State v. McCrary

Decision Date08 September 1981
Docket NumberNo. 62236,62236
Citation621 S.W.2d 266
PartiesSTATE of Missouri, Respondent, v. Jerry McCRARY, Appellant.
CourtMissouri Supreme Court

Michael D. Stokes, Frances M. Luehrman, St. Louis, for appellant.

John Ashcroft, Atty. Gen., Nancy Kelley Baker, Asst. Atty. Gen., Jefferson City, for respondent.

WELLIVER, Judge.

Appellant was tried on a four count indictment and convicted by a jury on all four counts. Count I charged appellant with assault with intent to kill with malice aforethought, § 559.180, RSMo 1969, and concerned a shooting that occurred on November 13, 1978. The jury assessed the punishment on this count at life imprisonment. Counts II and III concern the firebombing of a house on March 8, 1979. Count II charged appellant with arson in the first degree, § 569.040.1, RSMo 1978, and the jury assessed the punishment on this count at a term of fifteen years imprisonment. Count III charged appellant with assault in the first degree, § 565.050.1(3), RSMo 1978, and the jury assessed the punishment on this count at a term of thirty years imprisonment. Count IV charged appellant with carrying a concealed weapon, § 571.115, RSMo 1978, on March 12, 1979, and the jury assessed the punishment on this count at a term of five years imprisonment. Count IV charged that appellant is a persistent offender under § 558.016, RSMo 1978. The trial court found appellant to be a persistent offender. The trial court did not increase the punishment assessed by the jury but imposed sentences in accordance with the jury's verdicts. This Court has jurisdiction over this case, because a sentence of life was imposed. Mo.Const. Art. V, § 3.

Appellant contends that the trial court erred: (I) in not dismissing either Count II or III, because the charging of both counts placed appellant twice in jeopardy for the same offense; (II) in not granting appellant's motion to sever, because there was an improper joinder of offenses; and (III) in admitting evidence obtained through an unconstitutional search and seizure. We affirm appellant's convictions.

Appellant lived with Lydia Penermon without the benefit of marriage for a number of years, having two children by her. Their relationship was somewhat turbulent, and, in May of 1978, Lydia left appellant. Shortly thereafter, Lydia started to live with Rufus Penermon, whom she married on July 16, 1978.

Early Monday morning, November 13, 1978, Rufus, Lydia, and the children were leaving their home, located at 4241 East Evans, St. Louis, Missouri. As Lydia and the children were getting into a car, Rufus walked out into the backyard to unlock a gate. As Rufus returned to the car, three gunshots were fired. One shot struck Rufus in the back, and he was subsequently hospitalized. Neither Rufus nor Lydia could identify the man who fired the shots. The police recovered two spent bullets near one of the parked cars in the backyard. The next day, Lydia received a telephone call from appellant in which he said, "I wanted to see the kids. Next time I'm going to kill him." About a month prior to the shooting, appellant had telephoned Rufus and said, "If you don't stay away from my woman, ... I'm going to kill you." Both Rufus and Lydia testified that appellant made numerous threats against them.

Appellant had told Lydia that, "If I can't see the kids I'm going to burn the house down." On March 8, 1979, while Rufus Penermon was recuperating, appellant telephoned Lydia and told her, "If you don't come back to me ... I'm going to do something bad tonight." At about 9:40 that evening, Rufus, Lydia, and the children were in their respective bedrooms on the second floor of 4241 East Evans. John Penermon, Rufus' father, was on the first floor of the house, where he permanently resided. John testified that as he was walking through his bedroom he looked out the window just as appellant threw a firebomb which landed in his bedroom. The firebomb burst into flames burning John's face and hands, and he was hospitalized for these injuries.

On March 12, 1979, Officer Richard Arthur responded to an anonymous call to investigate a suspicious person described as, "A (N)egro male wearing a black hat, black coat, black trousers and, ... a black shirt and holding a long or large cardboard box." Officer Arthur arrived in the vicinity of 4226 East Evans and saw a black man who was dressed in black and carrying a long cardboard box. This man was later identified as appellant.

Upon seeing Officer Arthur, appellant dropped the cardboard box on the ground near the street and walked away. Officer Arthur testified that he stopped appellant and determined that he was not carrying a weapon. At this time, Officer Clyde Bailey arrived and watched appellant as Officer Arthur went back to the place where appellant had dropped the cardboard box on the ground. One end of the box was open and the contents were clearly visible to anyone who picked the long narrow box up from the ground. Officer Arthur discovered a .22 rifle, live shells, and a homemade silencer inside the box. A firearms identification expert testified that bullets fired from the .22 rifle matched the two spent bullets recovered near the Penermons' car on November 13, 1978, indicating that the .22 rifle that was found in the box fired the bullets at the November 13, 1978, shooting.

Lydia Penermon testified that appellant often came by and did things like throwing something into the house or shooting into the house to harass them.

I

Appellant contends that the charging of Count II (arson in the first degree) and Count III (assault in the first degree) placed appellant twice in jeopardy for the same offense, because arson in the first degree is a lesser included offense within assault in the first degree under the facts of this case.

In Sours v. State, 593 S.W.2d 208 (Mo.banc 1980), vacated and remanded sub nom. Missouri v. Sours, 446 U.S. 962, 100 S.Ct. 2935, 64 L.Ed.2d 820 (1980), incorporated by reference on remand, Sours v. State, 603 S.W.2d 592, 603 (Mo.banc 1980), cert. denied, --- U.S. ----, 101 S.Ct. 953, 67 L.Ed.2d 118 (1981), we stated:

The test for determining whether two offenses are "the same" for double jeopardy purposes was stated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932):

The applicable rule is that where the same act or transaction 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. Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421 (422), 55 L.Ed. 489, and authorities cited.

593 S.W.2d at 213. See also State v. Haggard, 619 S.W.2d 44 (Mo.banc 1981).

The General Assembly has codified the Blockburger definition of lesser included offenses in § 556.046.1(1), RSMo 1978, and has provided in § 556.041, RSMo 1978, that a criminal defendant may not be convicted of more than one offense which arise out of the same conduct if the offenses are included within each other as defined in § 556.046.1, RSMo 1978.

Applying the Blockburger test, we find that arson in the first degree requires, in part, that the defendant "(damage) a building or inhabitable structure, ...." § 569.040.1, RSMo 1978. Assault in the first degree does not require any such element be established before that crime is committed. Assault in the first degree requires, in part, that the defendant "(cause) serious physical injury to another person." § 565.050.1(3), RSMo 1978. Arson in the first degree does not require any such element be established before that crime is committed. Each of these statutes requires proof of a fact that the other does not. The Blockburger test for lesser included offenses has not been met.

Section 556.041, RSMo 1978, provides that as a general rule, "When the same conduct of a person may establish the commission of more than one offense he may be prosecuted for each such offense." None of the exceptions to this rule listed in § 556.041 are applicable to this case. Therefore, it is not error to convict appellant under both Counts II and III. 1

II

Appellant contends there was an improper joinder of offenses under former Rule 24.04(b), now, Rule 23.05(b). The constitutionality of the Rule is not challenged. 2 Rather, appellant argues: (1) that there was a misjoinder of offenses, i. e., including the counts appellant was charged with in the same indictment or information was not permissible under former Rule 24.04(b); and (2) that there was a prejudicial joinder of offenses, i. e., even though joinder of offenses may be permitted under former Rule 24.04(b), it was the duty of the trial court to grant appellant's motion to sever the counts, because the joinder of offenses was unduly prejudicial to appellant.

Former Rule 24.04(b) 3 stated:

(b) With the exception stated in (a) hereof (subsection (a) dealt with the joinder of offenses when one or more of the offenses charged was capital murder 4), all offenses which are based on the same act or on two or more acts which are part of the same transaction or on two or more acts or transactions which constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts, or in the same count where authorized by statute. Any indictment or information may contain counts for the different degrees of the same offense or for any one of such degrees.

It is apparent that former Rule 24.04(b) permitted, but did not require, the joinder of offenses, other than capital murder, in the same indictment or information when the offenses charged were based: (1) on the same act ; (2) on the same transaction; or (3) on a common scheme or plan. The underlying theme of the Rule is the achievement of judicial economy through the joinder of related offenses. 5 State v. Williams, 554 S.W.2d 524, 528 (Mo.App.1977). See State v....

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