two witnesses for the state who were not disclosed to the defense in pre-trial discovery.

In the instant case the following evidence was elicited. About noon on March 27, 1981, two negro males entered the Milgram Food Store at 87th and Blue Ridge in Kansas City, Jackson County, Missouri. Manager Donald Gruis testified he had seen the taller of the two men in his store about three to five times before accompanied by a shorter man. Gruis testified, "I got so I recognized him and the other man." The prosecuting attorney asked Gruis if he saw either of the men in the courtroom and Gruis replied, "I think so." He then proceeded to point out the defendant.

Gruis testified when he first saw the defendant on the day of the robbery, the defendant was carrying a brown craft sack. Later, Gruis saw the defendant and the other man by the dairy case with a grocery cart containing groceries. Gruis proceeded to his office to do routine work. When he stepped out of the office he was accosted by the shorter of the two men who was standing there with a gun pointed at him. Gruis was ordered to "come out of there." As Gruis did so, he observed that the taller man, the defendant, had two employees "covered with a gun." Gruis stated he thought the defendant was the taller man. At trial the defendant was clean shaven and during the robbery he had a full beard.

The store employees were herded into the office and forced to their knees with their hands behind their backs. The defendant then opened the craft sack he had been carrying, took out some duct tape and bound the hands of the employees except for Gruis, who they ordered to open the safe. Gruis explained the safe and the alarm system to them and while this discussion ensued a knock came at the door. It was Elmer Eubank, the liquor clerk. The defendant opened the door and pulled Eubank into the room and put the gun in the side of his neck. Eubank was then ordered to kneel and his hands were taped.

The robbers then ordered Gruis to put his key into the safe and open it. He complied. They wanted to know where the cash delivered earlier in the day from Wells Fargo was and Gruis told them it was put away. He then was ordered to open the drawers in the safe. Gruis advised them that the time locks on the drawers required fifteen minutes to activate. The robbers then looked about and found a drawer where the time lock was not set and stole about $600. They also took about $1,000 from another drawer on the back side of the safe and 500 blank Republic money orders.

The shorter man did most of the looking in the safes and did most of the questioning. The defendant stood to the side by the door, and a little behind the employees. Neither robber wore a mask although they both wore surgical gloves.

At this time, the robbers taped up Gruis and fled the store. When Gruis heard the doors rattle he jumped up, broke off the tape, kicked the door open, and gave chase. He observed them enter a green Caprice Chevrolet, 1973 or 1974 model.

Gruis further testified that the taller man wore an "apple hat." When asked what an apple hat was he responded, "I don't know. Its kind of a french hat, flat type hat with a brim on it. He wore it all the time. Every time he was in the store he had it on." (Emphasis added.)

The police department processed the scene, lifted prints and photographed the area.

Defendant first alleges trial court error in overruling his motion to dismiss because a reversal by this court constituted double jeopardy.

The first case was reversed because the trial court erred by permitting two unendorsed witnesses to testify about the chain of custody of the duct tape box which was found at the scene and upon which defendant's fingerprint was found. Scott, supra.

Certainly, in the instant case, the identification testimony of Gruis is sufficient to let a jury decide the issue and the fingerprint is merely added proof.

The defendant would have us hold that every time a trial judge erred in a ruling double jeopardy would be the end result. ¹ This view would place an impossible burden upon a trial judge and, subsequently, society. The United States Supreme Court has recognized this danger and addressed it in several cases.

The court in United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964) commented on the theory of double jeopardy and society's rights as follows:

While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain the Ball principle are the implications of that principle for the sound administration of justice. Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendants' rights as well as society's interest. Id., at 466, 845 S.Ct. at 1589.

The case of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), distinguishes between double jeopardy being based on insufficient evidence and trial court error.

In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished. Id., at 15, 98 S.Ct. at 2149.

Missouri courts have steadfastly held to the theory that double jeopardy applies only when appellate reversal is based on insufficient evidence.

In the first trial, Scott I, the trial court erred in admitting the fingerprint evidence. Now, defendant alleges double jeopardy. Such is not the case, however, since the previous reversal was based on trial court error in improperly admitting the challenged evidence. State v. Onken, 660 S.W.2d 312, 315 (Mo.App.1982); State v. Wood, 596 S.W.2d 394, 398-399 (Mo. banc 1980).

The court in State v. Basham, 568 S.W.2d 518 (Mo. banc 1978), succinctly sets forth the manner in which double jeopardy comes into play in Missouri by citing Burks, supra. "[D]ouble jeopardy provisions of the U.S. Constitution, Fifth Amendment, preclude the retrial of a defendant where the initial conviction is reversed solely for lack of sufficient evidence to sustain the jury's verdict." (Emphasis added.) Basham, supra, at 521.

In Scott I, the trial court erred in failing to sustain defendant' motion to exclude witnesses for failure of the state to provide timely discovery. Such trial court error is addressed by Burks as an incorrect ruling on receipt of evidence and does not give rise to double jeopardy. Burks, supra, at 15, 98 S.Ct. at 2149.

Defendant next alleges the trial court erred in permitting the introduction of the duct tape container. Defendant claims there was insufficient evidence to establish that the duct tape box was, in fact, the duct tape box found at the scene.

The defendant, in his brief, claims there is no evidence to establish the box was unaltered from March 30, to April 16, when it was examined by Officer Warlen. Defendant quotes from Scott I, "Finally, there was no proof at all that the exhibit was preserved intact from March 30th, the date of the crime, ² until April 16 when Warlen made his examination." Scott I, supra, at 608. ³

Daniel Burns, a Kansas City, Missouri, policeman, was the first officer to arrive on the scene. He secured the area, and "made sure nobody bothered any of the evidence that was laying around."

William Fortner, a crime scene investigator for the police department, testified he processed the area, photographed the scene to show the location of various items seized for evidence, and collected the exhibits. Exhibit 6 is a photograph of the scene depicting the duct tape box. Witness Gruis testified that this was the box the robbers left behind.

State's exhibit 15 was a bag which held state's exhibits 16, 17 and 19. Exhibits 16 and 17 were envelopes containing pieces of duct tape. Exhibit 18 was the duct tape box, and exhibit 19 was an envelope containing three rubber gloves. Exhibit...