State v. Medley

• Decision Date: 14 August 1979
• Docket Number: No. 40342,40342
• Citation: 588 S.W.2d 55
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Seibert Ray MEDLEY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 55

588 S.W.2d 55

STATE of Missouri, Plaintiff-Respondent, v. Seibert Ray MEDLEY, Defendant-Appellant.

No. 40342.

Missouri Court of Appeals, Eastern District, Division One.

Aug. 14, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Sept. 17, 1979.

Application to Transfer Denied Nov. 14, 1979.

Paul J. Passanante, Wolff, Frankel, McConnel & Passanante, Clayton, for defendant-appellant.

George A. Peach, Circuit Atty., David O. Fischer, Asst. Circuit Atty., St. Louis, John D. Ashcroft, Atty. Gen., Marjorie Wholey Haines, Richard Thurman, Michael P. Donegan, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

PUDLOWSKI, Judge.

Defendant appeals from a jury conviction of the crimes of Robbery in the First Degree, § 560.135 RSMo.Supp.1975, and Armed Criminal Action, § 559.225 RSMo.1976. The Second Offender Act, § 556.280 RSMo.1969, was invoked and the trial court sentenced defendant to twenty years imprisonment for the robbery conviction and three years for Armed Criminal Action.

Defendant's first point on appeal is that the trial court erred by sentencing him pursuant to the Second Offender Act. In order to invoke the Second Offender Act the prosecutor must have proved that the defendant had been convicted, imprisoned and subsequently discharged for a prior felony. Defendant maintains that the only evidence offered to prove the prior felony was the testimony of James Barnes, Deputy Clerk of the St. Louis Circuit Court of Criminal Causes. The deputy clerk testified that a prior judgment in that circuit court had been entered against defendant for the crimes of Burglary Second Degree and Larceny. This testimony was based solely on the contents of an original record of the St. Louis Circuit Court of Criminal Causes. Defendant argues that the deputy clerk's testimony was incompetent evidence because the original record of the circuit court contained neither the signature of a judge, nor seal of a court in violation of § 490.130 RSMo.1969. ¹

It should first be pointed out that defendant is mistaken in alleging that the only evidence of his prior conviction and imprisonment was the deputy clerk's testimony. The record indicates that after the deputy clerk testified the prosecutor introduced a copy of a "Certified Transcript of Serial Record" as further proof of the defendant's prior conviction. This document was certified by the Supervisor of the Division of Classification and Assignment, Department of Corrections, State of Missouri, and was signed and attested to by Joseph P. Roddy, Clerk of the Circuit Court of the City of St. Louis and by Floyd McBride, Presiding Judge of the Circuit Court of the City of St. Louis. The copy of the serial record was fully attested to as required by § 490.130 RSMo.1969.

Defendant's objection to the admission of the deputy clerk's testimony is founded on an erroneous interpretation of the purpose and applicability of that statute. The state produced the original records of the St. Louis Circuit Court of Criminal Causes. These records were identified by the deputy clerk, their custodian, and served as the basis of his testimony. Defendant complains that the original records of the Circuit Court did not comply with § 490.130 RSMo.1969. This precise contention was considered long ago and found to be without merit in Carp v. Queen Insurance Company, 203 Mo. 295, 101 S.W. 78 (1907). In that case the Supreme Court of Missouri explained the statute was enacted to provide a convenient method of proving the contents of records by certified copies thereof. As the court stated:

It was not the purpose of this statute to exclude original instruments, which have been properly identified as such. * * * To hold otherwise would be to hold that an original instrument fully identified is not evidence, but a copy of it would be. We think this objection is untenable. ² Carp, supra, 101 S.W. 89.

Defendant also contends that the elements of imprisonment and subsequent discharge, necessary to the application of the Second Offender Act, were not proved beyond a reasonable doubt. The entry of judgment and serial record both state defendant was convicted upon a plea of guilty to the crimes of Burglary and two counts of Larceny. The judgment states the sentence to be three years for the crime of Burglary Second Degree and three years for the Larceny crimes. These sentences were to be served consecutively for a total of six years. The serial record indicates the sentence to be six years, three and three consecutive. Each document reveals that the judgment was entered in the City of St. Louis and that the sentence was pronounced on May 21, 1957. The serial record indicates that defendant was subsequently discharged from the Missouri Department of Corrections on November 28, 1960. Defendant argues the serial record states "Computation of Sentence, November 28, 1960." Defendant asserts that use of the word "computation" renders his previous discharge indefinite. This argument apparently follows from a clerical error in preparing the trial transcript. By referring to the actual copy of the serial record, which was in evidence it can be determined that the trial transcript should read "Commutation of Sentence, November 28, 1960." This evidence is such that it is clear beyond a reasonable doubt that the defendant had been previously convicted, imprisoned and discharged for the crimes of Burglary and Larceny exactly as the State alleged in attempting to invoke the Second Offender Act.

Defendant's second contention is that the trial court erred in admitting evidence relating to his escape from the St. Louis City Municipal Jail. Defendant argues that the court erred because proof of his escape was neither clear nor convincing and because the escape was irrelevant to the offenses charged. We do not agree.

The evidence shows that on May 7, 1977, Henry Daniel Moore, a correctional officer, was on duty on the sixth floor of the St. Louis City Municipal Jail. At about 3:30 a. m. Moore discovered that a few rooms that were supposed to be occupied had been vacated. Moore immediately made a head count and ascertained that six inmates were missing. Defendant was one of the missing men. Defendant and his companions effected the escape by cutting the wire mesh screen and sawing a bar in a sixth floor window. The men climbed down the building, using the bar covered windows as a step ladder, to a point twenty feet above the ground. There the inmates jumped to the ground and scaled a fence. Defendant was arrested the following day in Granite City, Illinois. After being given his constitutional rights, defendant stated he needed to be taken to a hospital because he injured his ankle while escaping from the jail. This evidence conclusively shows that defendant escaped the St. Louis City Municipal Jail and his contention that the evidence on this point is not clear and convincing is without merit.

Concerning the use of evidence of the escape to prove defendant's guilt of the crimes of robbery and armed criminal action, it is settled law that flight is relevant circumstantial evidence that may be considered along with other evidence bearing on the commission of the crimes charged. State v. Castaldi, 386 S.W.2d 392, 395 (Mo.1965); State v. Thompson, 363 S.W.2d 711, 715 (Mo.1963). The underlying theory is that unexplained flight indicates a consciousness of guilt, U. S. v. Gicinto, 114 F.Supp. 204, 205 (W.D.Mo.1953), and a desire to avoid trial. It is true, as defense counsel points out in his brief, there could be a number of other reasons why defendant fled the jail. But, defense counsel had the right to refute the incriminating circumstances of the escape, State v. Burns, 322 S.W.2d 736, 742 (Mo.1959), and was free to persuade the jury that defendant escaped for reasons other than he was guilty and feared prosecution. State v. Craft, 344 Mo. 269, 126 S.W.2d 177, 180 (1939). Defendant, who did not take the stand, obviously failed to so persuade the jury. The fact that defendant fled the jail, and not the place where arrested, does not destroy the inference of guilt that arises from his unexplained flight. State v. Rutledge, 524 S.W.2d 449, 458 (Mo.App.1975). Nor is the evidence rendered inadmissible because defendant escaped thirteen weeks after his arrest. The amount of time between defendant's arrest and escape merely affects the weight of the evidence. State v. Rutledge, supra. Under the circumstances defendant's flight and the attendant circumstances were for the jury to consider.

Prior to submitting the case to the jury a conference was held between the court and the parties concerning the jury instructions. Defendant proposed and the court rejected defendant's instructions A and B. However, the court accepted instruction number 10, MAI-CR 3.60, as submitted by defendant. Defendant argues that the court erred by refusing instructions A and B and by submitting instruction number 10 to the jury.

The trial court did not err by refusing the tendered instructions. Proposed instruction A read:

If you do not find that the defendant, after the incident in question and while confined, broke out or left the Municipal Jail of the City of St. Louis for the purpose and with the intent to avoid trial for the offense with which he is charged in this cause, then such breaking out or leaving is a circumstance which may not be taken into account or consideration by you in connection with all the other facts and circumstances in the case in determining the guilt or innocence of the charge placed against the defendant.

NOT IN MAI

SUBMITTED BY DEFENDANT.

Refused instruction B stated:

The intentional flight or concealment of a defendant immediately after the commission of a crime or after he is accused of a crime that has been committed, is not of course sufficient in itself to establish his guilt; but is a fact which, if proved, may be considered by the jury in the light of all other evidence in the...