570 S.W.2d 697 | Mo. Ct. App. | 1978
Defendant, having been found guilty of robbery in the first degree by means of a dangerous and deadly weapon and impressed with a sentence of twenty years
Only minimal reference will be made to the evidence as its sufficiency stands unquestioned. During the afternoon of October 31, 1974, the victim was accosted by three men while standing alongside a Ford automobile in the vicinity of 40th and Cleveland, Kansas City, Missouri. Defendant and one of the accomplices brandished “pistols”. During the encounter, defendant struck the victim with a pistol. Defendant and his accomplices then rifled through the victim’s pockets and relieved him of his billfold. Shortly thereafter a police officer who was in the neighborhood investigating an unrelated burglary drove upon the scene at which time defendant and his two accomplices fled on foot. The Ford automobile was taken to police headquarters and later in the day, while being “processed” by an evidence technician, a “.22 caliber revolver” was found under the front left seat. Additionally, a 16 ounce Schlitz beer can containing defendant’s fingerprints was found on the right rear floorboard of the Ford automobile. Defendant was subsequently apprehended, and unequivocally identified by the victim as one of the three perpetrators of the robbery.
Defendant’s first point is so lame that it cannot stand on appeal. Defendant candidly admits that at the trial level he failed to raise or in any manner question the trial court’s failure to give MAI-CR 1.08
Defendant’s second point is also beset with infirmity. The police officer who happened upon the robbery was called as a witness by the state. At the outset of his interrogation by the state he testified, without objection, that he had been dispatched to the general area to investigate a burglary. Parenthetically, the officer’s investigation of the burglary accounted for his presence at the scene of the robbery.
Defendant’s third and final point likewise fails to afford him any appellate relief. As previously noted, an evidence technician employed by the Kansas City Police Department, upon being called as a witness by the state, testified, over a timely objection lodged by defense counsel, that a “.22 caliber revolver” was found under the left front seat of the previously mentioned Ford automobile while it was being “processed” for evidence at police headquarters. After this brief, initial reference, the “.22 caliber revolver” was swallowed in silence. It was never offered or admitted as an exhibit, nor was it ever mentioned again during the ensuing evidence or closing arguments. Nor was any nexus ever established between defendant and the “.22 caliber revolver”. There was not even the slightest hint that defendant was the owner of or in possession and control of the Ford automobile in which the weapon was found, that he was the owner of the weapon, that the “pistol” flourished by defendant during the robbery was discarded by him in the Ford prior to his fleeing the scene of the robbery, or that the weapon was even purported to be one and the same as the “pistol” wielded by defendant during the course of the robbery. In view of the single, isolated reference to the weapon, coupled with a paucity, albeit total lack, of evidence to connect it with the defendant, it is difficult, if not impossible, to believe that the complained of testimony so pointedly suggested defendant’s participation in another crime as to arguably inure to his prejudice. The dichotomous nature of defendant’s argument in support of his third and final point forcibly bears out this observation — in one breath defendant argues that the police officer’s testimony as to the “.22 caliber revolver” improperly injected evidence of defendant’s alleged participation in another crime and in the next breath he argues that it was inadmissible because it was never connected with either the robbery or defendant, i. e., that it was irrelevant, immaterial and lacking in probative value. As a broad, general principle, the admission of
Judgment affirmed.
All concur.
. Rule 20.02(a) provides in part that “[bjefore each recess or adjournment of the court, the court must read to the jury MAI-CR No. 1.08.”