State v. Bainter, 40541.
| Citation | 608 S.W.2d 429 |
| Decision Date | 09 March 1981 |
| Docket Number | No. 40541.,40541. |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. David Eugene BAINTER, Defendant-Appellant. |
| Court | Court of Appeal of Missouri (US) |
Louis J. Weber, Hillsboro, for defendant-appellant.
Timothy Patterson, Pros. Atty., Hillsboro, John Ashcroft, Atty. Gen., Paul Robert Otto, Lisa M. Camel, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Motion for Rehearing and/or Transfer to Supreme Court Denied October 17, 1980.
Defendant was found guilty by a jury of two counts of murder in the second degree, and assault with intent to do great bodily harm. He was also found to be a second offender under § 556.280 RSMo 1969 and was sentenced by the court to life imprisonment on each of the two counts of murder to run consecutively and to five years for the crime of assault with intent to do great bodily harm to be consecutive to the latter sentence for murder.
Defendant contends that the court erred in (1) permitting the State to introduce evidence that he mistreated the child of a Mrs. Steever, (2) denying defendant's motion for mistrial based on the endorsement of a witness shortly before trial and in interfering with counsel's attempt to interview the witness, (3) refusing to sign an order requiring a purported witness to appear in court, (4) in admitting evidence of a prior assault upon the victim of the assault charges, (5) permitting the State to inquire about details of prior convictions, (6) giving MAI-CR 3.06, the verdict directing instructions on the two counts of murder second because the form instruction failed to require a finding of premeditation, (7) refusing to instruct on excusable homicide and excusable assault, (8) refusing to instruct on justifiable homicide and justifiable assault, and (9) refusing to direct a verdict in favor of defendant at the close of the State's case because the evidence on behalf of the State clearly showed that the shootings were the result of a struggle and thus were accidental and excusable.
We are first required to determine, sua sponte, whether any of these issues are preserved for our review by the timely filing of a motion for new trial. State v. Rapp, 412 S.W.2d 120, 122 (Mo.1967).
The time for filing a motion for new trial in this case is governed by Rule 27.20(a) as follows:
In this case the record reveals that the court took evidence outside the hearing of the jury and found that defendant had been convicted of prior felonies. Thereafter the jury returned a verdict of guilty on all counts of the amended information on December 10, 1977. Sentence and judgment were entered on December 16, 1977. On January 25, 1978 the trial court entered its order as follows:
"Comes now the defendant and by leave of Court files his Motion for New Trial with the consent of the Prosecuting Attorney; the additional time of 30 days having been granted to the defendant heretofore in the Judge's chambers, together with the filing of Exhibits 1 through 8. IT IS SO ORDERED:"
It is unnecessary for us to determine whether an extension of time to file the motion for new trial had been granted because the motion was filed forty-six days after the verdict of the jury had been returned.
The provisions of the rule are mandatory and in all events the motion for new trial must be filed within forty days after the return of the verdict.1 State v. Knicker, 364 S.W.2d 544 (Mo.1963). The motion was not timely filed and it did not preserve any issues that are required to be preserved by the filing of a motion for a new trial.
Defendant, at oral argument, has asked us to consider six of the Points Relied On as plain error under Rule 27.20(c), now Rule 29.12(b) which reads:
"(c) Plain errors affecting substantial rights may be considered on motion for new trial or on appeal, in the discretion of the court, though not raised in the trial court or preserved, for review, or defectively raised or preserved, when the court deems that manifest injustice or miscarriage of justice has resulted therefrom."
This rule is not to be routinely invoked; it must be limited to circumstances where manifest injustice or miscarriage of justice has resulted. The plain error rule is intended to be the ultimate repository of an appellate court's power to correct injustice. The mere allegation of error does not raise the issue to the status of plain error.
Before a court should apply the plain error rule there must be a strong showing that injustice or a miscarriage of justice will otherwise result. When guilt is established by overwhelming evidence no injustice or miscarriage of justice will result from the refusal to invoke the rule. State v. Hurtt, 509 S.W.2d 14, 153 (Mo.1974).
We have carefully read the transcript and the briefs filed in this case. As illustrated by the facts which are set out hereafter guilt was established by overwhelming evidence. See State v. Hurtt, supra, at page 15.
Because of the conclusion we reach we shall set out the facts in detail; in doing so we view the evidence in the light most favorable to the State ignoring defendant's evidence except where it aids the State. State v. Franco, 544 S.W.2d 533, 534 (Mo. banc 1976).
On October 15, 1976 between 6:00 and 6:30 PM Flora Steever took three of her five young children to the trailer-home of her neighbor Mary Spencer so that Flora and the children could watch television while waiting for Flora's parents. Gary Spencer, Mary's husband, and Charles O'Keefe were also in the Spencer home. The defendant came to the door and was admitted by Mary Spencer. Defendant was using offensive language and Flora Steever returned to her trailer-home with her children. Shortly afterward defendant came to Flora Steever's trailer and asked her to go with him. She left the room to attend the baby who was crying. When she returned the five year old child, Michael, started crying and defendant grabbed the child and shook him. Mrs. Steever was unable to get Michael away from defendant and ran to the Spencers for help. Mr. Spencer went to Mrs. Steever's home and ordered defendant to leave. Defendant went to a trailer that he owned and rented to a Mr....
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