State v. Howard, No. 41463
| Court | Court of Appeal of Missouri (US) |
| Writing for the Court | JAMES D. CLEMENS |
| Citation | 601 S.W.2d 308 |
| Parties | STATE of Missouri, Respondent, v. Jerome HOWARD, Appellant. |
| Docket Number | No. 41463 |
| Decision Date | 29 April 1980 |
Page 308
v.
Jerome HOWARD, Appellant.
Motion for Rehearing and/or Transfer to Supreme Court Denied
June 20, 1980.
Robert C. Babione, Public Defender, Lyndia R. Glasgow, Asst. Public Defender, St. Louis, for appellant.
Page 309
John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George Peach, Circuit Atty., St. Louis, for respondent.
JAMES D. CLEMENS, Senior Judge.
This appeal challenges the joinder of separate criminal charges under Rule 24.04 V.A.M.R.Cr.
In separate counts the state charged defendant Jerome Howard, as a convicted felon, with armed robbery of one person and with stealing from the person of another. The trial court denied defendant's motion for severance. The jury found him not guilty of robbery but guilty of stealing from a person, and on that count the court sentenced defendant to the maximum term of ten years in prison.
As his sole point on appeal defendant has preserved his challenge to the denial of his motion for separate trials. The state primarily contends joinder was proper, and alternatively that defendant was not prejudiced by the joinder. We consider these points in turn.
The state's evidence: On July 27, 1968 defendant forcibly stole Wanda Cassals' purse and in doing so cut her with a sharp instrument. He fled. (On this, the state based its charge of armed robbery.) About an hour later and several blocks away defendant forcibly stole a purse from the person of Betty Yahncke. (On this the state based its charge of stealing from the person.)
The jury found defendant not guilty of the armed robbery of Wanda Cassals, but found him guilty of stealing from the person of Betty Yahncke. The court sentenced defendant to ten years in prison. He has appealed, contending only that the court erred in denying his motion to sever the two charges.
At the core of this appeal is Rule 24.04. As pertinent here, with our emphasis added, the rule permits joinder of ". . . all offenses which are 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 . . .".
Defendant contends the record failed to show the two offenses were either part of the same transaction or were part of a common scheme or plan. The state contends, without supporting argument, that the evidence showed "common scheme" or "transaction".
We have considered cases cited by the state. In State v. Taylor, 567 S.W.2d 705(1, 2) (Mo.App.1978), defendant was separately charged with stealing a check protector and with using it to forge and cash the victim's checks. On appeal the court upheld joinder of the stealing and forgery because, as provided by Rule 24.04 the two offenses "constituted parts of a common scheme or plan". The state further relies on State v. Mack, 576 S.W.2d 550(1, 2) (Mo.App.1978), which upheld joinder of multiple counts of stealing. This on the stated ground, not shown to exist here, that the thefts "constituted parts of a common scheme or plan". Here, unlike Taylor and Mack there was no factual connection in either time, place or victim of the two offenses. Neither case supports the state's...
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State v. McCrary, No. 62236
...under the principal opinion's test, demonstrating a continuing purpose to steal purses. Nevertheless, the court in State v. Howard, 601 S.W.2d 308 (Mo.App.1980), found that joinder was improper where the defendant, within one hour, stole purses from two people who were located several block......
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State v. Shaw, No. 62679
...Cal.Rptr. 26 (1963). The cases appellant cites in support of his argument, State v. Wood, 613 S.W.2d 898 (Mo.App.1981); State v. Howard, 601 S.W.2d 308 (Mo.App.1980); State v. Buford, 582 S.W.2d 298 (Mo.App.1979), are inapposite because in none of those cases, which involved the improper jo......
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State v. Meder, No. WD
...rules upon the joinder provisions. In doing so, Davis relied upon State v. Wood, 613 S.W.2d 898 (Mo.App.1981); State v. Howard, 601 S.W.2d 308 (Mo.App.1980); and State v. Buford, 582 S.W.2d 298 (Mo.App.1979). Although the court in Davis acknowledged it was relying upon cases decided prior t......
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State v. Murray, No. 63216
...may be rebutted by the facts and circumstances of a particular case, State v. Page 580 Walker, 484 S.W.2d 284 (Mo.1972); State v. Howard, 601 S.W.2d 308 (Mo.App.1980), and its prejudicial effect is to be judicially determined, State v. Boyington, 544 S.W.2d 300 (Mo.App.1976). This principle......
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State v. McCrary, No. 62236
...under the principal opinion's test, demonstrating a continuing purpose to steal purses. Nevertheless, the court in State v. Howard, 601 S.W.2d 308 (Mo.App.1980), found that joinder was improper where the defendant, within one hour, stole purses from two people who were located several block......
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State v. Shaw, No. 62679
...Cal.Rptr. 26 (1963). The cases appellant cites in support of his argument, State v. Wood, 613 S.W.2d 898 (Mo.App.1981); State v. Howard, 601 S.W.2d 308 (Mo.App.1980); State v. Buford, 582 S.W.2d 298 (Mo.App.1979), are inapposite because in none of those cases, which involved the improper jo......
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State v. Meder, No. WD
...rules upon the joinder provisions. In doing so, Davis relied upon State v. Wood, 613 S.W.2d 898 (Mo.App.1981); State v. Howard, 601 S.W.2d 308 (Mo.App.1980); and State v. Buford, 582 S.W.2d 298 (Mo.App.1979). Although the court in Davis acknowledged it was relying upon cases decided prior t......
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State v. Murray, No. 63216
...may be rebutted by the facts and circumstances of a particular case, State v. Page 580 Walker, 484 S.W.2d 284 (Mo.1972); State v. Howard, 601 S.W.2d 308 (Mo.App.1980), and its prejudicial effect is to be judicially determined, State v. Boyington, 544 S.W.2d 300 (Mo.App.1976). This principle......