State v. Rodgers

3 S.W.3d 818, 1999 Mo. App. LEXIS 1313, 1999 WL 617496
CourtMissouri Court of Appeals
DecidedAugust 17, 1999
DocketNo. WD 56196
StatusPublished
Cited by4 cases

This text of 3 S.W.3d 818 (State v. Rodgers) 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. Rodgers, 3 S.W.3d 818, 1999 Mo. App. LEXIS 1313, 1999 WL 617496 (Mo. Ct. App. 1999).

Opinion

FOREST W. HANNA, Judge.

A jury found Kevin Rodgers guilty of forgery. § 570.090.1(4), RSMo 1994. He was sentenced as a prior and persistent offender to a term of 10 years imprisonment. Mr. Rodgers contends that the trial court erred in not allowing him to stand before the jury to display distinguishing marks on his face, and in allowing a police officer to refer to the defendant’s “mug shot.”

On January 8, 1997, a man who was subsequently identified as the defendant, drove up to Boatmen’s Bank drive-thru window and presented a check, deposit slip, and driving license to the bank teller. The bank teller was suspicious and, therefore, took the check and other documentation to her supervisor, Bridgette Elliott. Ms. Elliott contacted the business from whose account the check had been drawn and was informed that the check had been stolen. Ms. Elliott then called the police, and went back to the drive-thru window. She explained that there had been a short delay and asked the defendant to come inside. She wanted the defendant inside so that the surveillance cameras could take a picture of him. After a short time, the defendant became agitated and started yelling that he wanted his check, deposit slip, and driving license back. He eventually left the bank without them. As he was leaving the bank, he hit the automobile of another bank customer and continued to drive away.

The state proved that the check was stolen from the account of Armour Transmissions. The driving license belonged to a Timothy Gerard Kirk. Mr. Kirk testified that he lost the license in the latter part of 1996. The defendant was identified from surveillance tapes as the individual who attempted to cash the check. A police officer obtained a recent photograph of the defendant and arranged a photo line-up. Ms. Elliott identified the defendant as the individual who passed the check.

The defense at trial was misidentification. The defendant presented three wit[820]*820nesses that testified that he was not the individual who presented the check for payment. Also, both parties acknowledge that the defendant has facial characteristics and a tattoo that was not observed by either the state’s primary witness or the bank’s surveillance photos.

At trial, five photographs taken from the surveillance tape were introduced into evidence. Defense counsel asked the court to allow the defendant to approach the jury and stand within four feet of the jury box in order for the jurors to observe him. The prosecutor objected, arguing that this conduct would be demonstrative evidence, a form of unsworn testimony. The trial court sustained the objection. The defendant maintains that the court’s ruling — in refusing him permission to stand in front of the jury so that they could see that the individual in the surveillance tape did not resemble him — denied him of his right to present evidence.

In State v. Norris, the state presented evidence that a shoe found at the scene of the crime belonged to the defendant. 577 S.W.2d 941, 945 (Mo.App.1979). The defendant was seen a short time later with only one shoe on. Id. at 944. Defendant sought to refute the evidence by trying on the shoe in front of the jury to show that it was too large for his foot. Id. at 946. The trial court refused to allow the defendant to try on the shoe unless he was first sworn as a witness. MUpon review, the appeals court held that the defendant should have been permitted to put on the shoe before the jury without being sworn as a witness and, therefore, the trial court’s ruling was reversible error. Id. The court reasoned that 5 th Amendment protection extended to “testimonial” evidence, not “demonstrative” evidence. Id. at 947-48.

In reaching that decision, the court reviewed a number of cases in which the defendant was compelled to produce demonstrative evidence. See United States v. Wade, 388 U.S. 218, 220, 87 S.Ct. 1926, 1928, 18 L.Ed.2d 1149, 1153 (1967)(putting tape on the defendant’s face during a lineup and having him speak the words used by robber at bank); Holt v. United States, 218 U.S. 245, 252, 31 S.Ct. 2, 6, 54 L.Ed. 1021, 1028 (1910)(having the defendant try on a blouse); State v. Jackson, 444 S.W.2d 389, 392 (Mo.l969)(arguing that the defendant, as he sat in the courtroom, appeared in good health and able bodied); State v. Cook, 440 S.W.2d 461, 463 (Mo.1969)(hav-ing the defendant speak the victim’s name); State v. Walls, 637 S.W.2d 812, 814 (Mo.App.l982)(ordering the defendant to walk within six to ten feet of the jury box, wearing the robber’s blue pants, white T-shirt, and baseball cap); State v. Morton, 684 S.W.2d 601, 606 (Mo.App.l985)(requir-ing the defendant to speak in front of the jury); State v. Owens, 620 S.W.2d 448, 451 (Mo.App.l981)(ordering the defendant to stand before the jury to allow a witness to inspect a tattoo on the defendant’s face); State v. Hubbard, 659 S.W.2d 551, 559 (Mo.App.l983)(compelling the defendant to bare his arms to expose tattoos); State v. Proctor, 535 S.W.2d 141, 144 (Mo.App.1976)(asking the defendant to walk in a courtroom to display a limp).

In United States ex rel. Mitchell v. Pinto, the court addressed this issue and, like Norris, observed that there is a controlling difference between demonstrative evidence and testimonial evidence. 438 F.2d 814, 817 (3 rd Cir.1981). Specifically, the court concluded that the 5 a Amendment clause does not preclude the prosecution from requiring that a defendant rise from his seat in order for the jury to observe his physical appearance, because the evidence is not testimonial. Id.

It is apparent from the holdings in these cases that the prosecution has the right to compel the defendant to be viewed by the jury for comparison purposes. By the same token, the defendant’s voluntary participation does not violate the state’s right to cross-examine the defendant. Thus, we hold that the defendant had the right to voluntarily stand before the jury for comparison purposes where identifica[821]*821tion was at issue in the case. The Norris court’s rationale—’’what’s good for the goose is good for the gander”—makes sense and compels our holding here.1

The question now becomes whether the trial court’s refusal to permit the defendant to stand before the jury for comparison purposes was an abuse of its discretion. See State v. Miller, 778 S.W.2d 292, 293 (Mo.App.1989)(ruling that demonstrations before the jury are matters within the trial court’s discretion). The relevant facts with regard to this issue are as follows.

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3 S.W.3d 818, 1999 Mo. App. LEXIS 1313, 1999 WL 617496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rodgers-moctapp-1999.