State v. Helt

581 S.W.2d 604, 1979 Mo. App. LEXIS 2811
CourtMissouri Court of Appeals
DecidedMay 9, 1979
DocketNo. 39505
StatusPublished
Cited by4 cases

This text of 581 S.W.2d 604 (State v. Helt) 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. Helt, 581 S.W.2d 604, 1979 Mo. App. LEXIS 2811 (Mo. Ct. App. 1979).

Opinion

KELLY, Judge.

Orlan Ray Helt, the appellant, was convicted in the Circuit Court of Jefferson County on a violation of §§ 560.045 and 560.110 RSMo.1969, burglary in the second degree and stealing in the commission thereof, and was sentenced in accordance with the jury verdict, to a term of three years on each charge to the custody of the Missouri Department of Corrections, said terms to be served concurrently. After his motion for new trial was filed, argued and overruled, appellant filed his notice of appeal. We affirm.

On appeal, three points are relied on for reversal of appellant’s conviction. Two of these are directed at the failure of the prosecution to reveal to the appellant or his counsel the testimony of two Jefferson County deputy sheriffs offered in rebuttal for the purpose of impeaching the sole alibi witness produced by the appellant at trial. The third point is that the trial court erred in admitting the identification testimony of Mr. Edward R. Dreiman for the reason that it was the product of a suggestive lineup which created a substantial likelihood of misidentification and was, therefore, a violation of appellant’s due process rights guaranteed by the 14th Amendment to the United States Constitution.

Appellant does not attack the sufficiency of the evidence to support the jury verdict. Therefore, the jury could have found from the evidence that Grover Cheatham left his house at approximately 9:00 a. m. on April 3, 1977, to go to church and did not return home until 11:00 or 11:15 a. m. During his absence, Mr. Edward R. Dreiman, while on his way to a Quick Shop in his automobile, had occasion to pass Mr. Cheatham’s home and as he did so he observed one Roger Camden walking in a field between the Dreiman and Cheatham houses where a turquoise ’68 or ’69 Ford Fairlane automobile was parked. The front grille of the automobile was missing. Mr. Dreiman fixed the time he made this observation as “just a few minutes past 10.” The automobile was parked perpendicular to the street and approximately 5 feet off the edge of the road. Mr. Camden was on the left side of the car and Mr. Dreiman observed another man on the left side of the car. Both men got into the car and Mr. Dreiman stopped and tálked to them. He got a good look at both men in the car and he identified appellant as the other man in the car with Mr. Camden. He knew Mr. Camden before but he did not know the appellant previously. Appellant was dressed in a yellow jacket, blue jeans and had on brown gloves. He was about six feet tall, weighed about 160 pounds, and was about eighteen years of age. Mr. Dreiman asked the men what they were doing there and they replied that they were just sitting there. Mr. Dreiman then went on to the store where he spent approximately ten minutes. As he was returning from the store to his home he ob[606]*606served the Ford Fairlane automobile he had previously seen in the field, parked in the driveway to the Cheatham home. Mr. Camden, who was outside the car, ducked behind it. Appellant was carrying “a stereo or something” to the car and put it in the trunk of the car. Mr. Dreiman had stopped his car and sat there observing the activities of Mr. Camden and the appellant for approximately one minute. He left the scene after he observed appellant place the stereo in the trunk of the car and went directly to his home where he called the Sheriff’s Department and reported what he had seen. He described the appellant as approximately six feet tall, 180 pounds, 18 years of age, and reddish hair, wearing a yellow jacket, brown gloves and blue jeans. He described appellant’s hair as being fairly short and told the Sheriff’s Department that he wore a mustache but had no beard. He did not, at that time, know appellant’s name and had not, to the best of his knowledge, ever seen him before.

Grover D. Cheatham testified in the state’s case that he resided at 2260 Forest Lane, Arnold, Missouri, on April 3, 1977, and departed from his residence between 9:00 and 9:10 a. m. to attend church; that he returned to his home that morning between 11:00 and 11:15 a. m. When he left home the doors to his residence were locked by him, personally. When he returned, the front door was open and one of the windows was broken out of it. He also observed some glass on the floor in the doorway and some inside the doorway and in the living room also. Sergeant Kluth, a deputy sheriff was at his home when Mr. Cheatham returned there from church. He and the deputy sheriff entered the house and went to the bedroom. Mr. Cheatham noticed that a .410 shotgun was missing from that room and they then went downstairs to the den where he observed that the TV and stereo with two speakers were missing. This was a Quasar TV with a 19 inch screen and the stereo was a Sears-Roebuck product. The next time he saw these items was the following Saturday at the Jefferson County Sheriff’s office.

Later that afternoon Mr. Dreiman was called to come to the Sheriff’s office where he viewed a lineup. Three men in this lineup wore mustaches; one had a mustache but no beard, and that one was the appellant. He also was the only one in the lineup with short hair.1 At trial he identified the appellant as the man he observed with Mr. Camden on the morning of April 3, 1977, placing the stereo in the trunk of Mr. Camden’s car.

Deputy Sheriff Barry R. Gregory also testified in the state’s case. He testified that he and another deputy sheriff, Mr. Forbes, were dispatched to the scene of the burglary and upon arriving there were met by Mr. Dreiman who made a statement to them about what he had observed, described Mr. Camden’s car, and described the man with Mr. Camden whom he had seen carrying a stereo out of Mr. Cheatham’s home. He then inspected the premises, observed the door to the residence was open and the window glass in the door was broken. Upon entering the building he found no one there but noticed some conditions which caused him to conclude that something had been removed from a counter in the family room. He put out a dispatch on the matter at about 10:45 a. m. At about 1:50 p. m. he went to the Smallwood residence where he observed Mr. Camden in his 1968 Ford Fair-lane, two-door automobile, which was turquoise in color and with a missing front grille. This car fit the description Mr. Drei-man had given him when he reported the burglary. Appellant was there and the deputy sheriff placed him under arrest. At approximately 2:07 p. m. the deputy sheriff was informed that the stolen property could be found in the “Case residence,” a vacant house. Sergeant Kluth told him that Roger Camden was the source of this information. The Case residence is located a few hundred yards from, and to the rear of, the Small-wood residence. The Smallwood residence [607]*607is the dwelling of appellant’s mother, Doris Smallwood, the lone alibi witness for the appellant, with whom he resided at the time of his arrest. Deputy Sheriff Gregory recovered from the attic of the Case residence the Quasar television set with the same serial number as that which Mr. Cheatham had reported missing, the stereo turn table and 8 track, the two speakers, and the .410 shotgun.

The appellant and Mr. Camden were taken to Hillsboro and later the deputy sheriff called Mr. Dreiman to come to Hillsboro. He was present when the lineup was conducted and when Mr. Dreiman “selected Mr. Helt from the group.”

Appellant did not take the stand in his defense. His mother, Mrs. Smallwood, testified that on the morning of this occurrence appellant did not get out of bed until about 10:20 a. m. and started out the door around 10:30 a. m.

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625 S.W.2d 931 (Missouri Court of Appeals, 1981)
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Bluebook (online)
581 S.W.2d 604, 1979 Mo. App. LEXIS 2811, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-helt-moctapp-1979.