State v. Robinson

725 S.W.2d 50, 1987 Mo. App. LEXIS 3495
CourtMissouri Court of Appeals
DecidedJanuary 13, 1987
DocketNo. WD 37838
StatusPublished
Cited by1 cases

This text of 725 S.W.2d 50 (State v. Robinson) 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. Robinson, 725 S.W.2d 50, 1987 Mo. App. LEXIS 3495 (Mo. Ct. App. 1987).

Opinion

GAITAN, Presiding Judge.

Defendant-appellant Charles Robinson appeals from a conviction by jury for the class A felony of robbery in the first degree in violation of § 569.020, RSMo 1978. Defendant was determined to be a prior offender and was sentenced to life imprisonment. Robinson appeals his conviction alleging as trial court error (1) failure to grant a continuance following the filing of an amended information charging defendant as a prior offender, (2) failure to exclude evidence of defendant’s escape from the Clay County jail and (3) failure to sustain defendant's objection to the in-court identification of defendant because it was tainted by a suggestive pre-trial line-up. The judgment of the trial court is affirmed.

Charles Robinson was charged by way of an indictment on May 26, 1982 with the class A felony of robbery in the first degree. On March 18, 1985, a substitute information for indictment further served to charge defendant as being a prior offender, alleging that on February 21, 1985 defendant had been found guilty of felony robbery in Johnson County, Kansas. On September 30, 1985, a second amended in[51]*51formation was filed, charging defendant as being a prior offender and substituting, in place of defendant’s Kansas conviction, a conviction entered against defendant for second degree burglary and stealing on February 14, 1978 in Jackson County, Missouri. The case went to trial before a jury, and the defendant was found guilty.

The sufficiency of the evidence to sustain defendant’s conviction is not in dispute. At 4:30 p.m. on May 18, 1982, defendant, armed with a large handgun, entered the Turpin Prescription Shop at 2022 Swift in North Kansas City, whereupon he said “I want your drugs” and handed the owner of the pharmacy, Wally Johnson, a sack. Johnson complied with the demand, filling the sack with class II drugs from the store safe. Johnson testified that he got a good look at the robber’s face from a distance of two arm lengths.

Vivion Walters, an employee of the store working in the back room, was called to the front of the store. There she viewed defendant standing in a comer of the store holding a gun. Walters viewed defendant for what she estimated at trial to be five or ten minutes, and was about eight to ten feet away.

Both Johnson and Walters gave descriptions of defendant and each identified him in court as being “without a doubt” the man who had committed the robbery.

Also presented at trial was evidence of defendant’s escape from the Clay County jail on April 7, 1985 while awaiting trial on the charges herein. He was not returned to custody until June 23, 1985.

Robinson’s defense may be summarized as follows. First, he relied upon the fact that his fingerprints were not found on the front door of the pharmacy. Second, an officer Steffen testified that he showed a witness to the robbery, Sandra Ruble, a series of photographs from which she identified the picture of another man as being the man who “might” have been at the robbery. Ms. Ruble did not testify at the trial. Finally, there was testimony that defendant had tatoos on his arm and neck. Defendant argues that since there was no testimony by any of the witnesses who identified him as to the tatoos on his body, he was innocent. However, there was also testimony that he wore a long sleeve shirt during the robbery.

The jury found defendant guilty of robbery in the first degree. Since defendant had been found to be a prior offender, the trial court sentenced defendant to life imprisonment. This sentence to run consecutive to prior sentences imposed in Florida, Kansas, and Missouri. Defendant brings this appeal from his conviction and sentence.

I.

Defendant first argues that the trial court erred when it permitted the prosecutor to file a second substitute information for indictment without granting his motion for a continuance. Since this action was taken on the morning of trial, defendant claims inadequacy of notice. However, the record reflects that defense counsel was aware of the state’s proposed action five days earlier.

Missouri courts have consistently held that the prosecutor may, without violating Rule 23.08, add a charge that a defendant is a persistent offender. State v. Shields, 641 S.W.2d 125, 127 (Mo.App.1982); State v. Goree, 633 S.W.2d 758, 759 (Mo.App.1982). The reasoning of the courts has been that an allegation that a defendant is a persistent offender does not affect the substance of the crime charged and is merely a procedural matter, allowing for the enhancement of punishment. Further, it is acceptable for the prosecutor to amend the information on the morning of the trial. See State v. Shields, 641 S.W.2d at 127; State v. Goree, 633 S.W.2d at 759.

Here, the amended information endorsed additional witnesses regarding defendant’s escape as well as his prior offender status. The trial court has broad discretion in permitting the endorsement of additional witnesses on the information, and a judgment of conviction will not be reversed because the name of a witness was endorsed late unless it is shown that the defendant was thereby prejudiced. [52]*52State v. Greathouse, 627 S.W.2d 592, 595 (Mo.1982); State v. Hutson, 646 S.W.2d 822, 824 (Mo.App.1982); State v. Cameron, 604 S.W.2d 653, 658 (Mo.App.1980).

The fact that these endorsements came on the eve of trial does not in itself show prejudice. State v. Cameron, 604 S.W.2d at 658. Several factors are taken into consideration in determining whether the trial court abused its discretion in permitting the late endorsement of witnesses. These factors include whether the “defendant waived the objection; whether the state intended surprise or acted deceptively or in bad faith, with intention to disadvantage the defendant, ... whether in fact defendant was surprised and suffered any disadvantage ... and whether the type of testimony given might readily have been contemplated.” (Citations omitted) State v. Renner, 675 S.W.2d 463, 464-65 (Mo.App.1984), quoting, State v. Stokes, 638 S.W.2d 715, 719-20 (Mo. banc 1982), cert. denied 460 U.S. 1017, 103 S.Ct. 1263, 75 L.Ed.2d 488 (1983).

In the case at bar, the defendant does not claim “surprise” or that the state acted deceptively or in bad faith by endorsing the three officers to testify about his escape from the jail or even the change of the felony conviction to establish his prior offender status. Defendant’s attorney was informed some five days prior to trial that the witnesses would be testifying.

Defendant contends that his request for a continuance should have been granted because he had alibi witnesses who were unavailable at the time of trial but whom defendant “anticipated” would be vital to his defense. Defendant advised the court that he was unable to locate the witnesses but that “[pjeople tell, us that by midweek we should be able to come up with both of these witnesses.”

The record indicates that this cause was originally set for trial for March 18, 1985.

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Related

State v. Carlson
792 S.W.2d 434 (Missouri Court of Appeals, 1990)

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Bluebook (online)
725 S.W.2d 50, 1987 Mo. App. LEXIS 3495, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-robinson-moctapp-1987.