Good law ✅— No negative treatment on recordhow we know
Decided 1983-05-03
How this case has been cited
Cited by 8 later decisions — most recently August 2017
8 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
¶2I dissent. The majority, sua sponte, concludes the state proved itself out of court. More specifically, the majority concludes the police officers’ testimony, quoted by the majority, proves “the weapon [in issue] was *142not concealed and was discernible by ordinary observation.” I disagree.
¶3On direct examination, Officer Titchen testified: “We1 both looked into the automobile, observed the subject and also observed what appeared to be a butt of a gun that was visible to us underneath the arm rest of the automobile.” [Emphasis added]. To me, the phrase “appeared to be” is not a circumlocution for and, thus, is not equivalent to the word “saw.” The phrase “appeared to be” indicates uncertainty about what was observed and, thus, implies that the “butt of a gun” was not discernible by ordinary observation. Admittedly, Titch-en’s testimony on cross-examination contradicts his uncertainty and the resulting implication. On cross-examination, Titchen testified: “As soon as we looked into the automobile we saw the butt of the gun ...However, even giving this contradiction the most favorable effect for defendant, the contradiction would, at best, simply vitiate Titchen’s direct testimony on the issue of concealment, see, e.g., Adelsberger v. Sheehy, 59 S.W.2d 644, 647 (Mo.1933) and would do nothing more than render Titchen’s testimony on that issue meaningless. Id. at 647. Sensibly, then, Titchen’s testimony could not mean either he saw what “appeared to be” the butt of a gun or that he actually “saw” the butt of a gun. Thus, his testimony simply would not be probative to show whether the weapon was discernible by ordinary observation.
¶4On the other hand, Officer Thompson’s testimony on direct and cross-examination was consistent. He stated he observed “what appeared to be the butt of a pistol,” or, “what appeared to be the butt of a gun.” I take it that Thompson meant what he said. He was uncertain about what he saw. By stating he observed what “appeared to be” the butt of a gun does not mean he meant to say he “saw” the butt of a gun. Thus, I cannot conclude that the state proved the butt of a gun “was discernible by ordinary observation.”
¶5. No objection was made to Titchen’s use of the term “we” rather than “I” to describe what he saw. I take Titchen’s use of the word “we” to mean what “he” saw. Apparently, so does the majority, for its conclusion does not turn on Titchen’s misuse of the word “we” as affecting Thompson’s testimony.
