State v. O'Toole

520 S.W.2d 177, 1975 Mo. App. LEXIS 1920
CourtMissouri Court of Appeals
DecidedFebruary 25, 1975
DocketNo. 35899
StatusPublished
Cited by5 cases

This text of 520 S.W.2d 177 (State v. O'Toole) 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. O'Toole, 520 S.W.2d 177, 1975 Mo. App. LEXIS 1920 (Mo. Ct. App. 1975).

Opinion

GUNN, Judge.

Defendant appeals from a conviction of robbery in the first degree and sentence under the Second Offender Act1 to fifteen years imprisonment. On appeal, defendant raises two points: 1) that the trial court erred in allowing the victim’s testimony as to declarations made at a pretrial photographic identification of defendant; 2) that it was error to admit into evidence medical records of the victim’s condition. We find no error and affirm the judgment.

The sufficiency of the evidence is not challenged. Onnist Thomas, a 60 year old man, lived alone in an apartment. On the evening of December 29, 1972, the defendant was admitted by Mr. Thomas into his apartment. Mr. Thomas had known the defendant since the previous summer and each had seen and visited the other almost daily since summer, with the defendant being a frequent visitor to Mr. Thomas’ apartment. Shortly after admitting defendant, Mr. Thomas sat down and watched television. Suddenly, the defendant commenced striking Mr. Thomas in the [179]*179face with his fists and beat Mr. Thomas into unconsciousness. While he was still conscious, Mr. Thomas observed the defendant take Mr. Thomas’ watch from his wrist, and upon regaining consciousness, Mr. Thomas noticed that his television set and stereo system were gone and so was the. defendant. Mr. Thomas called the police who took him to a hospital for treatment of his injuries. Mr. Thomas advised the police that the defendant had beaten and robbed him. At trial, Mr. Thomas was permitted to testify that the police had brought a stack of photographs to him for examination and that a photograph of defendant, which he recognized, was in the stack; that upon seeing the photograph of defendant he told the police “this is the man.” c

Medical records describing Mr. Thomas’ injuries, diagnosis and treatment during his four day stay in the hospital as a result of defendant’s attack were introduced and received into evidence over defendant’s objection that they were irrelevant and designed only to inflame the passion of the jury against defendant.

The defendant first contends that the trial court was in error in permitting Mr. Thomas to state that he had identified the defendant for the police from a stack of photographs. Defendant argues that the testimony of an unimpeached identifying witness concerning what he did or said and an extra judicial identification is inadmissible, relying on State v. Baldwin, 317 Mo. 759, 297 S.W. 10 (1927). We disagree. In State v. Baldwin, supra, it was held that an unimpeached identifying witness could not bolster his in-court identification by testifying as to what he did or said at an extra judicial photographic identification. The identifying witness was shown a photograph of the defendant at trial, and he testified that it was the same picture he had selected from a stack of photographs shown to him previously by the police. Since the witness’ in-court identification had been unimpeached, the court in holding that his testimony was inadmissible said:

“First, we rule that all that (the witness) testified to about what he did at the city jail as to identifying defendant’s photograph, was evidence offered to bolster up his evidence as to identity while a witness on the stand, and was not only not relevant to any issue, but was highly prejudicial.” 297 S.W. at 18.

Three years later the Missouri Supreme Court was confronted with a case in which the identifying witness testified that he “recognized” the defendant at a police line-up. State v. Buschman, 325 Mo. 553, 29 S.W.2d 688 (1930). This testimony was held to be admissible. In distinguishing the Baldwin case the court stated l.c. 690:

“It is clear from his quoted testimony that he used the word ‘recognized’ with reference to his own mental process, meaning merely that he knew or perceived defendant to be one of the men in question. The testimony condemned as incompetent and prejudicial in State v. Baldwin, supra, was testimony proving acts of the witness pointing out that defendant at the police station as the man who had robbed him, which acts were the same in effect and in principle as declarations of the witness that defendant was the man who had robbed him.”

Thus, the court created the distinction between testimony that related to the identifying witness’ natural process that he went through at the extra judicial identification, which would be admissible, and testimony that described what the witness said or did at the prior identification, which would be inadmissible. Defendant contends that since Mr. Thomas’ testimony related to what he did and said when picking out the photograph, it does not fall within the type of testimony admissible under Buschman. However, the distinction drawn in the Baldwin case has not been adhered to in subsequent Missouri Supreme Court decisions that have dealt with testimony con[180]*180cerning what a witness did at a line-up. State v. Pitchford, 324 S.W.2d 684 (Mo.1959); State v. Nolan, 171 S.W.2d 653 (Mo.1943). In State v. Nolan, supra, several identifying witnesses testified that they personally identified the defendant at a line-up. The testimony was held admissible, the court stating:

“. . . [T]he record disclosed that the witnesses dicT not testify that anyone else had identified appellant, but that the witness then testifying had identified him. This precise question was before this court in State v. Buschman (cite omitted). The subject was there considered at length and it was held that a witness may testify that he identified the defendant at police headquarters.” 171 S.W.2d at 655.

Although Buschman is cited with approval, the word “identified” as used by the court, connotes more than a mere mental process of recognition, thus indicating the court’s departure from strict adherence to the distinction created at Buschman. In State v. Pitchford, supra, the distinction was completely discarded. There, the identifying witness testified that she pointed out the defendant at a line-up. This is clearly testimony of what the witness did at a lineup, yet the court found such testimony admissible, stating, 324 S.W.2d at 687:

“We have heretofore held that a witness may properly be permitted to give corroborating testimony to the effect that he has also identified defendant in a police ‘line-up.’ State v. DePoortere, Mo. Sup., 303 S.W.2d 920. Such evidence is not hearsay. It is testimony as to a fact concerning which the witness has personal knowledge.”

So, too, Mr. Thomas had personal knowledge of defendant and was merely identifying “his old acquaintance,” Quincy O’Toole.

In State v. Rima, 395 S.W.2d 102 (Mo. banc 1965) the Missouri Supreme Court reevaluated the Baldwin decision in the context of testimony relating to a photograph identification. In Rima, the identifying witness testified that he identified the defendant’s photograph at police headquarters. The court, in holding the testimony to be admissible, stated 395 S.W.2d at 105:

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Bluebook (online)
520 S.W.2d 177, 1975 Mo. App. LEXIS 1920, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-otoole-moctapp-1975.