State v. Brown, KCD

Decision Date01 November 1976
Docket NumberNo. KCD,KCD
Citation543 S.W.2d 796
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Larry R. BROWN, Defendant-Appellant. 28201.
CourtMissouri Court of Appeals

Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for defendant-appellant.

John C. Danforth, Atty. Gen., Douglas G. Mooney, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Before DIXON, P.J., PRITCHARD, C.J., and WASSERSTROM, J.

DIXON, Presiding Judge.

Defendant appeals from concurrent sentences of five years on each of two counts of narcotics possession. The sentences were court imposed when the jury returned guilty verdicts on each count but were unable to agree on punishment.

Defendant raises the single issue that the trial court erred in failing to give MAI-CR 2.70. This has not been preserved for direct review.

The record shows that the jury returned its verdict on May 21, 1975, and the trial court granted the defendant ten additional days or a total of twenty days to file the motion for new trial. The motion was not filed until June 18, some eight days after the time had expired. A tardily-filed motion for new trial is a nullity and preserves nothing for consideration. State v. Morse, 526 S.W.2d 432 (Mo.App.1975); State v. Nelson, 526 S.W.2d 56 (Mo.App.1975) ; State v. Richardson, 519 S.W.2d 15 (Mo.1975).

Thus, our review can only be under the plain error provision of Rule 27.20 despite the fact that both the State and the defendant briefed and argued the case as if the point was preserved.

We are clearly bound by State v. Sanders, 541 S.W.2d 530 (Mo. banc 1976), which holds that the failure to give a mandatory instruction reviewed as plain error requires a finding of manifest injustice before reversal will be warranted. The St. Louis District has also held that a failure to give mandatory instructions is reviewable under the plain error rule but that manifest injustice must appear. State v. Johnson, 537 S.W.2d 816 (Mo.App.1976); State v. Nelson, 532 S.W.2d 855 (Mo.App.1975). Both these last cited cases involved the omission of MAI-CR 2.70.

On the basis of that standard of review, a short statement of the facts will suffice to show that no manifest injustice is present in this case. A police officer in response to a call to apprehend a person for disturbance of the peace observed the defendant, who fitted the general description given for the person to be apprehended, getting into an automobile. The officer asked the defendant to get out of the car, but as the defendant was doing so, he placed his right hand in his right front pocket. The officer grabbed the defendant's hand and jerked it out of his pocket, apparently apprehensive that he might be seeking...

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11 cases
  • State v. Cooper, 10708
    • United States
    • Missouri Court of Appeals
    • 14 Marzo 1978
    ...or on the 16th day after verdict. Consequently, nothing embraced by the tardy motion was preserved for appellate review. State v. Brown, 543 S.W.2d 796(1) (Mo.App.1976); State v. Harris, 541 S.W.2d 686, 687(1) (Mo.App.1976); State v. Nelson, 526 S.W.2d 56, 57(1, 2) (Mo.App.1975). Nonetheles......
  • State v. Hollis, KCD
    • United States
    • Missouri Court of Appeals
    • 29 Junio 1979
    ...of in Points III and V resulted in "manifest injustice or miscarriage of justice" as required by Rule 27.20(c). State v. Brown, 543 S.W.2d 796, 797(2) (Mo.App.1976). Defendant's Points III and V are ruled against In Point IV of defendant's brief, he bases his claim of error upon the charge ......
  • State v. Eaton
    • United States
    • Missouri Court of Appeals
    • 12 Junio 1978
    ...and preserves nothing for appellate review. State v. Richardson, 519 S.W.2d 15 (Mo.1975); State v. Emory, supra; and State v. Brown, 543 S.W.2d 796 (Mo.App.1976). Whether defendant's failure to comply with Rule 27.20(a), supra, turns out to be the nemesis of his four points raised on appeal......
  • State v. Greenhaw, 10522
    • United States
    • Missouri Court of Appeals
    • 21 Junio 1977
    ...of justice. If not, even though error, reversal is not warranted. State v. Sanders, 541 S.W.2d 530 (Mo. banc 1976); State v. Brown, 543 S.W.2d 796 (Mo.App.1976). Rule 20.02(e), V.A.M.R., provides that the giving or failing to give an MAI-CR instruction is not per se prejudicial. The jury wa......
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