State v. Wells
| Decision Date | 12 June 1979 |
| Docket Number | No. 38393,38393 |
| Citation | 586 S.W.2d 354 |
| Parties | STATE of Missouri, Respondent, v. Donald WELLS, Appellant. |
| Court | Missouri Court of Appeals |
John Wm. Buechner, Manchester (on appeal only), for appellant.
John D. Ashcroft, Atty. Gen., John M. Morris, III, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant appeals from the judgment entered upon a jury verdict finding him guilty of robbery in the first degree by means of a dangerous and deadly weapon.
Defendant contends that the trial court erred in (1) overruling his motion to suppress identification, (2) overruling his objection to cross-examination of character witnesses with respect to defendant's alleged involvement in another crime, (3) overruling defendant's objection to cross-examination of defendant with respect to an alleged theft from an interstate shipment, and (4) failing to give an instruction with respect to good character.
We reverse and remand.
Defendant does not challenge the sufficiency of the evidence therefore a brief statement of the facts will suffice.
On July 1, 1975 defendant and another man came into the Sureway Sandwich Shop at about 9:30 PM. There was one waitress on duty. They purchased cokes and gave the waitress two dollars in bills and asked for a roll of nickels so that they could play the pinball machine. The nickels and the money from purchase of the nickels for the pinball machine were kept in the ice box. The waitress went to the ice box, got out the nickels and deposited the bills in a box. The two men played the pinball machine until they left at about 11:00 PM. At about 2:30 AM on July 2 defendant and his companion returned to the sandwich shop. Defendant pulled a gun from his shirt pocket under the vest he was wearing and pointed it at the waitress who was still on duty. Defendant's companion told her that they wanted the money, "just . . . bills." She got the money from the cash register and placed it on the counter for him. He then stated that he wanted the money from the ice box, "just the bills." After complying with the demand she was told to go into the back room and stay there for ten minutes. After a short wait in the back room the waitress emerged when she heard a customer come into the shop.
Defendant's evidence including his own testimony was that he did not go into the sandwich shop on July 1 or July 2.
Defendant first contends that the line-up from which appellant was identified was impermissibly suggestive because defendant was the only person in the line-up wearing some of the clothing consistent with the description of the clothing given by the victim to the police.
The victim had described the person later identified as defendant as a black male with dark complexion, age twenty to twenty-five, height between five feet six inches and five feet eight inches, weight approximately one hundred and forty pounds, wearing a dark brown suede vest, a light blue shirt and dark-colored jeans. When apprehended about three hours after the robbery defendant fit the description except that he was not wearing a shirt. Defendant was placed in the line-up at about 8:00 AM on July 2. He was wearing the clothing in which he had been arrested. In reviewing a photograph of the line-up it appears that the other four persons in the line-up were selected for their resemblance to the defendant in size and physical characteristics. None of the other four was wearing dark trousers and a vest.
The victim selected defendant out of the line-up as the person who held the gun upon her. She also identified defendant at the preliminary hearing held about one month after the robbery. She also made a positive identification in court at the trial.
The criteria for the determination of the admissibility of identification testimony has been given attention recently in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) where the court concluded that the "linchpin" of the determination is reliability and it reiterated the factors to be considered as
In the case before us the victim had the opportunity to view defendant for over one hour on the evening of July 1 while he was drinking coke and playing the pinball machine. When defendant and his companion returned in the early hours of July 2 she had the opportunity of observing defendant for about five minutes. The robbers not only took the time to get the money from the cash register but insisted upon getting the money that they knew was kept in the ice box. The victim testified that her attention was drawn more to defendant than to his companion because defendant was holding the gun upon her. Her description of the defendant was sufficiently accurate so as to lead to his arrest based on the description within hours of the robbery. The witness viewed the line-up at 8:00 AM on the morning of the robbery just five and one-half hours after the holdup. The police made no suggestions as to the identity of defendant as the suspect. She also testified that her identification was based primarily upon defendant's physical features. Under the totality of the circumstances we cannot say that the identification procedure was so impermissibly suggestive as to lead to irreparable misidentification. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). For a case almost identical to the case at bar see State v. Carter, 572 S.W.2d 430, 435 (Mo.1978).
Defendant next complains of the cross-examination of his character witnesses. On cross-examination of these witnesses they were asked if they felt that the persons who formed the basis of defendant's good reputation would have a different opinion if they had been aware that "he was arrested for a theft of interstate shipment by the Federal Authorities."
Contrary to defendant's contention we find no error because "(T)he State may cross-examine a character witness with reference to defendant's prior arrests and accusations of specific misconduct for the purpose of testing the trustworthiness, knowledge and good faith of the witness." State v. Siems, 535 S.W.2d 261, 264 (Mo.App.1976). See also State v. Burr, 542 S.W.2d 527 (Mo.App.1976). In the case at bar there was no abuse such as found in Siems and there is evidence that the record of such encounter with the law was available and the question was asked in good faith. We find no error.
The basis of defendant's next contention arose during the cross-examination of the defendant:
"Q. Let me ask you this, Mr. Wells: Back in 1965 isn't it a fact that you admitted to a Judge over in the Federal Court that you had committed a theft for an interstate shipment?
A. No.
Q. You are saying that you never admitted to a Judge that you had committed a theft, an interstate theft, back in 1963, in Federal Court, the St. Louis Eastern District Court.
A. I didn't admit it.
Q. You never admitted to it?
A. No.
Q. Well, what did you do then?
A. Yes.
Q. And your testimony today is that you never admitted to doing that; is that right?
A. What do you mean?
Q. Did you admit to the Judge that you had committed a theft, is that right?
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...to the trial court in defendant's motion for a new trial. The defendant is attempting to enlarge his objection on appeal. State v. Wells, 586 S.W.2d 354 (Mo.App.1979). In addition, the objection was made that the issue of probation was immaterial and irrelevant. On appeal, appellant argues ......
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State v. Martin
...held to be reversible error where three witnesses in a robbery case testified defendant had a reputation for being honest, State v. Wells, 586 S.W.2d 354 (Mo.App.1979), where the evidence in a murder case showed defendant had a reputation as a "peaceful law-abiding citizen," State v. Antwin......
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State v. Gregory, 17286
...v. Foster, 665 S.W.2d 348, 354 (Mo.App.1984). Honesty encompasses truthfulness but it has a more comprehensive meaning. State v. Wells, 586 S.W.2d 354, 359 (Mo.App.1979). A synonym of "honest" is "uprightness," and the quality of being "upright" is one marked by strong moral rectitude. Id. ......
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State v. Gateley
...State v. Manning, 682 S.W.2d 127, 131 (Mo.App.E.D.1984); State v. Foster, 665 S.W.2d 348, 353 (Mo.App.S.D.1984); State v. Wells, 586 S.W.2d 354, 359 (Mo.App.E.D.1979). The court in State v. Culkin, 791 S.W.2d 803, 811-12 (Mo.App.E.D.1990), also held that evidence of a defendant's "honesty" ......