State v. Drewel, 60517
| Decision Date | 30 June 1992 |
| Docket Number | No. 60517,60517 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. John DREWEL, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Craig A. Johnston, Columbia, for defendant-appellant.
William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Defendant was convicted for felony stealing, § 570.030, RSMo 1986, in the Circuit Court of Franklin County and sentenced as a prior and persistent offender to eleven years in prison. On appeal defendant claims the trial court erred: (1) because defendant was denied effective assistance of counsel due to his trial counsel's conflict of interest; (2) in failing to grant defendant's motion for a continuance because an alibi witness was not present; (3) in entering judgment against defendant for $47.00 for the Crime Victim's Compensation Fund; (4) in failing to declare a mistrial sua sponte following statements by the prosecutor in his closing argument; (5) in overruling defendant's motion to dismiss because of prosecutorial misconduct; (6) in not declaring a mistrial sua sponte because of a question asked by the prosecutor; and (7) in overruling defendant's motion for a directed verdict at the close of all the evidence because the evidence was insufficient to support a charge of felony stealing. We affirm defendant's conviction but remand to the trial court as to the judgment against defendant on the Crime Victim's Compensation Fund for reassessment.
Viewed in a light most favorable to the verdict, the following evidence was adduced: On September 2, 1987, defendant, Lynden York and Lyndell Sweeney went to Owensville Park. At the park a man told defendant that defendant could get some tires at Gerald Auto Parts. Later that evening defendant, Sweeney, York and defendant's wife, Zola Drewel, got into Sweeney's van and went to Gerald Auto Parts. They arrived there between 10:30 and 11:00 p.m.
Gerald Auto Parts was a salvage yard and wholesale dealer of auto parts which was not open to the public. Defendant and his accomplices entered the salvage yard by going to the rear of the establishment and following a pipeline through an area where brush had been removed. Once inside the salvage yard the group took 12 wheels and 12 tires off of various cars and put them into the back of the van. They then returned to Owensville leaving the wheels and tires in the van that night.
The next morning, September 3, 1987, Donald Gaehle, the live-in manager and watchman for Gerald Auto Parts, noticed the wheels and tires missing and reported the theft to police. On that same day, defendant and Sweeney went to a DX Service Station in Bland, Missouri and had two of the tires placed on Sweeney's van. They were then joined by York and they sold four of the tires to D & H Tires. The next day they went to Belle, Missouri and sold four more of the tires. They divided the money they received equally. The remaining two tires were placed on defendant's pickup.
Defendant called his ex-wife, Zola Drewel, to testify on his behalf. Zola testified that defendant was with her at a friend's house from 5:30 p.m. to 10:30 or 11:00 p.m. and that they were at home from 11:00 p.m. to 1:00 a.m. The state called Zola's mother and step-father to rebut her testimony. Zola's mother claimed Zola told her she did not know where defendant was the night of the thefts. Zola's step-father testified that Zola told him she was with defendant and the others at the junkyard and that they pulled off the theft against her will.
After the close of the evidence the jury found defendant guilty as charged and the trial court sentenced defendant as a prior and persistent offender to eleven years in prison. This appeal followed.
Defendant's first point contends that his attorney was hindered by a conflict of interest. In effect defendant's claim is one of ineffective assistance of counsel. See Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Such a claim is to be brought in a Rule 29.15 proceeding and may not be presented for the first time on direct appeal. State v. Wyatt, 811 S.W.2d 55, 57 (Mo.App.1991). We reject defendant's first point.
Defendant's second point claims the trial court erred in failing to grant defendant's motion for a continuance. Defendant asked for the continuance in order to secure the attendance of a possible alibi witness.
The denial of a motion for a continuance rests within the sound discretion of the trial court and will not be disturbed absent a strong showing of abuse. The party requesting the continuance bears the burden of demonstrating prejudice resulting from the denial. State v. Sweet, 796 S.W.2d 607, 613 (Mo. banc 1990) (citations omitted). Rule 24.09 states: "An application for a continuance shall be made by a written motion accompanied by the affidavit of the applicant or some other credible person setting forth the facts upon which the application is based, unless the adverse party consents that the application be made orally." The record does not indicate that the state consented to an oral motion for a continuance and, therefore, defendant's failure to request the continuance by a written motion with a supporting affidavit is sufficient grounds to affirm the trial court's ruling. State v. Harris, 781 S.W.2d 137, 145 (Mo.App.1989). In addition, it must be pointed out that the alibi witness' testimony would have been cumulative and would not have necessarily been inconsistent with the state's evidence. Thus, we find the trial court did not abuse its discretion in denying defendant's motion for a continuance. Point denied.
Defendant next contends the trial court erred in entering judgment against him for $47.00 for the Crime Victim's Compensation Fund, because at the time of his offense, § 595.045, RSMo 1986, was in effect and it only allowed for a $36.00 judgment to be assessed against defendant. 1 Defendant is correct as to this point and therefore we remand to the trial court with directions that the $47.00 judgment be withdrawn and a new judgment of $36.00 be entered.
On his fourth point defendant claims the trial court plainly erred in failing to declare a mistrial sua sponte because of remarks made by the prosecutor in closing argument. In particular defendant points to these comments by the prosecutor: (1) "But ask yourselves when you retire to the jury room, who convinced me that he or she was telling the truth, and who sat over here and fidgeted and asked you to believe a preposterous sequence of events in order to find that the defendant is not guilty?;" and (2) "You're here to decide who you're going to believe and who gave you the best statement of the facts." Defendant did not object to these statements at trial and did not raise his claims in his motion for a new trial. Therefore, defendant is asking for plain error review.
To reverse under plain error review defendant must have suffered manifest injustice from the error. To have been manifestly unjust, the closing argument must have had a decisive effect on the jury. State v. Martin, 770 S.W.2d 384 (Mo.App.1989) (Citations omitted). The comments defendant objects to dealt with the credibility of the witnesses and the prosecutor is allowed to comment on this subject. State v. Vitale, 801 S.W.2d 451, 457-458 (Mo.App.1990). The comments do not, as defendant suggests, shift the burden of proof and, therefore, we find there was no manifest injustice to defendant. Point denied.
Defendant's fifth point alleges the trial court erred in...
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