Rickey v. State

52 S.W.3d 591, 2001 Mo. App. LEXIS 1314, 2001 WL 880153
CourtMissouri Court of Appeals
DecidedAugust 7, 2001
DocketNo. WD 59161
StatusPublished
Cited by3 cases

This text of 52 S.W.3d 591 (Rickey v. State) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rickey v. State, 52 S.W.3d 591, 2001 Mo. App. LEXIS 1314, 2001 WL 880153 (Mo. Ct. App. 2001).

Opinion

HOLLIGER, Judge.

FACTS

Randall Rickey, after the motion court denied his Rule 29.15 motion following evi-dentiary hearing, appeals the decision to this court. Thp relevant facts are as follows:

Mary Thorpe, the victim, lived alone in her home in Columbia, Missouri. On October 18, 1997, Rickey came to her home and told her that the roof of her house was in poor condition and needed repair. Two years prior to her encounter with Rickey, Ms. Thorpe had had a new roof placed on her house and had not experienced any problems with the roof up to this point. Mr. Rickey offered to do the repairs to the roof for only three dollars and Thorpe agreed.

On October 23,1997, Rickey returned to Thorpe’s home and came to her back door as he had done the previous time. Rickey went into the home and told Thorpe that he needed to place a substance on her roof in order to repair it. Thorpe then agreed to let Rickey do the work. Rickey then informed Thorpe that the repairs would cost $1500. Thorpe responded by telling him that she could not pay him that amount. Upon hearing this, they settled on a repair price somewhere between $300 and $400. Once Rickey had informed Ms. Thorpe that he had finished the repairs, she paid him in cash.

On October 30, 1997, Rickey returned to Thorpe’s home for a third time and informed her that she still owed $871 for the repairs made to her roof. Rickey explained to Thorpe that if she did not pay him he would sue her. Afraid of the potential lawsuit, Thorpe wrote out a check for $871. That same day Rickey cashed the check.

On November 5, 1997, Rickey returned to Thorpe’s house, accompanied this time by a man whom Mr. Rickey claimed to be his lawyer. When Thorpe asked the lawyer to present some form of identification, he refused to do so. Rickey then told Thorpe that she still owed him money. Again he informed her that if she did not pay him he would sue her and take her house. Thorpe attempted to reach for the phone to call a friend, but Rickey moved between her and the phone. Afraid, Thorpe went to the spare bedroom where she kept an envelope filled with cash. She then instructed Rickey and his attorney not to follow her. Rickey ignored this and followed her into the bedroom anyway. Thorpe then took $100 out of the envelope for Rickey and laid the envelope on the bed where Rickey was seated. She then left the room. Rickey followed her.

Later that afternoon, Thorpe went back to the spare room to get the envelope and take the money to the bank. To her surprise the envelope containing between $3000 and $4000 was gone. No one had been in the room since Rickey left.

A police investigation determined that Thorpe’s roof had not been in need of repair and that the black substance Rickey had placed on a portion of her roof was of no value. Prior to the trial Thorpe identified Rickey from a photo lineup.

[594]*594During pre-trial conference, defense counsel filed a motion in limine to suppress Thorpe’s identification of Rickey in the police lineup. The defense counsel argued that the photographs used for the lineup were not similar enough to the photograph of Rickey as to constitute a fair lineup. Thorpe testified as follows as to her out-of-court identification of Rickey:

Q: Okay. Let me show you State’s Exhibit No. 8. Just ask you if you can identify what that exhibit is. Have you seen this before?
[Defense Counsel]: Excuse me a moment, please.
A: Yes, I have.
[Defense Counsel]: At this point, Your Honor, may I enter an objection pursuant to my motion in the line of questioning generally?
[The Court]: This motion is heard and by the Court overruled.
A: What’s that.
Q: You can answer.
[Defense Counsel]: Well, excuse me. Do I need to do this again?
[The Court]: No. I’ll take it as a continuing objection'.
[Defense Counsel]: Thank you, sir.
A: Am I doing anything wrong?
Q: No, you’re not. He has a right to make objections from time to time.
A: Okay.
Q: That’s all he’s doing, okay?
A: Okay.
Q: Have you seen these before?
A: Yes, sir.
Q: Okay, did Detective Ross show these to you?
A: Yes, he did.
Q: And when he showed these to you, did he ask you to see if you could identify anybody?
A: Yes, he did.
Q.: And did he suggest to you in any way who to point out?
A: None at all.
Q: Did he just ask you to see if you recognized anybody?
A: Yes, he did.
Q: Okay. And did you do that?
A: Yes, sir.
Q: And Ms. Thorpe, I’d like to ask you, did you point anybody out to Detective Ross?
A: I pointed this one out.
Q: Okay. The top one on the left side? There’s two photographs there.
A: Yes, sir.
Q: The top one?
A: Yes.
Q: Okay. I just wanted to make sure. All right. And what did you tell?
A: I said, “That’s the one” or words to that effect.
Q: The one who had been to your house all four times?
A: Yes, that’s right. So-called roofer.
Q: Okay.
A: The scam artist.
[Defense Counsel]: I’ve already made the objection; right, Your honor?
[The Court]: Yes, sir.

After deliberation, the jury found Rickey guilty on all counts. Rickey was sentenced as a prior and persistent offender to a total of 17 years imprisonment. On July 9, 1998, Rickey filed a notice of appeal. This court affirmed Rickey’s convictions on October 29, 1999. See State v. Rickey, WD 57079 (Mo.App. W.D.1998).

On May 2, 2000, Rickey filed an amended Rule 29.15 motion for post-conviction relief. An evidentiary hearing was held on May 12, 2000. Testifying at the hearing were Rickey and his trial counsel, Jan [595]*595King. When asked about Thorpe’s testimony Rickey’s trial counsel testified:

Q: Okay. In regard to Ms. Thorpe testifying again, she referred to Mr. Rickey as a scam artist in response to a question. Then did you object to that? This would be found around at transcript page 108.
A: I might have missed it.
Q: Do you recall that?
A: I don’t even remember it.
Q: Would it refresh your memory to see the transcript from the trial?
A: Probably not.

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Related

Shelton v. State
440 S.W.3d 464 (Missouri Court of Appeals, 2014)
West v. State
244 S.W.3d 198 (Missouri Court of Appeals, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
52 S.W.3d 591, 2001 Mo. App. LEXIS 1314, 2001 WL 880153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rickey-v-state-moctapp-2001.