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July 19, 1983


From the Circuit Court of the City of St. Louis; Criminal Appeal; Judge Charles D. Kitchin.

Motion for Rehearing Overruled, Transfer Denied September 1, 1983. Application Denied October 18, 1983.

Before Simon, P.j., Satz, Stephan, JJ.

The opinion of the court was delivered by: Simon

An appeal by defendant, Robert James Ballard (Ballard), from his conviction for Second Degree Robbery § 569.030 RSMo (1978) pursuant to a jury verdict. The jury assessed the punishment and the trial court sentenced Ballard to a five year term of imprisonment.

On appeal, Ballard raises the following points of error: (1) the cross-examination regarding a prior arrest, which did not result in a conviction, was improper; (2) the state's closing argument contained prejudicial statements; (3) the trial court erred in overruling his motion to suppress pretrial identification testimony; (4) the trial court erred in refusing to bar testimony relating to acts by third persons; (5) the trial court improperly applied § 491.050 RSMo (Supp. 1981); and (6) the trial court erred in submitting an alibi instruction patterned after MAI-CR2d 3.20. We affirm.

On appeal, the evidence and its reasonable inferences shall be examined in a light most favorable to the state; all contrary evidence will be disregarded unless it supports the verdict. State v. Arnold, 566 S.W.2d 185, 187 (Mo.banc 1978).

Applying this standard, we find the facts of this case are as follows: On July 9, Carl Easthom (Easthom) and an acquaintance, Lisa Sharkey (Sharkey), were riding their bicycles on Waterman Blvd. in the City of St. Louis about 6:00 p.m. Sharkey was riding some ten to twenty feet behind Easthom. As they were riding, two men crossed the street and approached them on foot. The men told Easthom and Sharkey to get off the bicycles and one of the men threatened Sharkey with an upraised tire iron or jack. Sharkey's assailant was identified as Mr. Delancey (Delancey). Sharkey screamed, got off her bicycle and ran to a car which was being driven by Ronald Botto (Botto). Botto had been driving on Waterman when he observed Sharkey's assailant, and offered Sharkey the protection of his car after she had surrendered her bicycle. From inside Botto's car, both he and Sharkey observed the confrontation between Easthom and the man identified as Ballard.

Easthom testified that he was facing Ballard squarely, approximately one to three feet away, when Ballard told him to get off the bicycle. Easthom refused to relinquish his bicycle, and testified he heard Sharkey scream. While Easthom was attempting to pull his bicycle away from the grasp of Ballard's left hand, he noticed that Ballard's right hand was wrapped with a light colored cloth. Easthom testified at trial that he believed Ballard had a gun because he noticed Ballard's hand and Ballard had told him, "I'll pop you, man, I'll pop you." After he surrendered his bicycle to Ballard, Easthom testified that Ballard slowly got on the bicycle and slowly rode away. The entire event lasted about one minute. Easthom joined Sharkey in Botto's car and they all decided to follow the assailants who were riding the bicycles down Waterman. After driving a short distance down Waterman, they were unable to continue because an aqua colored station wagon pulled across the street blocking their path. The robbers headed eastward on the bicycles, but Botto was unable to pass through the intersection because the station wagon had stopped in the middle of the intersection.

Easthom took down the station wagon's license plate number since it appeared that the car may have been purposely blocking their path in order to allow Ballard and Delancey to escape. Botto dropped Sharkey off at her home while he and Easthom continued to search by automobile for the robbers. In the meantime, Sharkey called the police, giving them a description of the two men and the license number of the station wagon. A few minutes after Sharkey made the call, two police cars arrived at her apartment. While the police were at Sharkey's apartment, they were notified by dispatch that a car with a matching license number had been located on Sarah and McPherson. Sharkey was taken by police to Sarah and McPherson, while another police car remained to drive Easthom to that location when he returned. Sharkey identified the aqua station wagon, Delancey and Ballard at that location. When Easthom arrived, he identified Ballard as the man who had taken his bicycle forty minutes earlier.

Prior to trial, a hearing was held on Ballard's motion to suppress his identification by the victims. The trial court found that the showup was not impermissibly suggestive. Furthermore, the court found any in-court identification of him would be independent and untainted.

At the suppression hearing, the following information was adduced: Both suspects had been handcuffed prior to identification by the victims. However, both victims recalled that they had been unaware that the suspects were wearing handcuffs; the show-up was conducted about forty minutes after the commission of the crime; the police never suggested to the witnesses that they had the persons who committed the crime; and Easthom and Sharkey independently identified the suspects. Easthom and Sharkey both made in-court identifications of Ballard.

At trial, Ballard took the stand and was asked by his attorney on direct examination whether he "had ever been in any trouble with the law before." Ballard replied, "Yes" and admitted that he had been convicted of tampering. The tampering conviction involved stripping a stolen automobile. His attorney then proceeded to ask Ballard about the night of July 9. On cross-examination, the prosecutor asked Ballard about a prior arrest for carrying a concealed weapon, which Ballard admitted. The charge had been dismissed as a result of an illegal search.

During closing argument, the prosecutor referred to the testimony of the witnesses which described Ballard's behavior as casual and cool during the commission of the crime. The prosecutor also referred to Ballard as a convicted thief. The court sustained the defense counsel's objection on the ground that the conviction was for tampering, not stealing. In his closing argument, the prosecutor stated that the show-up procedure was proper.

Ballard requested an alibi instruction patterned after MAI-CR2d 3.22 and it was refused. The trial Judge gave an alibi instruction patterned after MAI-CR2d 3.20 which Ballard had also requested.

Following the trial, Ballard filed a timely motion for a new trial or, in the alternative, for judgment of acquittal. The trial court denied the motions, and granted Ballard leave to appeal in forma pauperis. Thereafter, Ballard duly filed his notice of appeal.

Ballard's first point of error alleges that the cross-examination regarding his prior arrest was improper. The general rule is that a witness' credibility may not be attacked by showing a mere arrest or investigation which did not result in a conviction. However, an exception to this rule occurs when the defendant, pursuant to § 546.260 RSMo (1978), takes the stand in his own behalf. Section 546.260 RSMo (1978), in pertinent part, provides:

"No person shall be incompetent to testify as a witness in any criminal cause or prosecution . . . and shall be liable to cross-examination, as to any matter referred to in his examination in chief, and may be ...

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