State v. Bizzle

• Decision Date: 14 August 1973
• Docket Number: No. 34487,34487
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Jerald Cecil BIZZLE, Defendant-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 259

500 S.W.2d 259

STATE of Missouri, Plaintiff-Respondent, v. Jerald Cecil BIZZLE, Defendant-Appellant.

No. 34487.

Missouri Court of Appeals, St. Louis District, Division One.

Aug. 14, 1973.

Motion for Rehearing or Transfer to Supreme Court Denied

Oct. 10, 1973.

Robert L. Officer, Clayton, for defendant-appellant.

Darryl L. Hicks, Pros. Atty., Warrenton, John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., Clayton, for plaintiff-respondent.

WEIER, Judge.

As a result of his attempt to break out of jail before conviction, the defendant, Jerald Cecil Bizzle, was found guilty of assault with malice aforethought and with intent to do great bodily harm in violation of § 559.180, RSMo 1969, V.A.M.S. The jury assessed the defendant's punishment at imprisonment for a term of twenty-eight years, and his sentence was set in accordance with the verdict. The defendant urges two points on this appeal. He urges, first, that since his motion for a new trial was heard and determined in his absence, he was denied his state constitutional right, in criminal prosecutions, to appear and defend in person. The defendant also contends that the evidence adduced that the trial was legally insufficient to support the jury's verdict, and that the verdict was rendered by the jury with passion, prejudice or partiality. Defendant's second contention shall be considered first.

Our appellate courts, in a criminal prosecution, do not weigh the evidence, but regard the substantial testimony and every reasonable inference therefrom favorable to the verdict of the jury as true. State v. Jones, 363 Mo. 998, 255 S.W.2d 801, 804(2) (1953). And, furthermore, when appellate courts do test the sufficiency of the evidence in a criminal prosecution, the evidence and reasonable inferences therefrom '* * * must be considered in the light most favorable to the state and all evidence and inferences to the contrary must be disregarded.' (citations omitted) State v. Strong, 484 S.W.2d 657, 661(9) (Mo.1972). Among the witnesses presented by the State at the trial were the two admitted participants in the attempted jailbreak, Clyde Murrell and Russell Taylor. Although most of their testimony was favorable to the defendant, some of it clearly was not favorable to him. Also called by the State was Void Pettig, the Deputy Sheriff of Warren County. He testified that while he was struggling with Clyde Murrell during the attempted jailbreak, the defendant assaulted him from the rear and choked him, causing him to be 'partly blacked out'. Deputy Pettig further testified that after he regained full consciousness, he heard the defendant 'hollering for me to give him the key'.

The defendant claims that the testimony of Deputy Pettig was not substantial testimony because he did not actually see the defendant assault him and because he was partly blacked out. It must be pointed out, however, that Deputy Pettig affirmatively identified the defendant as his assailant before he partly blacked out. Furthermore, the recognition of a person's voice, without more, has been held to constitute a competent identification of a defendant in a criminal case. State v. Hall, 7 S.W.2d 1001, 1004(2) (Mo.1928). Thus, an examination of the record discloses that the verdict was supported by substantial testimony. Indeed, Deputy Pettig's testimony alone, if believed by the jury beyond a reasonable doubt, is sufficient to establish the defendant's identity because the testimony of a single witness is all that is necessary for that purpose. State v. Brown, 480 S.W.2d 843, 844(1) (Mo.1972). In addition, evidence is sufficient to support a conviction when it fairly shows any form of affirmative participation in a crime. State v. Ramsey, 368 S.W.2d 413, 417(5) (Mo.1963).

Since it is entirely within the jury's province to determine the credibility of witnesses, the jury here was entitled to believe the testimony of Deputy Pettig and disbelieve those portions of Clyde Murrell's and Russell Taylor's testimony which were favorable to the defendant. The State's evidence was ample for submission to the jury, and we will not review its weight where it plainly appears, as here, that the State's evidence, when viewed in the light most favorable to it, was legally sufficient to support the jury's verdict of guilty.

In conjunction with his claim that the trial evidence was legally insufficient to support the guilty verdict, the defendant also submits that the twenty-eight year term of imprisonment assessed by the jury must have been the result of passion, prejudice or partiality. In support of this further contention, the defendant argues that the severity of the sentence, when weighed against the slight evidence on which it is based, indicates passion and prejudice. We do not agree. Although an appellate court can set aside a guilty verdict when the evidence is "so weak that the necessary inference is that the verdict is the result of passion, prejudice, or partiality," State v. Hancock, 340 Mo. 918, 104 S.W.2d 241, 244(2) (1937) (quoting State v. Oertel, 280 Mo. 129, 217 S.W. 64, 66(2) (1919)), we have already decided that the evidence in this case is legally sufficient to support the jury's verdict. The evidence gleaned from the testimony of Deputy Pettig and from the unfavorable testimony of Clyde Murrell and Russell Taylor is not the kind of weak evidence contemplated by the rule in Hancock.

The severity of the defendant's sentence does not aid his argument. The length of the sentence is not wholly dependent upon the sufficiency of the evidence to sustain a verdict of guilty. Its length is prescribed by statutory law. And here the punishment was within the statutory limit of 'not less than two years' as prescribed by § 559.180, supra. ' (A) sentence cannot be adjudged excessive by an appellate court when it falls within the range provided by law.' State v. Smith, 445 S.W.2d 326, 332(6) (Mo.1969).

Secondly, the defendant contends that since his motion for a new trial was heard and determined in his absence, he was denied his state constitutional right, in criminal prosecutions, to appear and defend in person. In support of this contention, the defendant maintains that he wanted to be present at the hearing of the motion, and that he was prejudiced by his absence.

Undeniably, a defendant in a criminal prosecution has a right to appear and defend, both in person and by counsel. Mo.Const., Art. 1, § 18(a), V.A.M.S. A defendant in a felony case also has a statutory right to be personally present during the trial. § 546.030, RSMo 1969, V.A.M.S.; see also Rule 29.02, V.A.M.R. In this case, however, the defendant is not basing his claimed right to appear and defend in person upon either the statute or the rule, but rather upon the more broadly worded constitutional provision, Mo.Const., Art. 1, § 18(a), supra. The constitution gives the defendant the right to appear and defend in person in a criminal prosecution rather than the narrower right, contained in both the Missouri Statute and the Missouri Supreme Court Rule, to be personally present during the felony trial. The defendant's statutory right to be personally present at the trial has been construed not to encompass a hearing on the motion for a new trial. State v. Brown, 63 Mo. 439, 445 (1876); State v. Neal, 350 Mo. 1002, 169 S.W.2d 686, 692--693(7--9) (1943). The defendant's constitutional right to appear and defend in person in criminal prosecutions, however, has been held to have no such restricted meaning as 'trial' in the technical narrow sense of the statute, but extends to and includes the right to appear and defend in person when a motion for new trial is submitted to the trial court. State v. Hoffman, 78 Mo. 256, 259--260 (1883). Irrespective of the wisdom of this last decision (two judges dissented), it has since been held that before defendant may claim an infraction of his constitutional right, the record must affirmatively show defendant requested and was denied the right to be present. State v. Neal, supra, 350 Mo. 1002, 169 S.W.2d 686, 693(9) (1943), and cases therein cited; State v. Durham, 416 S.W.2d 79, 83(8--10) (Mo.1967).

The defendant claims that he desired to be personally present at the hearing on the motion for new trial, and the record does show that his counsel applied for a writ of habeas corpus ad testificandum requesting the defendant's presence so that he could testify at the hearing about alleged jury misconduct. But the record also discloses that defendant's counsel did not apply for the writ until late in the afternoon on December 22, 1971, knowing that the hearing on the motion for a new trial had been set nearly two weeks previous for the next day, December 23, 1971. Although an application for a writ of habeas corpus ad testificandum...