State v. White, 60066

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: AHRENS; SMITH, P.J., and KAROHL
• Citation: 835 S.W.2d 942
• Parties: STATE of Missouri, Respondent, v. Harvey WHITE, Appellant.
• Docket Number: No. 60066,60066
• Decision Date: 16 June 1992

Page 942

835 S.W.2d 942 STATE of Missouri, Respondent,
v.
Harvey WHITE, Appellant. No. 60066. Missouri Court of Appeals,
Eastern District,
Division Four. June 16, 1992.
Motion for Rehearing and/or Transfer to
Supreme Court Denied
July 30, 1992.

Page 944

Fisher & Dolan, P.C., Colleen Dolan, St. Louis, for appellant.

William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

AHRENS, Judge.

Defendant, Harvey White, appeals from a jury conviction of first-degree robbery in violation of § 569.020 RSMo 1986 and armed criminal action in violation of § 571.015 RSMo 1986. In accordance with the jury's recommendation, defendant was sentenced to ten years' imprisonment on the robbery conviction and three years' imprisonment on the armed criminal action conviction, sentences to run concurrently. We affirm.

The evidence at trial established the following facts. At approximately 7:30 p.m. on March 1, 1990, the victim, Clenell Johnson, left his place of employment and went to a check-cashing business located on Grand Avenue in the City of St. Louis. Shortly after cashing his paycheck, Johnson was approached by a black male later identified as Gary Powell. Using a false accent, Powell told Johnson he had just arrived from Africa and was a student at a nearby college. Powell asked Johnson if

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he would assist him in locating the "Reid Hotel" and showed him a slip of paper bearing that name. When Johnson initially declined, Powell displayed what appeared to be a large roll of currency and offered to pay Johnson $100.00. Johnson refused the offer of payment but agreed to assist Powell in locating the hotel.

Johnson took Powell to a gas station and asked the attendant for directions to the "Reid Hotel." The attendant did not know the location, and further inquiries to locate the hotel's telephone listing proved fruitless. Johnson suggested a different hotel, but Powell requested that Johnson take him to the Sheraton Hotel in downtown St. Louis. As they approached the Sheraton, Powell asked Johnson to stop at a nearby Greyhound bus station so that he could retrieve some property he had left there.

When they arrived at the station, Powell asked Johnson to park in the lot and go inside with him. Powell also stated that he felt he was being watched and that someone may attempt to rob him. Powell suggested he and Johnson pool their money. Johnson refused, became suspicious, and attempted to put his money in the car's trunk. Johnson put $20.00 in the trunk and kept approximately $107.00 in his pocket.

After passersby left the area, Powell grabbed Johnson and tried to take the money from his pocket. Johnson called for help, and he and Powell struggled; a dollar bill was torn in half. Johnson stopped resisting when he saw a black male in a nearby Cadillac point a handgun in his direction. Powell fled and entered the Cadillac on the rear passenger side.

Johnson ran in front of the vehicle and recorded its license plate number. He saw the driver's face and noticed a female sitting in the front passenger seat. The Cadillac exited the parking lot, and Johnson called the police. After receiving a dispatch describing the incident, the vehicle, and several subjects, an officer immediately responded and located Johnson at the scene. Johnson informed the officer of the incident. The officer seized half of a torn dollar bill; a note bearing the name, "Reid Apartment"; and numerous worthless pieces of paper in the size and shape of paper currency. The officer also transmitted a police broadcast indicating the driver of the Cadillac was armed.

Approximately five minutes after the initial broadcast, police stopped a Cadillac matching the description and license plate number of the vehicle Johnson reported to have participated in the robbery. The vehicle was registered in defendant's name and was driven by him. A black female later identified as defendant's daughter, Patricia Morris, was in the front passenger seat; Powell was in the rear passenger seat, and his girlfriend, Dana Beasley, was in the rear seat on the driver's side. Police seized a loaded clip to a semi-automatic pistol during a pat-down search of defendant. Approximately ten to fifteen minutes after defendant's vehicle was stopped, Johnson was brought to the scene. Johnson positively identified Powell and defendant as the men who had robbed him. Defendant and Powell were arrested.

During a search of defendant's vehicle, police seized half of a torn dollar bill and a semi-automatic pistol containing one live round. The torn half bill was found in the rear passenger side of the vehicle and listed the same serial number as the half found in the victim's possession. The pistol was found wedged under the driver's seat. Defendant and Powell were transported to the police station. In a search prior to booking, police seized $80.00 from defendant's pocket and $65.00 from Powell's shoe.

At trial, defendant testified on his own behalf and presented the testimony of his daughter. Defendant admitted possession of the gun and clip and admitted being present at the scene of the crime at the time in question. However, defendant testified he was at the bus station only at the request of his daughter, who had requested he go to the station on behalf of her friend, Dana Beasley. Defendant denied pointing his gun at Johnson and testified he had not moved his gun from where he had placed it between the driver's and passenger seats.

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Although defendant testified that he never witnessed a struggle between Powell and Johnson or heard Johnson's cries for help, he also testified that he saw a person running near the passenger side of his car. Defendant permitted Powell to enter the moving vehicle, although he testified that he did not know Powell prior to the incident. In explanation, defendant testified that Beasley appeared to know Powell. Defendant's daughter corroborated defendant's version of events. Defendant called Powell as a witness, but he pled the Fifth Amendment and refused to testify.

In seven points, defendant contends the trial court erred in (1) limiting defense counsel's direct and redirect examination of defendant and his daughter; (2) sustaining the state's objection to defense counsel's inquiries regarding defendant's employment; (3) permitting his co-defendant, Gary Powell, to take the witness stand and assert his Fifth Amendment privilege against self-incrimination; (4) rejecting defendant's challenge to the prosecutor's exercise of peremptory strikes; (5) failing to declare a mistrial or offer a curative instruction, sua sponte, in response to the state's remarks during closing argument; (6) overruling his motion to suppress identification; and (7) overruling his motion to suppress evidence.

In point one, defendant contends the trial court erred in limiting the direct and redirect examination of defendant and his daughter with respect to defendant's activities in the hours before the crime occurred. Defendant sought to elicit testimony explaining how defendant came into possession of the gun and the reason for his carrying it. The trial court found the testimony irrelevant and sustained the state's objections thereto. Defendant claims the testimony is part of the crime's res gestae and admissible to establish that (1) prior to the crime, defendant had gone to a friend's house to pick up a gun which he carried for the purpose of self-protection, necessitated by defendant's residing in a "high crime neighborhood"; and (2) defendant was in nearly constant possession of the gun for this purpose.

Initially, we consider the state's assertion that defense counsel's offers of proof were insufficient to demonstrate the testimony's admissibility. In response to questioning by defense counsel, defendant's daughter, Patricia Morris, testified that before going to the bus station, she and defendant stopped at the house of Morris' friend. The state objected to the testimony's relevancy, and the court sustained the objection. In an offer of proof, defense counsel stated:

Your Honor, the next question I'll ask the witness is whether she stopped anywhere with her father before going to Dana's house and I believe the witness will answer they went to a friend of her father's by the name of Mr. Beasley and her answer would be that he picked up his gun and I'll ask her if her father in fact picked up the gun and her answer will be yes and I'll ask her what he did with the gun and she will say he brought it back to the car.

Counsel later attempted to elicit similar testimony from defendant. Defendant testified that before going to the bus station, he and his daughter went to the home of one of his friends. The state objected to the relevancy of the questioning, and the court sustained the objection. When asked to make an offer of proof regarding defendant's testimony, defense counsel stated:

I'm asking how he came into possession of the gun that day and he would say where he picked up the gun and I would ask him what he did with the gun and he would answer he took it back in the car and I would ask him where he went and he would say he went down to the busstation [sic].

The court again sustained the objection. Defendant went on to testify that he had possessed a gun at the scene and time of the crime. When counsel asked defendant why he had the gun in his car on that day, the state objected to the form of the question and to the relevancy of the testimony. In response to the court's request for an offer of proof, defense counsel stated:

He would explain what the gun was doing in his car that day, what the reason

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will be that he picked up the gun and put it in his car and he was going to take it home but in the interim Dana asked him to go to the bus station and that would be the answer.

Counsel argued the testimony was probative "[t]o show he [defendant] did not have the gun to rob Clennell Johnson." ¹

When an...