State v. Moore

• Decision Date: 27 December 1978
• Docket Number: No. KCD,KCD
• Citation: 575 S.W.2d 253
• Parties: STATE of Missouri, Respondent, v. Douglas E. MOORE, Appellant. 29117.
• Court: Missouri Court of Appeals

Page 253

575 S.W.2d 253

STATE of Missouri, Respondent, v. Douglas E. MOORE, Appellant.

No. KCD 29117.

Missouri Court of Appeals, Kansas City District.

Dec. 27, 1978.

Mark D. Johnson, Platte City, for appellant.

John D. Ashcroft, Atty. Gen., Daniel F. Lyman, Asst. Atty. Gen., Jefferson City, for respondent.

Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.

SOMERVILLE, Presiding Judge.

Did the trial court err by refusing to grant a mistrial because of a question put by the state, even though it went unanswered? Did the trial court err by refusing to give an "accomplice" instruction offered by defendant which differed from MAI-CR 2.01? Did the trial court err by failing to give a manslaughter instruction in a felony murder case? These questions arise by way of points on appeal in a jury tried case resulting in defendant's conviction of first degree murder (felony-murder attempted robbery), Section 559.010, RSMo 1969, and imposition of a life sentence.

On the basis of the evidence presented, the jury which tried defendant was justified in finding beyond a reasonable doubt that on January 9, 1975, defendant and four companions shot and killed the proprietor of the Kentucky Liquor Store, 31st and Benton, Kansas City, Missouri, during the attempted perpetration of a robbery. Defendant's trial commenced on May 10, 1976, and concluded on May 12, 1976. Later on, the importance of the dates which have been underlined will become self-evident.

Review of the three points raised on appeal is clouded at the very outset by the fact that defendant's motion for a new trial was untimely filed. Although a guilty verdict was returned by the jury on May 12, 1976, and defendant was granted an extra twenty days in addition to the ten days prescribed by Rule 27.20(a) within which to file his motion for a new trial, the same was never filed until June 14, 1976, some three days late. With a pattern of consistency that bespeaks of a firm commitment, untimely filed motions for new trial are held to be nullities, and, so construed, preserve nothing for appellate review. State v. Collett, 542 S.W.2d 783, 785 (Mo. banc 1976); State v. White, 439 S.W.2d 752, 753 (Mo.1969); State v. Olinger, 396 S.W.2d 617, 621 (Mo.1965); and State v. Hamilton, 391 S.W.2d 872 (Mo.1965).

Defendant's only hope for salvaging the three points for appellate review is to bring them under the benevolent auspices of the "plain error" provisions of Rule 27.20(c). Defendant faces a formidable task as there is no such thing as "plain error" per se within the meaning ascribed to the term by Rule 27.20(c). The "bench mark" of "plain error" error which works a "manifest injustice or miscarriage of justice" (Rule 27.20(c)) is not easily discernible. Even the most flagrant, undisputed examples of error are not necessarily subject to being characterized as "plain error" within the meaning of Rule 27.20(c). Thus, no talismanic method exists for determining "plain error". In fact, "plain error" is such a highly elusive term that it does not readily lend itself to being succinctly defined or isolated by the use of judicial platitudes. As a practical matter, the existence or non-existence of "plain error" demands review on a case to case basis to determine whether "manifest injustice or miscarriage of justice" has resulted in any given case. State v. Patterson, 443 S.W.2d 104, 107 (Mo. banc 1969). The three issues raised by defendant on appeal will be discussed, in order, in the context just mentioned.

Defendant's first point focuses on the following question, which went unanswered, but which was asked of one of defendant's witnesses by the state on cross-examination: "Is it not true that you are currently being represented by the Jackson County Public Defender?" Before the witness had time to answer, defense counsel objected to the question and asked for a mistrial. The objection was sustained but the request for a mistrial was denied. By reason of the fact that defendant was also represented by the Jackson County Public Defender's Office, he adroitly mixes sweeping constitutional principles with certain strained conclusions and syllogizes that the unanswered question, from his standpoint, worked a "manifest injustice or miscarriage of justice". This court would have to resort to judicial prestidigitation to place this Unanswered question in the ranks of "plain error". The idea that it worked a "manifest injustice or miscarriage of justice" defies credulity. An honest sense of outrage on the part of defense counsel permeates defendant's first point by reason of the following circumstance. The assistant prosecuting attorney who handled this trial for the state also represented the state at a previous trial afforded defendant on the same charge which resulted in a "hung jury". During the previous trial the same controversial question was the subject of a "protective order" and that state was prohibited from asking it on cross-examination. Although the present conduct of the state, in view of what transpired at the previous trial, is not to be condoned, it cannot substitute for the requisite finding of "plain error" necessary to entertain defendant's first point on appeal.

Defendant's second point is directed toward the trial court's refusal to give a requested "accomplice" instruction, the thrust of which was that the jury should receive the uncorroborated testimony of an accomplice with great caution. This instruction was innovative in the sense that it was strictly the handiwork of defense counsel and a total stranger to MAI-CR. It was in the nature of a cautionary instruction on the believability of a particular witness or class of witnesses and, as such, expressly forbidden by paragraph 2 of the "Notes on Use" appended to MAI-CR 2.01 "Duties of Judge and Jury": "Except as may be specifically provided for elsewhere in MAI-CR, no other or additional instruction may be given on the believability of witnesses, or the effect, weight or value of their testimony. Without limiting the foregoing, no instruction may be given to the effect . . . that the testimony of any one witness or class of witnesses, when uncorroborated, must be received with great caution or must be weighed any differently than that of other witnesses." MAI-CR 2.01 was read to the jury in this case at the appropriate time. As refusal of the cautionary instruction requested by defendant would not have constituted error if properly preserved, it would be the height of judicial inconsistency to succumb to defendant's suggestion that its refusal worked a "manifest injustice or miscarriage of justice" and entitled it to be reviewed as "plain error" under Rule 27.20(c).

Defendant's final point charges the trial court with error for failing to submit manslaughter to the jury in this first degree murder (felony-murder attempted robbery) case involving a homicide which occurred on January 9, 1975, and which went to trial on May 10, 1976. Failure to instruct a jury on the "law of the...