State v. Corkins

612 S.W.2d 35, 1981 Mo. App. LEXIS 3333
CourtMissouri Court of Appeals
DecidedFebruary 2, 1981
DocketNo. WD 31029
StatusPublished

This text of 612 S.W.2d 35 (State v. Corkins) 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
State v. Corkins, 612 S.W.2d 35, 1981 Mo. App. LEXIS 3333 (Mo. Ct. App. 1981).

Opinion

KENNEDY, Presiding Judge.

Defendant was charged with felonious assault with intent to rape. He was convicted upon jury trial of common assault. He received a sentence of six months’ imprisonment in the county jail.

In his appeal to this court he alleges that the court erred in six different instances in the admission of evidence. We find no error in any of the criticized rulings of the court and we affirm the judgment.

The defendant first complains of the identification of defendant by one Shirley Stewart, on the ground that her identification was based upon an overly suggestive identification procedure at police headquarters after defendant’s arrest.

Shirley Stewart was at a laundromat along with her daughters Patricia and Rebecca at Tenth and Jackson Streets in St. Joseph, at approximately 8:15 o’clock p. m. on April 1, 1978, a short time before and near the place where a Mrs. Dandurant was assaulted, for which defendant was convicted. A man later identified as the defendant approached Shirley and her daughters, and tried to get them to take him to the “south end”. He was staggering and his [37]*37speech was slurred, indicating to them that he was drunk. He attempted to open the doors of the Stewarts’ station wagon. Shirley refused to take him to the “south end”. After a spirited verbal exchange the man walked away down Tenth Street. The whole incident had taken from two to five minutes. Although it was dark the parking lot was well lighted and Shirley and the daughters could see the man plainly. Shirley said she was as close to him as the front door of her car to the back door, separated by perhaps two feet.

Attracted by female screams issuing from a house across the street, Shirley and her daughter Patricia ran to the house. The front door was halfway open and Patricia said, “We saw two figures struggling and then a woman was pushed down to the floor”. The house proved to be Mrs. Dan-durant’s residence and the woman Mrs. Dandurant. The man, whom they recognized as the man with whom they had had the altercation at the laundromat, reached back and closed the door. They heard the key turn in the lock. Shirley and Patricia ran up to the door and started pounding on it. They called back to Rebecca, who had remained in the laundromat parking lot, to call the police.

Mrs. Dandurant’s assailant apparently fled through the back of the house, for he did not come out the front door. When Mrs. Dandurant got the door open, she was in a disheveled and shaken condition. Shirley and Patricia took her to the laundromat with them. The police arrived shortly. Shirley took Mrs. Dandurant to a hospital for examination, staying with her until her daughter arrived.

Upon the instructions of a police officer, Shirley then went to the police station for the purpose of giving a statement. While there, going through the police station from one section to another, she passed a room where the door was open. In the room were four men, one a uniformed police officer, two men in street clothes who proved to be policemen, and the defendant. Shirley recognized him at once as the person she had seen at the laundromat and had seen struggling with Mrs. Dandurant. At this time it had reached 9:30 o’clock, approximately an hour and fifteen minutes since her encounter with him at the laundromat, followed a couple of minutes later by the incident at Mrs. Dandurant’s house.

In the circumstances of this case, the trial court was entirely correct in denying defendant’s motion to suppress the pre-trial police station identification of the defendant by Shirley, and was also correct in allowing her to identify the defendant in the courtroom. When there is taken into account the full and ample opportunity which Shirley had to observe the defendant at the laundromat, in a well-lighted area, at close range, over a space of from two to five minutes; sees him again momentarily as he struggled with Mrs. Dandurant; and then sees him and identifies him in as short a time as an hour and fifteen minutes later, there is no chance that her identification could be tainted by this identification procedure. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Ralls, 583 S.W.2d 289, 291 (Mo.App.1979); State v. Simmons, 559 S.W.2d 557, 561 (Mo.App.1977); State v. French, 528 S.W.2d 170, 172-3 (Mo.App.1975). Although Shirley had been informed that the police had a suspect in custody, she did not know that he was at the police station where she went to give her statement. She was not expecting to see the suspect there. When she saw the defendant, there was nothing to indicate that he was under arrest. There was a uniformed policeman in the room but he had his back turned and was looking out the window. The defendant was sitting in the room without handcuffs. The other two men were in ordinary street clothes, and were not known to Shirley to be policemen.

Appellant next complains of the court’s rejection of evidence that the defendant had been in the military service and had had combat training and combat experience in Vietnam. Defendant claims this evidence would have tended to show that defendant was not the person who [38]*38attacked Mrs. Dandurant. He points to Mrs. Dandurant’s testimony that she put up a battle. She testified that he knocked her to the floor with his fist. She got up. He pushed her down “five times in all, but on one of those scuffles, I don’t know how I did it, I got on the front porch. He was still hanging onto me.” He dragged her back in, pushed her on the floor, then shut her door and locked it with her key. Defendant reasons that a person who had had combat training and combat experience in Vietnam would not have had such difficulty in subduing an “elderly” 57-year-old woman such as Mrs. Dandurant.

Defendant’s military service and his combat training and experience in Vietnam, at some undisclosed time in the past, was too remote, both in time and logical connection, to require its admission into evidence. The court did not err in excluding it. State v. Feger, 340 S.W.2d 716, 725-726 (Mo.1960); State v. Rose, 249 S.W.2d 324, 333 (Mo. banc 1952); State v. Joiner, 559 S.W.2d 226 (Mo.App.1977).

Defendant complains that the court excluded evidence that he had been in military service. That testimony, however, was not excluded. It was admitted, and there is no ground for defendant’s complaint.

Defendant next says that the court erred in permitting the prosecuting attorney to cross-examine the defendant’s wife, Adelina Corkins, about his propensity to drink alcoholic beverages and to become drunk or tipsy on festive occasions.

Defendant did not object to this cross-examination at the time, but says that we should review it as plain error under Supreme Court Rule 29.12(b). Apparently the defendant’s position is that the court should have intervened sua sponte.

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Related

Neil v. Biggers
409 U.S. 188 (Supreme Court, 1972)
Manson v. Brathwaite
432 U.S. 98 (Supreme Court, 1977)
State v. French
528 S.W.2d 170 (Missouri Court of Appeals, 1975)
State v. Lorts
269 S.W.2d 88 (Supreme Court of Missouri, 1954)
State v. Simmons
559 S.W.2d 557 (Missouri Court of Appeals, 1977)
State v. Feger
340 S.W.2d 716 (Supreme Court of Missouri, 1960)
State v. Rose
249 S.W.2d 324 (Supreme Court of Missouri, 1952)
State v. Ralls
583 S.W.2d 289 (Missouri Court of Appeals, 1979)
Johnson v. Minihan
200 S.W.2d 334 (Supreme Court of Missouri, 1947)
State v. Joiner
559 S.W.2d 226 (Missouri Court of Appeals, 1977)

Cite This Page — Counsel Stack

Bluebook (online)
612 S.W.2d 35, 1981 Mo. App. LEXIS 3333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-corkins-moctapp-1981.