State v. Foster, 41012.
| Decision Date | 15 December 1980 |
| Docket Number | No. 41012.,41012. |
| Citation | 608 S.W.2d 476 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. William FOSTER, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Neal P. Murphy, St. Louis, William H. Jennings, II, Clayton, for defendant-appellant.
John Ashcroft, Atty. Gen., Paul Robert Otto, Nancy D. Kelley, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
Motion for Rehearing and/or Transfer to Supreme Court Denied November 14, 1980.
Ray Charles Canady was employed as a security guard. He was stationed at a clinic for the City of St. Louis at Grand and Washington Avenues. The defendant William Foster approached Canady on October 26, 1977, at his place of employment after telling an associate that he was going to get the guard's gun. Foster was holding a .22 caliber pistol and told Canady to hold up his hands. Canady moved toward Foster and Foster thereupon fired shots at the guard. When Canady fell to the ground, Foster picked up the guard's .38 caliber pistol and shot him in the face with the guard's pistol. Eight missiles were recovered from the victim's body. Seven of these were from a small caliber weapon and another was from a larger caliber weapon. The medical examiner for the city testified that seven of the nine wounds were fatal in nature and that Canady died as a result of multiple gun shot wounds with extensive internal injury and hemorrhage.
Foster was convicted of capital murder, robbery in the first degree and armed criminal action. He was sentenced to life imprisonment to serve a minimum of fifty years without probation or parole, thirty years on the charge of robbery consecutive to the murder sentence and thirty years on the armed criminal action consecutive to the thirty years imposed for robbery.
Defendant's first contention on appeal asserts that the trial court erred in overruling defendant's objection to a part of the State's closing argument wherein the State's attorney misstated the law to the jury as to the burden of proof. We have examined carefully that portion of the argument in which it is alleged such statements are made. In this portion of the argument counsel was attempting to explain that anyone who aided or abetted another in committing a crime was equally guilty with the one who may have committed certain acts which were part of the essential elements of the crime provided the defendant knowingly acted with the other person in the commission of the crime. At one point counsel for the State stated that the State did not have to prove that the defendant "did every element." Objection was made and State's counsel then finished by saying that he only had to prove that the defendant knowingly did it alone or knowingly with others and acting together with a common purpose.
In considering this charge of prejudicial error we note the instructions hypothesizing the crimes charged against the defendant contained phrases which directed the jury to determine before finding defendant guilty that he acted either alone or knowingly and with common purpose together with one or more others in the conduct referred to in the instruction. This is in accord with the mandate of the approved instructions contained in MAI-CR. We can see no attempt to do more than to call these portions of the instructions to the attention of the jury in State's argument. This was a correct statement of the law and we find no abuse of discretion by the trial court in overruling the objection. State v. Zweifel, 570 S.W.2d 792, 7943 (Mo.App.1978). This point is ruled against the defendant.
The next two points relied on are directed toward use of witnesses who testified to crimes of the defendant preceding and after the crimes charged in the indictment, that is, the robbery and killing of Ray Charles Canady. The first of the two points is directed toward the action of the trial court in overruling defendant's oral motion in limine to bar three witnesses for the State from testifying because their testimony related to proof of other crimes not related to the case in issue. It is well-settled law that to preserve for review the admission of evidence complained of in a motion in limine an objection must be made at trial. State v. Johnson, 586 S.W.2d 437, 4404 (Mo.App.1979). Even though the point is not properly raised, we note in the transcript that objections were made to the introduction of testimony by these witnesses at trial for the same reason and we will consider the point on its merits with respect to the introduction of evidence of other crimes by the testimony of these witnesses. Because Point III is also directed to the testimony of another witness for the same reason, that is; because it tended to establish defendant's identity as the perpetrator of prior and subsequent robberies, we will consider the problem there involved with that in Point II.
Proof of the commission of a separate crime is not admissible unless it has a legitimate tendency to directly establish the defendant's guilt of the crime charged. State v. Quigley, 591 S.W.2d 740, 742-7432 (Mo.App.1979). If the evidence of another crime tends to establish motive, intent, absence of mistake or accident, common scheme or plan, or the identity of the person charged with the commission of the crime for which he is on trial, such evidence is competent in the trial of the crime charged. State v. Mitchell, 491 S.W.2d 292, 2951 (Mo. banc 1973); State v. Harlston, 565 S.W.2d 773, 78011 (Mo.App.1978). The test of whether evidence of other distinct crimes falls within any of the exceptions to the general rule is its logical relevancy to the particular excepted purpose or purposes for which it is sought to be introduced. If it is logically pertinent in that it reasonably tends to prove a material fact and issue, it is not to be rejected merely because it incidentally proves the...
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