State v. Timmons

• Court: Missouri Court of Appeals
• Writing for the Court: ULRICH, Chief Judge
• Citation: State v. Timmons, 956 S.W.2d 277 (Mo. App. 1997)
• Decision Date: 02 September 1997
• Docket Number: Nos. WD,s. WD
• Parties: STATE of Missouri, Respondent, v. Willie J. TIMMONS, Jr., Appellant. 51076, WD 53248.

Page 277

956 S.W.2d 277

STATE of Missouri, Respondent, v. Willie J. TIMMONS, Jr., Appellant.

Nos. WD 51076, WD 53248.

Missouri Court of Appeals Western District.

Sept. 2, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 28, 1997.

Application to Transfer Denied

Dec. 23, 1997.

Elizabeth Unger Carlyle, Lee's Summit, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Lisa A. Fischer, Assistant Attoney General, Jefferson City, for respondent.

Before ULRICH, P.J., and BERREY and HANNA, JJ.

ULRICH, Chief Judge, Presiding Judge.

Willie Timmons appeals his convictions following a jury trial of seven counts of robbery in the first degree, section 569.020, RSMo Cum.Supp.1992, and seven counts of armed criminal action, section 571.015, RSMo Cum.Supp.1992, and the denial of his Rule 29.15 post-conviction motion.

Mr. Timmons raises six points on appeal. He contends on direct appeal that the trial court erred (1) in not permitting venire questions as to why a defendant might not testify,(2) by overruling his motion to suppress evidence, and (3) in denying his oral motion for a continuance. Mr. Timmons final three points are an appeal from the trial court's denial of his Rule 29.15 motion for ineffective assistance of counsel. Mr. Timmons argues that his trial counsel was ineffective on the grounds that he: (4) failed to secure two alibi witnesses, (5) failed to secure a continuance, and (6) disclosed privileged communications.

The judgment of convictions is affirmed, and the denial of Rule 29.15 post-conviction motion is affirmed.

Facts

On the evening of July 4, 1993, around 11:00 p.m., Pam and David Osborn exited their vehicle parked in the lot of a restaurant located in Jackson County, Missouri. David Osborn walked ahead of his wife, Pam, toward the restaurant but turned around to notice an individual holding a firearm standing next to Pam. The individual, holding a silver, chrome automatic weapon, demanded that the Osborns give him their valuables. They complied and ran to the front entrance of the restaurant for assistance.

At the same time the Osborns ran for assistance, Lori Taubin, Leanne Nixon, Marty Bellm, and Travis Earlywine were parking their black GEO Tracker in the restaurant parking lot. Travis Earlywine exited the car. Before Ms. Taubin, Ms. Nixon, and Mr. Bellm exited the vehicle, they observed an individual hold a silver, shiny gun to Mr. Earlywine's head. Then, the individual, later identified as Willie Timmons, leaned his head into the car and demanded money from the occupants at gunpoint. Ms. Taubin threw her wallet outside of the window of the vehicle and managed to flee from the car before Mr. Timmons ordered everyone out of the vehicle.

About this same time, Ed Brinkmeyer, a restaurant employee, decided to inspect the parking lot because the Osborns had reported that they had just been robbed. As Brinkmeyer walked outside, he observed a group of persons standing next to a GEO Tracker. Mr. Timmons turned and demanded money at gunpoint from Mr. Brinkmeyer when he approached the group. Mr. Timmons threatened to shoot Mr. Brinkmeyer if he did not hand him his valuables. After receiving items from the victims, Mr. Timmons jumped into the GEO Tracker and fled.

Around 11:30 p.m. that same evening, Marilyn Fortney was in a grocery store parking lot in Jackson County waiting for her daughter to finish grocery shopping. While Ms. Fortney sat in the car, Cindy Auston and Tom Cusick were walking to their vehicle that was parked in the same parking lot. Ms. Auston and Mr. Cusick noticed a black GEO Tracker parked next to their vehicle with an individual, later identified as Mr. Timmons, sitting behind the wheel. Mr. Timmons pointed a handgun at Mr. Cusick and Ms. Auston and demanded and received money from them.

After robbing Ms. Auston and Mr. Cusick, Mr. Timmons approached Ms. Fortney's car. Ms. Fortney heard a tap on the window and looked into the barrel of the handgun held by Mr. Timmons. Mr. Timmons instructed Ms. Fortney to roll down the window and give him her money. After Ms. Fortney complied with Mr. Timmons's demands, Mr. Timmons entered the black GEO Tracker and drove away.

The GEO Tracker stolen by Mr. Timmons was recovered several blocks from his residence. Police found empty purses and wallets belonging to the victims within the vehicle. Mr. Timmons was later apprehended after a car he was in was involved in a vehicular accident. Police officers recovered jewelry and a weapon from the wrecked vehicle. The weapon was identified as the one used to rob the victims. Mr. Timmons was arrested after Ms. Fortney, Mr. Cusick, Ms. Auston, Mr. Brinkmeyer, and Mr. Bellm identified him during a lineup as the man who had robbed them.

Following a jury trial, Mr. Timmons was convicted of seven counts of robbery and seven counts of armed criminal action. He was sentenced to thirty years on each count of robbery and five years on each count of armed criminal action to be served concurrently.

Mr. Timmons filed a Rule 29.15 motion and later an amended motion. The trial court denied the motion after an evidentiary hearing. A motion for reconsideration was subsequently overruled, and the appeal was then consolidated with his direct appeal from the convictions.

I. Limitations on Voir Dire

In his first point on appeal, Mr. Timmons contends that the trial court's limitations on defense counsel's voir dire inquiries were an abuse of discretion. He argues that the trial court erroneously denied counsel's voir dire inquiries regarding whether the jury could be impartial in reaching a verdict, even if Mr. Timmons chose not to testify in his own defense. Specifically, the court refused to allow defense counsel's question to veniremen as to "whether or not they might accept that [Mr. Timmons] just didn't testify because he was nervous."

The questioning of juries about their qualifications is conducted under the supervision of the trial court, and the nature and extent of the questions counsel may ask are discretionary with the court. State v. Ramsey, 864 S.W.2d 320, 335 (Mo. banc 1993), cert. denied, 511 U.S. 1078, 114 S.Ct. 1664, 128 L.Ed.2d 380 (1994); State v. Hudson, 815 S.W.2d 430, 432 (Mo.App.1991). Rulings of the trial court during voir dire will be disturbed on appeal only when the record shows an abuse of discretion and a real probability of injury to the complaining party. Ramsey, 864 S.W.2d at 335. An appellant has the burden of demonstrating a real probability that he was prejudiced by the trial court's decision. State v. Martin, 815 S.W.2d 127, 129 (Mo.App.1991).

Courts may exclude inquiries which are marginally relevant or irrelevant to issues that are present in the case. Id. at 129-130. They may exclude questions which are open-ended inquiries into a venire member's beliefs, misstate the law, arguably seek commitments from the jury panel, or confuse or mislead the venire members. See e.g. State v. Kreutzer, 928 S.W.2d 854, 861, 864-65 (Mo. banc 1996), cert. denied, --- U.S. ----, 117 S.Ct. 752, 136 L.Ed.2d 689 (1997) (holding trial court properly excluded open questions into how prospective jurors "felt" or "thought"); State v. Bannister, 680 S.W.2d 141, 145 (Mo. banc 1984), cert. denied, 471 U.S. 1009, 105 S.Ct. 1879, 85 L.Ed.2d 170 (1985) (limiting use of open-ended questions is proper exercise of court's discretion); State v. Twitty, 793 S.W.2d 561, 565 (Mo.App.1990) (affirming trial court's exclusion of questions of how veniremen "feel").

Determining whether Mr. Timmons's proposed inquiry was proper is not necessary for the resolution of this issue. Even assuming arguendo that the trial court erred in not allowing the specific voir dire inquiry, no evidence was presented to suggest that Mr. Timmons was prejudiced by the trial court's action. While the trial court did not allow this particular question, it did allow defense counsel to ask whether the venire would infer guilt if Mr. Timmons did not testify. This question was sufficient to determine whether the jury members would infer guilt to Mr. Timmons if he did not testify.

To the question asked, only two members of the jury panel indicated that absence of Mr. Timmons's testimony would concern them. Both venire members, nevertheless, indicated by their silence that they understood Mr. Timmons was not required to testify and that they could not speculate as to why he chose not to testify. This questioning permitted by the trial court provided defense counsel with ample opportunity to discover whether the jury panel was able to be impartial if Mr. Timmons did not testify. Thus, Mr. Timmons suffered no prejudice by the court's restrictions during voir dire.

Point one is denied.

II. Suppression of Identification Evidence.

As his second point on appeal, Mr. Timmons contends that the trial court erred in not suppressing the identification testimony of the witnesses who viewed the pretrial lineup. He claims that the identification procedures employed by the police were highly suggestive. Although this issue was not preserved by Mr. Timmons in his motion for a new trial and is, therefore, waived, the issue is considered sub gratis.

The admissibility of identification testimony involves a two-step analysis. State v. Jones, 917 S.W.2d 622, 624 (Mo.App.1996). To establish reversible error, an appellant must demonstrate (1) that the procedures employed by police were impermissibly suggestive and (2) that those procedures made subsequent identification unreliable. Id. An appellant "must clear the suggestiveness hurdle before procuring a reliability review." Id. In determining reliability, an appellate court considers the totality of the circumstances surrounding the identification. State v. Simmons, 875 S.W.2d 919, 922 (Mo.App.1994). These circumstances include: (1) the witness's opportunity to view the suspect at the time of crime; (2) the witness's degree of attention to the event; (3) the accuracy of prior...