State v. Sullivan

• Decision Date: 27 June 1977
• Docket Number: No. KCD,KCD
• Citation: State v. Sullivan, 553 S.W.2d 510 (Mo. App. 1977)
• Parties: STATE of Missouri, Respondent, v. Homer Eugene SULLIVAN, Appellant. 28194.
• Court: Missouri Court of Appeals

Page 510

553 S.W.2d 510

STATE of Missouri, Respondent, v.Homer Eugene SULLIVAN, Appellant.

No. KCD 28194.

Missouri Court of Appeals, Kansas City District.

June 27, 1977.

James D. Worthington, Lexington, for appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.

Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.

SWOFFORD, Presiding Judge.

The appellant(defendant) was charged by information with the felonies of carrying a concealed weapon and conspiracy to commit robbery.These charges were tried before a jury and the defendant was found guilty on both, and the jury assessed his punishment at four years on the first charge and four years, six months, on the second.Thereafter his motion for a new trial was overruled, and he was sentenced to the terms assessed by the jury, to run consecutively.This appeal followed in due course.

The sufficiency of the evidence is not challenged but the defendant raises two points on which he seeks reversal of the judgment.First, he asserts that the trial court abused its discretion in refusing to allow him to produce his rebuttal witnesses.Second, he states that the court erred in allowing the state to cross-examine the defendant upon the specifics of his prior criminal record when the defendant admitted the prior convictions and pleas.Resolution of these assignments of error requires a somewhat detailed review of the evidence.

On March 22, 1975, in response to information, from a reliable source, that a robbery was planned of the Dover Produce Company, Dover, Missouri, by the defendant, Sheriff Gene Darnell of Lafayette County, Missouri apprehended and arrested the defendant and one Gregory Harry Berger in the town of Dover in the early morning.The defendant was driving a station wagon slowly passing the produce company, and Berger was riding as a passenger.The Sheriff placed the men under arrest and discovered a nine shot pistol under the front seat.

The Dover Produce Company was owned and operated by Alvin and Clarence Hain, brothers.Both of them were acquainted with the defendant, who had been a customer of the store from time to time.The defendant had last been in the store on or about March 14, 1975, with a lady companion.Clarence Hain assisted Sheriff Darnell in the apprehension and arrest of the defendant and Berger on March 22, 1975.

In addition to the testimony of the Hains and Sheriff Darnell, the state offered the official transcript of the testimony of Gregory Harry Berger taken at the preliminary hearing.

Berger testified that he was 20 years old in October of 1974, and a friend of defendant's son.He further stated that he had, on several occasions, discussed and planned with the defendant a project to rob the Dover Produce Company.On some of these sessions, Mrs. Zelda House was present.In accordance with their previous plans around 6:00 a. m. on March 22, 1975, Berger drove a station wagon which the defendant had borrowed and the defendant drove his own car to Lexington, Missouri, a short distance from Dover.The defendant left his car parked in Lexington and driving the wagon with Berger riding as a passenger, they proceeded to Dover.A pistol was in the front seat between the men.The plan was for the defendant to point out the produce company to Berger; Berger was then later to rob the store by means of the gun; and, then rendezvous with the defendant where the defendant's car was parked in Lexington and give him the money.

Berger testified that the defendant had brought the handgun from his house on the morning of March 22, 1975 and put it in the car.Berger had seen the gun on March 20, 1975.The defendant told Berger that he had stolen the gun and would be in trouble "if he got caught with it".When they were passing the Dover Produce Company on the morning of March 22, 1975, the defendant saw the Sheriff, he told Berger to put the gun under the front seat and Berger did so, where it was found by Sheriff Darnell following the arrests.

The defendant testified in his own behalf.He stated that he had formerly lived in Lafayette County and had upon occasion made purchases of dog food and other items at the Dover Produce Company, both then and after he moved to Kansas City.He categorically denied any plan to rob the Dover Produce Company or having discussed such a venture with Berger or Zelda House.He stated that he had only seen the handgun found by Sheriff Darnell on two occasions, once at the home of Zelda House and once in his own home.On the latter occasion, Zelda House brought the gun to his house late at night.She was having trouble with her husband and was afraid.She placed the gun on a window sill where it remained for some time.He denied carrying the gun from his home to the station wagon on the morning of his arrest; denied that it was in the front seat between him and Berger; stated he did not tell Berger to put it under the seat just before the arrest; denied any knowledge that it was under the seat; and, stated Berger denied to the defendant any knowledge of the gun.

The defendant testified that at the time of his arrest in Dover, he was driving the station wagon which he had borrowed from the owner, Ina Gleason, and was en route through Dover to the town of Corder, Missouri, a short distance from Dover, to pick up a washing machine he had arranged to purchase and to check on a horse owned by his daughter.He stated that Berger was with him to help move the washer.

Other testimony of the defendant on direct and cross-examination pertinent to the second point on this appeal will be hereafter noted.

Defendant offered additional evidence.Ina Gleason stated that she had loaned the station wagon to the defendant and later picked it up at Lexington after his arrest.Margie Garrett testified that when she left Corder, Missouri for Iowa, she had sold "all of my furniture" to the defendant.Donald Borchers was offered as a character witness, as was Elizabeth White, the defendant's former mother-in-law.Thereupon, the defense rested.

The state offered in rebuttal the testimony of Zelda House.She testified as to the conversations and plans with defendant and Berger to rob the Dover Produce Company.She stated that on one occasion about a week before the defendant's arrest, she accompanied him to the Dover Produce Company and both of them made purchases.On that same occasion, the defendant also asked the man in charge for a roll of nickels and when he opened the vault, she observed rolls of coins.Additional discussions of the proposed robbery ensued.She stated that the idea of the robbery originated with defendant and that he also planned the story about the washing machine, if he and Berger were caught.The witness had observed the gun at defendant's house but she did not bring it to his house and she never had the gun in her possession.The defendant later told her it was a "warm" or "hot" gun.This was the gun which was to be used in the robbery.

While the defendant was in jail at Lexington, he asked the witness to see Ina Gleason, the owner of the station wagon, and tell her to say the gun had been in her car for a month before March 22, 1975.Zelda House also testified that the defendant had never told her while he was in jail that he was innocent but had always said he would deny the charge and "stick to the story of going after the washing machine".She stated that after the defendant's arrest, she obtained some of his personal property from his home, consisting of glasses, his clothing, papers, dishes and silverware.She was holding his clothing and glasses (at defendant's request) but she sold the dishes and silverware and applied the proceeds of about thirty to thirty-five dollars against a debt he owed her.

It should be here noted that no objection was made by the defense as to the rebuttal testimony of Zelda House and no point is raised on this appeal with reference to its propriety or admissibility.

After the state had again rested its case, the following colloquy appears:

"MR. WORTHINGTON (Defense Counsel): If it please the Court, I would like to make an offer of proof and some rebuttal to the rebuttal evidence that was offered by the State of Missouri.

The State of Missouri offered as rebuttal evidence, Zelda House, and as part of her testimony she stated, and I don't know whether it was on direct examination or cross-examination, that she had not spoken with Mr. Sullivan in the jail when or she had spoken with him in the jail but that he had never spoken about his innocence or asked her why she was making these claims against him.

I would offer then as rebuttal a Mr. Baeir, B-a-e-i-r, from the Lafayette County Jail, who claims that he was present on one or more occasions when Mr. Sullivan spoke with Mrs. House, each time denying his complicity in the crime and each time asking her why she was making those charges and statements against him.

My second offer of proof would be Steven Sullivan, the son of the defendant, Eugene Sullivan.

Mr. Steven Sullivan would testify that he was present in Zelda House's home in Independence and has seen Mr. Sullivan's furniture and property, belongings, there on at least one occasion; and since he(sic) has told her (sic) on at least two occasions of her sale of the property and of her keeping the proceeds, or benefits.

These I would offer to show that Mrs. House is not an unbiased witness, not an impartial witness.

That is all I have.

THE COURT: The offer of proof will be denied."

It is apparent that this offer of proof falls short of the procedural requirements imposed upon a party making such an offer.It has long been the rule in this state that the proper procedure to present and preserve such an offer is to have the witnesses present; put them on the stand; propound the questions; and thus enable the trial court to intelligently rule upon, and an appellate court to review, the propriety and...