State v. Jones

646 S.W.2d 120, 1983 Mo. App. LEXIS 3805
CourtMissouri Court of Appeals
DecidedJanuary 18, 1983
DocketNo. WD 33259
StatusPublished
Cited by5 cases

This text of 646 S.W.2d 120 (State v. Jones) 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. Jones, 646 S.W.2d 120, 1983 Mo. App. LEXIS 3805 (Mo. Ct. App. 1983).

Opinion

SHANGLER, Presiding Judge.

The defendant Jones was convicted of receipt of stolen property in violation of § 570.080, RSMo 1978 and was sentenced to a term of six years. The illicit property was described as a red 1973 Datsun 240Z. The defendant was captured by the police as he drove the vehicle, and after a high speed chase. On the day of trial, the prosecutor announced intention to call two witnesses who saw the defendant in possession of that vehicle some two weeks before. That occasion was when the defendant snatched the purse of witness Patricia Moore, then in the company of the other witness. The defendant moved in limine to exclude testimony of the prior crime. The court ruled to permit the testimony of the two witnesses that the defendant was in possession of the stolen car some two weeks earlier, but excluded the evidence of a purse-snatch. In the course of trial, first witness Moore — and then the other — described that the occasion for their observation and identification of the defendant was when he “robbed” Moore. The defendant contends that the testimony constituted evidence of a crime not charged, and so was prejudicial.

A person who receives, retains or disposes of the property of another [and knows or believes the property was stolen] for the purpose to deprive the owner of a lawful interest in the property commits the crime of receiving stolen property. § 570.-080. Thus, an element of the offense against the accused was to prove that defendant Jones had the purpose1 to deprive the owner of the 1973 Datsun 240Z of a lawful interest in that vehicle. State v. Williams, 635 S.W.2d 55, 57[1] (Mo.App. 1982). Evidence of a crime other than the offense on trial results in prejudice because it tends to a conviction for conduct not charged against the defendant. State v. Trimble, 638 S.W.2d 726, 732[3,4] (Mo. banc 1982). Thus, it is only where evidence of another crime bears legitimately to establish guilt of the offense on trial that it is received — as where the proof of a separate crime tends to establish motive, intent [purpose], absence of mistake or accident, or the identity of the defendant on trial or a common scheme which so encompasses two or more crimes that to establish one tends to prove the other. State v. Wing, 455 S.W.2d 457, 463[8-10] (Mo.1970). The inter locutory order to allow the testimony that the two saw defendant in possession of the Datsun on that earlier occasion but to exclude the criminal act of purse-snatch from that narrative was designed to accommodate that principle.

The direct examination of witness Moore by the prosecutor was faithful to the prescription of the pretrial order. He elicited that witness Moore was at a drive-in at a specified place in the city and at a specified time and that the defendant was then the operator of a red vehicle separated by just one car space. As she stood on a prominence and looked down, she saw the defendant glance at her and so she got a clear look at his face. The witness Moore was then in the company of Coy, the other witness.

The cross-examination was more prolonged and insisted on detail:

[122]*122Q: And you say you saw Mr. Gregory Jones here on that day driving a red car?
A: Yes.
Q: Do you know how long a time span, tell me if it was minutes, hours, seconds that you actually observed whom you believe to be Mr. Jones driving this automobile?
A: About five minutes.
Q: Did you have this person under your continual direct observation for five minutes?
A: I was standing on a knoll looking down and I had some packages in my hand and I was looking down into the car.
Q: For about five minutes you stood there and looked at this person? Look at the clock.
A: Yes, I know.
Q: It would have been about five minutes, is that what you are saying?
A: Yes.

The cross-examination then turned to the recall of the witness of the clothes the defendant had on, and then returned to subject of visual contact between them. She explained that the defendant looked directly into her face for a matter of seconds, and that she had the car in direct view for about five minutes. The cross-examination then dealt with every detail of their relative points of vantage, so as to test the validity of her identification — and in the process, inquired again as to the relative positions of the cars, and the topography of the drive-in where the witness stood during these observations. That component of the cross-examination ended with the colloquy:

Q: Now, Mrs. Moore, you have told the jury and you have made a statement today that you believe that was Mr. Jones you saw that day?
A: Yes.
Q: Did you ever know Gregory Jones prior to April 14th 1981? [that day]
A: No.

The cross-examination resumed with questions as to the description of the Jones passenger — a mulatto male — and their departure from scene — “[h]e jumped into the car ... [and they] took off.”

The prosecutor then re-examined the witness:

Q: Miss Moore, I believe you have just testified, in response to a question asked by defense counsel, if you had an opportunity to observe the passenger?
A: Yes.
Q: Okay. And when did you first observe that passenger?
A: When he robbed me.

The defense counsel objected that the answer violated the pretrial order to avoid testimony of that prior and separate criminal episode. The court ruled that the response was induced by the insistent cross-examination for the detail of that encounter, and was justified. The other witness, Coy, then testified [over objection] that on the occasion he was in the company of witness Moore, a black male came up behind her, snatched a packet from her, and then jumped into a red Datsun 280Z [or 240Z], and told the driver “to go ahead and start moving.” He noted the license number was PSX 614 [in fact, PSX 914]. The court ruled again that the evidence was a proper response to the cross-examination.

The pretrial order to deny the prosecution evidence that the identification of the defendant by witness Moore was an incident of a separate criminal offense was interlocutory, and so subject to change as the trial process justified. State v. Howell,

Related

State v. Gilmore
797 S.W.2d 802 (Missouri Court of Appeals, 1990)
State v. Lusher
708 S.W.2d 188 (Missouri Court of Appeals, 1986)
State v. Mattox
689 S.W.2d 93 (Missouri Court of Appeals, 1985)
State v. Freeman
667 S.W.2d 443 (Missouri Court of Appeals, 1984)
State v. Trimble
654 S.W.2d 245 (Missouri Court of Appeals, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
646 S.W.2d 120, 1983 Mo. App. LEXIS 3805, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jones-moctapp-1983.