State v. Hunter, WD

• Decision Date: 18 August 1981
• Docket Number: No. WD,WD
• Citation: 622 S.W.2d 374
• Parties: STATE of Missouri, Respondent, v. Danny HUNTER, Appellant. 31547.
• Court: Missouri Court of Appeals

Page 374

622 S.W.2d 374

STATE of Missouri, Respondent, v. Danny HUNTER, Appellant.

No. WD 31547.

Missouri Court of Appeals, Western District.

Aug. 18, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Sept. 15, 1981.

Applications to Transfer Denied Nov. 10, 1981.

Peter N. Sterling, Acting Public Defender, Gary L. Gardner, Asst. Public Defender, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Jefferson City, Darrell Panethiere, Asst. Atty. Gen., Kansas City, for respondent.

Before MANFORD, P. J., and DIXON and NUGENT, JJ.

MANFORD, Presiding Judge.

This direct appeal follows a jury conviction for robbery first degree, armed criminal action and assault with malice. The judgment is affirmed in part and reversed in part.

Appellant alleges that the trial court erred (a) in sentencing him for both robbery first degree and armed criminal action because he was placed in double jeopardy; (b) in imposing a greater sentence than that imposed by the jury for the robbery conviction; and (c) in admitting impermissible hearsay, violating his constitutional right of confrontation and cross-examination.

The sufficiency of the evidence is not challenged. Appellant, with two accomplices, entered the A & P Store at 75th and Wornall in Kansas City at approximately 5:30 p. m. on November 24, 1978. Appellant gained entrance to the store manager's booth and ordered the manager, at gun point, to open the two safes in the booth area. While the manager was complying with appellant's demands, appellant struck the manager twice with the butt of the revolver. Although appellant was wearing a light silk stocking mask, he was as close as 12 inches from the manager's face and the manager was later able to make an unequivocal identification of appellant at a police line-up and at trial.

While the robbery was in progress, an employee reporting for work drove in front of the store. This employee soon realized that the robbery was in progress, drove to a nearby bank and advised an off-duty police officer. The officer proceeded to the front of the grocery store, and moments later, the robbery trio departed the store. The police officer observed appellant remove his mask and ordered the trio to halt. At this instant, appellant fired a shot at the officer, and the officer returned the fire. The trio escaped. At the police line-up and at trial, the officer made an unequivocal identification of appellant.

As the investigation of the robbery progressed, employees of the store identified from police photos one Eric Lawton as one of the robbers. Lawton was arrested and gave police a written confession. Appellant's arrest followed. In addition to being positively identified in the police line-up, appellant gave police two confessions. The first confession was oral, and appellant admitted to planning the robbery with his accomplices. The second confession was in writing and was made to correct what appellant contended were errors in Lawton's confession. In his written confession, appellant stated that he had been paid $300 to provide the getaway vehicle at a location other than the crime scene. Initially, appellant denied any involvement in the robbery and gave police three different accounts of his whereabouts, but when confronted with Lawton's confession (which appellant spent 10-15 minutes reading), appellant made his oral and written confessions.

Appellant offered no direct evidence. The jury returned its verdict and assessed punishment. This appeal followed the denial of appellant's motion for new trial or in the alternative, for a reduction of sentence.

Appellant's point (a) is sustained. This court is bound by the ruling of our state Supreme Court in State v. Haggard, 619 S.W.2d 44 (Mo.1981) which reaffirmed Sours I (Sours v. State, 593 S.W.2d 208 (Mo. banc 980)) and Sours II (Sours v. State, 603 S.W.2d 592 (Mo. banc 1980)). Under those decisions, appellant's conviction for armed criminal action is vacated and the sentence for that conviction is set aside.

Under point (b), appellant contends that the trial court imposed a sentence for the robbery conviction in excess of the sentence assessed by the jury. Appellant is correct that such action is prohibited. State v. Hardy, 339 Mo. 897, 98 S.W.2d 593 (1936); § 557.036.3, RSMo 1978. However in the instant case, appellant's argument fails because it is premised upon an erroneous entry in the legal file. When the record of sentencing was transcribed from the actual record to the legal file, the sentence of ten years for robbery assessed by the jury and imposed by the trial court was entered as 15 years. The sentence reflected in the legal file was the result of a clerical error. The true judgment is represented by "the judicial act of the court" in the rendition of its judgment and is not represented by the act of the court clerk in transcribing the judgment. Massey v. State, 608 S.W.2d 152 (Mo.App.1980); Allen v. Gibbons, 425 S.W.2d 243 (Mo.App.1968); and Rehm v. Fishman, 395 S.W.2d 251 (Mo.App.1965).

The record shows that the trial court entered the sentence of ten years upon the conviction for robbery first degree in full accord with the assessment by the jury. Appellant's point (b) is without merit and is ruled against him.

In his final point (c), appellant argues that the trial court erred in permitting a witness to testify that appellant was arrested the day after a confession was secured from one of appellant's accomplices. Appellant contends that this testimony was hearsay and that its admission violated his constitutional rights to confrontation and cross-examination.

The last witness called by respondent was a detective assigned to investigate the robbery. Eric Lawton, who had been arrested and identified as one of the robbers and who was in custody, gave police a written confession. Appellant was arrested the next day. In the initial interview with police, appellant gave two or three different accounts of his whereabouts the night of the crime. Appellant was then shown Lawton's confession and read and studied the confession for 10-15 minutes. Appellant then made an oral confession in which he admitted to planning the robbery with his accomplices, and followed this with a written confession which admitted his involvement in providing, upon receipt of $300, the getaway vehicle at a location other than the scene of the crime.

The officer witness testified to procedures and events occurring during his investigation. Appellant's complaint centers around the following portion of the officer's testimony:

"Q. (By Ms. Petren, assistant prosecuting attorney) Eric Lawton was arrested on February 26th, 1978, is that correct?

A. Yes.

Q. Did you have occasion to take a statement from Eric Lawton?

A. Yes, I did.

Q. After you took that statement did you have occasion to arrest Danny Hunter?

MR. PREMAN (attorney for appellant): Approach the bench, please. (The following proceedings were had at the bench.)

MR. PREMAN: Judge, I think this is exactly what we were talking about.

THE COURT: No, it isn't. You talked about statements made by Eric Lawton and he's not testified to any statements made by Eric Lawton. He only said what he did after he took the statement.

MR. PREMAN: Well, Judge, I think for the record, I think that does violate the protective order that you ordered and I would object to it and ask for a mistrial.

THE COURT: No, it doesn't violate the protective order. The motion for mistrial is overruled.

(The proceedings returned to open court.)

Q. (By Ms. Petren) Let me rephrase my question or ask the same question. You stated you had an occasion to take a statement from Eric Lawton; after that statement was taken you had occasion to arrest Danny Hunter?

MR. PREMAN: I object, Your Honor, it is repetitive. It was just asked and answered.

MS. PETREN: I don't believe he answered the question.

THE COURT: There was an objection before he answered. You are merely restating the question so he can answer it the second time. The objection is overruled.

Q. (By Ms. Petren) What date did you have occasion to arrest Danny Hunter?

A. I issued a pickup for him the evening that I got the statement from Eric Lawton on the 27th of February, 1979 and he was brought into the robbery unit under arrest on the morning of the 28th of February, 1979 by district officers."

Appellant presents a two-fold argument. He first claims a violation of his Sixth Amendment right to confrontation. He also argues a violation of the hearsay rule. In appellant's contention, he equates the two. This is not correct. The United States Supreme Court, while recognizing the right to confrontation guaranteed by the Sixth Amendment to the United States Constitution as a fundamental right "made obligatory upon the States by the Fourteenth Amendment," Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1067, 13 L.Ed.2d 923, 926 (1968), has nevertheless ruled: "(M)erely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied." California v. Green, 399 U.S. 149, 156, 90 S.Ct. 1930, 1934, 26 L.Ed.2d 489, 495-496 (1970). In further consideration of this point, the United States Supreme Court has set forth factors additional to the hearsay violation which are determinative of the constitutional violation question. In a case involving a Georgia statute which allowed into evidence a co-conspirator's out-of-court statement made during the concealment phase of the conspiracy and which included the admission of the extra-judicial statement, the court stated: "It seems apparent that the Sixth Amendment Confrontation Clause and the evidentiary hearsay rule stem from the same roots. But this court has never equated the two and we decline to do so now." Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 218, 27 L.Ed.2d 213, 225 (1970). In addition to the foregoing, the Dutton court outlined four points which...