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People v. Goff





Appeal from the Circuit Court of Marion County; the Hon. Ronald A. Niemann, Judge, presiding.


Defendant, Lloyd Francis Goff, was convicted by a jury of armed robbery, and was sentenced to 18 years in prison. On appeal, defendant contends that he was deprived of a fair trial when the court gave a non-IPI jury instruction and accordingly his conviction must be reversed and remanded for a new trial. Errors assigned by defendant in his supplemental pro se brief include: (1) that the court erred in failing to quash his arrest warrant and suppress evidence seized pursuant to that arrest warrant, and (2) that the trial court erred in denying defendant's motion for a change of venue. For the reasons stated below, we affirm.

The record reveals that the defendant was charged by information in Marion County with the offense of armed robbery of Rebecca Smith on December 23, 1981. At the jury trial, the first witness, Ida Boyd, testified that on December 23, 1981, she was employed at D.J.'s Party Liquor Store in Salem, and was working the evening shift from 4 p.m. to midnight. About 11:40 p.m., while Boyd was stocking the shelves, someone entered the store, following which she heard a male voice in conversation with the other clerk, Becky Smith. No other customers were in the store at that time, although business had been brisk that night. Boyd heard Smith summon her; she then walked to the counter where the cash register was located. Smith told Boyd that the man was robbing the store. At this time Boyd noticed that the man was carrying a gun. The gun was similar to People's exhibit No. 1.

The man remained in the store for approximately five minutes. During this time Boyd was no more than 10 feet from the man. The interior of the store was illuminated at this time by fluorescent lights, one of which was located directly over the counter area. Boyd described the robber as a white male, age 35 to 40, who stood 5 feet 10 inches or 5 feet 11 inches tall and weighed about 160 pounds. He had "modern cut * * * wind blown" medium brown short hair and no beard or mustache. He was wearing a long sleeve tan plaid flannel shirt and no hat. Boyd identified the defendant in court as this man.

On cross-examination Boyd stated that she had been approached by an investigator for the defense, and that she had refused to speak with him about the offense. She believed the defense had access to the statement she had given to the police, but acknowledged that her testimony at trial contained much information that was not included in her earlier statements.

Becky Smith also testified about the armed robbery. When the man announced the robbery, he was standing about 3 feet from her. He was armed with a gun that looked like People's exhibit No. 1. Smith had never seen the robber before that night. She described him as a white male, who was 35 to 40 years old, 5 feet 8 inches or 5 feet 9 inches tall and 150 pounds. He had very neat light brown short hair, no beard or mustache, and was wearing faded blue jeans and a short sleeve black, green and gray plaid shirt. Smith identified the defendant in court as the person who robbed her.

Smith testified that she also had been contacted by the defense investigator and had refused to speak with him. She admitted that she had received a telephone call from a secretary for the State's Attorney and that the secretary had identified the defense investigator by name and told her that she did not have to speak with anyone about the crime.

Sergeant Steve Duff of the Kentucky State Police testified that he arrested the defendant on March 19, 1982, and removed from one of the defendant's pockets various identification papers bearing the name Richard Allen Scott. The defendant had a beard and mustache at the time of his arrest. Sergeant Harold L. Howard of the Kentucky State Police assisted Duff in arresting the defendant. Howard then went to the home of Junior McQueen, where McQueen gave him a gun (People's exhibit No. 1) which McQueen said was the defendant's.

Junior McQueen testified that about two weeks before his arrest the defendant, whom McQueen knew as "Dick," had rented a house located about 100 feet from McQueen's residence. On the morning of March 19, before his arrest, the defendant was sitting on the porch at McQueen's home cleaning a gun. McQueen identified People's exhibit No. 1 as the weapon the defendant was cleaning. McQueen had never seen the defendant with a gun before that morning. The defendant asked McQueen for permission to leave the gun in McQueen's house; McQueen refused this request. The defendant returned to, and entered McQueen's home later that day. McQueen did not see the gun again on March 19 until the police arrived at his residence, at which time he consented to and assisted in their search of his home. The officers found nothing and commenced searching outside the home for the weapon. Later McQueen found the gun in a box of dirty clothes in his closet and turned it over to the police.

Larry Norbeck, a Marion County Correctional Officer, testified that the defendant, upon being booked into the Marion County Jail on March 28, 1982, told Norbeck that he was 38 years old, 5 feet 11 inches tall and weighed 170 pounds. Marion County Sheriff Charles Sanders testified that, one week before trial, the defendant's height was measured at 5 feet 10 1/4 inches and his weight at 156 pounds.

A number of witnesses testified for the defendant. Glenn Goff, the defendant's brother, testified that the defendant normally weighed about 180 pounds, and that the defendant appeared to weigh that amount when Glenn saw him on Thanksgiving Day, 1981. Glenn had never known the defendant to have short hair.

Another of the defendant's brothers, Ray Goff, testified that the defendant normally weighed 175 pounds and always wore his hair long. Roy had been in D.J.'s Party Liquor Store with the defendant six or eight times, most recently in November 1981.

Tammy Wimberly testified that she cut the defendant's hair about a week before Christmas, 1981. On cross-examination she admitted that she could not pinpoint the date of the defendant's haircut any better than to say it occurred in December 1981, before Christmas. After she was finished cutting, the defendant's hair appeared similar to that depicted in the picture taken of him on November 27, 1981 (defendant's exhibit K).

Harold Fickes, a friend of the defendant, related that on December 24, 1981, the defendant appeared to weigh 160 to 165 pounds and, though he was not sporting a beard or mustache, he was not clean-shaven; the defendant had "[p]robably a couple of [sic] three days' growth." The defendant's hair on December 24 was long enough to cover the upper half of his ears. On ...

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