State v. Butler

665 S.W.2d 64, 1984 Mo. App. LEXIS 4457

Opinion

CLEMENS, Senior Judge.

Armed robbery. The jury found defendant guilty; the court ruled he was a persistent offender and sentenced him to thirty years in prison.

The state’s evidence is unchallenged. It showed disguised defendant armed with a shotgun entered a restaurant and by a handwritten note demanded and took money from two cash drawers. Restaurant manager Epps had known defendant by sight but not by name; employee Brandon witnessed the robbery; both identified defendant as the robber. The handwritten note left by defendant was analyzed by an expert and identified as defendant’s handwriting. Defendant offered no evidence.

Defendant’s only point here: The trial court erred in refusing his not-in-MAI-CR instruction on identification. The state counters that given identification instruction MAI-CR 2.01 spells out what jurors are to consider in determining the believability of witnesses; Note 2 thereof provides “no other additional instruction may be given on the believability of witnesses.... ”

Denial of this defendant’s additional identification instruction was approved in State v. Quinn, 594 S.W.2d 599 [11-12] (Mo. banc 1980). There the court held MAI-CR 2.01 and the quoted note 2 thereof precluded giving further identification instructions. See also our opinion to the same effect in State v. Swink, 620 S.W.2d 68 [2, 3] (Mo.App.1981).

Affirmed.

KAROHL, P.J., and REINHARD and CRANDALL, JJ., concur.