State v. Hutson

646 S.W.2d 822, 1982 Mo. App. LEXIS 3813
CourtMissouri Court of Appeals
DecidedDecember 7, 1982
DocketNo. WD 33172
StatusPublished
Cited by2 cases

This text of 646 S.W.2d 822 (State v. Hutson) 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. Hutson, 646 S.W.2d 822, 1982 Mo. App. LEXIS 3813 (Mo. Ct. App. 1982).

Opinion

KENNEDY, Judge.

Kenneth Leroy Hutson was convicted upon jury trial of first-degree robbery, § 569.020, RSMo 1978, and was sentenced to 10 years’ imprisonment.

Upon this appeal he alleges five separate instances of trial error which he says entitled him to reversal of the judgment.

We have examined each point and affirm the judgment.

The facts of the case are that on December 17, 1980, at about 6:30 p.m., two men, one armed with a shotgun, entered the rural home of 78-year-old Albert Weston, where he lived alone, overpowered him and robbed him of $400 and three guns. One of the men was wearing a mask but the other, the one with the shotgun, was identified by Mr. Weston as the defendant. Defendant was placed in the neighborhood at about the time of the robbery by the testimony of Helen Wilmsmeyer and her 14-year-old son, Chris Wilmsmeyer, who lived about one and one-half miles from the Albert Weston home. They identified defendant as a man who had come to their door about 6 o’clock on the evening of the robbery. He was asking for directions to the home of a “McMahan”. He said he had been directed to “come east of New Franklin and go past the Westons where there is a sign, and take the next road on the left and it was the [824]*824first house on the left”. The house reached by those directions, according to Mrs. Wilmsmeyer, would be Albert Weston’s. “The Westons where there is a sign” would be the residence of the victim’s son, Mrs. Wilmsmeyer testified. The man — who was accompanied by a second person who remained in the car at the Wilmsmeyer house — drove away by a route which led to the Albert Weston house.

Defendant put forward an alibi defense. Various witnesses placed defendant in Boonville, a distance of 10 miles — or by another estimate, 8 miles — from the scene of the robbery, as early as 5:30 p.m. and as late as 6:15 p.m. (before the time of the robbery) and also at 6:45 p.m., 7 o’clock p.m., 9 o’clock p.m., and 9:45 o’clock p.m. after the time of the robbery. Defendant himself did not testify.

Appellant’s points will be taken up in order.

I

Appellant complains of the testimony of state’s rebuttal witness, Lt. Jim Gholsen. These complaints are on two grounds — first, that he was tardily endorsed as a state’s witness, and second, that his testimony of a statement made to him by the defendant had not been disclosed as required by various rules for criminal discovery (Supreme Court Rules 25.01 through 25.16). On the morning of the commencement of the trial, the court allowed the endorsement of the name of Lt. Gholsen of the Boonville Police Department as a witness for the state.

Lt. Gholsen testified in rebuttal that he went with two deputies to pick up appellant the day after the robbery. While defendant was under arrest, Gholsen said, he had made the statement, when confronted with the Weston robbery of December 17, “that he was so screwed up or possibly drunk he didn’t know where he was at or what he had done”. Appellant acknowledges that as a general rule a rebuttal witness is not required by Supreme Court Rule 23.01(f) to be endorsed upon the information. Dayton v. State, 608 S.W.2d 490, 492 (Mo.App.1980). He says, however, that Lt. Gholsen’s testimony was not proper rebuttal testimony but should have been presented in the state’s case in chief.

We hold, however, that Lt. Gholsen’s testimony was proper rebuttal evidence. It tended to discredit the testimony of the defendant’s alibi witnesses. That testimony was that defendant had assisted Linda Nobel move her possessions from a house in Old Franklin to an apartment in Boonville between 5:30 p.m. and 6:15 p.m. on the day of the robbery. Defense witness Purvis, who had assisted in the move, had testified in defendant’s behalf that defendant did not appear to have been drinking.

Another answer to appellant’s late-endorsement argument is that the trial court has broad discretion to permit late endorsements, even of the state’s case-in-chief witnesses. The trial court’s ruling will not be disturbed unless it is shown that defendant was thereby prejudiced. State v. Cameron, 604 S.W.2d 653, 658 (Mo.App.1980). We are unable to see any prejudice to defendant upon this record.

Defendant makes a second point, however, about Lt. Gholsen’s testimony. He cites State v. Curtis, 544 S.W.2d 580 (Mo. banc 1976), where Judge Donnelly wrote:

We must recognize that under the law announced in Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), due process requires that State rebuttal witnesses not be permitted to testify in situations where a defendant has disclosed he intends to rely on the defense of alibi (and disclosed his witnesses) and the State has failed to disclose the names of the persons to be called to rebut the defense of alibi.

544 S.W.2d at 582.

Defendant in the present case had disclosed his alibi defense and his alibi witnesses. The prosecutor did on the morning of [825]*825the trial file a written disclosure, stating the name of witness Gholsen and the defendant’s statement to which the witness was expected to testify. The prosecutor told the court and defense counsel that he had learned of the witness’s statement only two days before, and further said, “... I have talked with Mr. Bruce Beckett, Mr. Smith’s associate, and advised him as to the fact I was going to try and ask leave of court to make this additional witness .... ” Defendant did not deny the prosecutor’s statement. He objected to the tardy endorsement but asked for no continuance. Gholsen did not testify till near the end of the two-day trial, so that the defense attorney would have had ample opportunity to interview him and determine specifically what his testimony would be, and learn also whether he had information which would lead to other testimony. The court was well within his discretion in allowing Lt. Gholsen to testify, and the state was guilty of no violation of the rule of State v. Curtis, supra. State v. Lorenze, 592 S.W.2d 523, 527 (Mo.App.1979).

II

For his second point, defendant complains of the exclusion of testimony of Marsha Amick, one of his witnesses, which he says would have rehabilitated another of defendant’s witnesses who had been impeached by use of a prior inconsistent statement.

Jimmie Simmons was a defense witness. He testified that he had talked with some person about “robbing a property”. (Presumably this conversation took place before the Weston robbery, and could have referred to a plan to rob Mr. Weston.) At the defendant’s preliminary hearing, Simmons had testified to this conversation and had said that it was with the defendant Hutson. According to his preliminary hearing testimony, he was riding with Hutson in his car when Hutson asked him “to help him rob an old man, to — in exact words, said that he was going to rush the old man and take his money.” Now, upon the trial he testified again that the conversation took place, “except the individual was not the right individual.” He denied that it was the defendant whom he had talked with, but he declined to identify the person.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Evans
896 S.W.2d 56 (Missouri Court of Appeals, 1995)
State v. Robinson
725 S.W.2d 50 (Missouri Court of Appeals, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
646 S.W.2d 822, 1982 Mo. App. LEXIS 3813, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hutson-moctapp-1982.