State v. Wendleton, s. 19469
| Decision Date | 29 October 1996 |
| Docket Number | Nos. 19469,20685,s. 19469 |
| Citation | 936 S.W.2d 120 |
| Parties | STATE of Missouri, Respondent, v. Diane WENDLETON, Appellant. Diane WENDLETON, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Emmett D. Queener, Asst. Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Jill C. LaHue, Assistant Attorney General, Jefferson City, for respondent.
A jury found Diane Wendleton (Defendant) guilty of passing a bad check, in violation of § 570.120, RSMo Supp.1992, and assessed her punishment at a fine of $1,000. The trial court entered judgment per the verdict. Defendant brings appeal No. 19469 from that judgment.
While that appeal was pending, Defendant filed a motion under Rule 29.15. 1 The motion court dismissed the motion for failure to prosecute. Defendant brings appeal No. 20685 from that order.
We consolidate the appeals, Rule 29.15(l ), but address them separately in this opinion.
The first three of Defendant's five points relied on pertain to this appeal. Defendant claims the trial court erred in (1) denying her motion to suppress her in-court identification, (2) overruling her motion for continuance, and (3) denying her request to sign her name before the jury and submit her signature as demonstrative evidence. We affirm.
The sufficiency of the evidence to sustain Defendant's conviction is not disputed. The facts, viewed in the light most favorable to the verdict, are as follows: Robyn Brawley, an office clerk at the Town and County Supermarket in Ironton, Missouri, cashed a $186.12 check on January 28, 1993, for a woman she later identified as Defendant. The check, made payable to the supermarket was drawn on the Bank of the Lead Belt and contained Defendant's name on the signature line. Brawley testified she initialed the check and cashed it after observing that Defendant was intoxicated, disoriented, clumsy, and nervous. After the check was dishonored, Brawley gave a description that matched Defendant to the deputy sheriff investigating the case.
A Bank of the Lead Belt official testified that Defendant's checking account was closed on June 1, 1992, because she was repeatedly on the overdraft list. At that time the bank notified Defendant that her checking account had been closed. Defendant never contacted the bank about her closed account and never reported that any of her checks had been stolen.
Defendant's evidence consisted of her testimony in which she denied writing the check and the testimony of Bruce Scott, a handwriting expert. He testified that the results of his analysis of Defendant's handwriting compared with the signature on the check were inconclusive. He also agreed that intoxication can change the appearance of a person's signature.
Defendant's first point claims that the trial court erred in denying her motion to suppress her in-court identification because the denial violated her due process right in that "the identification was unreliable due to the overly suggestive nature of the identification procedure used for the out-of-court identification which tainted Brawley's in-court identification."
We first observe that the record contains no evidence concerning the procedures used by the deputy sheriff in the photographic lineup presented to Brawley which allegedly tainted her in-court identification of Defendant. The unusual circumstances behind this claim of error must be set forth in some detail.
Defendant's motion to suppress, filed the morning trial commenced, was discussed during a pretrial hearing. During these discussions Defendant's counsel asserted that the previous day she had learned about a photographic lineup which was viewed by Robyn Brawley. Defendant's counsel stated that she lacked information to determine if the photographic lineup was suggestive in a manner making the in-court identification tainted. After stating that she had not seen the deputy sheriff's "notes" on the photographic lineup, she requested the opportunity to "see" them.
The prosecutor responded that he had just learned about the photographic lineup, that Brawley could identify Defendant without the use of any photographs, and he did not intend to offer any photographs in evidence or call the deputy sheriff to testify.
Based on Defendant's request, the trial court granted permission for Defendant's counsel to interview the deputy sheriff and view his notes. The court asked Defendant's counsel if she intended to offer evidence on the motion to suppress, and she said, Later, during the pretrial hearing, the court agreed to take the motion to suppress with the case.
Subsequently, Defendant's counsel talked to the deputy and viewed his notes. However, neither side called the deputy to testify. No photographs were introduced in evidence, and Brawley identified Defendant as the person passing the check without mention of viewing any photographs.
In a bench conference concerning Brawley's identification testimony, Defendant's counsel objected to "any in-court identification as the product of an improper and overly suggestive [prior] identification."
We conclude that Defendant has failed to preserve this claim of error for our review in at least two ways. First, Defendant's point only refers to the erroneous denial of her motion to suppress. A ruling on a motion to suppress may not be asserted as a ground of error on appeal. State v. Norton, 904 S.W.2d 265, 271 (Mo.App.1995). This is because the motion to suppress and the admission of the challenged evidence are two distinct procedures. Id. A defendant is not damaged by the evidence sought to be suppressed until it is admitted in evidence. Id.
Secondly, to properly preserve a challenge to identification testimony, a defendant must file a pretrial motion to suppress, object timely at trial, and include the issue in his motion for new trial. State v. Walker, 755 S.W.2d 404, 407 (Mo.App.1988). Here, Defendant failed to include the issue in her motion for new trial. She only alleged that the photographic lineup was not timely disclosed, that her counsel lacked sufficient time to inquire into the constitutionality of the lineup procedure and, as a result, her in-court identification should have been suppressed. Clearly, Defendant has changed her theory on appeal, and she cannot do so. State v. Williams, 807 S.W.2d 200, 201 (Mo.App.1991).
Under these circumstances, our review is limited to plain error. Rule 30.20. In this case plain error review is impossible. Defendant's motion to suppress alleges legal conclusions but no facts regarding the out-of-court identification of Defendant. Robyn Brawley's testimony contains no reference to any relevant evidence on this issue. The deputy who conducted the photographic lineup did not testify. Based on this record, we have no clue on what, if any, impermissibly suggestive procedures were followed which may have tainted the in-court identification of Defendant. Point I is denied.
In her next point, Defendant alleges that the trial court erred and abused its discretion in denying her motion for a continuance. Defendant claims she was prejudiced because she needed additional time to obtain the services of a second handwriting expert witness whose testimony would have likely produced a different trial result.
Five days prior to trial on January 31, 1994, Defendant filed a motion for a continuance. Her motion alleged, in pertinent part, as follows:
3. Defendant requested a handwriting analysis from Mr. Bruce Scott. The results of that analysis came back inconclusive on August 31, 1993.
4. Subsequently, defendant requested a second handwriting analysis from another expert on January 11, 1994. The results of this analysis are not yet known to the defendant.
On the morning of trial, the trial court heard arguments on this motion. Defendant's counsel stated that a second handwriting analysis from another expert witness was necessary because the first analysis was inconclusive as to whether or not Defendant signed the check in question.
The trial court overruled the motion after noting that the case was set for trial "over a hundred days ago, which would be ample time to prepare a case of this type for trial."
The decision to grant or deny a continuance rests within the sound discretion of the trial court. State v. Gregory, 832...
To continue reading
Request your trial
-
Sharks v. Norman
...must file a pretrial motion to suppress, object timely at trial, and include the issue in his motion for new trial. State v. Wendleton, 936 S.W.2d 120, 123 (Mo.App. 1996). Defendant concedes that he failed to timely object to the introduction of State's Exhibit 2 at trial. Because defendant......
-
State v. Brown
...a continuance if granting the continuance could have affected the outcome of the case. See Id. at 166 ; see also State v. Wendleton , 936 S.W.2d 120, 123 (Mo. App. S.D. 1996).1. The State's Argument that Defendant Essentially Caused his Own PrejudiceWe initially address the State's argument......
-
State v. Perry
...generally Harris, 939 S.W.2d at 920. A very strong showing is required to prove an abuse of trial court discretion. State v. Wendleton, 936 S.W.2d 120, 123 (Mo.App.1996). Furthermore, Defendant has the burden of showing prejudice resulting from the denial of the motion. Id. Having carefully......
-
State v. Smith, s. 20650
...the evidence to support his conviction. We, therefore, view the facts in the light most favorable to the verdict. See State v. Wendleton, 936 S.W.2d 120, 121 (Mo.App.1996). The facts are as follows: On April 4, 1995, Defendant and one other individual entered the Murray's IGA in Jasper Coun......