State v. Kent, 44381

• Decision Date: 18 May 1982
• Docket Number: No. 44381,44381
• Citation: 637 S.W.2d 119
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Leo KENT, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 119

637 S.W.2d 119

STATE of Missouri, Plaintiff-Respondent, v. Leo KENT, Defendant-Appellant.

No. 44381.

Missouri Court of Appeals, Eastern District, Division Two.

May 18, 1982.

Motion for Rehearing and/or Transfer Denied July 16, 1982.

Application to Transfer Denied Sept. 13, 1982.

Gene P. Schultz, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., Kristie Green, Melinda Corbin, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

GUNN, Judge.

Defendant appeals his two count conviction for first degree robbery and first degree assault. His appeal presents a grand farrago of alleged trial court errors: (1) overruling defendant's motions for judgment of acquittal at the close of the state's case and of the entire case based on insufficiency of evidence to convict; (2) failing to suppress identification testimony based on improperly suggestive procedures; (3) instructing on robbery and assault in the first degree by reason of the latter's being a lesser included offense of the former; (4) failure to appoint counsel other than the public defender due to a conflict of interest; (5) failing to find defendant's waiver of right to counsel was involuntary; (6) prohibiting defendant from presenting evidence that defendant's co-participant had not been similarly charged.

We affirm, considering certain issues under plain error. Rule 29.12(b).

The robbery and assault charges against defendant stem from an incident at the Fiesta Meat Company in St. Louis. Two men, one positively identified as defendant, entered the market in late afternoon. Defendant immediately crashed into the room in which Daniel McSellers, the security guard, was seated. Before McSellers could react effectively, defendant shot him three times-in the abdomen, arm and hip. Defendant then took McSellers' revolver and pushed the wounded man into an outer room in which he made him lie on the floor. Defendant's companion emptied the cash register with the involuntary aid of Lee Jackson, a meat market employee. Defendant and his companion then sprinted away with their malgained lucre. McSellers had defendant under constant observation during the entire episode. Jackson's focus also centered on him.

Both McSellers and Jackson subsequently identified defendant from police photograph albums, followed by positive in-court identifications of him as being involved in the crime.

Defendant testified in his own behalf. His version of events was that he had been robbed by McSellers in a crap game in a St. Louis gambling house. Seeking only the return of his gambling fortune, defendant had left the gaming house, obtained a gun from a friend, retraced his steps and ordered McSellers to give up the money wrongfully taken from him. Knowing gambling to be illegal, defendant had not called the police about McSellers' robbery of him. Instead, he fled to Erie, Pennsylvania where he was ultimately apprehended.

Defendant's first point concerns the trial court's overruling his motion for judgment of acquittal at the close of the state's case and at the close of all the evidence. He contends that the identification of him as being the perpetrator of the crime was inherently incredible and urges that implication by eye witness testimony, without more, forms an unsatisfactory basis for conviction. Defendant offers many pedigogical treatises which condemn eye witness testimony as the basis for his argument.

Defendant's argument that the trial court erred by overruling his motion for judgment of acquittal at the close of the state's case deserves no consideration. It is fundamental legal rubric that by presenting testimony in his own case-as defendant did-allegation of error concerning action on the motion is waived. State v. Ritterbach, 627 S.W.2d 894, 896 (Mo.App.1982); State v. Brueckner, 617 S.W.2d 405, 410 (Mo.App.1981).

With regard to defendant's contention of insufficiency of the evidence to support the conviction, we are not commissioned to review the weight of the evidence. State v. Greathouse, 627 S.W.2d 592, 596 n.1 (Mo.1982). There was substantial evidence from which the jury could easily conclude that the defendant was absolutely involved in the lupine attack on McSellers and the robbery.

Despite some contradiction in both McSellers' and Jackson's identifications of defendant's photos from police albums, considering the totality of the circumstances, the identifications were reliable. The witnesses had opportunity to view the defendant at the time of the crime, were attentive in their viewing of him and accurately described him to police. The witnesses were also certain of their identification, and the time between the crime and the identification was brief. No one unduly suggested to McSellers and Jackson, as they made their identifications, that defendant was the offender. Thus, the in-court identifications bear no maculation and were proper and congruent with the holdings of Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972), State v. Higgins, 592 S.W.2d 151, 160 (Mo.banc 1979), appeal dismissed, 446 U.S. 902, 100 S.Ct. 1825, 64 L.Ed.2d 254 (1980), and State v. Green, 635 S.W.2d 42 (Mo.App.W.D.1982).

Defendant examined the witnesses in substantial detail regarding identifications, so the jury was well able to evaluate their reliability. State v. McKinney, 633 S.W.2d 164 (Mo.App.1982). It is, after all, the jury's responsibility and function to determine the weight to be given to identification testimony. State v. Sanders, 628 S.W.2d 390, 392 (Mo.App.1982).

Defendant argues a double jeopardy violation by the trial court's instruction for both first degree robbery and first degree assault. ¹

We need not dissertate on the evidence beyond that previously related. It is sufficient to state that the assault upon McSellers and the robbery of Jackson were separate and distinct crimes, and the jury was properly instructed. Baker v. State, 584 S.W.2d 65, 69 (Mo.banc 1979); State v. Neal, 514 S.W.2d 544, 548-49 (Mo.banc 1974).

Defendant next asserts that because of a conflict within the public defender's office, he was forced to represent himself and was thereby deprived of effective assistance of counsel.

Treatment of this issue requires some background. Defendant had two prior trials in which he had been represented by an attorney from the public defender's office. Each trial had resulted in a hung jury. But because defendant had become somewhat contentious with his first lawyer, she asked to be relieved from further representation of him, and another lawyer from the public defender's office was assigned as counsel. Defendant rejected the second public defender and requested the trial court to appoint someone unaffiliated with that office. The trial court, finding that the second attorney assigned to defendant was experienced and competent, denied the request. Defendant then chose to represent himself, though counsel from the public defender sat by him, was available for consultation and aided in the case.

On appeal defendant contends that the trial court erred in failing to delve into the matter of whether a conflict existed within the public defender's office. Hence, he argues, he was forced to represent himself rather than being allowed to select an attorney outside the public defender's office, thereby being denied effective assistance of counsel. The reasoning advanced is qualitatively deficient.

There is a basic tenet that a criminal defendant has no absolute right to a particular attorney. State v. Armstrong, 624 S.W.2d 36, 38 (Mo.App.1981). The tactic applied by defendant in this case is not unique; it has been tried before without remarkable success. The best response to defendant's argument is expressed in State v. Denny, 619 S.W.2d 931 (Mo.App.1981):

Defendant's constitutional right to counsel is within the discretion of the court. State v. Hamblin, 448 S.W.2d 603, 607(7) (Mo.1970); State v. Rollie, 585 S.W.2d 78, 85(7) (Mo.App.1979). The defendant's disagreement with advice given by the appointed lawyer did not alone entitle him to a change of counsel. State v. Hollins, 512 S.W.2d 835, 838(2) (Mo.App.1974). Likewise,...