State v. Escoe, 59751
| Decision Date | 11 April 1977 |
| Docket Number | No. 59751,59751 |
| Citation | 548 S.W.2d 568 |
| Parties | STATE of Missouri, Respondent, v. Glen Evans ESCOE, Defendant-Appellant. |
| Court | Missouri Supreme Court |
Robert Beaird, Kansas City, for defendant-appellant.
Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
Glen Evans Escoe (appellant), convicted of assault with intent to kill with malice aforethought and sentenced to imprisonment for 50 years, appealed to the Court of Appeals, Kansas City district. That court affirmed the judgment of conviction. The court held that while it was error to admit evidence of a subsequent robbery allegedly participated in by appellant, considered under the plain error rule 1 it did not result in manifest injustice or a miscarriage of justice, because evidence of his guilt of the assault was overwhelming. The case was transferred by our order, primarily to consider the application made by the court of appeals of the rule. We affirm, using parts of the opinion written by Chief Judge Pritchard of the court of appeals.
Appellant has briefed one point: "That the court erred (1) in not sustaining defendant's motion for a mistrial when the prosecuting attorney indicated in his opening statement that defendant had been involved in a subsequent, separate and distinct crime * * * and * * * (2) by allowing the State to present testimony concerning said subsequent crime during its case in chief."
That part of appellant's point designated (1) was not assigned as error in the motion for new trial and, therefore, is not preserved for review. That part designated (2) is not preserved for review, because no objection was made to testimony that appellant was a participant in a subsequent crime.
During the state's opening statement the following occurred:
"MR. HAGGERTY (assistant prosecuting attorney):
Now, the evidence will further be that about four days later, this defendant, Mr. Escoe, and Mr. Perkins, were later to go out to the area of 35th and Woodland, Kansas City, Missouri, and while they were out there, there was some discussion about committing another robbery. And at that time, either Mr. Escoe or Mr. Perkins gave the witness for the State, Edwin Oliver, a gun to hold, and he * * * put it in his pocket. Later on the evidence will be, the witness will tell you the facts, this defendant, Mr. Perkins and Mr. Oliver, the State's witness, then went into a plumbing shop known as Monark Plumbing, at 35th and Woodland, and there after some period of time, some shooting took place.
MR. FLUKER (trial counsel for appellant):
Your Honor, I am going to object to any further statements with regard to that. It should be stricken from the record."
At this point, and without a ruling on the objection, counsel went to the Bench where there was a brief discussion of the purpose and admissibility of evidence of the robbery and shooting at Monarch Plumbing Company. During this discussion counsel for the state said:
Counsel for appellant then pointed out that if this were the purpose it could easily have been handled by stating that appellant gave Mr. Oliver (the state's witness) the gun and that he (Oliver) and two unnamed individuals then participated in the robbery of the Monarch Plumbing Company, and that the police subsequently recovered the gun at the scene. The trial judge made this response to the remarks by both counsel:
"O.K., but now if the one if the robbers did any shooting, that's not necessary to prove it or tie it up."
Counsel for appellant then moved for a mistrial, which was denied.
On December 14, 1974, at about 4:00 p.m., Donald Jones and his wife, Shirley, were driving up Independence Avenue in Kansas City on their way to North Kansas City. While stopped for a traffic light, the door on the passenger side was opened and appellant, with a gun in his hand, told Shirley to move over. She did. Appellant got in beside her. Another man whom she did not see got in the rear seat and told Donald to drive on as the traffic light changed. As Donald was driving, the man in the rear seat struck him on the side of the head. Appellant then took charge of the driving, telling Donald to get into the back seat. He did. The man in the back seat pulled him down, and after driving around for awhile, appellant drove into a wooded area on Cliff Drive and stopped. It was then still light. Appellant had grabbed Shirley's purse and Donald was asked for his wallet. Appellant took Shirley's glasses from her and threw them on the dash. In obedience to the order of the two men, Donald and Shirley got out of the car and as they walked they were pushed over the cliff and fell at least 15 feet. As they lay there Donald told Shirley not to move but to lie quietly until he told her to run. The two waited until they thought the two men had left, and then they began to run. After they took a few steps, appellant ordered them to stop, to turn around and lie down. Shirley could tell that it was appellant who gave the order by what he was wearing. As they were lying down appellant shot each of them twice. According to Donald the pistol was discharged four times and he heard a series of three clicks. After the shooting, the other man hollered for appellant to get out of there, and the two men left in the car.
Donald and Shirley then went up to the road where Donald passed out by a light pole. Shirley was able to walk along Cliff Drive were she summoned help from a passing car. They were both taken to a hospital for treatment, Donald's condition being critical.
Before appellant took Shirley's purse and her glasses (she could not see well without her glasses), she had a good look at him as being the person who was in the front seat with her. She made a positive in-court identification of him. At a lineup, with c...
To continue reading
Request your trial
-
State v. Sidebottom
...55, 56-57 (Mo.App.1975), or under the plain error rule, manifest injustice did not result. E.g., Gilmore, 681 S.W.2d at 943; State v. Escoe, 548 S.W.2d 568 (Mo. banc 1977). Appellant's point is Appellant's next contention is that the trial court erred in failing to instruct the prosecuting ......
-
State v. Clements
...of defendant's guilt, primarily the two confessions, is overwhelming, but that factor alone does not eliminate plain error. In State v. Escoe, 548 S.W.2d 568, 571 (Mo. banc 1977), our supreme court "The fact that evidence of guilt is overwhelming is not an accurate test to be applied in det......
-
State v. Wilson, s. 16884
...raised. Our supreme court has held that plain error may exist where the evidence of the defendant's guilt is overwhelming. State v. Escoe, 548 S.W.2d 568, 571 (Mo.banc 1977). "Not the least merit of our constitutional system is that its safeguards extend to all--the least deserving as well ......
-
State v. Hadley
...541, 543 (Mo.App.1985). The determination of whether to declare a mistrial rests largely in the discretion of the trial court, State v. Escoe, 548 S.W.2d 568, 571 (Mo. banc 1977), and the trial court's decision will not be disturbed "unless it is found that the trial court abused its discre......