*1 569 Booker, (Mo.App. 937 v. 517 S.W.2d State generally that a defendant who recognized ruling. 1974). We adhere to that in his own behalf takes stand impeached by proof convictions or is affirmed. judgment like,” “it thought and that is not incon enlightened sistent with the administration PER CURIAM: justice to require of criminal STOCKARD, deciding to weigh pros such and cons in foregoing opinion C., find merit to court. testify.” adopted We as the appellant’s contention that the trial court refusing in to sustain motion to
erred HIGGINS, JJ., concur. WELLIVER and of him if he elected limit cross-examination testify. SEILER, J., P. in result. concurs Appellant’s point final is that
imposition of two life sentences and two ten sentences,
year all to run con punishment, unusual
stituted cruel and part prejudice
demonstrated bias
of the trial court. he not con
Appellant admits that
does
tend that the
as to each offense
Missouri, Respondent,
STATE of
prescribed by
falls outside the
Legislature,
contend
does
v.
impose
this case to
consec
circumstances of
REPP, Appellant.
William
punish
utive sentences is cruel and unusual
Weems
Appellant
ment.
cites
v. United
No. 62081.
349,
States,
544,
54 L.Ed.
U.S.
S.Ct.
Supreme Court of
Dulles,
(1910),
Trop
356 U.S.
En Banc.
(1958).
As
Weems assessed court with the law. This is the same situation
Trop case. Neither case held that a term of prescribed within the limits government legislative branch of Eighth
was in Amendment violation
proscribing punishment. cruel and unusual hand, Blockburger
On other v. Unit States,
ed 284 U.S. S.Ct. (1932), expressly that court held
L.Ed. 306 apparent sentence severity prescribed by statute does
within the limits appellate court to interfere warrant an has
with it. This court rule stated Blockburger case to be law of Johnson, supra. State. State Stephens,
also Vermillion, 1974); supra; *2 years’
ment at Judgment count. was accordingly rendered with the sentences to run appeals judg- court affirmed appeal Court ment. This transferred the plain review whether it was error admitted, objec- trial to have court tion, evidence, hearsay certain is cruel and un- usual. Affirmed. March 25 April
Between passed six no account checks in issue were Country Supermarket at the Town and Farmington, Missouri. The checks were placed evidence and four employees Town Country identified defendant as person passed employee who them. An upon of the bank which the checks were they drawn established that were drawn against an account that had been closed they passed. Town and Coun- try’s manager stated that was value August for Nilges, the checks. a handwrit- ing expert, gave his defend- opinion that signature appeared ant’s on each of the checks.
Sufficiency of support evidence to convic- questioned foregoing tion is not and the demonstrates evidence from reasonably guilty could find defendant charged. testimony Nilges,
During of Mr. the written Wil- introduced Storer, liam H. whom defendant Mr. had commissioned on his own behalf. as a Defend- Storer was witness. Defender, E. Pedigo, objection Ronald Public admission of ant made Farmington, appellant. which, for with the agreement report, opin- an expert, of the State’s Ashcroft, Gen., Green, John Atty. Kristie ion Gen., Atty. City, respon- Asst. Jefferson trial, Through the remainder of dent. made a of references to Mr. Stor- number report. er’s HIGGINS, Judge.
William Repp,
preserve
with two
convictions
recognition
failure
issuing
error,
plain
no account checks in violation of
appellant charges
charge
561.450,
charged
RSMo
as a
§
error to the admission into evidence
556.280,
second offender under
handwriting analysis report
RSMo
of Mr. Storer.
§
rule,
with six
issuing
counts of
no account
In his effort to invoke the
hearsay
checks. He was
on all
convicted
that the
argues
six counts and the
him
punish-
court fixed his
author unavailable
within the
cross-examination,
when
he was
denied
statute,
cannot be
range prescribed
witness.
to confront such
court,
appellate
judged excessive
29.12(b) provides:
Rule
13, 15 (Mo.1967);
Crider,
affecting
rights
Plain errors
substantial
sepa
convicted of
and where defendant'
in the discretion of
be considered
*3
imposed are
and the sentences
rate offenses
court when the court
that manifest
finds
limits,
effect
statutory
within
injustice miscarriage
justice
of
has re-
or
cruel
doés not constitute
of the sentences
sulted therefrom.
Neal,
State
punishment,
and unusual
case,
Mr.
was defendant’s
this
Storer
(Mo.1974).
See
S.W.2d
expert.
report
His
of defend-
1980);
Williams,
573 aspect plain respect to the With had established seven as legislature case, much of what follows for an offense maximum ap in the court of type. regard Judge this situation I Dowd’s dissent Given he, too, uphold claim making six would five-year peals court’s order where ex gross Appellant’s abuse of discretion. of error. consecutive as Johnson, 348, appellant 352 pert’s report In stated stated, expert was (Mo.App.1977), it was courts the checks involved. “[0]ur nor testify that a repeatedly have state; was denied statutory consequently, which is within the offense, the sixth guaranteed by unusual as right ... not cruel and the United dispropor- amendments to because its duration unless so fourteenth and cross- offense committed so to confront tionate States Constitution Pointer v. sense of all men him. shock moral reasonable examine witnesses 1065, 1067, Texas, under the as to what is 380 U.S. S.Ct. Hall, Mitchell, (1965); circumstances.” See also State L.Ed.2d 1978). (Mo.App.1974). my S.W.2d S.W.2d order sentences opinion, the these clearly Appellant’s expert’s totality cumulative causes the sen- therefore, incompetent and, hearsay disproportion- so tence this instance to be Hegwood, dence of its contents. to the offenses committed that it shocks ate (Mo.App.1977). The *5 as the moral sense of all reasonable men to proper a foundation lay state did not is and under the circum- what report into evidence. the introduction stances. It well be that this was, therefore, ad- improperly The report no when he again pass will account checks The cannot ar- into evidence. state mitted whether penitentiary, is released from the expert’s report was gue appellant’s years, years, that occurs in three harmless because cumulative and therefore way it thirty years. That seems to be the expert’s state- the and the state’s people who write account expert agree- was appellant’s ment that may, peniten- Be that as in a thirty it him into evidence ment with were admitted is, tiary opinion, dispropor- so my grossly expert’s of the state’s prior to the admission appel- to tionate the offenses of which signature. concerning appellant’s opinion making lant was the convicted that order the undoubtedly assumed that jury The them abuse of consecutive a substantial witness, testify would expert, state’s my opinion discretion. In this Court should appellant’s handwrit- examplars of that the vacate the directing order the trial court check but ing signature the matched these be consecutively. served being elicited the testimony prior to that This would allow the terms to be served fact that the already aware the was concurrently. appellant agreed with retained damage had been expert. For the I dissent from that above reasons the state expert expressed his portion opinion affirms the done the state’s matched. The sentencing opinion signatures order in this case. report was the first appellant’s expert’s appellant’s dence SEILER, Judge, dissenting. received signa- his exemplars matched handwriting I believe that respectfully I dissent. It could not have ture on the checks. into ap- to evidence admit in- any cumulative report. expert’s pellant’s troduced. However, be if this conviction is to af- following evi- firmed, presented dissenting opinion I state concur Corden, First, testimony Winifred as it would vacate dence: the Chief Justice insofar Bank and of Pioneer treasurer order of the trial court which directs assistant Trust, the state’s exhibits who identified the sentences be served friends; pellant Nos. 4—9 as the manager checks issued to an and became which had been closed in and manager’s never “we have be- might words come, time. I say friendship reactivated. started at that She could not myself to know bet- question checks in considered him a little signed by appellant. Second, ter I did Buel, anyone than else in town at that Thomas analyst a forensic manager time.” The authorized the cash- the highway patrol, that he testified ing appellant’s of two of checks even after given appellant sign forms to obtain a appellant’s returned first handwriting exemplar. He said that he did as a “no to the store account” check. not, however, comparison any make manager you testified that “When first exemplar Third, August with the checks. open keep a store a bunch Nilges, also a high- forensic analysis you more of enemies have to be a little bit way patrol, testified. He he did said authorizing cashing liberal [in any receive training formal in handwriting checks].” analysis but had received over on-the-job training highway patrol. at the When was contacted about checks, Nilges promised return of first he was asked whether he knew of Wil- pay come in them off when all liam H. replied Storer. He that Storer was checks had been returned. When su- well-known, “very reputable handwriting (the wife) permarket bookkeeper manager’s expert.” Nilges Then copy calls appellant, returned her Storer’s written opinion ap- as to whether was waiting said he for the last of the pellant wrote question the cheeks in them paying checks to returned before asked to look at it. He was asked if Stor- bookkeeper off. The said that she called own, er’s was the same as to file prosecutor’s office and was told replied which he affirmatively. Only after bring charges quickly and instructed to bolstering Nilges opinion conclusions though checks in store immediately. Even establishing appellant’s policy days give person had been to ten well-known, own “very reputable handwrit- pay on a returned check and to assess a expert” conclusion, arrived at the same charge on each returned $2.00 *6 the prosecutor Nilges did have state his have, at the bookkeeper testified she appellant own that sign did office, urging prosecutor’s brought Fourth, Bowling, checks. Terry manager prosecutor appel- the checks to the the supermarket where of the all checks days lant had the full ten he was after question cashed, were Then testified. make good. called to the checks cashiers actually four who had cashed the short, strong In the state’s case had a checks finally, testified. And the state suggestion appellant and the store Bowling, called Deborah the store’s book- took manager, neighbor, his friend and keeper, before resting its case. position appellant credit was extended hindsight, appears it the state had pay and would have account” off the “no against appellant, a solid case but that may back checks once all six checks had come appeared not have been way while also suf- the bank. The state’s case progress. the trial was in closer inspec- A manager fered the embarrassment of the tion record indicates state cashing “no knowingly account” checks reason to about uneasy had feel its case bookkeeper, his friend and then the store’s appellant compelled and felt to em- wife, manager’s policy ignoring store phasize the handwriting expert’s report be- appel- rushing press charges against and prejudicial cause it was so and office urging prosecutor’s lant on the subject scrutiny could not be to the of cross- though even had talked examination. manager bookkeeper store and to assure off the pay them that would come in to Appellant super- and the manager market who cashing ap- authorized the pellant’s assume, neighbors yards whose the sake Even one were to if adjoined. opened after re- ap- argument, appellant’s expert’s Soon the store port cumulative could have considered testimony,
of other admitted R., child A. D. under In Interest of devastating and effect that such prejudicial age. seventeen evidence, coming expert employed from an must his appellant, have on Missouri, Respondent, STATE jurors cause in the minds of the far out- possible redundancy. weighs fact appel- record to demonstrate that fails RONE, Jr., Appellant. Arthur Daniel legal rights lant’s were unaffected 61177, 56658 and 57596. Nos. report into introduction of this adversely not have been could Supreme Court of Crane, thereby. influenced En Banc. (Mo.App.1977). 297-98 Aug. appellant’s done cause damage of this into evi- by the introduction jury,
dence and its exhibition to compounded by repeated the state's
then throughout
mention trial. It was
course stressed five times in the
emphasized to
prosecutor’s argument. prosecu- final heavy
tor’s on improper reliance readily just example
dence is seen argument:
these five statements in final Repp
“Mr. did not like the results of that you’ve
test so he his own hired read, have I you
seen because his you,
watched the results of own ex-
pert subpoena who I tried he didn’t here. of course Mr. didn’t
get Repp And
have him here. But we know what Repp That Bill did write
conclusion was. Town passed
these checks that were at Country Supermarket.” *7 time it is
When came their deliberation
reasonable to assume that retired incriminating report foremost on
their minds.
I would reverse this case and remand grounds trial that appellant
a new injustice manifest as a result
has suffered a admission into improper expert’s report founda- affording appellant his
tion and without ex-
right to confront and cross-examine the
pert witness him.