State v. GantState v. Gant
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- Somerville
Defendant was charged as a second offender in a four count information with (1) murder, first degree (“felony” murder),
This court, at the outset of this appeal, is confronted with a procedural predicament of major consequence. The jury returned their verdicts on August 11, 1977, and the trial court, pursuant to Rule 27.-20(a), granted defendant twenty days additional time to file a motion for new trial. Chronologically, the last day for defendant to file his motion for new trial fell on Saturday, September 10, 1977. However, defendant’s motion for new trial was not filed until Monday, September 12, 1977. Although Rule 31.01 excludes Sunday and legal holidays from consideration in determining the last day when defendant’s motion for new trial was due, provided the last day for doing so fell on a Sunday or legal holiday, the fact that the last day fell on a Saturday was of no consequence as Saturdays are not excluded under Rule 31.01 in
Before assessing the various “points relied on” to determine whether they should be entertained as “plain error”, a statement of facts is in order. The state adduced evidence from which the jury could find that the following facts were established beyond a reasonable doubt. On January 24, 1977, James Edward Norman, one of the assault victims, shared an apartment in Columbia, Missouri, with Breanda Marie Hen-dren, age 16, the homicide victim. Norman was an admitted dealer in marijuana in the Columbia, Missouri, area. Kathy Spry, the other assault victim, was visiting the couple in the living room of their shared apartment at approximately 10:30 A.M. on the morning of January 24, 1977, when two black males were admitted into the living room under the ruse of wanting to purchase some marijuana. The shorter of the two black males, identified by Norman at a lineup and during trial as the defendant, asked Norman if he had a “quarter-pound of marijuana for sale”. Norman replied that he only had “bags” of marijuana for sale and proceeded to the bedroom of the apartment where he kept his illicit “stock-in-trade”. Defendant followed Norman into the bedroom, “pulled a gun” and pointed it at Norman and demanded that he lie on the floor. Norman complied and while in a prone position was incessantly asked by defendant “where the rest of the money and the rest of the dope was.” Norman replied that all he had was marijuana and such money as was in his billfold. Defendant took Norman’s billfold containing $175.00 in currency and several “bags” of marijuana which Norman had cached in the bedroom.
Norman described the gun defendant pulled on him as “long-barrelled” and “bronze copper colored”. Defendant, insisting that Norman had more “pot and money”, struck Norman on the head with the gun and then ordered his companion (Keith L. Matthews), who was in the living room, to “[bring] those bitches in here”. Shortly thereafter Breanda Marie Hendren and Matthews entered the bedroom whereupon defendant asked Breanda Marie Hendren where the rest of the “stuff” was. She replied that there was nothing else. Matthews was unarmed. Defendant then shot Norman in the neck, from which wound Norman recovered. Norman heard several more shots, and the next thing he was aware of was seeing Breanda Marie Hen-dren lying on the floor of the bedroom and Kathy Spry lying on the floor of the doorway between the bedroom and the living room of the apartment. Medical testimony introduced by the state disclosed that Bre-anda Marie Hendren was shot in the mouth and head, the latter shot causing her death. According to Norman, defendant was the shorter of the two black males who entered the apartment.
Kathy Spry, the other assault victim, after hearing Norman yell “[g]o ahead and shoot me . . .1 don’t have the money”, heard several shots and then saw Norman and Breanda Marie Hendren lying on the floor of the bedroom. As the two black males ran from the apartment, the shorter of the two who had the gun shot Kathy Spry in the left cheek and head from which wounds she later recovered. Kathy Spry was unable to positively identify defendant as the man who shot her.
Various witnesses testified without objection that “immediately” before January 24, 1977, defendant had been seen flourishing a “long-barreled pistol”, and on the morning of January 24, 1977, before leaving the apartment where he lived in Columbia, Missouri, there were two “boxes of bullets” (which were offered and admitted into evidence without objection) at the head of the bed which he occupied in the apartment. A co-occupant of defendant’s apartment testified that on the morning of January 24, 1977, she heard defendant say to his accomplice (Keith L. Matthews), “[l]et’s go make the fast money”, and later that day saw
Keith L. Matthews, defendant’s accomplice and the taller of the two black males who entered the apartment on the fateful morning .in question, was called as a witness by the state. He testified that on the morning of January 23, 1977, defendant asked him to come to his apartment the following morning because he “wanted to knock off some dope and some money”. Matthews complied and arrived at defendant’s apartment between 9:00 and 9:30 o’clock on the morning of January 24, 1977. Matthews testified that he had previously seen defendant with a “.22 long barrel chromed, brown-handled” revolver in his possession. Matthews and defendant left the latter’s apartment at approximately 9:30 on the morning of January 24, 1977, and proceeded on foot to the apartment occupied by Norman and Breanda Marie Hendren. Upon passing a police car on the way over to the scene of the crimes, defendant asked Matthews if he could see his “pistol” and Matthews replied that he could. Thereupon, defendant shifted the pistol from his left side “back towards the back”.
Upon entering the victim’s apartment, Matthews stayed in the living room while Norman and defendant proceeded into the bedroom. Hearing a “commotion” and “loud voices”, Matthews went into the bedroom where he observed defendant pointing a pistol at Norman who was lying on the floor at the time. On orders from defendant, Matthews placed the money and marijuana taken from Norman into a “brown grocery sack” which the pair had brought with them. Matthews had the “brown grocery sack” and its contents in his possession when he later fled from the apartment. Matthews preceded defendant out of the apartment. Before fleeing the apartment Matthews observed defendant strike Norman on the head with his pistol and fire two shots into Norman. According to Matthews, defendant then grabbed the girl who was in the bedroom (Breanda Marie Hen-dren) by the hair and put the pistol “up to her cheek” and shot her. As Matthews was fleeing the apartment he heard several more shots after running past the other assault victim (Kathy Spry), although he did not actually see her shot. Defendant caught up with Matthews and placed the “pistol” in the “brown grocery sack” which Matthews was carrying. As he did so, he told Matthews, “I had to kill all of them . Sam[?] said don’t leave no witnesses”. When the two arrived back at defendant’s apartment, defendant dumped all of the “stuff” in the “brown grocery sack” onto the floor and gave Matthews two bags of marijuana.
Two days after the robbery Matthews was questioned by the Columbia police at which time he denied any knowledge of the gruesome events which occurred on January 24, 1977. Several days later Matthews recanted and identified himself and defendant. as the two black males involved in the multiple offenses. Matthews further testified that he was charged with being “an accessory to armed robbery”, “murder in the first degree” and two charges of “assault with intent to kill with malice aforethought”. Prior to defendant’s trial Matthews pleaded guilty to the charge of being “an accessory to armed robbery” and was given a seven year sentence. The murder and assault charges filed against Matthews were still pending when he testified on behalf of the state at defendant’s trial. It is also clear from Matthews’ testimony that by an agreement struck between himself and the state his seven years sentence on the robbery charge and eventual dismissal of the homicide and assault charges were the quid pro quo for testifying on behalf of the state at defendant’s trial.
Defendant took the stand and denied any and all implication with the charged offenses and testified that he was visiting a girl friend in Columbia when the crimes in question occurred. The only other witnesses offered by defendant were three Columbia police officers who testified that Matthews denied any knowledge of the crimes when questioned by them two days after January 24, 1977.
(1) Defendant was twice placed in jeopardy for the same offense in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States and Article I, § 19, of the Missouri Constitution in that the two substantive offenses of assault with intent to kill with malice aforethought on the one hand and the substantive offense of armed criminal action on the other hand constituted an identity of offenses as they involved use of the same weapon.
(2) Joinder of the four felony charges in the same information by means of separate counts and placing defendant on trial as to all four charges at the same time violated the Sixth and Fourteenth Amendments to the Constitution of the United States in that doing so deprived defendant of a “fair trial” and further violated Article V, § 5 of the Constitution of Missouri in that Rule 24.04 promulgated by the Supreme Court authorizing such joinder is substantive as opposed to procedural in nature.
(3) “The court erred in overruling appellant’s motion for new trial, particularly paragraphs 5, 6, 7 and 8 of said motion for new trial cited in motion for new trial.”
(4) The trial court erred in refusing to grant defendant a new trial in that he was improperly convicted on the uncorroborated testimony of Matthews, his accomplice.
(5) The trial court erred in refusing to grant defendant a new trial in that he was improperly convicted upon perjured testimony given by Matthews, his accomplice, to the effect that no deal had been struck between Matthews and the state in return for Matthews’ testimony.
(6) The trial court erred in permitting Matthews to testify against defendant as some of the charges lodged against Matthews relative to the occurrence were still pending at the time of defendant’s trial.
(7) The trial court erred in permitting James Edward Norman to identify defendant during the trial because it resulted from an unduly suggestive pre-trial identification lineup.
(8) Defendant was deprived of effective assistance of counsel at the trial level in that counsel failed to object to the absence of any “black people” on the jury which tried and convicted defendant.
(9) There was not sufficient evidence to sustain defendant’s conviction on any of the four charges.
Point (1) relied on by defendant strikes at the alleged unconstitutionality of being tried and convicted for armed criminal action in connection with the two assaults when the weapon constituting the crux of the charge was the same weapon used to perpetrate the assaults. The capstone of defendant’s point is double jeopardy which, by reason of its constitutional implications, falls within the ambit of appellate review authorized by Rule 27.20(c) since “plain error” culminating in a “manifest injustice or miscarriage of justice” may have resulted.
State v. Coyne,
452 S.W.2d 227, 228 (Mo.1970);
State v. Donnell,
430 S.W.2d 297, 299 (Mo.1968); and
State v. Williams,
419 S.W.2d 49, 53 (Mo.1967). However, for reasons hereinafter set forth, it is unnecessary to resolve the fundamental issue of whether the charge of armed criminal action in connection with the assaults and the charges of assault with intent to kill with malice aforethought constitute such an identity of offenses as to do vio
Count IV of the information charged defendant with armed criminal action in commission of the felony of “assault with intent to kill (malice).” Notwithstanding the charge as pleaded in Count IV of the information, the offense of armed criminal action was submitted to the jury via the following verdict directing instruction:
“INSTRUCTION NO. 8
As to Count IV, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about January 24, 1977, in the County of Boone, State of Missouri, the defendant committed the crime of First Degree Murder as charged in Count I, and
Second, that he committed that crime with the use of a dangerous or deadly weapon, namely a pistol,
then you will find the defendant guilty under Count IV of armed criminal action.
“However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, then you must find the defendant not guilty under Count IV of that offense.”
In response to Instruction No. 8 the jury returned the following verdict:
“As to Count IV, we, the jury find the defendant James B. Gant guilty of armed criminal action as submitted in Instruction No. 8. IX) William E. Dalton, Foreman.”
It is patently obvious that defendant was found guilty of armed criminal action in commission of the homicide (Count I), an offense for which he was not charged, rather than armed criminal action in commission of the assaults (Counts II and III), the offense for which he was charged. It is elementary law that an accused cannot be charged with one offense and convicted of another. State v. Billingsley, 465 S.W.2d 569, 570 (Mo.1971). Hence, the trial court was without jurisdiction to impose a sentence for armed criminal action and its judgment was not merely erroneous but absolutely void. State v. Barnes, 492 S.W.2d 729, 730 (Mo.1973). This court encounters no qualms in holding that convicting an accused of a crime for which he was not charged represents a classic example of “manifest injustice” or “miscarriage of justice” which falls within the perimeters of “plain error” contemplated by Rule 27.20(c). The judgment of the trial court with respect to Count IV of the information is reversed.
Point (2) relied on by defendant attacks the validity of joining the four felony charges by means of separate counts in one information and subjecting defendant to trial on all four charges at the same time. Defendant posits his attack on two grounds. First, doing so deprived him of a constitutionally fair trial ostensibly in violation of the Sixth and Fourteenth Amendments of the Constitution of the United States. Second, Rule 24.04 promulgated by the Supreme Court authorizing such joinder is substantive rather than procedural in nature and therefore in violation of Art. V, § 5, of the Constitution of Missouri. Defendant, understandably, makes no contention that the multiple offenses charged in the various counts were not based on “two or more acts which . . . [were] part of the same transaction or on two or more acts or transactions which . . . [constituted] parts of a common scheme or plan” as provided in Rule 24.04. No motion for severance was filed by defendant.
Because of the constitutional overtones permeating defendant’s second point, the same will be viewed as “plain error” under Rule 27.20(c).
See: State v. Coyne, supra; State v. Donnell, supra;
and
State v. Williams, supra.
The same argument tendered in support of the first prong of defendant’s bifurcated attack on joinder of the multiple offenses, deprivation of a fair
Point (3) relied on by defendant illustrates complete want of any semblance of compliance with the “wherein” and “why” and “citation” requirements of Rule 84.04(d). Paragraphs 5 and 6 of defendant’s untimely filed motion for new trial faulted Instruction No. 5, the verdict directing instruction submitting Count I, murder, first degree (“felony” murder). Paragraphs 7 and 8 of defendant’s untimely filed motion for new trial are repetitive of grounds otherwise asserted in what this court has denominated points (1) and (5) (which are being separately treated) on appeal. Point (3) is devoid of any citation of authorities and the argument tendered in support thereof, in its entirety, reads as follows: “The trial court erred in failing to sustain the defendant’s motion for a new trial for the reason that the defendant did not obtain a fair trial.” Point (3) is so glaringly aberrant that it invokes nothing whatsoever for appellate review even under the benevolent auspices of Rule 27.20(c). This court, ex gratia, has looked at Instruction No. 5 4 and finds that it faithfully conformed to MAI — CR 6.19 applicable when this case was tried and was amply supported by the evidence. Defendant is not entitled to any relief under point (3).
Point (4) relied on by defendant complains that he was improperly convicted on the uncorroborated testimony of Matthews, his accomplice. Defendant has failed to convincingly demonstrate how or why his third point rises to the level of “plain error” within the purview of Rule 27.20(c). This court declines to so treat it. Anticipating a potential fusillade of post-conviction remedies, this court, ex gratia, notes that substantively the testimony of Matthews was sufficient to support defendant’s conviction and cannot be said to be “so lacking in probative force as not to amount to substantial evidence.” State v. Harris, 295 S.W.2d 94, 95 (Mo.1956). Accord: State v. Summers, 506 S.W.2d 67, 70-1 (Mo.App. 1974). Moreover, Matthews’ testimony was in fact substantially corroborated, directly and circumstantially, by various other witnesses proffered by the state. Once again, even if it had not been, it was sufficient in and of itself to support defendant’s conviction of the multiple offense because it was neither self-destructive nor conclusively impeached. State v. Summers, supra. Point (4) provides no avenue of relief for defendant.
Point (5) relied on by defendant rests on the premise that he was convicted upon “perjured” testimony given by accomplice Matthews. This is a serious charge which, if true, would trigger review of point (5) as “plain error” under Rule 27.-20(c) because a conviction resting upon perjured testimony would be the antithesis of a conviction evolving from a fair trial. Defendant seeks to convince this court that Matthews’ testimony in its entirety was tainted with perjury by reason of the equivocal nature of certain answers given by Matthews on cross-examination with respect to whether his testimony was prompt
Point (6) relied on by defendant charges the trial court with error in having permitted Matthews to testify against defendant while some of the companion charges lodged against Matthews were still pending. No objection was leveled against Matthews’ testimony during trial on this ground, and this court is not prepared to say that defendant’s belated objection on appeal to Matthews’ testimony is entitled to review as “plain error” under Rule 27.20(c). Even if this court indulged review of point (6) on appeal by warping Rule 27.20(c) it would avail defendant nothing. Matthews was not jointly charged or named as a co-defendant in the multiple count information upon which defendant went to trial, but was separately informed against. Perforce, the rule ostensibly relied upon by defendant that one co-defendant is incompetent to testify against the other is inapplicable. State v. Haynes, 510 S.W.2d 423, 424-25 (Mo.1974); State v. McCarty, 460 S.W.2d 630, 637 (Mo.1970); and State v. Nickens, 581 S.W.2d 99, 101-02 (Mo.App.1979). Point (6) relied on by defendant affords no relief.
Point (7) relied on by defendant faults his in-court identification by James Edward Norman on the ground that it resulted from an unduly suggestive pre-trial identification lineup. Defendant made no pre-trial motion to suppress Norman’s identification testimony, nor was any objection made to Norman’s identification of defendant during the trial. Review of this point as “plain error” under Rule 27.20(c) requires not only a finding that it was error to have admitted Norman’s in-court identification of defendant but that the error was of such pervasive magnitude that “manifest injustice” or a “miscarriage of justice” has resulted therefrom.
State v. Carpenter,
436 S.W.2d 748 (Mo.1969); and
State v. Garrett,
518 S.W.2d 97, 99 (Mo.App.1974). The absence of a pre-trial motion to suppress, conjoined, necessarily, with lack of an eviden-tiary hearing probing all salient facts appertaining to the pre-trial identification lineup, leaves nothing but some fragmented facts drawn out by defense counsel on cross-examination of James Edward Norman to evaluate the claim of an impermissi-bly suggestive lineup. This portion of the record has been carefully reviewed and at best it merely disclosed some disparity in height among five black males who composed the lineup, some being the approximate height of defendant and some being slightly taller. Such skeletal evidence is far
Point (8) relied on by defendant rests upon an attack on the racial composition of the jury via the claim that defendant was deprived of effective assistance of counsel at the trial level because of counsel’s failure to object to the absence of any “black people” on the petit jury which tried and convicted defendant. Defendant, in asking this court to review point (8) as “plain error” under Rule 27.20(c), does so in the face of a totally blank record as to the racial composition of the petit jury which tried him as well as to the jury panel from which it was drawn. Although defendant has baldly asserted that there were no “black people” on the petit jury which tried and convicted him, nothing exists in the
The ninth (9th) and final point relied on by defendant questions the sufficiency of the evidence to sustain his conviction as to any one of the four charges. Having previously concluded that defendant’s conviction under Count IV of the information must be reversed, only his conviction under Counts I, II and III of the information remain within the ambit of point (9). The presumption of innocence clothing every accused and the inexorable command of proof of guilt beyond a reasonable doubt make the sufficiency of the evidence the quintessence of a valid conviction. As a corollary, common sense dictates that if the evidence is insufficient to sustain a conviction both “manifest injustice” and a “miscarriage of justice” follow as surely as night follows day. Understandably, the courts of this state unhesitatingly review charges of insufficiency of the evidence as “plain error” under Rule 27.20(c).
State
v.
Dupree,
477 S.W.2d 129 (Mo.1972); and
State v. Goodwin,
352 S.W.2d 614, 619 (Mo. banc 1962), cert.
denied
371 U.S. 915, 83 S.Ct. 262, 9 L.Ed.2d 174 (1962). In determining the sufficiency of the evidence to support the remaining three convictions, the facts in evidence and all favorable inferences to be drawn therefrom must be considered in the light most favorable to the state and all evidence and inferences to the contrary must be disregarded.
State
v.
Franco,
544 S.W.2d 533, 534 (Mo. banc 1977),
cert. denied
431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977);
State
v.
Chase,
444 S.W.2d 398, 401 (Mo. banc 1969); and
State v. McGlathery,
412 S.W.2d 445, 447 (Mo.1967). When this legal template is superimposed upon the facts previously iterated at length in this opinion, any question as to the sufficiency of the evidence to sustain defendant’s conviction for murder, first degree (“felony” murder), assault with the intent to kill victim Spry with malice aforethought, and assault with intent to kill victim Norman with malice aforethought is quickly resolved against defendant. As evidenced by MAI-CR 6.19, the elements of murder first degree (“felony” murder), in the context of this case, are that defendant caused the death of Breanda Marie Hen-dren by shooting her and that he did so to prevent detection after robbing James Edward Norman. The evidence presented by the state overwhelmingly proved each and every requisite element of murder, first degree (“felony” murder). The elements of assault with intent to kill with malice aforethought, in the context of this case, as delineated by
One is hard put to leave this case without the poignant observation that violence and tragedy far too frequently associated with the illicit traffic in drugs stalked the facts throughout and left their indelible imprint upon the record.
All concur.
Notes
. Count IV of the information made no effort to relate the “armed criminal action” charge to any particular count of “assault with intent to kill with malice aforethought”, but was cast in broad, general terms as noted.
. See generally State v. Treadway, 558 S.W.2d 646 (Mo. banc 1977), cert. denied 439 U.S. 838, 99 S.Ct. 124, 58 L.Ed.2d 135 (1978); and State v. Valentine, 584 S.W.2d 92, handed down July 17, 1979, by Supreme Court of Missouri, en banc.
. See also State v. Duren, 566 S.W.2d 11, 19 (Mo. banc 1977), rev’d on other grounds 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).
. Instruction No. 5 was not set forth in full, or otherwise, in the argument portion of defendant’s brief as required by Rule 84.04(e).
. See generally United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Morris v. State, 532 S.W.2d 455, 457-58 (Mo. banc 1976); and State v. Perkins, 559 S.W.2d 52, 54 (Mo.App.1977).