State v. Lewis
| Decision Date | 02 March 1982 |
| Docket Number | No. WD,WD |
| Citation | 633 S.W.2d 110 |
| Parties | STATE of Missouri, Respondent, v. Wilbur LEWIS, Jr., Appellant. 31885. |
| Court | Missouri Court of Appeals |
James W. Fletcher, Public Defender, Gary L. Gardner, Asst. Public Defender, Kansas City, for appellant.
John Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before SOMERVILLE, C. J., and SHANGLER, PRITCHARD, WASSERSTROM, TURNAGE, CLARK and KENNEDY, JJ.
The defendant Lewis was convicted on separate counts of robbery second degree (§ 569.030, RSMo 1978), stealing (§ 570.030) and burglary first degree (§ 569.160). The defendant was charged as a dangerous felon (under § 558.016) in each count. The jury returned sentences of ten years for robbery, five years for stealing and ten years for burglary. The court ordered that the multiple sentences run consecutively. The court, after evidence, expressly determined that the twenty-five year sentences returned by the jury were a sufficient punishment, and so withheld exercise of the power to enhance punishment against the defendant as a dangerous offender under § 558.016.1.
The defendant contends, first, that the trial was made unfair by the requirement to wear a green shirt with County Jail, Co. Jail, or a like legend, on the back. He contends that this apparel with the jailhouse mark infringed the presumption of innocence due the defendant on a criminal trial. No doubt, to compel an accused to display himself to the jury in attire readily identified as prison dress, disparages the presumption of innocence and impairs a fair trial. Estelle v. Williams, 425 U.S. 501, 504, 96 S.Ct. 1691, 1693, 48 L.Ed.2d 126 (1976). The record shows no compulsion of dress, and so no infringement of right.
The complaint relates to the second day of the proceedings. The first day was taken with voir dire. The evidence does not show what the defendant wore that first day, but the colloquy on the post-trial motion intimates that it was personal apparel. Nor does the record suggest why that dress was no longer suitable on the successive day. From what appears, the defendant was presented for trial on that second day clothed in black trousers and suede shoes-both personal accoutrements-but in a green blouse furnished by the jailer. The court noted in comment:
A family member brought a change of shirt for the defendant during the noon recess and the trial proceeded without any report of an undue juror notice of the jail mark on the garment.
The defendant argues on the motion for new trial that on that second day of the proceedings, as he bent to consult with counsel, he noticed a male juror "looking at my shirt." The recollection of the court was to the contrary. The transcript does not contain a report of that incident to the court nor that any objection was lodged. The complaint that the defendant was put to an unfair choice between dirty mufti or tidy jail dress-that the one presented the defendant as a person of slovenly habits and the other as a person unduly suspect of the crime-does not rest on fact. The jail guard reported to the court that a clean shirt was available but that the defendant refused the garment. In open court, before the jury convened on the second day, the defendant explained the rejection: the shirt was "all wrinkled up." The choice of the prison dress instead was free, not compelled. A constitutional infringement is not shown; the complaint is denied. State v. Crump, 589 S.W.2d 328, 329 (Mo.App.1979).
The defendant contends also that robbery second degree encompasses stealing, so that the separate sentences for the convictions of those offenses-proven by the same conduct-constituted unlawful multiple punishments 1 in violation of the intendment of the criminal code. The prosecution responds that the robbery and stealing were distinct criminal events separated, perpetrated and separately proved, so that the several consecutive punishments do not offend constitutional principle. Inquiry into the lawfulness of multiple convictions (and hence, punishments) begins, not with a constitutional decision, but with the intendment of the statutes-where such an analysis suffices for the purpose. Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 1752, 64 L.Ed.2d 381 (1980); State v. Olds, 603 S.W.2d 501, 510 (Mo. banc 1980).
Our statutes enact a scheme to limit conviction for multiple offenses within this prescription:
When the same conduct of a person may establish the commission of more than one offense he may be prosecuted for each such offense. He may not, however, be convicted of more than one offense, if
(1) One offense is included in the other, as defined in section 556.046; ....
1. A defendant may be convicted of an offense included in an offense charged in the indictment or information. An offense is so included when
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; ...
2. The court shall not be obligated to charge the jury with respect to an included offense unless there is a basis Thus, as a matter of statutory policy, the state authority may prosecute and convict a person for multiple offenses from the same conduct, except that a conviction may not be returned on both an inclusive offense and the included offense, but only on either. Comments, The Missouri Criminal Code: A Manual for Court Related Personnel § 1.9 (1978).
for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.
The defendant was prosecuted and convicted under Count II for robbery second degree and under Count III for stealing from the same victim. The defendant agrees that both prosecutions and convictions were established by the same conduct. He contends that by the plain definition of § 556.046, stealing is an offense included within robbery second degree, and by the plain prescription of § 556.041, a defendant may not be convicted of more than one offense. Thus, he argues, the court was without authority under these statutes to convict (and then to punish) for stealing in addition to robbery second degree.
The code definition of included offense enacts, in paraphrase, the Blockburger 2 test that where the same conduct constitutes a violation of two distinct statutory provisions, "the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not,"-if so, there is no identity of offense. State v. McCrary, 621 S.W.2d 266 (Mo. banc 1981); State v. Chambers, 524 S.W.2d 826, 829(1, 2) (Mo. banc 1975). The criminal code defines robbery second degree (§ 569.030) as the forcible stealing of property. The criminal code defines stealing (§ 570.030) as the appropriation of the property or services of another without consent of the other or by means of deceit or coercion. The term forcible stealing is further defined (§ 569.010(1) ) as the use or threat of immediate physical force upon the other to (among other purposes) overcome resistance to the caption of the property or to compel the owner to deliver up the property. Thus, robbery second degree is a composite of two elements: stealing and the use of force, actual or threatened. As such robbery second degree subsumes all of the elements of stealing so that proof of robbery second degree necessarily proves a stealing. In terms of § 556.046.1(1) (and the essential Blockburger ), "(stealing) is established by proof of the same or less than all of the facts required to establish the commission of (robbery second degree)" and so is an included offense of robbery. 3 The Blockburger rule rests on the assumption that a legislature usually does not intend to punish the same offense under two different statutes. "Accordingly, where two statutory provisions prescribe the 'same offense,' they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent." Whalen v. United States, 445 U.S. 684(8, 9), 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). We conclude that the criminal code demonstrably does not intend to allow a court to To avoid infringement of the clear statutory purpose against multiple convictions on both the inclusive offense and the included offense, MAI-CR 2d has formulated model instruction 2.05 Lesser Graded or Included Offenses which allows rendition of only one guilty verdict whatever the multiplicity of submissions. A defendant may not insist on a jury charge as to an included offense, nor does the court have obligation, "unless there is a basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense." § 556.046.2. In terms of the offenses prosecuted: robbery second degree and stealing-s 556.046.2 obligates a court to instruct on the lesser offense (stealing) "if the jury could find that stealing occurred but that it was not 'forcible' stealing." The New Missouri Criminal Code: A Manual for Court Related Personnel §...
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