State v. Harris

• Decision Date: 07 January 1986
• Docket Number: No. 49885,49885
• Citation: 705 S.W.2d 544
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Kenneth HARRIS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 544

705 S.W.2d 544

STATE of Missouri, Plaintiff-Respondent, v. Kenneth HARRIS, Defendant-Appellant.

No. 49885.

Missouri Court of Appeals,

Eastern District,

Division Four.

Jan. 7, 1986.

Motion for Rehearing and/or Transfer

Denied Feb. 4, 1986.

Application to Transfer Denied

March 25, 1986.

Debra Buie Arnold, Asst. Public Defender, St. Louis, for defendant-appellant.

John Munson Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

KELLY, Judge.

Defendant, Kenneth Harris, appeals from a judgment of the Circuit Court of the City of St. Louis convicting him of robbery in the first degree, § 569.020 RSMo 1978 (Counts I, VI, VII), attempted robbery in the first degree, § 564.011 RSMo 1978 (Count IV), assault in the first degree, § 565.050 RSMo 1978 (Count V), and armed criminal action, § 571.015 RSMo 1978 (Count VIII). Defendant was sentenced to the Department of Corrections for a total term of thirty-five years.

Defendant contends on appeal that the trial court abused its discretion in overruling defendant's pretrial motion to sever offenses in that such action denied defendant his right to a fair trial on each of three separate incidents, the court below having tried all three incidents together before one jury. We affirm.

Looking first to the three separate incidents involved, the facts relevant on appeal are as follows:

On July 1, 1983, at approximately 10:30 p.m., a Mr. Joseph Buie was sitting in an automobile parked in front of a Steak & Shake Restaurant. Mr. Buie was waiting for the owner-operator of the automobile who had gone inside the restaurant to get food. Mr. Buie testified at trial that three men approached the car and one of the individuals pointed a gun at his face and ordered him out of the car. Mr. Buie complied with this demand and the three men then got into the car and drove away.

Mr. Buie gave a description of the three men to the police officers who had arrived on the scene immediately following the incident. Mr. Buie viewed a line-up on August 23, 1983 and identified the defendant as the individual with the gun. Mr. Buie also identified the defendant as the gunman at trial.

The next incident occurred on July 19, 1983 at approximately 9:30 p.m. Ms. Donna Henry had placed an order at the drive-up window of a McDonald's Restaurant. While waiting in line for the pick-up two armed men approached her car, one on each side. The man on the passenger side of the car demanded her money and her necklace. Ms. Henry testified at trial that as she reached up to remove the chain from her neck the man on the passenger side of the car shot her in the shoulder.

Later that night, Ms. Henry gave a description of the two men to the police. Ms. Henry viewed a line-up on August 23, 1983 and identified the defendant as the man who shot her in the shoulder. Ms. Henry also made the same identification of the defendant at trial.

Another incident took place on July 23, 1983 at approximately 1:00 a.m. Mr. Samuel Howard and Ms. Levelle Stevenson, upon leaving the Inter-City Lounge, were returning to Mr. Howard's car. They both noticed two men sitting on a porch located near the car. One of these men then stood on the steps, pointed a gun at Mr. Howard and Ms. Stevenson and announced a holdup, while the other man came to the car, started frisking them, and taking their valuables. The incident dissipated when a patrol car happened to pass by and the men ran into a nearby gangway. Both Mr. Howard and Ms. Stevenson gave descriptions of the two men to the police officers who had arrived at the scene. Ms. Stevenson was unable to identify the defendant as one of the perpetrators but Mr. Howard identified the defendant as the man standing on the steps with the gun. Mr. Howard made this identification both on August 23, 1983 when viewing a line-up and at trial.

Originally, the state charged the defendant for the above incidents by way of an indictment filed on October 13, 1983. (Two of the counts contained therein, Counts II & III, relate to a fourth incident which is irrelevant to this appeal.) Count I of the indictment dealt with the incident involving Mr. Buie and charged the defendant, acting with others, with robbery in the first degree for stealing a car by use of a deadly weapon.

Count's IV & V relate to the incident involving Ms. Henry. Count IV charged defendant, acting with others, with robbery in the first degree for having pointed a handgun at Ms. Henry, demanding her money and necklace, such conduct being a substantial step toward the commission of the crime of robbery in the first degree. Count V charged the defendant, acting with others, with assault in the first degree for knowingly causing serious physical injury to Ms. Henry by shooting her in the shoulder area.

Counts VI and VII relate to the incident involving Mr. Howard and Ms. Stevenson. Count VI charged defendant, acting with others, with robbery in the first degree for stealing a watch and money from Mr. Howard by use of a deadly weapon. Count VII charged defendant, acting with others, with robbery in the first degree for forcibly stealing a ring from Ms. Stevenson by use of a deadly weapon.

Relating to all three incidents, Count VIII charged defendant, acting with others, with armed criminal action.

The defendant, on December 14, 1983, filed a Motion to Sever Offenses, claiming that "[t]hese offenses are not charged on the face of the indictment as based on the same act or on two or more acts which are part of the same transaction or on two or more acts or transactions which constitute parts of a common scheme or plan." Pursuant to the law at that time said motion was sustained by the trial court on January 12, 1984 and it was ordered that Counts I; Counts II and III; Counts IV, V and VIII; and Counts VII were to be severed and tried as grouped above.

On August 15, 1984, the state filed a Motion to Reconsolidate, pursuant to § 545.140.2 RSMo 1984 (effective August 13, 1984), which sought to "reconsolidate all eight counts of the indictment for trial because all offenses are of the same or similar character." Following the filing of defendant's Memorandum Opposing State's Motion to Reconsolidate Offenses for Trial, the trial court, on September 18, 1984, held that "[t]he state's motion having been taken up, argued and fully considered, there having been no particularized showing of substantial prejudice to the defendant and in the interest of economy and expedition in judicial administration, and said motion to reconsolidate is SUSTAINED." The prosecuting attorney filed a Substitute Information in Lieu of Indictment on November 8, 1984, which employed substantially the same language as the original indictment.

Upon trial by jury defendant was convicted as charged on all six counts. In accordance with the punishment assessed by the jury, the trial court sentenced the defendant to the Department of Corrections as follows: Count I, ten years; Count IV, five years, said sentence to run consecutively to the term imposed in Count I; Count V, twenty years, said sentence to run consecutively to the sentences imposed under counts I and IV; Count VI, ten years, said sentence to run concurrently with sentences imposed under Counts I, IV, and V; Count VII, ten years, said sentence to run concurrently with sentences imposed in Counts I, IV, V, and VI; Count VIII, fifteen years, said sentence to run concurrently with sentences imposed in Counts I, IV, V, VI and VII for a total of thirty five years.

Defendant's argument that the trial court erred in failing to grant his pre-trial motion to sever offenses presents two distinct points for review. The first issue that must be addressed is whether the offenses were properly joined in the indictment or information. Assuming that proper joinder exists, the second issue is whether the trial court abused its discretion in refusing to sever the offenses and ordering them tried in a single prosecution. The defendant correctly states that the distinction between these two issues is that joinder addresses the more basic question of what crimes can be charged in a proceeding while severance presupposes proper joinder and leaves to the discretion of the trial court the determination of whether prejudice may or would result if charges properly joined were tried together. Joinder is either proper or improper under the law while severance is discretionary. State v. Smith, 682 S.W.2d 861, 863 (Mo.App.1984).

The current law authorizing the joinder of offenses is § 545.140(2) RSMo 1984, which provides:

Notwithstanding Missouri supreme court rule 24.07, two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or infractions, or any combination thereof, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

Pursuant to the above statute the state's Motion to Reconsolidate was granted in that the motion alledged that Counts I through VIII were all acts of the same or similar character. The state's motion characterized each of these acts as consisting of the defendant and at least one other approaching people, late at night, at gunpoint, while the victims were at their cars, near a public dining place, in order to rob them and escape.

Prior to August 13, 1984, the effective date of § 565.140(2), the only authority which allowed the state to join more than one offense in a single information or indictment was Supreme Court Rule 23.05, which provided:

All offenses that are based on the same act or on two or more acts that are part of the same transactions or on two or more acts or transactions that constitute part of a common scheme or plan may be charged in the same indictment or information in separate counts.

Defendant's original Motion to Sever...