State v. Kent, KCD

• Decision Date: 08 July 1980
• Docket Number: No. KCD,KCD
• Citation: 602 S.W.2d 799
• Parties: STATE of Missouri, Respondent, v. Daniel L. KENT, Appellant. 30336.
• Court: Missouri Court of Appeals

Page 799

602 S.W.2d 799

STATE of Missouri, Respondent, v. Daniel L. KENT, Appellant.

No. KCD 30336.

Missouri Court of Appeals, Western District.

July 8, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Aug. 4, 1980.

Application to Transfer Denied Sept. 9, 1980.

William F. O'Sullivan of Bunch, O'Sullivan, Sandifer & Hill, Kansas City, for appellant.

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

Before TURNAGE, P. J., and SHANGLER and MANFORD, JJ.

MANFORD, Judge.

This is a direct appeal from a jury conviction for rape. Punishment was assessed by the court at 25 years in the Department of Corrections. The judgment is affirmed.

Four points are presented. Appellant alleges the trial court erred by failing to submit the issue of punishment to the jury upon failure of formal finding of the applicability of the Second Offender Act, and absent such finding the issue of punishment should have been determined by the jury; the trial court committed plain error in response to jury inquiry regarding testimony which by its effect was a supplemental instruction in conflict with MAI-CR 2.01; the trial court erred in overruling appellant's motion to quash the victim's testimony regarding identification of appellant because said identification was impermissibly suggestive; and as his final point, appellant alleges the trial court committed plain error by injecting itself into the trial by the asking of questions or the making of suggestions to questions tending to elicit favoritism for the prosecution and the court directed critical remarks toward defense counsel which reflected the court's attitude that appellant was guilty, thereby depriving appellant of a fair trial.

The sufficiency of the evidence is not challenged, so a summary thereof suffices. The evidence reveals the victim, a fourteen-year-old girl, agreed to babysit for a friend. The friend, mother of two small children, the friend's sister and brother-in-law transported the victim to the mother's apartment and arrived there between 5:30/6:00 p. m. Shortly after their arrival, appellant and a girlfriend arrived at the apartment whereupon appellant attempted to borrow money from the friend's brother-in-law. Appellant was briefly introduced to the victim but the latter was watching TV and engaged in no conversation with appellant.

The mother, her sister and brother-in-law left for a drive-in movie about an hour later, leaving the victim with the two small children. Between 8:15 p. m. and 8:30 p. m., a downstairs neighbor observed appellant returning to the apartment where the victim was babysitting. The details of the rape were testified to by the victim, including the tearing of her clothes and abrasions and bruises on various parts of her body.

The defense was alibi. Appellant called the female physician who completed the pelvic examination of the victim. Appellant also called a police officer who testified that a call had been made to the apartment and the victim disclaimed the presence of any other persons in the apartment besides the minor children and herself. As his final witness, appellant called a friend who testified appellant was at a party in another location the evening of the rape.

The jury found appellant guilty and the court affixed sentence. Timely motion for a new trial was filed and overruled and this appeal followed.

Appellant's first argument centers upon the applicability of the Second Offender Act and if inapplicable, claims the jury should have affixed punishment. Appellant contends the court made no formal ruling upon the Second Offender Act, but the record fails to support this contention. The record discloses a pretrial conference where the prosecution was granted leave to file an amended information in lieu of indictment so as to include the Second Offender Act. During this conference, the only attack made was by defense counsel that the prior conviction of appellant (January 13, 1972) was at a time when appellant was sixteen years old. The record reveals, however, a certified copy of the prior offense, including the incarceration of appellant in the Department of Corrections on charges of felonious assault. The record further reveals the court admitted the records of the prior offense into evidence.

From the record, it is found appellant's first argument is totally without merit. Appellant had pled guilty to a previous felony charge, that record was properly made a part of these proceedings and the court, not the jury, could, pursuant to the then applicable statute (§ 556.280, RSMo 1969 ¹), assess punishment upon conviction.

Appellant argues that since the trial court did not make specific findings and hence a "formal" finding of the applicability of the Second Offender Act, error was committed upon failing to submit the question of punishment to the jury. This view is no longer valid in our state since the decision in State v. Blackwell, 459 S.W.2d 268 (Mo. banc 1970), which provides that if the record denotes necessary and sufficient facts and the trial court makes a general finding, then the Second Offender Act applies. See also State v. Franklin, 547 S.W.2d 849 (Mo.App.1977), which holds that even a general finding of applicability may be dispensed with if necessary facts relative to the applicability of the act are shown or proven. It is the rule under State v. Franklin, supra, that applies to the instant case. The record reveals necessary facts showing the conviction for a prior felony, the incarceration of appellant and the admission of that evidence on the record.

Point I is ruled against appellant.

Turning to appellant's second alleged error, it is claimed the trial court committed plain error by the court's response to the jury during the jury's deliberation. Matters of manifest injustice and miscarriages of justice are reviewable as plain error by this court, see Rule 29.12 (formerly Rule 27.20(c)). Appellant contends the court's response was tantamount to a supplemental instruction to MAI-CR 2.01 relating to the credibility of testimony of one of the state's witnesses.

As appellant argues, a trial court is prohibited from giving to a jury supplemental instructions or in any way communicating any message which in fact or by result overemphasizes any one aspect of the law in the case, see State v. Amos, 553 S.W.2d 700 (Mo. banc 1977).

Shortly after retiring for its deliberation, the jury asked the court the following question:

"Can the physical evidence, i. e., the green socks, be shown to the witnesses during preliminary interviews and depositions before and outside of the actual court proceedings? Example : State, before trial go over evidence with witness."

Upon receipt of the foregoing communication, the court gathered counsel for the defense and the prosecution to discuss the inquiry. The response set forth below was approved on the record by both attorneys. Appellant's counsel stated on the record, "That's a fine answer". Counsel for the state responded, "Sounds great". The court's answer was as follows, "I am not sure I understand the question, but it seems to be in a general area about which you should not be concerned. Continue your deliberations." ²

The state appears to argue that since appellant did not object to the court's response but in fact agreed to it, coupled with appellant's failure to preserve the point in his motion for new trial, this court should not review the matter. Plain error is alleged and by virtue thereof, this court takes up the entirety of the contention.

In the first instance, the mere reading of the exchanged communication does not lend support to appellant's argument. Inherently, the exchanged communication does not even suggest, let alone establish, any comment upon the credibility of any witness and most certainly does not, by its very nature, rise to any form of supplemental instruction to MAI-CR 2.01.

There is nothing within the record of this case to establish or suggest the pretrial preparation of any witness by the prosecution. The appellant, in his brief, tacitly admits this when he declares, "in this case there was no evidence that the witness had or had not been coached . . ."

Appellant contends the instant case falls within the rule of State v. Amos, supra; Houston v. Northup, 460 S.W.2d 572 (Mo. banc 1970) and Teaney v. City of St. Joseph, 548 S.W.2d 254 (Mo.App.1977). As was pointed out above, State v. Amos, supra, involved a case where the trial court is prohibited from overemphasizing one aspect of the law. That case involved the giving of a supplemental instruction (on second degree murder) over objection, when the jury expressed difficulty in deriving a verdict upon the charge of first degree murder. The supplemental instruction was upon an otherwise unmentioned offense and such act by the trial court was held to be reversible error. Houston v. Northup, supra, finds no application to the instant case because in that case, the trial court, on its own motion and not at the request or upon the approval of either party, gave to the jury an improper clarifying instruction which emphasized that where two theories of recovery were possible, but failed to include reference to existing defenses, such clarifying instruction was prejudicially erroneous. In Teaney v. City of St. Joseph, supra, the court sent to the jury after deliberations had commenced a qualifying instruction which included a superfluous reference to one instruction, therefore "interjected a new note on aspect as to which the jury had made no inquiry."

By the very reading of the exchanged communication, it becomes clear no prejudice resulted therefrom. There was no plain error and Point II is ruled against appellant.

By way of appellant's third alleged error, he argues that his identification by the victim was impermissibly suggestive. Identification which is unnecessarily suggestive is not permitted, see ...