State v. Merritt
Decision Date | 29 October 1979 |
Docket Number | No. 30419,30419 |
Citation | 591 S.W.2d 107 |
Parties | STATE of Missouri, Respondent, v. Larry J. MERRITT, Appellant. |
Court | Missouri Court of Appeals |
Clifford A. Cohen, Public Defender, Gary L. Gardner, Kevin R. Locke, Asst. Public Defenders, Kansas City, for appellant.
John Ashcroft, Atty. Gen., Jefferson City, Earl W. Brown III, Spec. Asst. Atty. Gen., Kansas City, for respondent.
Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
This direct appeal follows the jury conviction for robbery in the first degree, armed criminal action and assault with intent to kill without malice, along with the overruling of appellant's motion for a new trial. Sentence was affixed by the trial court at 20 years for robbery, 5 years for armed criminal action and 5 years for assault. The sentence for robbery and armed criminal action is to run consecutively and the sentence for assault is to run concurrently with the robbery sentence, the total of these sentences being 25 years.
Five points are alleged as error. The first alleges the trial court erred in overruling appellant's motion to dismiss Count II of the amended information, which alleged armed criminal action because said count placed appellant in double jeopardy by subjecting him to multiple punishments for the same offense in that the proof required under Count II and Count I is identical.
The second alleged error is combined with point three in that both points challenge the admission of expert testimony by introduction of that testimony by and through written documentation. Appellant contends that the qualifications of the expert were not established and that he was denied the right of witness confrontation and cross-examination.
Appellant's point four alleges error upon the trial court's refusal to give to the jury a cautionary instruction following the prosecutor's calling appellant a "turkey". Appellant claims such remark was made to excite the passion of the jury and to raise prejudice against him.
The final point raised alleges error upon the trial court's failure to dismiss Count III of the amended information because the trial court lacked jurisdiction over appellant in that Count III alleges some person other than appellant committed the offense charged under Count III.
This appellant was charged in three counts under an amended information in lieu of indictment. The three charges were: I-Robbery, First Degree, II-Armed Criminal Action and III-Assault with Intent to Kill, With Pistol, With Malice. The information also included a second offender allegation.
The charge of robbery was brought under § 560.120, RSMo 1969, which reads as follows: 1
The charge of armed criminal action was brought under § 559.225, RSMo Supp.1976: 2
"559.225. Armed criminal action penalty exceptions. 1. Except as provided in subsection 4 of this section, any person who commits any felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous or deadly weapon is also guilty of the crime of armed criminal action and, upon conviction, shall be punished by imprisonment by the division of corrections for a term of not less than three years. The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the crime committed by, with or through the use, assistance, or aid of a dangerous or deadly weapon. No person convicted under this subsection shall be eligible for parole, probation, conditional release or suspended imposition or execution of sentence for a period of three calendar years.
2. Any person convicted of a second offense of armed criminal action shall be punished by imprisonment by the division of corrections for a term of not less than five years. The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the crime committed by, with, or through the use, assistance, or aid of a dangerous or deadly weapon. No person convicted under this subsection shall be eligible for parole, probation, conditional release or suspended imposition or execution of sentence for a period of five calendar years.
3. Any person convicted of a third or subsequent offense of armed criminal action shall be punished by imprisonment by the division of corrections for a term of not less than ten years. The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the crime committed by, with, or through the use, assistance, or aid of a dangerous or deadly weapon. No person convicted under this subsection shall be eligible for parole, probation, conditional release or suspended imposition or execution of sentence for a period of ten calendar years.
4. The provisions of this section shall not apply to the felonies defined in sections 559.005, 564.590, 564.610, 564.620, 564.630 and 564.640, RSMo."
The felony charge of assault, count three, was brought under § 559.180, RSMo 1969. This section states: 3
The record reveals the following pertinent facts. On November 30, 1977, just before 7:00 p. m., four men entered Cosentino's Market. Three of the men wore ski masks, one being brown and two navy blue in color. The fourth man was not masked. Upon entering, one of the men, wearing a blue ski mask, grabbed a store employee, Sam Giangreco, around the neck from behind. In addition to being masked, this man held a revolver with a taped handle. In this position, the employee was forced toward an office or booth area used for cashing checks. Upon arrival at this point in the store, the employee and the masked robber were joined by a second masked robber who then held a revolver pointed at the employee. An unsuccessful attempt was made to gain entry to the office or booth, although the robbers tried to kick the door open.
While the above events were unfolding, a third robber approached one of the cashier or check-out stands where employee Paula Wiggans was located. He demanded she open the cash register and place the money in a pillow case. She complied, but apparently not quickly enough and the robber reached into the register and removed some bills. (A fingerprint was "lifted" from the register by law enforcement officers, but it was found not to have matched any print of any employee or the appellant.) In addition to the events already in progress, another robber simultaneously moved to a second cashier or check-out stand and demanded money. The four robbers then departed. Employee Sam Giangreco gave chase, but was unable to catch up to the four and did not observe them enter any type of automobile.
At this point, a customer, Jack Spencer, was arriving at the market. He observed four black males running directly in front of his automobile. This witness observed the four enter a light colored Cadillac, which he thought to be either a 1968 or 1969 model. This customer followed the Cadillac and as he followed, he observed the last portion of the license number. The license was a Missouri plate, of which the last three digits were 569.
As the chase continued, shots were fired and the customer, Jack Spencer, received cuts to his face as a result of shattering glass from the windshield of his automobile. Mr. Spencer returned to the market. He wrote down the three digits on paper, but testified he could not recall what happened to the paper and did not possess it at the time of the trial. He reported to a uniformed police officer his information and the officer then relayed information concerning the color, make and the three last digits of the license plate of the suspect vehicle.
Another police officer, upon hearing this information on his radio, took up position to look for the suspect vehicle. Shortly, the suspect vehicle passed within view of this patrol unit and the unit gave chase. During the chase, the suspect vehicle was wrecked, coming to an upright position after turning over. The police officer in pursuit saw two persons run from the suspect vehicle.
A search of the suspect vehicle and the immediate surrounding area revealed cash money, a yellow and brown striped pillow case, a .38 caliber revolver with tape on the handle, a H & R .32 caliber revolver, a R & G .38 caliber revolver, two navy blue ski masks, a brown ski mask and a wallet containing appellant's identification card, social security card and his driver's license.
The evidence, by way of a title application, showed the suspect vehicle to be owned by appellant. In addition, the evidence revealed that Missouri License Plate X1T-569 had been issued to the suspect vehicle, identified as a 1968 Cadillac.
The evidence also revealed that some hair fiber...
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...year sentence for armed criminal action and fifteen years for robbery first degree, to run consecutively); State v. Merritt, 591 S.W.2d 107 (Mo.App.1979) (per Manford, J.) (five years for armed criminal action to run concurrently with consecutive sentences of twenty years for robbery first ......
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