State v. Lue

• Decision Date: 13 May 1980
• Docket Number: No. 61656,61656
• Citation: 598 S.W.2d 133
• Parties: STATE of Missouri, Respondent, v. McKinley LUE, Appellant.
• Court: Missouri Supreme Court

Page 133

598 S.W.2d 133

STATE of Missouri, Respondent, v. McKinley LUE, Appellant.

No. 61656.

Supreme Court of Missouri, En Banc.

May 13, 1980.

Robert Beaird, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Earl W. Brown, III, Asst. Atty. Gen., Kansas City, for respondent.

MORGAN, Judge.

Appellant was convicted by a jury of robbery in the third degree ¹ and was sentenced as a second offender to five years confinement. The Western District of the Court of Appeals, in an opinion written by Manford, J., affirmed the conviction and on appellant's motion transferred the cause to this Court pursuant to Rule 83.02 and Mo.Const. art. V, § 10. The transfer apparently was made that this Court might clarify its opinion in State v. Light, 484 S.W.2d 275 (Mo.1972), pertaining to the computation of time under a motion to disqualify a judge, as indicated in the concurring opinion of Somerville, J. We, too, affirm the judgment entered by the trial court.

Appellant and Willie Mae Hodge were jointly charged with acting in concert in extorting $60.00 from one Ms. Hemphill, who was a student at Lincoln University when she met appellant and Ms. Hodge. After at least two meetings with the pair and several telephone conversations with appellant, Ms. Hemphill testified that she told appellant she didn't want to see him or anyone connected with him again. Ms. Hemphill testified that a few days later she received a telephone call from appellant in which he threatened to have someone beat her or to beat her himself and have her parents' house burned down, ("that he had had it done before,") unless she would go to the house where he was staying and talk to him. She went to the house, and there he threatened her again, saying he would kill her, that he had people working for him who beat up and killed people "that did him wrong." Ms. Hemphill also testified that appellant forced her to go into the bedroom, again uttering threats, and then forced her to have sexual relations with him. Later appellant told Ms. Hemphill that if she told anyone about the incident he would send pictures of them in the bedroom to her parents. She testified that he told her he "had the bedroom rigged where he could take pictures."

Ms. Hemphill's appendix ruptured the next day, and while she was in the hospital she received phone calls from appellant saying he would carry out his threats to her if she told anyone of the sexual assault. Upon being released from the hospital Ms. Hemphill went to her parents' home in St. Louis for two weeks, and appellant called her several times "trying to pressure me into hurrying up and coming back to Jefferson City." When she did return to school in Jefferson City, Ms. Hemphill testified that she received other threatening phone calls from appellant, during one of which he demanded money from her. She wrote a check for $60 for Ms. Hodge at appellant's demand, she testified. Appellant had threatened to send the pictures of them in the bedroom to her parents and to have the pictures posted on campus. She testified that he also said he would have a man called G.W. beat her up. More threats were made by appellant and more checks were written or cashed, Ms. Hemphill said.

The right to disqualify a judge by reason of his alleged interest or prejudice is established in § 545.660, RSMo, ² and supplemented by Supreme Count Rule 30.12. ³ At a minimum, exercise of the "right" requires a reasonable notice to the opposite party and filing of an affidavit alleging the prejudice "not less than five days before the day the case has been set for trial." In this case, appellant's motion for disqualification of the trial judge was overruled for failure to meet both conditions. The docket entry read: "Let the record show the motion to disqualify the Judge is overruled, having been filed out of time and failure to give prior notice to the Prosecuting Attorney."

The facts pertinent to this initial issue are: The captioned cause had been set for trial on Wednesday, February 22, 1978; notice was given to the prosecuting attorney on February 14; the motion to disqualify and the required affidavit were filed with the court on Wednesday, February 15. Rule 31.01 (captioned Time, Computation of) provides, in part, that: "When the allowed period is less than seven days, intermediate Sundays and legal holidays, if any, shall be excluded in the computation." ⁴

It is agreed that the day of filing (15th) does not count, and the rule itself eliminates Sunday (19th) and the following Monday (20th), which was a legal holiday. Thus, the only days available to count toward the "five days" requirement are: Thursday the 16th, Friday the 17th, Saturday the 18th and Tuesday the 21st. There being only four days, clearly, the filing was not "five days before the day the case (had) been set for trial." Any dictionary definition of the word "before" includes expressions such as "earlier than," "preceding," or "in advance of," and the trial setting date cannot be used to obtain the fifth day. Unfortunately, this Court inadvertently suggested otherwise in State v. Light, supra. There, the case was set for trial on Wednesday, October 28. The "filing" was on Friday, October 23. The Court said, at 275, that: "The motion was filed only four days before trial date, the day of filing and the intervening Sunday not being counted under Rule 31.01." The correct number of days countable under the rule should have been three, i. e., Saturday October 24, Monday October 26, and Tuesday October 27. Any indication otherwise found in State v. Light should be rejected.

Appellant's affidavit and motion having failed because not timely filed makes it unnecessary to discuss whether or not this notice to the prosecuting attorney was "reasonable."

Appellant also claims that the trial court erred in admitting testimony by the victim about prior and subsequent threats against her by appellant and about other checks she said she wrote for his benefit as a result of those threats. All of the testimony about the threats came into the record without objection. Appellant now asks that this testimony be reviewed pursuant to Rule 29.12(b) which permits "(p)lain error affecting substantial rights" to be considered on appeal, though not raised in the trial court or preserved for review "when the court finds that manifest injustice or miscarriage of justice has resulted therefrom." ⁵ Before this rule can be invoked, however, "there must be a sound, substantial manifestation . . . a strong, clear showing, that injustice or miscarriage of justice will result . . . ." State v. Meiers, 412 S.W.2d 478 (Mo.1967).

The general rule is that proof of the commission of separate and distinct crimes is not admissible unless such proof has some legitimate tendency to establish directly the defendant's guilt of the charge for which he is on trial. Among the exceptions to this rule is that evidence of other crimes is competent when it tends to establish a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish proof of the other. Crimes are not so related when they "are not so blended or connected that the investigation of one involves an inquiry into the other." State v. Buxton, 324 Mo. 78, 22 S.W.2d 635, 637 (1929); State v. Spray, 174 Mo. 569, 577, 74 S.W. 846, 849 (1903); State v. Goetz, 34 Mo. 85, 91 (1863). The more modern statement of this definition as quoted in State v. Griffin, 497 S.W.2d 133, 135 (Mo.1973) is "where two distinct offenses are so inseparably connected that proof of one necessarily involves proving the other . . . ." The testimony here fell within the above exception because it revealed a pattern of conduct designed to intimidate the victim to such an extent that she would give appellant money. The pertinent statute, § 560.130, RSMo 1969, required that money or property be gained by intimidation through accusation or threat. Each act of extortion was inseparably connected to the other in proving the element of intimidation and therefore was admissible under the stated exception.

In this regard appellant also complains of testimony of a defense witness on direct examination about a conversation he had with the victim in which she told him that appellant had threatened her with a beating by another man and had claimed that he had arranged to have houses burned in Mobile, Alabama. Appellant also points to a remark by the same witness, the Cole County sheriff, on direct that he had interviewed the victim in the course of an extortion and kidnapping investigation. The fact that his testimony was elicited on direct examination by appellant militates against its consideration under the plain error rule. In addition, statements about the other threats would fall within the exception discussed above, and the reference about the sheriff's investigation of other crimes was in no way linked to appellant by the sheriff. The mere mention of another offense is not per se prejudicial in the trial of a criminal case. State v. Blocton, 394 S.W.2d 323, 325 (Mo.1965). No error occurred in this instance.

Appellant also complains that the scope of cross-examination of the sheriff by the state was impermissibly broad, resulting in prejudicial error. On direct, the sheriff was asked to relate parts of his conversation with the victim during an investigation of another crime. Appellant's counsel presented the sheriff with a typed transcript of the conversation, which the sheriff had tape recorded, and urged the sheriff to use the transcript to "refresh his recollection." Appellant's counsel then inquired of the sheriff about the victim's statements about the first check written on May 13. During this examination the prosecutor objected to the witness's reliance on the transcript in testifying, saying the document was entirely hearsay and that no proper foundation had been laid for its use in proving a prior inconsistent...