State v. Buchanan, s. WD
| Decision Date | 18 August 1992 |
| Docket Number | Nos. WD,s. WD |
| Citation | 836 S.W.2d 90 |
| Parties | STATE of Missouri, Respondent, v. Billy R. BUCHANAN, Appellant. Billy BUCHANAN, Appellant, v. STATE of Missouri, Respondent. 43838, WD 45140. |
| Court | Missouri Court of Appeals |
Brad B. Baker, Asst. Public Defender, Columbia, for appellant.
Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before ULRICH, P.J., and SHANGLER and FENNER, JJ.
Appellant, Billy Buchanan, appeals from his judgment of conviction and sentence for two counts of robbery in the first degree and two counts of armed criminal action. Also, consolidated herein, is Buchanan's appeal from the denial of his motion for post-conviction relief pursuant to Rule 29.15.
Considered in the light most favorable to the state, the evidence shows that Buchanan and two other men were involved in the robbery of a jewelry store. Buchanan held a sawed-off-shotgun on the store employees and ordered them to get down on the floor during the robbery. One of Buchanan's accomplices took some jewelry off the person of John Perkins, a store employee, and either Buchanan, or one of the other two men, took $65,000 in diamond jewelry from a display case. Buchanan and the two other men left the store at the same time with one of the other men carrying the diamond jewelry.
In his first point on appeal Buchanan argues that the trial court committed plain error by submitting the verdict directing instructions on robbery in the first degree. Buchanan argues that these instructions hypothesized that either he or other persons took jewelry without the owner's consent and that there was no evidence presented to show that he actually took jewelry in the course of the robbery. Buchanan argues that his liability was based solely upon his aiding others.
Instruction No. 6, the verdict-directing instruction for Count I read, in pertinent part, as follows:
As to Count I, a person is responsible for his own conduct and he is also responsible for the conduct of other persons in committing an offense if he acts with them with the common purpose of committing that offense, or if for the purpose of committing that offense, he aids or encourages the other person in committing it.
If you find and believe from the evidence beyond a reasonable doubt:
then you are instructed that the offense of Robbery in the First Degree has occurred, and if you further find and believe from the evidence beyond a reasonable doubt:
Fifth, that with the purpose of promoting or furthering the commission of that Robbery in the First Degree, the defendant aided or encouraged another person in committing that offense,
then you will find the defendant guilty under Count I of Robbery in the First Degree.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.
* * * * * *
Instruction No. 8, the verdict-directing instruction for Count III read, in pertinent part, as follows:
As to Count III, a person is responsible for his own conduct and he is also responsible for the conduct of other persons in committing an offense if he acts with them with the common purpose of committing that offense, or if for the purpose of committing that offense, he aids or encourages the other person in committing it.
If you find and believe from the evidence beyond a reasonable doubt:
then you are instructed that the offense of Robbery in the First Degree has occurred, and if you further find and believe from the evidence beyond a reasonable doubt:
Fifth, that with the purpose of promoting or furthering the commission of that Robbery in the First Degree, the defendant aided or encouraged another person in committing that offense.
then you will find the defendant guilty under Count III of Robbery in the First Degree.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.
* * * * * *
"More than a mere showing of demonstrable prejudice is required as a basis of reversal under plain error." State v. Schaal, 806 S.W.2d 659, 664 (Mo. banc 1991) (citations omitted), cert. denied 502 U.S. 1075, 112 S.Ct. 976, 117 L.Ed.2d 140 (1992). For instructional error to rise to the level of "plain error," the trial court must have so misdirected or failed to instruct the jury as to cause manifest injustice or a miscarriage of justice. State v. Cline, 808 S.W.2d 822, 824 (Mo. banc 1991). The defendant bears the burden of establishing manifest injustice. Id.
The verdict directing instructions in the case at bar, Instructions No. 6 and No. 8, were based on a combination of MAI-CR3d 323.02, the pattern instruction on robbery in the first degree, and MAI-CR3d 304.04, the pattern instruction or accomplice liability. Note on Use 7(b) to MAI-CR3d 304.04 states as follows:
(b) Where the evidence shows the defendant and another person or persons jointly committed the conduct of the offense, each element from the verdict director for the offense should be ascribed respectively (as supported by the evidence) to the defendant, the defendant and the other person or persons, the defendant or the other person or persons, or the other person or persons.
Subsection (c) of Note on Use 7 provides:
(c) Where the evidence is not clear or conflicts as to which person (in a group including the defendant) engaged in the conduct constituting the offense (as where the defendant is charged with burglary and the evidence shows the defendant was one of the two persons, one of whom unlawfully entered the building and stole while the other remained outside as a lookout), ascribe the elements of the offense to the defendant or the other person or persons.
Furthermore, a cautionary warning near the end of Note 7 to MAI-CR3d 304.04 expressly states:
NOTE: Any variation in ascribing the elements of an offense to the defendant or to the other person or persons or any variation in the selection of alternatives in the paragraph following "then you are instructed that [name of offense ] has occurred ..." shall not be deemed reversible error in the absence of prejudice.
In regard to Instruction No. 6, the evidence was that one of Buchanan's accomplices actually took the jewelry from the person of John Perkins. However, there was overwhelming evidence to show that Buchanan aided that person in the commission of the crime. Since the evidence supports his conviction it cannot be said Buchanan suffered a manifest injustice merely because the jury, in an...
To continue reading
Request your trial
-
State v. Walton
...have testified if called, and (3) the witness's testimony would have provided movant with a viable defense. Id. (citing State v. Buchanan, 836 S.W.2d 90, 93 (Mo.App.1992)). Mr. Walton fails to prove the elements above. First, he makes no argument and presents no evidence that his attorney's......
-
State v. Walden
...and would have testified if called; and 3) the witness's testimony would have provided movant with a viable defense. State v. Buchanan, 836 S.W.2d 90, 93 (Mo.App.1992). On appeal, counsel's decision not to call a witness is presumed to be a decision of trial strategy and will not support th......
-
Placke v. State
...find that failure to interview witnesses is sufficient to justify the finding of ineffective assistance of counsel.” State v. Buchanan, 836 S.W.2d 90, 93 (Mo.App.1992). Here, Attorney Lynxwiler's decision not to interview or call the above witnesses was a matter of trial strategy. It is cle......
-
State v. Owens, WD
...what the witness would have said from the stand suffice to prove that the witness would have provided a viable defense. State v. Buchanan, 836 S.W.2d 90, 94 (Mo.App.1992). The order denying post-conviction relief is not clearly erroneous, and is affirmed. Rule All concur. 1 The conviction o......