606 S.W.2d 252 | Mo. Ct. App. | 1980
Defendant Robert Eugene Gragg, Jr., was tried and found guilty by a Greene County jury of first degree robbery and armed criminal action and received consecutive 30-year prison sentences. We affirm the robbery conviction and reverse and vacate the conviction for armed criminal action.
There was substantial evidence from which the jury could find that defendant Teddy Louis Williams
Defendant contends prejudicial error was injected into his trial by the court’s admission into evidence, over objection, testimony by a state’s witness of a telephone conversation purportedly had between defendant and the witness. This allegation of error necessitates our setting forth additional facts.
The robbery took place the night of February 8, 1979, in Springfield, Missouri. The following morning defendant and his accomplice purchased a used 1973 orange-colored Nova automobile from a Springfield car dealer. The next night, February 10, the Nova arrived at the Cherokee Strip Motel in Perry, Oklahoma. Defendant entered the motel office and registered as “Lynn Roberts” and obtained room 49 for two persons. The next morning, after the occupants of room 49 had departed, a cleaning woman discovered a flight bag outside the door of room 49. The bag bore a baggage tag with defendant’s name and address. The bag was turned over to the motel manager and local police officers were summoned because a pistol and money had been observed in the bag. The contents of the bag were inventoried and in-
Defendant argues that because the motel clerk could not identify “Lynn Roberts” voice to be that of the defendant the clerk’s testimony concerning the telephone call was hearsay; that without a proper foundation having been laid as to the identity of the caller the clerk’s testimony was inadmissible.
The general rule is that testimony about a telephone conversation is not admissible absent identification of the caller. State v. Berezuk, 331 Mo. 626, 55 S.W.2d 949 (1932). However, as noted in Berezuk, State v. Steele, 445 S.W.2d 636 (Mo.1969), and State v. Rice, 519 S.W.2d 573 (Mo.App.1975), identification may be shown by circumstances. 7 Wigmore on Evidence § 2155, (Chadbourn rev. 1978); McCormick’s Handbook of the Law of Evidence, § 226 (2d ed. 1972); 22A C.J.S. Criminal Law § 644 (1961). Thus, circumstantial evidence can point to the identity of the person calling even though the recipient of the call cannot identify the voice. Here, defendant checked into the motel as “Lynn Roberts” and was assigned room 49. After the occupants of room 49 departed, a bag was found outside the door of room 49. A caller identifying himself as “Lynn Roberts” made inquiry about the bag, described part of its contents, and advised he would return to pick it up. Defendant, alias “Lynn Roberts”, came to the motel office to pick up “his bag.” The jury could properly infer that defendant was the caller who identified himself as “Lynn Roberts.” Defendant’s point is denied.
As we pointed out in the companion case of State v. Williams, 606 S.W.2d 254 (Mo.App.1980), a majority of our supreme court has concluded in Sours II [Sours v. State, 603 S.W.2d 592 (Mo. banc 1980)] that its earlier opinion in Sours I [Sours v. State, 593 S.W.2d 208 (Mo. banc 1980)] was correct and the Double Jeopardy Clause of the United States Constitution was violated by convictions of both first degree robbery and armed criminal action. Consequently, we have no alternative and reverse and vacate defendant’s conviction for armed criminal action in this case.
The judgment is affirmed as to defendant’s conviction for first degree robbery and reversed and vacated as to the armed criminal action conviction.
. See State v. Williams, 606 S.W.2d 254 (Mo.App.1980), decided this date.