State v. Jones, 28667
| Decision Date | 29 August 1977 |
| Docket Number | No. 28667,28667 |
| Citation | 558 S.W.2d 242 |
| Parties | STATE of Missouri, Respondent, v. Bradford R. JONES, Appellant. |
| Court | Missouri Court of Appeals |
Roy W. Brown, John A. Wilson, Kansas City, for appellant.
John C. Ashcroft, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for respondent.
Before SHANGLER, P. J., and WELBORN and HIGGINS, Special Judges.
Bradford R. Jones was found guilty on a jury trial of robbery in the first degree with a deadly weapon. Acting under the second offender law, the trial court fixed his punishment at 20 years' imprisonment. Jones has appealed from the judgment and sentence so imposed.
At around 10:30 P.M., February 13, 1975, two men carrying guns and wearing bandana masks over their faces entered the Hen House Market at 95th and Blue Ridge in Kansas City. They pointed the guns at Dennis Kurtz, a Hen House employee, and ordered him to open the cash registers. He did so and the robbers removed the cash from the registers. According to Kurtz, about $100 was taken. The robbers directed Kurtz and another Hen House employee to lie on the floor and the robbers then fled. Police were called and the scene of the offense was processed for fingerprints with negative results.
On March 28, Bradford R. Jones, Gerald Miller and Miller's wife were arrested at the Miller residence. Police interrogation of Miller and Jones followed as detailed in the case of State v. Jones, No. 28,583, Mo.App., 558 S.W.2d 233, decided contemporaneously with this case. Miller's statement admitted that he and Jones carried out the Hen House robbery.
Jones was indicted for the offense. On the day of trial, the state substituted an information for the indictment. The information added the charge of a prior conviction in Kansas in order to invoke the second offender act. At a pretrial hearing the court found the second offender law applicable.
At Jones's trial, the Hen House employees testified, but neither could identify either Jones or Miller as the robbers. Miller testified to the carrying out of the robbery. Detective VanBuskirk testified that Jones had stated that Miller's statement which VanBuskirk reduced to writing was true.
No evidence was offered by the defendant.
The jury returned a verdict of guilty and the trial court fixed punishment at 20 years' imprisonment and entered judgment and sentence accordingly.
In this court, appellant has repeated verbatim the objection and argument made in State v. Jones, No. 28,583, to the trial court's overruling of his motion to suppress the use in evidence of his statement to VanBuskirk. A single hearing was held on the motion to suppress. The evidence so presented has been detailed in No. 28,583. What was there said is dispositive of the complaint here voiced.
Appellant's second assignment of error also employs the identical argument found on the second point in No. 28,583 the complaint of the state's use of evidence of other offenses. Here appellant complains of evidence of his possession and use of narcotics, the theft of an auto for use in the Hen House robbery, and the numerous offenses with which Miller was charged, which appellant contends were inferentially charged to him also. In addition to the reasons for rejecting the assignment of error in No. 28,583, the assignment here is without merit for the further reason that there was no objection to Miller's testimony about the car theft nor to his testimony that "we were coming off of heroin" at the time of his arrest. Furthermore, appellant's cross-examination of VanBuskirk went into at length appellant's withdrawal symptoms at the time of his interrogation. For this reason as well as those stated in No. 28,583, this assignment of error is without merit.
Appellant's third assignment of error relates to VanBuskirk's reading of the excerpts from Miller's statement dealing with the Hen House robbery. Again the same argument is advanced as was rejected in No. 28,583 and what was said there is dispositive of the objection here.
The fourth assignment of error is based on statements of the prosecutor in his argument to the jury. Again, as in No. 28,583, the complaint raised is that the prosecutor commented upon the failure of the defendant to testify. The remarks objected to at trial on that ground were: At this point, defense counsel objected and the objection was overruled. The prosecutor continued:
Again, as with the points previously considered, the argument here advanced is identical with that made by appellant in No. 28,583. What was said there answers the complaint now considered. There was no direct reference to appellant's failure to testify and the trial court's ruling was not error.
Appellant's next assignment of error is based on the overruling of his oral motion to disqualify the judge. As above noted, on the day that the case came on for trial the state was permitted over his objection to substitute an information for the indictment against appellant. The only change was to allege a Kansas conviction which would make the second offender act applicable.
Defense counsel then moved orally to disqualify the judge on the grounds that because the judge had presided at the trial of No. 28,583, "the Court would have judicial knowledge of matters that would cause him to be prejudiced against this defendant * * * ." The motion was overruled. Inasmuch as the motion was neither in writing nor supported by affidavit as required by Rule 30.12, the trial court's action was not error. State v. Thost, 328 S.W.2d 36, 39(5) (Mo.1959); State v. Johnson, 522 S.W.2d 106, 110-111(7-8) (Mo.App.1975).
Appellant next contends that the trial court failed to make specific findings calling for the application of the second offender act. § 556.280, RSMo 1969. The only ground of error relating to the second offender act found in appellant's motion for new trial was that the evidence of the previous offense was erroneously admitted for various reasons. The objection here raised has not been preserved for appellate review.
Appellant next contends that the trial court made prejudicial remarks to defense counsel during the cross-examination of Miller. Counsel cross-examined Miller concerning the arrangement with Missouri officials whereby numerous charges were dropped in return for Miller's agreement to testify against appellant. Miller was also asked about pleading guilty to a Kansas charge. Defense counsel expressed interest in the arrangements whereby Miller went back and forth between Missouri and Kansas in connection with the charges. Miller testified that he pleaded guilty to two charges in Missouri but was not sentenced on the pleas. He remained free on bond on the Missouri charges. He then went to Kansas, entered a plea and was sentenced on the Kansas charge. He then reappeared in Missouri to testify against appellant. In the course of the examination, the following incident, which is the basis of the claim of error, occurred:
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