State v. Forister

• Decision Date: 21 January 1992
• Docket Number: Nos. 56153,59100,s. 56153
• Parties: STATE of Missouri, Respondent, v. Michael R. FORISTER, Appellant, Michael R. FORISTER, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 504

823 S.W.2d 504

STATE of Missouri, Respondent, v. Michael R. FORISTER, Appellant, Michael R. FORISTER, Appellant, v. STATE of Missouri, Respondent.

Nos. 56153, 59100.

Missouri Court of Appeals,

Eastern District,

Division Four.

Jan. 21, 1992.

Henry B. Robertson, Cheryl Rafert, St. Louis, for appellant.

William L. Webster, Atty. Gen., Millie Aulbur, Asst. Atty. Gen., Jefferson City, for respondent.

CARL R. GAERTNER, Judge.

Defendant was convicted of one count of attempted robbery in the first degree, five counts of first degree robbery, and six counts of armed criminal action arising out of four separate criminal acts. Defendant was tried in the Circuit Court of St. Louis County and sentenced to a total of 75 years.

On January 7, 1988, defendant and two others, Tony Sillman and Kenneth Pilkerton, drove to the home of Ronald Hearst in West St. Louis County. Defendant and the others allegedly planned to burglarize the Hearst home. Defendant chose to burglarize the Hearst home because he had performed landscaping work there and knew that the home was secluded. At 11:00 p.m., Pilkerton rang the doorbell at the Hearst home. When the Hearst's daughter Nicole answered, Pilkerton displayed the gun, ordered Nicole to lie on the floor, and held a gun to the head of a houseguest, Lora Menz. Ron Hearst and his other daughter, Elizabeth, came downstairs and were told to lie on the floor. Pilkerton asked Mr. Hearst where his money was, and Mr. Hearst told him. Pilkerton repeatedly told Mr. Hearst not to "highball" him and then kicked Mr. Hearst in the side, breaking three ribs. Pilkerton left the Hearst home and drove off with defendant and Sillman.

On January 21, 1988, at approximately 3:00 p.m., defendant went with Kenneth Pilkerton and Sabrina Groves to the 19th Hole Lounge in South St. Louis County. Defendant remained in the car while Pilkerton and Groves went into the bar. Pilkerton displayed a gun, announced the holdup, and said "don't fucking highball me I have a gun." The pair took the money from the cash register and the purse of a bar patron, and then herded the three people in the bar into the ladies rest room. The pair then left the bar, and defendant drove them away from the scene.

At 5:50 p.m. of the same day, Pilkerton and Groves held up the Heine Meine Liquor Store on Lemay Ferry Road. The pair entered the store and brought a package of beer to the counter. Pilkerton displayed a gun and demanded that the store clerk give them the money in the cash register. Defendant waited in the car, and drove the pair away when the robbery was completed.

On January 26, 1988 defendant and Pilkerton drove to the St. John's Liquor Store in South St. Louis County. Pilkerton entered the store, brought a six pack of beer to the counter, displayed a gun and demanded that the clerk give him the money in the cash register. Again, defendant waited in the car, and they fled after Pilkerton exited the store.

In all four incidents, defendant drove a red 1963 Chrysler owned by Pilkerton.

On February 1, 1988, Sabrina Groves was arrested in the City of St. Louis on an outstanding bench warrant. She was later transferred to the custody of the St. Louis County Police Department and interrogated by Detective Anthony Griemel. She first told police that she was involved in two robberies with two men that she did not know. The officers told her that they did not believe that she did not know the other two. Thereafter, she told the officers that Pilkerton and defendant were involved with her in the robberies, that Pilkerton was the man with the gun, and defendant drove the car. Groves identified the vehicle used in the robberies as an old red Plymouth or Chrysler. Based on this information, the St. Louis County Police issued arrest orders for Pilkerton and the defendant.

Defendant was arrested in a south St. Louis tavern and transferred to the custody of the St. Louis County police. Defendant has a history of alcohol use and was drinking on the day of his arrest. At 10:30 p.m., defendant was advised of his Miranda rights and was questioned about his involvement in the robberies. Pilkerton gave statements about the Heine Meine, the 19th Hole and the St. John's Liquor Store robberies. Between midnight and 1:00 a.m. defendant was transported to St. Louis Regional Hospital complaining of delirium tremens and was later returned to the St. Louis County Jail. On the next day, February 2, defendant was questioned again at 7:00 a.m. Defendant waived his rights and gave a statement about the robbery of the Hearst residence. Defendant then made a taped statement to the officers.

The trial court, after a hearing, denied the defendant's motion to suppress statements made after his arrest. The case went to trial on December 5, 1988. The court denied defendant's motion to sever the offenses. Defendant was convicted on all twelve counts, and, thereafter, filed a motion for a new trial.

Defendant also filed a motion for post-conviction relief pursuant to Rule 29.15. The court dismissed the motion for being filed out of time.

Defendant appeals from his conviction and the denial of his Rule 29.15 motion. Defendant raises four points in this consolidated appeal. Defendant's first point alleges that there was insufficient evidence to find that he had the requisite intent to commit attempted robbery because he expected a burglary to take place at the Kenneth Hearst residence. His second point argues that the trial court erred in denying his motion to sever the offenses for trial. His third point alleges that statements taken after his arrest should have been suppressed because he was arrested without probable cause. Defendant's fourth point alleges that the trial court erred in dismissing defendant's Rule 29.15 motion as untimely.

I. INTENT TO COMMIT THE HEARST ROBBERY

In his first point on appeal, defendant argues that the trial court erred in denying his motion for judgment of acquittal. Specifically, defendant argues that he believed that a burglary would take place at the Hearst residence, and that he did not know that Kenneth Pilkerton was armed and capable of robbery.

Missouri Revised Statutes § 562.041 (1986) provides that "a person is criminally responsible for the conduct of another when ... (2) either before or during the commission of an offense, he aids or agrees to aid another person in planning, committing or attempting to commit the offense." Criminal responsibility for the acts of another does not require a common intent other than the promotion of the commission of an offense. State v. Sims, 684 S.W.2d 555, 557 (Mo.App.1984). A defendant does not need to possess the intent to commit the underlying felony in order to be convicted as a aider or abettor. Id.

In State v. Workes, 689 S.W.2d 782, 784-85 (Mo.App.1985), the defendant and a man named Meyer kidnapped a woman and drove her to a park. On the way to the park, the two men forced the woman to commit acts of sodomy upon them in their truck. Once at the park, defendant remained in the truck while Meyer took the victim into the park and raped her. He argued that he could not be liable as an aider or abettor because he believed Meyer intended to sodomize, but not rape the victim. The court ruled that when the defendant embarked upon the course of criminal conduct with others, he became responsible for those crimes which he could reasonably anticipate would be part of that conduct. 689 S.W.2d at 785. The court found that the defendant assisted Meyer in bringing the victim to the park and in assaulting her on the way. Defendant knew that Meyer would further assault her in the park, and therefore, he had the culpable mental state to assist Meyer. The court found that the evidence was sufficient to convict defendant of rape. Id.

Defendant relies upon State v. Reed, 670 S.W.2d 545 (Mo.App.1984), to say that the evidence was not sufficient to support his conviction for the Hearst robbery. Defendant's argument is misplaced. In Reed, the conviction of an accomplice to first degree robbery was reversed because the evidence produced by the State did not prove that his co-defendant was armed. Unlike Reed, the evidence here shows that Pilkerton entered the Hearst home at gunpoint and that defendant drove the car to and from the Hearst's home.

Indicia of aiding and abetting include presence at the scene of the crime, flight therefrom, and association with others involved before, during, and after the commission of the crime. State v. McGowan, 789 S.W.2d 242, 243 (Mo.App.1990). Proof of any form of participation by defendant in the crime is sufficient to support a conviction. Id.

The evidence regarding defendant's involvement in the Hearst robbery was supplied by defendant's confession. It was the defendant who told Pilkerton and Sillman about the Hearst home and planned the burglary of it. Defendant drove the other two to the Hearst's home. He told police that when the two left the car and discovered there were people at home, Sillman immediately returned to the car, but Pilkerton went into the home. When Pilkerton returned to the car, defendant drove the three of them away. Defendant then went on to commit three other robberies with Pilkerton within the next three weeks. This evidence meets all of the indicia of aiding and abetting that was outlined in McGowan. We find that this proof was sufficient to make defendant responsible for the attempted robbery of the Hearst home. Defendant's first point is denied.

II. THE MOTION TO SEVER

Defendant's second point on appeal is that the trial court abused its discretion by failing to sever the offenses for trial. Our analysis of this point is made difficult by the failure of defendant to include the written motion in the record on appeal. A motion to sever offenses must be in writing. Mo.Rev.Stat. § 545.885.2 (1986); Rule 24.07. However, our record of the motion is limited to the court's oral denial of the motion before the trial...