State v. Helm

• Decision Date: 03 November 1981
• Docket Number: No. WD,WD
• Citation: 624 S.W.2d 513
• Parties: STATE of Missouri, Respondent, v. Michael A. HELM, Appellant. 32241.
• Court: Missouri Court of Appeals

Page 513

624 S.W.2d 513

STATE of Missouri, Respondent, v. Michael A. HELM, Appellant.

No. WD 32241.

Missouri Court of Appeals, Western District.

Nov. 3, 1981.

Sloan R. Wilson, McMullin, Wilson & Schwarz, Kansas City, for appellant.

John Ashcroft, Atty. Gen. and Rosalynn Van Heest, Asst. Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before TURNAGE, P. J., and PRITCHARD and CLARK, JJ.

CLARK, Judge.

Michael A. Helm, convicted by a jury of the offenses of assault in the first degree by means of a dangerous instrument and armed criminal action, appeals from the judgment and sentences of thirty and twenty-five years imposed consecutively.

Six points of error are advanced, none of which challenges the sufficiency of the evidence to support the conviction. Issue is taken, however, with the jury instructions and the identity of the offenses requiring that the facts of the crimes be summarily recounted. Consistent with the verdicts returned, the jury could reasonably have found the following facts.

On October 11, 1979, Helm observed one Carolyn Harvey to be alone in a self-service laundromat. Helm went to a nearby hardware store where he stole a large knife similar to a machete. Returning to the laundromat, he confronted the victim and on threat of injury from the knife, she surrendered her purse to Helm. The purse was found to contain only a dollar and coins, a circumstance which apparently enraged Helm. He thereupon required the victim to prostrate herself on the floor and struck her about the head and neck with the knife cutting through her collarbone and scalp, severing an earlobe and a finger and inflicting other injuries. Helm was identified by the victim, by an employee of the hardware store and by two other witnesses at nearby business establishments. Helm did not testify and he offered no evidence.

Addressing the points in the order briefed, the first contends that Helm's confession, obtained after his arrest some four days following the crime, should have been suppressed because it was obtained while Helm was under the influence of drugs and alcohol and was extracted under a promise of leniency and by misrepresentation of facts. At the pre-trial suppression hearing, Helm testified that he had been drinking whiskey and beer and smoking marijuana the day of his arrest and that the condition thereby produced had caused him to believe the interrogating police officer when the latter told him witnesses had identified him in a lineup and that he would receive a light sentence if he confessed.

The evidence which Helm gave was directly opposed to that of the police officer who recorded the confession. The officer testified that Helm was fully informed of his right to counsel and right to remain silent, an aspect of the interrogation not in dispute, and that Helm appeared normal, well oriented and possessed of normal faculties. The officer acknowledged having told Helm that cooperation is sometimes taken "with a note of leniency" but he denied any express promise or representation.

Where, as here, the evidence conflicts as to the voluntary nature of a confession, the trial court has the responsibility to weigh the evidence and judge the credibility of witnesses. State v. Rapheld, 587 S.W.2d 881, 886 (Mo.App.1979). On appeal, the trial court's ruling must be viewed in the light most favorable to the state. State v. Woodward, 587 S.W.2d 287, 289 (Mo.App.1979). The burden on the state is to prove by a preponderance of the evidence that the confession was voluntary. State v. Hughes, 596 S.W.2d 723, 726 (Mo. banc 1980). If the evidence was sufficient to sustain the trial court's ruling, according deference to the judgment of the trial court on the credibility of witnesses, the result must be upheld on appeal unless manifest error has been committed. State v. Haas, 610 S.W.2d 68, 73 (Mo.App.1980).

Quite apparently, the trial court accepted the testimony of the police officer as to Helm's appearance and demeanor during questioning and found Helm's evidence not credible, as the court was entitled to do on conflicting testimony. Upon this resolution of the facts, the confession was properly admitted over Helm's objection as posed. The court did not err in overruling the motion to suppress.

In his next point, Helm contends a mistrial should have been declared when the state, in reading Helm's confession to the jury, included the following:

"Question: Have you ever hurt anyone before when you robbed them?

"Answer: No."

The argument is based on the prejudicial effect by implication that Helm had been involved in other robberies.

The question and answer above noted were included in Helm's three-page confession, all of which was read to the jury by the prosecutor. The statement, with other exhibits, was then passed to the jury for inspection. It was only then, after the confession was being examined by the jurors, that counsel for Helm first raised a question as to the prejudicial nature of reference to other crimes Helm may have committed. In a side bar conference, either during or after the circulation of the exhibit among the jurors, counsel moved for a mistrial. The court denied the motion on the ground that it had not been made timely. No relief, other than a mistrial, was asked.

The general rule is that an objection must be timely made in order to preserve error for review on appeal and this usually necessitates lodging the objection at the earliest possible opportunity so that the trial judge may take corrective action. State v. Simmons, 500 S.W.2d 325, 328 (Mo.App.1973). In the case of demonstrative evidence, the point will be deemed to have been waived if preliminary testimony on the subject of an exhibit is received without objection. State v. Weeks, 603 S.W.2d 657, 664 (Mo.App.1980). Assignments of error regarding admissibility of evidence are not for consideration on appeal unless timely presented to the trial court when the evidence was offered. State v. McMillin, 581 S.W.2d 612, 616 (Mo.App.1979).

In this case, the content of Helm's confession was known well in advance of trial and although objection was made to the confession on the ground it was involuntary, no mention was made of the present point until after the document had been received in evidence, had been read to the jury and handed to them for personal inspection. The objection came too late and the point has not been preserved for appellate review.

Moreover, the record indicates that counsel sought no relief other than a mistrial, a strong indication of a conscious design to raise objection at a time when curative relief other than a mistrial would be unavailing. The declaration of a mistrial is a drastic remedy of limited application to incidents of grievous error. State v. Parker, 476 S.W.2d 513, 515 (Mo.1972). The decision to grant or refuse a mistrial is within the discretion of the trial court. State v. Brunson, 559 S.W.2d 60 (Mo.App.1977). We cannot conclude here that the trial court abused that discretion.

In his third point, Helm argues that the jury instruction given as the verdict director for the charge of armed criminal action was in error because it failed to include as an element of the offense "knowing" conduct by the accused. This aspect of the case is significant, Helm contends, because his defense was his drugged or intoxicated condition, a circumstance which, if believed, would have negated a purposeful and culpable mental state. When the verdict director did not require the jury to find Helm had acted knowingly, he asserts he was denied consideration of his defense.

The defense Helm offered was based on the content of his confession in which he described a quantity of liquor and drugs consumed on the day of the crime. Helm requested and the court gave an instruction on the pattern of MAI-CR2d 3.30.1 posing the defense of voluntary intoxication as authorized by § 562.076(1), RSMo 1978. This defense is effective to negative the requisite mental state when purpose or knowledge is an element of the offense charged, or of an included offense.

The jury instruction on the charge of armed criminal action, to which...