State v. Clark, s. WD

• Decision Date: 02 April 1996
• Docket Number: Nos. WD,s. WD
• Citation: 925 S.W.2d 872
• Parties: STATE of Missouri, Respondent, v. James A. CLARK, Jr., Appellant. 49541, WD 50721.
• Court: Missouri Court of Appeals

Page 872

925 S.W.2d 872

STATE of Missouri, Respondent, v. James A. CLARK, Jr., Appellant.

Nos. WD 49541, WD 50721.

Missouri Court of Appeals Western District.

April 2, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 28, 1996.

Application to Transfer Denied

Aug. 20, 1996.

Rosemary E. Percival, Assistant Appellate Defender, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Jill C. LaHue, Assistant Attorney General, Jefferson City, for respondent.

Before SPINDEN, P.J., and BERREY and LAURA DENVIR STITH, JJ.

LAURA DENVIR STITH, Judge.

James A. Clark Jr. was convicted of burglary in the second degree, § 569.160, RSMo 1986, and stealing, § 570.030, RSMo 1986. He was sentenced as a prior and persistent offender to nine years imprisonment on the burglary charge and was sentenced to one year imprisonment and ordered to pay a fine of $1,000 on the stealing charge, with the sentences to run concurrently. He appeals his convictions on the grounds that: (1) the jury verdict form on the stealing conviction varied substantially from the form set out in MAI-CR 3d by permitting the jury to assess the amount of the fine he should pay; and (2) "reasonable doubt" was improperly defined in Instruction No. 4. In addition, Mr. Clark appeals the denial of his Rule 29.15 motion for post-conviction relief, alleging that he was denied effective assistance of counsel by his trial counsel's: (1) failure to object to hearsay testimony, (2) failure to call Mr. Clark's mother to support his alibi, and (3) failure to call an insulation expert to support his argument that the apparent lack of insulation fibers stuck to his clothes at the time of his arrest supported his claim that he had not entered the building in question through a hole in the roof.

I. FACTUAL AND PROCEDURAL BACKGROUND

Considered in the light most favorable to the verdict, the evidence showed that Mr. Clark picked up Vera Sanders and Ron Buggs during the early hours of June 23, 1993. Announcing that he wanted to do some burglaries, Mr. Clark drove to the Caddyshack Pub, in Kansas City, Missouri. Leaving Ms. Sanders alone in the van, Mr. Clark and Mr. Buggs attempted to enter the pub. After about an hour, Mr. Buggs returned to the van and told Ms. Sanders that Mr. Clark was trying to enter the pub through a hole. Later Mr. Buggs returned to tell Ms. Sanders that Mr. Clark had gotten into the pub through the hole but an alarm was sounding.

After Mr. Buggs got into the van, he and Ms. Sanders pulled out of the pub's parking lot. As they did so, they were stopped by Kansas City, Missouri police officers responding to the alarm at the pub. After questioning both occupants of the van and examining the interior of the van, the officers released Ms. Sanders and Mr. Buggs.

Officer James Schriever, the first officer at the scene, testified at trial that, as he approached the pub, he observed a white male in a blue tee-shirt and jeans climbing the security fence behind the pub. As he went over the fence, the suspect turned and looked at Officer Schriever before running into a wooded area behind the pub. Officer Schriever requested additional officers to surround the wooded area as well as assistance from the police helicopter to help capture the suspect.

Officer Fred Simon, upon reaching the scene, took up a perimeter position to contain the suspect in the wooded area. After doing so, he saw an individual running through the woods. Officer Simon pursued this individual, ordering him to halt. The individual continued to run but looked back at Officer Simon several times. As Officer Simon was chasing this individual, he heard what sounded like a large bag of coins hit the ground and then saw a purple Crown Royal bag with coins and miscellaneous items in it laying on the ground. When Officer Simon was unable to capture the individual, he abandoned his pursuit and returned to collect the items he had seen on the ground. He found approximately $69.00 in coins, $65.00 in cash, two packages of gum and two packages of Eve cigarettes.

Officer David Reynolds, a police helicopter pilot, also tracked the suspect through the wooded area, using sight and a heat sensor. Officer Reynolds was able to direct the officers on the ground to the location of the suspect. Officer Reynolds stated that Mr. Clark was the only person he saw emerge from the wooded area.

Mr. Clark was apprehended as he came out of the wooded area. He appeared very tired, was sweaty and dirty and was breathing heavily. Officers Simon and Schriever both identified Mr. Clark as the suspect they had seen earlier. Mr. Clark's clothing and gloves were retained by the police as evidence. In addition, the police discovered steel snips, a ballpeen hammer and a small crowbar along the path of the chase through the wooded area.

Entry to the pub had been made through a hole in the roof. Insulation material, wood from the roofing and tar paper were scattered on the floor under the hole and on the pub's roof. Two pool tables, two video games and a juke box had been vandalized and the money removed. Coins had been taken from the cash register. The business office in the pub had been ransacked and cash, upon which personal notes had been written to the pub's owner, had been taken from a desk in the office. The pub manager identified the cash, coins, cigarettes and gum found by Officer Simon in the woods as items missing from the pub.

At trial, Mr. Clark's mother-in-law testified that she woke Mr. Clark, who was living in her house at the time, at 4:00 a.m. that morning so that he could pick up someone to help him lay carpet. In addition, a forensic chemist from the Regional Crime Lab testified that she examined the clothing worn by Mr. Clark and had been unable to locate any insulation fibers or wood splinters on the clothing.

The jury found Mr. Clark to be guilty of both charges and recommended a sentence of one year and a fine of $1,000 on the stealing charge. The trial court sentenced Mr. Clark to nine years imprisonment for the burglary charge and one year on the stealing charge, ordering both sentences to run concurrently. The court also ordered a fine of $1,000 on the stealing charge, rejecting defense counsel's request that imposition of the fine be waived.

A motion for new trial, generally alleging error in the verdict form for the stealing charge because it varied from MAI-CR 3d 304.40, was overruled by the trial court. Mr. Clark filed a post-conviction motion pursuant to Rule 29.15 alleging ineffective assistance of counsel. Following an evidentiary hearing, the court denied Mr. Clark's motion for post-conviction relief. This appeal followed.

II. THE USE OF AN IMPROPER JURY VERDICT FORM DID NOT PREJUDICE MR. CLARK

Mr. Clark alleges that the use of Verdict Form "C" was prejudicial in that the form varied substantially from MAI-CR 3d 304.40 by instructing the jury that it could assess as punishment on the stealing charge, a "period of time, but not more than one year in the county jail and/or a fine, not to exceed $1,000" (emphasis added). The jury recommended one year in jail and a fine of $1,000.

The State concedes that the trial court erred in submitting an instruction which asked the jury to assess the amount of the fine. Rather, under MAI-CR 3d 304.40, the verdict form should have simply asked the jury whether a fine should be imposed, in addition to the prison sentence, with "the amount to be determined by the Court." MAI-CR 3d 304.40. The State suggests, however, that no prejudice resulted from the jury's recommendation and therefore Mr. Clark is not entitled to a new trial.

In determining whether prejudice occurred, we note that failure to follow MAI-CR 3d approved instructions does not automatically require reversal. Rather, the prejudicial effect of giving an instruction which does not comply with MAI-CR 3d is to be judicially determined. State v. Livingston, 801 S.W.2d 344, 348 (Mo. banc 1990). Unless this Court finds that the error was prejudicial, we will not remand for a new trial. State v. Green, 812 S.W.2d 779, 786 (Mo.App.1991).

Moreover, here, Defendant did not object to the instruction prior to submission, although in his Motion for New Trial, he did generally raise the issue that the instruction varied from the approved MAI-CR 3d form. At the time this case was tried, raising this issue in his Motion for New Trial was sufficient to preserve it for appeal. Nonetheless, the cases are clear that a failure to object before submission is a factor we can properly consider in determining whether reversible error occurred. Livingston, 801 S.W.2d at 348.

We find that no such reversible error occurred. In an attempt to show prejudice, Defendant speculates in his brief that, if the jury had not recommended the amount of the fine, the court "would have been willing to waive the fine or impose a lesser fine." To the contrary, the record of the sentencing hearing demonstrates that defense counsel never even requested the court to set a fine less than $1,000, the amount recommended by the jury. Indeed, he never even suggested to the judge that the judge should not consider the jury's recommendation because the jury should not have been asked to recommend the amount of the fine. Rather, counsel simply asked to be reminded what the jury had recommended as a fine, and then he asked the judge to waive the imposition of any fine at all. The judge refused to do so, stating in part that "I will not waive the fine. That's what the jury decided in that Count."

The judge's comments at sentencing made it clear that he was well aware that he had the discretion to waive the fine; he simply chose not to do so because he wanted to follow the jury's recommendation that a fine be imposed. Even had the jury been correctly instructed, however, the jury would have been asked to state whether it believed that a fine should be imposed. The court then would have considered the jury's...