State v. ThompsonState v. Thompson
- Reporters:
- ,
- Before:
- Reinhard
Dеfendant appeals from a conviction on the charge of Robbery in the First Degree. He was sentenced under the Second Offender Act to serve a term of five yеars in the Department of Corrections.
Linda Bockhaus, a waitress in the Skelly Station Restaurant in Pacific, testified that defendant arrived at the restaurant in a van, which she recognized as belonging to Randall Fryer. Defendant went into the restaurant, then returned to the van and sat on the passenger side for about thirty minutes. To Ms. Bockhaus, Thompson appeared drunk or stoned. According to John Norman, manager of the service station, the van then moved to the service station area and he went to the passengеr side of the van. At that time he had $240 in receipts in his possession. He testified that defendant asked him: “How would you like to make a quick $100?” “Give me all your money and I will give you $100.” Norman told him hе could not do that. Defendant replied: “I can take it from you.” According to Norman’s testimony, defendant reached under his seat and while bent down half way said: “I’ve got a .45, give mе your money.” Norman handed over the receipts. He did not think defendant was drunk.
Defendant admitted taking the money from Norman. He said that he and several friends, including Fryer, had gone to a drive-in that evening and that he drank some beer. Defendant denied that he ever intended to rob Norman. He admitted to the conversation and to asking Norman if he wanted to make $100. Defendant testified that he told Norman he would split the money with him. He further testified that he was “joking”; however, he did not tell Norman that. After Norman refused to give him the money, he said: “I’ll take it from you.” He admitted that Norman then gave him the money and that he and Fryer left the station. Later he told Fryer that they had better take the money back, but that when they returnеd to the area the police were already there and they were frightened away.
Defendant first contends that the court erred in permitting Officer Zelch to testify as to a statement made by defendant. This testimony was offered in rebuttal and had originally been suppressed because of the failure of the officer to give Thompson the Miranda warnings prior to the statement.
Defendant’s further argument that admission of the statement was improper because it had been suppressed must fail also. The United States Supreme Court in Harris v. State of New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) held that an accused’s prior statements inconsistent with his trial testimony are admissible to impeach his credibility, although the police had obtained the statements withоut giving the accused warnings required by Miranda.
Defendant next argues that the court erred in refusing his tendered instructions D, E and F which related to voluntary intoxication. He claims that he was thus denied “the theory of his defense.” He recognizes that voluntary intoxication was not a defense to a criminal charge and could not be considered on the issue of speсific intent at the time of his trial. State v. Richardson, 495 S.W.2d 435 (Mo. banc 1973); State v. Hegwood, 558 S.W.2d 378 (Mo.App.1977). He asks us to apply a portion of the new criminal code (§ 562.076) retroactively. This we cannot do. Section 556.031 of the new codе provides: “[t]he provisions of this code shall govern the construction and punishment for any offense defined in this code and committed after the effective date herеof . . . . The provisions of this code do not apply to or govern the construction of and punishment for any offense committed prior to the effective date of this code . . . .” The effective date of the code is January 1, 1979.
Defendant further contends that the court erred in failing to grant a mistrial when the Prosecuting Attorney asked on voir dire: “And, like Mr. Schwartz said, is there anyone here who does not realize that because of the Fifth Amendment no defendant need ever prove anything?”
The trial court denied defendant’s request for a mistrial but instructed the jury to disregard this question. Defense counsel on voir dire had previously stated to the jury that they might feel that defendant had to prove his innocenсe. He stated that the defendant need not prove anything.
During voir dire, the Prosecuting Attorney asked the jury: “Is there anyone
Defendant alleges that the court should have sustained his motion for judgment of acquittal claiming that there was no evidеnce that violence was directed to Norman and no evidence that he was put in immediate fear of injury to himself. This point is without merit. Defendant was charged under
Defendant further contends in this point that the court erred in failing to instruct on Robbery Second Degree and Stealing Property of a Value of at Least $50. In his argument he makes no further reference to the failure to instruct on Robbery Second Degree, and the only reference on failure tо instruct on Larceny is the citation to a case, State v. Herron, 349 S.W.2d 936 (Mo.1961). Herron holds as do many other cases, that if there is substantial evidence in a First Degree Robbery case to support ah instruсtion on Stealing the court is required to give such instruction. Robbery in the Second Degree is committed when the property is relinquished through a threat that injury may be inflicted at some different time.
Judgment affirmed.
GUNN and CRIST, JJ., concur.