State v. Daly

• Decision Date: 30 October 1990
• Docket Number: No. WD,WD
• Citation: 798 S.W.2d 725
• Parties: STATE of Missouri, Respondent, v. John Kevin DALY, Appellant. 41543.
• Court: Missouri Court of Appeals

Page 725

798 S.W.2d 725

STATE of Missouri, Respondent, v. John Kevin DALY, Appellant.

No. WD 41543.

Missouri Court of Appeals Western District.

Oct. 30, 1990.

Raymond L. Legg, Columbia, for appellant.

William L. Webster, Atty. Gen., Frank A. Jung, Asst. Atty. Gen., Jefferson City, for respondent.

Before KENNEDY, P.J., and SHANGLER and GAITAN, JJ.

GAITAN, Judge.

On the evening of December 23, 1987, the Wet Willy's Fireworks store in Hatton, Missouri was robbed by one or two men armed with shotguns. The appellant, John Kevin Daly, was convicted of robbery in the first degree on October 26, 1988, in relation to the robbery of Wet Willy's. Appellant alleges that the trial court erred in: (1) submitting general, instead of time specific, jury instructions; (2) admitting into evidence a shotgun used by an accomplice to the robbery; and (3) allowing the state to introduce into evidence a written statement made to police by the appellant's alleged accomplice. Appellant also challenges the validity of the post-conviction hearing on grounds of ineffective assistance of counsel.

We affirm.

On December 23, 1987 the Callaway County Sheriff's Department received a call at 7:51 p.m. reporting the robbery. The call was made by Delbert Dye, the sales clerk on duty at the time of the robbery. At trial, the clerk testified in equivocal terms concerning the time interval between the end of the robbery and when the robbery was reported to the sheriff's office but testified that the robbery lasted approximately seven minutes.

At trial and during the state's case-in-chief, prosecutors introduced into evidence a twelve-gauge Beretta shotgun owned by, and recovered from the possession of, appellant's alleged accomplice, David McClatchey. When asked by the court if there was any objection to the introduction of the shotgun, the defense offered none. McClatchey's shotgun was used by the state only in closing argument as an example of the shotgun purportedly used by the appellant.

McClatchey testified in the state's case-in-chief. The defense impeached his testimony on cross-examination with a written statement given to the Callaway County Sheriff's Department on the day of his arrest. McClatchey's statement, which consisted of approximately two handwritten pages, implicated both appellant and himself in the robbery and detailed the events immediately following the robbery. On re-direct by the state, the prosecutor was allowed to introduce the entire statement into evidence.

At the close of all the evidence, the trial court submitted over objection instructions "5" and "6," which were verdict directors for robbery in the first degree and robbery in the second degree respectively. These verdict directors were modeled after MAI-CR3d 304.02, 323.02, and 323.04 and restricted the time frame generally to "on or about the 23rd day of December, 1987...." The trial court also submitted instruction "7," an alibi instruction submitted by the appellant, instead of alibi instruction "A" alternatively offered by the appellant. Instruction "7" was limited in time only to "December 23, 1987, at the time of the alleged offense." Instruction "A" strictly limited the time frame of the robbery and required the jury to return a verdict of not guilty if it did not believe appellant was at Wet Willy's between "7:30 to 7:42 o'clock p.m."

After the appellant was convicted at trial, he filed a pro se motion for post-conviction relief on June 16, 1989, alleging ineffective assistance of trial counsel. As early as July 14, 1989, appellant was appointed counsel. An amended motion for post-conviction relief, however, was not filed until November 7, 1989, one day before the hearing on appellant's motion on November 8, 1989. Despite this late filing, the motion court accepted the amended motion. At the hearing it was discovered that several defense witnesses were not present and had not been subpoenaed by appellant's counsel until two days before the hearing. Appellant's motion for relief was denied.

I.

The appellant contends that the trial court erred in submitting verdict directors and an alibi instruction not time specific. Specifically, appellant argues that submission of instruction "7," an alternative alibi instruction submitted by appellant, was erroneous and prejudicial. Instruction "7" required the jury to account for appellant's whereabouts within the general time frame of "at the time of the alleged offense." Appellant believes the evidence required instructing the jury that the appellant must be found not guilty if there was "a reasonable doubt that the Defendant was present at Wet Willys in Hatton, Callaway County, Missouri, on December 23, 1987, at 7:30 to 7:42 o'clock p.m...." Second, appellant contends that submission of the verdict directors, instructions "5" and "6," was erroneous and prejudicial because they presented only the general time frame of "on or about the 23rd day of December, 1987" instead of stating with precise detail the time of the purported offense.

Rule 28.02(f) requires a two-prong showing from the appellant if he is to be successful in seeking to reverse the conviction and receive a new trial on the above basis. First, appellant must show that the trial court failed "to give an instruction or verdict form in violation of this rule or any applicable Notes on Use...." Rule 28.02(f). Primarily the trial court must use the MAI-CR instructions or verdict forms "applicable under the law and instructions." Rule 28.02(c). Any failure to use the appropriate form or instruction is error. Rule 28.02(f). Second, the appellant must show that this error resulted in a "prejudicial effect." Id. Prejudice has been defined as creating a likelihood that the instructions will confuse or mislead the jury. State v. Ward, 588 S.W.2d 728, 731 (Mo.App.1979); State v. Billingsley, 534 S.W.2d 484, 486 (Mo.App.1975).

The first prong requires that the appellant show that instructions "5," "6," and "7" were inapplicable and thus it was error to submit them to the jury. In essence, the appellant contends that the evidence presented was so precise and correct as to the time-frame of the robbery that it supported, and indeed mandated, the giving of verdict directors and an alibi instruction limited to a single twelve minute interval.

Appellant has failed to show error as required by Rule 28.02(f). Error in submitting or refusing to submit tendered instructions is measured by an abuse of discretion standard. Titsworth v. Powell, 776 S.W.2d 416, 423 (Mo.App.1989) (citing Butler State Bank v. D & G Constr. Co., Inc., 659 S.W.2d 239, 245 (Mo.App.1983)). The trial court's decision to submit general instructions instead of the offered time specific instruction was not erroneous based on the evidence produced at trial. Appellant's claim that the evidence precisely and unequivocally showed the time of the occurrence is unsupported. The vital link in appellant's computational chain concerning the time interval of the occurrence is the testimony of the victim, Delbert Dye. Based on Mr. Dye's testimony, appellant flatly states that the robbery had occurred ten minutes prior to the Sheriff's office being contacted about the robbery at 7:51 p.m. The record, however, indicates substantial uncertainty by Mr. Dye as to this figure. On direct by the state, Mr. Dye stated:

Q. And when you stopped counting, what did you do?

A. The first thing I did was I reacted. It struck me that the only exit I had to go out to get help was out through the door that the person went out of.

Q. Okay. So what did you do?

A. I went out in the parking lot and I tried to wave down some traffic on the interstate and he never did come so I got in my car.

Q. There wasn't much traffic out there?

A. There was traffic out there. Apparently they just didn't care about anybody standing along side the road waving.

Q. I see. How long do you suppose you did that?

A. Oh, I would say no more than five minutes. I was in my car and up to the Texaco Station within 10, 15 minutes of the time the incident finished.

Q. You didn't look at your watch, did you, to time this event?

A. No, ma'am.

Q. And you couldn't tell the jury just precisely when it happened, could you?

A. There is no clock or nothing in the store, no ...

On cross-examination, Mr. Dye indicated:

Q. That call came--now let me rephrase that. The robber had been gone from the store ten minutes when you made that call to the Sheriff, correct?

A. I don't know. Time enough for me to go out and find traffic and go up to the store and make the call, if it's ten minutes.

* * * * * *

Q. And do you remember this answer that you gave at that time. "I was kind of cautious going out the door knowing this person was out--" it says "out there somewhere." I think you meant could have been out there somewhere, "and I had to go out that door to get help. It was about, I would say, anywhere between 5 and 10 minutes before I proceeded to lock up the door and get in my car and I went up to the gas station at the intersection and called the Sheriff's Department." That would be a fair statement, wouldn't it?

A. Yes. But the call wasn't made ten minutes after he left the store. It was between five and ten minutes by the time I got in my car and then drove up to the station.

Mr. Dye's testimony was far from dispositive on the issue of how much time elapsed between the robbery and the call for help. Rather than confine the jury to a single twelve minute time period based upon inconclusive evidence, the trial court prudently, and correctly submitted the general instructions.

Even assuming error by the trial court, Rule 28.02(f) further demands that prejudice result to the appellant from the error. Appellant has failed to demonstrate any resulting prejudice. State v. Graves, 588 S.W.2d 495 (Mo. banc 1979), controls this issue:

The evidence before the jury clearly contrasted the time of the alleged offense and the alibi defense of appellan...