State v. Williams

724 S.W.2d 652, 1986 Mo. App. LEXIS 5136
Missouri Court of Appeals·Decided December 30, 1986·No. No. 50913·Published·Cited by 11 cases

Opinion

KAROHL, Judge.

Defendant appeals conviction and sentence for one count of first degree robbery, § 569.020 RSMo 1978, and one count of first degree burglary, § 569.160 RSMo 1978. Defendant was found to be a persistent offender under §§ 558.016 and 557.-036.4 RSMo 1978. He was sentenced to serve concurrent terms of 20 years for each count.

The testimony of the complaining witness, Mary Gilbert, was sufficient to support a submissible case on both charges. A summary of her testimony follows. She knew defendant as “J.J.” He had visited a resident in her home on prior occasions and she had seen him in the neighborhood. On July 2, 1984, at 12:30 a.m., Gilbert heard the front door bell ring as she lay in her first floor bedroom. The noise persisted, so she went to the door. Gilbert recognized the defendant. At first she refused him entry, but relented after some discussion. She left for a moment and returned, whereupon defendant pushed both doors open and entered the house. Gilbert had believed these doors to be locked. Defendant knocked Gilbert to the floor with his fist, hit her with a hard object, straddled her and beat her about the face.

Defendant, according to Gilbert, told a companion named Howard to look around Gilbert’s bed and pillow for money. Gilbert never saw Howard, except for his legs, and was unable to describe him. Earlier that day, Gilbert had cashed insurance checks for other people living in her house, including her mother. She had placed $1,380 under her pillow while she slept, but later placed it in her bra. Gilbert moved the money because earlier that day while she slept a woman had knocked on her [654]*654bedroom door and entered her bedroom. Gilbert awoke and noticed that some of the money had “scooted out” from under the pillow. Gilbert thought the woman may have seen the money, so she placed it in her bra.

Howard’s search was unsuccessful so J.J. then demanded money from Gilbert, which she gave him. She also told him where she kept a pistol and the men took that too. They tied Gilbert up and left.

Gilbert untied herself after the men left and called the police. She told the police what had occurred but did not tell them she knew her assailant. Ten days later, after reconsidering, Gilbert called the police and told them the identity of her assailant. Defendant claims that the new story was motivated by an argument that occurred after the robbery and at the time Gilbert called the police. The argument was about Gilbert selling alcoholic beverages from her home after store hours.

Robert Hawthorne and his wife lived in the basement of Mary Gilbert’s home. On July 2, 1984, he heard a door-bell ring followed by a loud noise, “like somebody falling.” He went up the stairway and saw a man whom he could not identify kneeling over Mary Gilbert. The man was cursing and threatening her. The lights were out. He heard, but did not see a second man. One of them “called the name J.J. and said something about look in the room for money or something.” This testimony is inconsistent with Mary Gilbert’s subsequent identification story because she claimed J.J. was her attacker and the second man conducted the search. In that event the voice would not have directed J.J. where to search for money or something.

Direct and cross-examination revealed that Gilbert had lied a number of times to the police and under oath on prior occasions. Gilbert admitted lying about the amount of money reported stolen. She said that she lied to create confusion in the papers and that her lie was justified as it was planned to “try to catch a crook.” Gilbert lied to the police when they asked her to identify defendant’s photo among others and she told them she did not know her assailants. Gilbert also lied when she told the police she did not know the woman who knocked on her door earlier that day.1 She testified that she had seen the woman before, as she was a friend of an upstairs tenant. The woman’s nickname was “Cookie.” She refused to speak Cookie’s real name. Gilbert later suspected that Cookie was behind the robbery because she saw Cookie wearing new clothes after the robbery. Cookie later told Gilbert where J.J. was living and Gilbert told the police. The refusal to fully identify the woman effectively prevented defendant from finding and questioning her so as to verify Gilbert’s testimony.

Defendant appeals his convictions and sentences, claiming two points of error. First, defendant argues that the trial court erred in sustaining the state’s motion in limine and thereby foreclosing cross-examination of Mary Gilbert regarding her alleged sales of liquor from her home and an argument with defendant about a sale because such evidence would show Gilbert’s bias against defendant and her motive to wrongly accuse defendant of burglary and robbery. Second, defendant avers trial court error in permitting closing argument that defense had failed to establish any motive for victim Gilbert to lie about the identity of her attacker because the state knew that the defense had been precluded by its motion in limine from eliciting proof of Gilbert’s bias and motive to lie stemming from her later argument with defendant about her sale of liquor.

During the second day of trial, while Gilbert was being cross-examined, the state [655]*655sought and secured a motion in limine prohibiting the defense from questioning Gilbert on her alleged sale of alcohol from her home. The defense sought to question Gilbert on this matter to show two things. First, defendant argued that this evidence shows the real reason why Gilbert opened her door late at night after the liquor stores were closed rather than the fact that she knew defendant. Second, the defense wanted to question Gilbert regarding an argument that she had with defendant several weeks after the robbery about an alleged sale of watered gin. This argument coincided with the time Gilbert decided to inform the , police that defendant was her assailant.

The trial court sustained the state’s motion in limine with some hesitation because, while the judge did not doubt the relevancy of defense counsel’s information, the court thought that the defense attorney did not have a sufficient basis for use of the impeaching information. The trial court was concerned when defense counsel revealed her main source of information as “confidential statements made to me by my client.” Defendant did not plan to testify during trial. The court stated his concern that the effect of permitting defense counsel to conduct the desired cross-examination of Gilbert would be that “... in every case, whatever your defendant says would be a basis of cross-examination, without taking the stand he can get you to cast a shadow across the witness.”

It is apparent that the court sustained the motion in limine in order to protect the witness from questions which implied or insinuated unlawful acts relating to after-hours sale of alcohol from her home. The court recognized that if the defendant testified then the proposed cross-examination questions would be proper because such testimony would constitute evidence relating to motive of the witness to falsely accuse the defendant. These circumstances differ from those in which the defendant attempts to insinuate by question that the witness was the guilty party rather than defendant. See, State v. Williams, 575 S.W.2d 838, 840 (Mo.App.1978); State v. Woods, 508 S.W.2d 297, 300 (Mo.App.1974).

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State v. Williams, 724 S.W.2d 652, 1986 Mo. App. LEXIS 5136 (Mo. Ct. App. 1986).

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