State v. Helton, 42181.

• Decision Date: 15 December 1980
• Docket Number: No. 42181.,42181.
• Citation: 607 S.W.2d 772
• Parties: STATE of Missouri, Respondent, v. Stanley G. HELTON, Appellant.
• Court: Missouri Court of Appeals

607 S.W.2d 772

STATE of Missouri, Respondent, v. Stanley G. HELTON, Appellant.

No. 42181.

Missouri Court of Appeals, Eastern District, Division Three.

September 30, 1980.

Motion for Rehearing and/or Transfer Denied November 14, 1980.

Applications to Transfer Denied December 15, 1980.

Darryl L. Hicks, Warrenton, for appellant.

John Ashcroft, Atty. Gen., Paul Robert Otto, Paul M. Spinden, Asst. Attys. Gen., Jefferson City, Roy L. Richter, Pros. Atty., Montgomery County, Montgomery City, for respondent.

Motion for Rehearing and/or Transfer to Supreme Court Denied November 14, 1980.

CRIST, Judge.

Defendant was convicted by a jury of robbery in the first degree, a felony under § 560.120, RSMo.1969, and of armed criminal action, a felony under § 559.225, RSMo. Supp.1976. He was sentenced, consecutively, to fifteen years on the robbery count and ten years on the armed criminal action count. We reverse in part.

On March 16, 1978, defendant, accompanied by another man, entered the Site Service Station in High Hill, Montgomery County, Missouri. Defendant pointed a shotgun at the station attendant. The two men took the money from the station's cash drawer. The attendant was made to lie on the floor before he was struck on the head with some sort of instrument.

Defendant charges error in the conviction of both offenses by reason of double jeopardy, citing Sours v. State, 593 S.W.2d 208 (Mo.banc, Jan. 1980) (Sours I). He is correct as to the armed criminal action sentence.

By authority of Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), the United States Supreme Court ordered Sours I vacated and reconsidered. Thereafter, the Missouri Supreme Court reaffirmed its conclusion that a conviction of both armed criminal action and the underlying felony violates the prohibition of double jeopardy. Sours v. State, 603 S.W.2d 592 (Mo.banc, 1980) (Sours II). The conviction for armed criminal action must be reversed, but the robbery conviction is valid.

Defendant also charges error by reason of the communication of the bailiff with the jury. The testimony relating to his complaint is as follows:

THE COURT: May I have the attention of counsel. The jury has just said they have a question. I am going to have them brought back into the Courtroom so they may present that to the Court.

(Deputy Clemons and Court confer at bench out of hearing of Court Reporter.)

THE COURT: The jury apparently has said they do have a question as to the term "life".

MS. DEAN: I don't know what to do about that.

THE COURT: Let's bring them back in and I will speak to them.

Would you bring in the jury, please.

(The jury is then returned to the courtroom and the following proceedings are had.)

THE COURT: Ladies and Gentlemen of the Jury, I was told by the bailiff that you do have a question. I can only tell you that the instructions given you by the Court contain all of the law on this case and you must bare your verdict on those instructions.

Now, as to that question pertaining to your verdict, I can only ask that you return to the jury room and reread the instructions and see if you can arrive at a verdict.

Section 546.240, RSMo.1978 provides that the bailiff is not to speak or communicate with the jury. In State v. Davis, 462 S.W.2d 798 (Mo.1971), our Supreme Court stated:

... communications between jurors and outsiders are not proper but always the emphasis has been concerning the case in which they are sitting and innocent communications do not require the

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