State v. Ethelbert, 11670

Decision Date19 January 1981
Docket NumberNo. 11670,11670
Citation611 S.W.2d 379
PartiesSTATE of Missouri, Plaintiff-Respondent, v. James Raymond ETHELBERT, Defendant-Appellant.
CourtMissouri Court of Appeals

John D. Ashcroft, Atty. Gen., John C. Reed, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

David R. Fielder, Fielder, Jones & Conklin, Springfield, for defendant-appellant.

PREWITT, Presiding Judge.

Defendant was convicted of robbery in the first degree and sentenced to ten years imprisonment. Defendant's brief, filed by counsel who did not represent him at trial, contains four points relied on.

Defendant's first point contends that the trial court erred in granting the state's motion for a continuance. The robbery occurred at approximately 9:00 p. m. on May 13, 1979, and defendant was arrested at 11:38 that evening. A preliminary hearing was held June 5, 1979, and defendant was arraigned before a circuit judge on June 8, 1979. Trial was set for July 30, 1979. Defendant disqualified that circuit judge and the case was transferred to another division of the circuit court. Trial was then scheduled for September 18, 1979, but was continued at the request of the state because the victim of the robbery was hospitalized in Mississippi. Trial commenced on November 28, 1979. Defendant's contention that § 545.780, RSMo 1978, and his "constitutional rights to a speedy trial" were violated was not included in his motion for new trial and thus cannot be considered in this appeal unless there is manifest injustice or miscarriage of justice. See former Rule 27.20, V.A.M.R.; Rule 30.20, V.A.M.R.; State v. Umfleet, 587 S.W.2d 612, 615 (Mo.App.1979). We find no error and clearly no injustice or miscarriage of justice here.

Defendant also claims that he was prejudiced because at the time the case was originally set for trial he would have had the right to make peremptory challenges to eight jurors under § 546.180(2), RSMo 1978, and that at the time of the trial he could only challenge six jurors due to an amendment to this section which took effect before his trial. See § 546.180(2), RSMo Supp.1980. The trial court is vested with discretion in granting or denying a continuance, and we are not to interfere with that ruling unless there is an abuse of discretion by acting arbitrarily, capriciously, and oppressively. State v. Davison, 545 S.W.2d 723, 724-725 (Mo.App.1977). See also State v. Teegarden, 559 S.W.2d 618, 621 (Mo.App.1977). We find no abuse of discretion here. No prejudice was shown due to the continuance and we do not believe that the reduction in defendant's challenges denied him a fair trial. Point one is denied.

Point two contends that the trial court erred in overruling defendant's motion to suppress his statement to the arresting officer denying that he owned or had information about a motorcycle parked near where he was arrested. He later admitted ownership of it. A motorcycle had been used by the robber to leave the scene of the robbery. Defendant claims that when he talked to the officers that he was too intoxicated to have waived his "Miranda Rights". In his testimony defendant said that he made the statements because he thought he was being arrested for driving the motorcycle while intoxicated. No objection was made at the trial to the officer's testimony about defendant's statement. When a motion to suppress evidence is denied and the evidence is offered, the defendant must object at the trial to preserve his contentions for appellate review. State v. Howard, 564 S.W.2d 71, 74 (Mo.App.1978). See also State v. Wheat, 573 S.W.2d 126, 128 (Mo.App.1978). However, the record reveals no error, plain or otherwise. Point two is denied.

Points three and four claim that the trial court...

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6 cases
  • State v. Purnell
    • United States
    • Missouri Supreme Court
    • September 8, 1981
    ...State v. Berry, 609 S.W.2d 948 (Mo. banc 1980); State v. Valentine, supra; State v. Daniels, 487 S.W.2d 465 (Mo.1972); State v. Ethelbert, 611 S.W.2d 379 (Mo.App.1981); State v. Perry, 592 S.W.2d 307 (Mo.App.1979). Although appellant does not so request, because of the seriousness of the of......
  • State v. Pacchetti
    • United States
    • Missouri Court of Appeals
    • April 14, 1987
    ...third point. Such failure prevents the denial of his motion to suppress from being preserved for appellate review. State v. Ethelbert, 611 S.W.2d 379, 381 (Mo.App.1981). Gratuitous review of defendant's third point, pursuant to Rule 30.20, discloses no plain The application for the search w......
  • State v. Johnson
    • United States
    • Missouri Court of Appeals
    • January 5, 1982
    ...the witnesses identified defendant at the trial nor when they described the manner of their initial identification." State v. Ethelbert, 611 S.W.2d 379, at 381 (Mo.App.1981). The alleged error was not briefed as plain error, but the Court will review the point sua sponte because a federally......
  • State v. Fields, 42103
    • United States
    • Missouri Court of Appeals
    • April 27, 1982
    ...State v. Manning, 612 S.W.2d 823, 827 (Mo.App.1981); State v. Rayford, 611 S.W.2d 377, 378 (Mo.App.1981); State v. Ethelbert, 611 S.W.2d 379, 380-381 (Mo.App.1981). The facts presented here raise the question of whether this rule should always be strictly applied. The judge who admitted the......
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