State v. Jones

714 S.W.2d 909, 1986 Mo. App. LEXIS 4435
Missouri Court of Appeals·Decided July 22, 1986·No. No. 50848·Published·Cited by 5 cases

Opinion

REINHARD, Judge.

Defendant was convicted by a jury of robbery in the second degree, § 569.030, RSMo 1978, and was sentenced to five years’ imprisonment. He appeals. We affirm.

Defendant was convicted of the November 22, 1984, mid-morning robbery of Keith Robert Merrill. The victim testified he went to a bar in Illinois about 5:30 a.m. the day of the robbery. At the bar he consumed four eight-ounce cups of beer and cashed a paycheck. At approximately 8:00 to 8:30 a.m. he went to a second Illinois bar where he had something to eat and drank only water. He then drove to St. Louis, exited from Interstate Highway 70 at Broadway, and was driving north on Broadway when he was flagged down by a woman holding a child. The woman was about 4 feet 10 inches tall; the child was a girl, about eight years of age.

The victim offered them a ride and was directed to an alley some four or five blocks away. As the victim stopped his car in the alley, the woman grabbed his car keys, turned off the engine, pulled the keys from the ignition switch, and tried to get out of the car. The victim grabbed her hair and, as he attempted to wrest the keys from her grasp, the key chain broke and the keys fell to the floor of the car. At this time the victim saw three men running up the alley toward him. The men began striking the victim and pulling him from the car while the woman was pushing him out. As he was pulled and pushed from the car, the victim landed on one of his attackers whom he identified in court as the defendant. During the struggle, th« defendant removed the victim’s wallet iron his pocket while the woman opened tie car’s glove compartment and removed money and personal papers. Then the three men and the woman ran from the car inio a residence at 8917 Newby, entering by the side door.

The victim chased his assailants a short distance and then returned to his csr. He started to drive to notify police but decided to remain and watch for his attackers to leave. He made a U-turn, returned to the house, and started blowing his horn and yelling. He attracted the attention of two passersby and asked them to call police.

Police officers Dennis Dierkes and Jack Russell responded to the call. Both officers said the victim was not intoxicated and Officer Dierkes described him as “[ujpset, and visibly shaken and appeared to be hurting in the head and appeared to have bruises on it.” The victim described to the officers the man who took his wallet as being in his early- to mid-twenties, five feet ten inches to six feet tall, with a heavy build, and wearing blue jeans. He described the woman as very short, four feet ten or eleven inches, 100 to 115 pounds, and in her mid- to late-twenties. Officer Dierkes was admitted to the residence at 8917 Newby by Tuwana Fox. She told Officer Dierkes that “nobody had just run into the house, and the only ones in the house were her sisters and herself.” Ms. Fox granted the officers permission to search for persons but not for property. Officer Dierkes searched the first floor of the residence and found Ms. Fox’s “three sisters and ... about five or six children.” Officer Russell entered through the side door and searched the basement where he found defendant and Pamela Fox in a room variously described at trial as “a closet” and “a storage room.” The door to the closet was slightly ajar; no light was on inside. Officer Russell used his flashlight to locate defendant and Pamela Fox in the northeast corner of the closet. Defendant [911] had his back to the wall; Pamela Fox was pressed against him, her back to his stomach. The pair were taken from the basement to the backyard of the residence where the victim identified them as the man who took his wallet during the struggle and the woman who had flagged him down and attempted to take his car keys. According to the officers, Pamela Fox was approximately 27 years old, four feet nine inches tall, and weighed about 100 pounds. According to the victim, the defendant was wearing different trousers at the time of the identification from what he had been wearing at the time of the robbery.

The items taken from the victim, $600 in cash, a $190 paycheck, and personal papers and identification cards were never recovered.1

At trial, defendant presented two witnesses: alibi witness Shirley Washpun and himself. Ms. Washpun stated that she lived at the Newby address on November 22,1984, and that defendant, who also lived there, was in the house all morning on that date. Defendant testified that he lived at the Newby address and that he and Pamela Fox had gone to the basement that morning for some privacy so that they could engage in oral sex, and approximately five minutes after they completed the sex act, Officer Eussell found them in the closet.

Ms. Washpun had not testified at defendant’s first trial, which resulted in a hung jury mistrial, and nothing in the record of this case indicates she had been requested or subpoenaed to do so.

During cross-examination of Ms. Wash-pun, assistant circuit attorney Murphy asked:

Q: Now, how long — how often have you talked to Earl about this case?
A: [Shirley Washpun] How often have I talked to him?
Q: Yes.
A: Eeally, I haven’t been talking to Earl about the case.
Q: When was the last time, prior to today, that you talked to him?
A: Maybe a long time — he was going to trial the first time, I talked to him then.
Q: You didn’t come in in that first hearing, did you?
A: No.
Ms. Kraft [defense attorney]: Objection, Your Honor, that’s irrelevant.
The Court: Sustained.

Later, in his cross-examination of the defendant, Mr. Murphy asked:

Q: Earl, do you remember testifying the last time we had a hearing on this?
A: [Defendant] Uh-huh.
Q: And do you remember—
A: —yes.
Q: —me asking you who lived there at that time?
A: Yes.
Q: And do you remember telling me, I asked you: “Earl, who lived in the house there on Newby?” On page 7. And your answer was: “Pamela Fox, Aretha Fox, Tuwana Fox and Gloria Fox”; is that right?
A: And Shirley Williams [presumably, Shirley Washpun].
Q: You never mentioned Shirley Williams.
A: She was living there. She was living there but I don’t think I mentioned it.
Q: You didn’t mention her at all, did you?
A: No.
Q: And she didn’t come in to testify the last time we had a hearing, did she?
Ms. Kraft: Objection, Your Honor, irrelevant.
Mr. Murphy: I think it’s very relevant.
The Court: Sustained.
(Following discussion was held out of the hearing of the jury)

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State v. Jones, 714 S.W.2d 909, 1986 Mo. App. LEXIS 4435 (Mo. Ct. App. 1986).

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