State v. Ross

680 S.W.2d 213, 1984 Mo. App. LEXIS 4850
Missouri Court of Appeals·Decided September 11, 1984·No. No. WD 35175·Published·Cited by 9 cases

Opinion

PRITCHARD, Presiding Judge.

By the verdict of a jury, appellant was found guilty of the Class A Felony of assault in the first degree by means of a deadly weapon. Section 565.050, Subd. 2., RSMo 1978. Upon a finding, as alleged, that appellant was a prior felony offender, the trial court sentenced him to 30 years imprisonment in the Division of Corrections, the sentence to run consecutively to previous sentences imposed in the Jackson County, Missouri, Circuit Court Case No. CR82-4095.

By Point I, appellant asserts that the trial court erred in overruling his motion to suppress the victim’s pretrial and in-court identifications of appellant, and in failing to grant his motion for judgment of acquittal at the close of the trial because the victim did not have the opportunity or ability to observe the person who shot him, and his testimony was otherwise contradictory, inconsistent, and self-destructive on issues of opportunity to observe, lighting conditions and collateral observations made at the time of the shooting.

The state says that Point I was not preserved for review because appellant did not object to the admission of identification testimony during the trial. That, of course, is a general requirement, unless there was a substantial likelihood of mis-identification so that reception of the evidence would amount to a miscarriage of justice and thereby be plain error. State v. Jackson, 657 S.W.2d 44, 45[l-6] (Mo.App. 1983). In this ease, however, the general rule is not applicable because the appellant and the state agreed that in the interest of clarity and judicial economy, the trial court would take the motion to suppress along with the case. Also, when the state introduced the identification evidence, appellant’s counsel informed the court that he was not waiving an objection but was preserving his motion as a matter to be taken with the case. The claim of lack of proper identification is contained in the motion for new trial. The issue is, under these circumstances, preserved for review.

On September 28, 1982, Phillip Brown, the victim, was working on the air conditioner of his car in the side driveway of his home at 6050 Swope Parkway in Kansas City, Missouri. About 11:10 p.m., he saw “a little green Dasher” moving up 61st Street toward Swope Parkway where it stopped. It then backed up on the wrong side of the street to Brown’s driveway, where one of the car’s occupants asked Brown whether he wanted to buy some dope, and Brown, hardly hearing him, got out of his car and came within 10 feet of the green car when another man with a shotgun told him to hold it. Brown was about 15 feet from that man, and looked at him for about 5 seconds with nothing blocking his view, and he had no trouble seeing his face, chest and the shotgun. He was on top of the window which was down, seated on the car door. Brown ducked down in front of his car, ran to his mother’s car, jumped on top of it and over the fence which separated his driveway. When he got to his porch, he looked back and saw the gunman about 15 feet away (he agreed on cross-examination that this distance was 50 feet) leaning on the hood with the gun resting on it. Brown heard a shot, felt it hit him, fell down, got up, then ran into the house. He was taken to the hospital where he remained for 3 days.

As to lighting at the time, Brown testified on direct examination that there were four lights in the area, but one across the street on 61st was not working. There was a floodlight on his garage which appears from a photograph to have been about 25-30 feet from the street. There was a street light on Swope Parkway across from Brown’s house, one down west on 61st Street, and a light in the yard of a preschool across the street. He testified that the lighting conditions were pretty good, he had no trouble seeing the gunman the first time, and he could see him the second time.

There was conflicting evidence of the lighting conditions at the time and place of the shooting. Appellant introduced a memorandum of Brown’s testimony at preliminary hearing recording what Michael Lyons, his then counsel, heard from Brown: [216] “Mr. Brown stated that the only light was a street light approximately 150 feet from where the shooting took place.” Brown, on cross-examination, agreed that the light across from Swope Parkway was almost blocked by a tree, that the street light down a steep hill on 61st Street was about 150 feet away, and the preschool yard light was not working when he was shot, and that the garage floodlights provided the only illumination toward his house in the absence of the preschool light. He admitted that he remained silent when his mother said that there was no light on the street without the floodlights. On redirect examination, however, he testified that the two floodlights that night “were leaning in an angle where it covers the front part of our house, my father’s truck, our two cars and our backyard.”

Investigating police officer, Cindy Gibson, testified for the state that the Swope Parkway light provided illumination from about 75-80 feet away; the 61st Street light was about 50 feet away; a very bright floodlight over the garage door; and a light, not a street light, on the preschool property. She could see vehicles parked in the driveway very clearly, and could see the north and south sides of the street for about 75 feet to the west and 40 feet to the east. There was enough illumination to enable Cindy to complete her report parked in the driveway without using a flashlight or a light inside her vehicle.

Public Defender’s investigator, James Miller, measured the street light distances with reference to the house and driveway. The 61st Street light was about 165 feet away, with a light pole between it and the driveway, which light did not illuminate any portion of the Brown residence or driveway. A very large tree interferes with the illumination by the Swope Parkway light of the driveway area. On May 30th, apparently two days before the trial began on June 1, 1983, Miller testified that he was unable to observe the features of defense counsel who was standing at the south side of a car with its front end at the western edge of the driveway. On April 30th, there was no light in the east side of the floodlight on the garage.

Although there were conflicts in the evidence as to the lighting conditions at the scene of the crime and upon Brown’s ability to see his assailant, those conflicts were for the jury to determine on issues of credibility, a matter which is not for review in this court. State v. Denmon, 570 S.W.2d 326, 327[1, 2] (Mo.App.1978). Brown’s testimony, above outlined, is not as a matter of law so contradictory, inconsistent and self-destructive, as to make it inadmissible, and the trial court did not err in overruling appellant’s motion for judgment of acquittal. See State v. Wood, 596 S.W.2d 394, 400[7-10] (Mo. banc 1980), “The court is to determine only whether the evidence is sufficient to make a submis-sible case, from which reasonable jurors could have found the defendant guilty as charged.”

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State v. Ross, 680 S.W.2d 213, 1984 Mo. App. LEXIS 4850 (Mo. Ct. App. 1984).

680 S.W.2d 213 (State v. Ross) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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