State v. Elam

672 S.W.2d 393, 1984 Mo. App. LEXIS 4641

• Court: Missouri Court of Appeals
• Decided: June 12, 1984
• Docket: No. 47814
• Status: Published

Opinion

CLEMENS, Senior Judge.

The state charged and a jury found defendant guilty of forging a $109 check. This in paying for hardware with a check in the fictious name of “Joe Baker”. The trial court sentenced defendant as a persistent offender to ten years in prison.

The unchallenged evidence supported the verdict and judgment.

On appeal defendant first argues the court erred in admitting in evidence the allegedly stolen items as illegally seized. We deny the point.

Within minutes after the purchase highway patrolman Gosney found defendant driving his pickup truck with the merchandise in plain view. Defendant and the goods matched descriptions previously given the trooper by store clerk David True-blood.

Defendant did not sustain his burden of showing the search was illegal; further the state showed probable cause for the arrest and seizure. Compare State v. Hornbeck, 492 S.W.2d 802[1-4, 10] (Mo.1973). Point denied.

By his other point defendant claims the court erred in failing to suppress the identification testimony of store clerk True-blood who allegedly saw defendant at the county jail just 30 minutes after the fictitious purchases. Trueblood did not recall having then seen defendant. He did clearly recall having described defendant based on his twenty minutes at the store and he identified defendant’s photos at both the preliminary hearing and trial.

Even when there are discrepancies in identification that affects only its weight, not its admissibility. State v. Powell, 648 S.W.2d 573[7-8] (Mo.App.1983). Point denied.

By his pro se point defendant claims plain error in ten alleged trial court rulings; the state responds and we find the claimed errors are non-specific and chai-lenge trial counsel’s permissible professional judgment.

Both parties cite State v. Zeitvogel, 649 S.W.2d 945[1-5] (Mo.App.1983) concerning pro se briefs. There the court held counsel’s decision to dissociate himself from pro se points is a valid exercise of professional judgment. See also State v. Johnson, 672 S.W.2d 158 (Mo.App.E.D.1984). We find no merit in defendant’s pro se challenges.

Affirmed.

DOWD, C.J., and PUDLOWSKI, J., concur.