State v. Tate, 37214

• Decision Date: 14 September 1976
• Docket Number: No. 37214,37214
• Citation: 543 S.W.2d 514
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Charles TATE, Defendant-Appellant. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 514

543 S.W.2d 514

STATE of Missouri, Plaintiff-Respondent, v. Charles TATE, Defendant-Appellant.

No. 37214.

Missouri Court of Appeals, St. Louis District, Division Three.

Sept. 14, 1976.

Motion for Rehearing and for Transfer to Supreme Court

Denied Nov. 12, 1976.

Joseph W. Warzycki, James C. Jones, Robert G. O'Blennis, Asst. Public Defenders, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Ronald B. Safren, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

KELLY, Judge.

Charles Tate, the appellant, was convicted in the Circuit Court of the City of St. Louis of Murder in the First Degree, § 559.010 RSMo 1969, and Robbery in the First Degree by Means of a Dangerous and Deadly Weapon, § 560.135 RSMo 1969. On appeal he does not question the sufficiency of the evidence to support the conviction, nor the validity of the sentences imposed, towit, life imprisonment on the Murder in the First Degree charge and ten years imprisonment on the Robbery in the First Degree by Means of a Dangerous and Deadly Weapon charge.

Two points are presented to this court for review. First, that the trial court erred in refusing his requested instruction 'C' for the reason that there was evidence showing that he may not have understood what he was saying or doing by reason of mental defect or by drug addiction or intoxication. Because appellant has failed to set out the proffered instruction which the trial court refused to submit to the jury in the argument portion of his brief as required by Rule 84.04(e) this point is not preserved for review. State v. Lynch, 528 S.W.2d 454, 461(13) (Mo.App.1975). We do not review matters relating to the giving or refusal of instructions under the 'Plain Error' rule, 'unless the trial court has so misdirected or failed to instruct the jury on the law of the case so that the misdirection or failure to instruct causes a manifest injustice.' State v. Broomfield, 510 S.W.2d 843, 845(1) (Mo.App.1974). We do not find that to be the situation here.

Appellant's second point is that the trial court erred in denying his motion for mistrial when Samuel Gimpelson identified him in court on the ground that he had not been informed that this witness would be an identification witness in accordance with the requirements of Rule 25.32, V.A.M.R.

Prior to disposing of this point it is appropriate that we now refer briefly to the evidence adduced by the State in support of the charges on which this appellant was tried and found guilty.

On November 15, 1974, at approximately 3:15 p.m., Joseph, Simon, Samuel and Hyman Gimpelson, brothers and co-owners of the Ajax Iron and Metal Company, were in the company office at 2747 Papin Street in the City of St. Louis. Sheldon H. Marcus, a company supervisor, was also in the office with the Gimpelsons when Leroy Taylor entered, armed with a revolver and announced: 'This is a robbery. Back up.' At this point in time another man, identified as Charles Tate, the appellant, entered the office armed with a shotgun. Mr. Taylor walked up to Hyman Gimpelson, who was standing by a counter in the office, and grabbed $700.00 from an open cash drawer, and demanded more money. Hyman Gimpelson opened a combination safe but no more money was found there. As the two robbers were leaving Hyman Gimpelson tripped over an acetylene torch and knocked down Mr. Taylor, and while both men were on the floor appellant fired the shotgun he was holding and Hyman Gimpelson was felled by two shotgun blasts fired by appellant. Samuel and Simon Gimpelson were wounded by shots fired from the revolver by Mr. Taylor. Hyman died from his wounds and Simon Gimpelson was confined to a hospital for a long period of time by reason of the wounds he received at the time of the robbery.

At trial Sheldon Marcus and Samuel Gimpelson identified the appellant as the man who wielded the shotgun during the robbery. Also introduced into evidence was a statement the appellant had given to the authorities admitting participation in the robbery and implicating a third person as the driver of the getaway car.

The basis for appellant's second point of alleged trial error came about in the following manner. Samuel Gimpelson, whose name appears as a witness for the State on the Indictment on which the cause came on for trial and as the victim of the assault charged in Count III of the Indictment, ¹ was called as a State's witness. During the course of direct examination by the Assistant Circuit Attorney the following occurred:

'Q. (By Mr. Safren). What did you see, then?

A. I saw one man come in with the pistol raised in his hand, and I saw another man come in with the shotgun--station himself on the other side of the counter.

Q. Now the man with the shotgun, will you describe him for us?

A. The gentleman right here.

Q. Do you see him seated here?

A. Yes.

Q. Can you tell us how he is dressed today?'

At this point defense counsel requested permission to approach the bench and a lengthy colloquy between the trial court and respective counsel followed, during which appellant's counsel objected to any testimony by Mr. Gimpelson relative to the identification of appellant as one of the robbers. Reduced to its simplest terms, the thrust of this objection was that appellant's counsel, prior to trial, had filed a motion for discovery and a motion to suppress identification; that in complying with his request for discovery the State did not advise him that Samuel Gimpelson would be able to identify appellant as a participant in the robbery and, therefore, he was deprived of the opportunity to adduce evidence from this witness on his motion to suppress identification prior to trial and thereby obtain a ruling on whether Mr. Gimpelson's identification of appellant was the result of suggestive identification procedures and his incourt identification subject to being excluded at trial. He complained that he was faced at trial with a new issue of identification of which he had not been forewarned and this constituted a violation of at least the spirit of the discovery procedures whose purpose was to allow both sides to know adequately what they faced at trial.

The Assistant Circuit Attorney advised the trial court that Mr. Gimpelson had not attended the lineup because he was in the hospital at the time it was conducted and that the witness had not confronted the appellant between the date of the robbery and the time he entered the courtroom to testify in the trial. The trial court indicated to appellant's counsel that he was about to overrule his objection and offered appellant's counsel the opportunity to voir dire the witness out of the hearing of the jury and defense counsel announced that if the trial court was going to overrule his motion he would request a mistrial, and if the trial court was going to overrule this motion for a mistrial he would then voir dire the witness as suggested by the trial court.

The witness was voir dired and testified that at no time did he see a lineup in connection with this incident. He was shown some pictures by some police officers while in the hospital but he was in no condition at that time to recognize anyone. He admitted that he had given a statement to the same police officers who interviewed him in the hospital that he could identify both men who took part in the robbery. He did not know if the police officers wrote down the statement he gave them, although he thought that they probably did. He denied seeing any pictures since he had recovered from his wounds. He had not seen the appellant between the time of the robbery and when he saw him in court when he entered the courtroom to testify. He never heard the name 'Charles Tate' until 'today.' He knew after the lineup that at least...