671 S.W.2d 352 | Mo. Ct. App. | 1984
Thomas Kayser (defendant) appeals from his conviction in the Circuit Court of St. Louis County on two counts of robbery in the first degree. He received sentences of life imprisonment and thirty years to be served consecutively.
On appeal, defendant contends the trial court erred in failing: (1) to sustain his motion for a mistrial filed after the prosecution impeached his alibi witness by introducing evidence of a conviction pending appeal in that it is not a final conviction for purposes of impeachment, § 491.050 RSMo Supp. (1982); (2) to sustain his motion in limine regarding exhibits seized from his automobile in that said exhibits were irrelevant and immaterial and their probative value was substantially outweighed by the prejudicial effect on the jury. We affirm.
A brief rendition of the factual setting viewed in a light most favorable to the jury verdict is set forth. State v. Stapleton, 518 S.W.2d 292, 296 (Mo. banc 1975). At
In his first point on appeal, Kayser contends the trial court should not have permitted the impeachment of his alibi witness by a conviction which was pending appeal because the conviction was not final; that this improper impeachment prejudiced his right to a fair trial.
The applicable statute pertaining to the scope of impeachment, § 491.050 RSMo Supp. (1982),
[Hjowever, any prior criminal convictions may be proved to affect his credibility in a civil or criminal case, and, further, any prior pleas of guilty, pleas of nolo con-tendere, and findings of guilty, may be proved to affect his credibility in a criminal case.
The defendant relies on State v. Blevins, 425 S.W.2d 155 (Mo.1968). However, Blevins was rendered prior to the 1981 amendment of § 491.050. The interpretation of the amendment is provided in State v. Jackson, 651 S.W.2d 547 (Mo.App.1983), in which a trial court permitted the state to impeach a defense witness by a conviction pending appeal. The defendant appealed his conviction and our brethren in the Western District held that the amendment to § 491.050 permitted impeachment of a witness by evidence of any finding of guilt. The pendency of an appeal has no effect on the existence of a finding of guilt by the jury. It is a truth which should be weighed with all other evidence to judge the credibility and veracity of witnesses’ testimony. Jackson, supra, at 548. This interpretation places Missouri with the majority of jurisdictions permitting convictions pending appeal to impeach credibility. 16 A.L.R.3d 725, 736-8 (1967 & Supp.1982). Point one is without merit.
The defendant has alleged plain error in the denial of his motion in limine as to the other exhibits which he had failed to object to during the trial. The test for plain error requires not only that error be found, but that the error result in manifest injustice. Rule 29.12(b); Albritton, supra, at 328[13]. It is defendant’s affirmative burden to show manifest injustice and a violation of substantial rights. Rule 29.-12(b); State v. Sanders, 628 S.W.2d 390, 392 (Mo.App.1982). Defendant further alleges that the exhibits were prejudicial in that absent this irrelevant evidence there would not have been substantial evidence to support the verdict. The defendant was positively identified on three separate occasions by two of the victims. Two positive identifications have been held to constitute substantial evidence under State v. Garrett, 518 S.W.2d 97, 99 (Mo.App.1974). Further, the two jeweler’s loupes, a list of police radio frequencies, and a .380 shell, seized from defendant’s car two weeks after the robbery, are items not commonly used in nor related to the trade or business of used car salesmen. In view of the way the robbery was executed and items taken, exhibits 24, 25 and 27 have some probative value as to the intent for which the defendant possessed them. State v. Crounch, 353 S.W.2d 597, 601 (Mo.1962). Point two is without merit.
Judgment affirmed.
. All references shall be to RSMo Supp. (1982) unless otherwise noted.