State v. Moore, WD
| Decision Date | 02 November 1982 |
| Docket Number | No. WD,WD |
| Citation | 642 S.W.2d 917 |
| Parties | STATE of Missouri, Respondent, v. William Michael MOORE, Appellant. 32821. |
| Court | Missouri Court of Appeals |
James D. Worthington of Aull, Sherman & Worthington, Lexington, for appellant.
John Ashcroft, Atty. Gen., Carl S. Yendes, Asst. Atty. Gen., Jefferson City, for respondent.
Before MANFORD, P.J., and WASSERSTROM and KENNEDY, JJ.
This is a direct appeal from judgment entered upon jury conviction for conspiracy to commit robbery first degree in violation of § 564.016, RSMo 1978. Appellant was sentenced in accordance with § 558.016, RSMo 1978. The judgment is affirmed.
Appellant presents no less than nine alleged points charging the trial court erred. In summary, these charge error as follows: (1) in failure to dismiss the charges for failure to bring appellant to trial within 180 days, (2) the indictments and information were vague and uncertain as to time of the alleged offenses, and the trial court erred in charging appellant, (3) failure to direct a verdict in appellant's favor because the evidence was insufficient, (4) the trial court erred in the denial of appellant's pre-trial motions, (5) the trial court erred in charging appellant by defective indictment as a dangerous offender because said indictment was vague and uncertain, (6) the trial court erred in its instructions to the jury upon the issue of punishment, (7) the trial court erred in its refusal to permit appellant to cross-examine two witnesses upon two specific matters, (8) the trial court erred in its refusal to grant a mistrial upon the failure of the prosecutor to include all necessary elements of the charged offense in his opening statement, and (9) the trial court erred in its failure to grant a mistrial upon improper comment by a witness.
Since appellant challenges the sufficiency of the evidence, a recital of all pertinent facts is necessary. The evidence reveals appellant was charged by information on January 29, 1980. On March 6, 1980, a Grand Jury handed down a true bill. The appellant was jailed on January 29, 1980.
On January 25, 1980, Peter Kahre and Leonard Johnson met in Corder, Missouri. The decided to travel to Warrensburg, Missouri, allegedly to visit with a military recruiter. Kahre drove the vehicle. En route, Johnson suggested a robbery of the Bucks Thriftway Store in Higginsville, Missouri. Johnson directed Kahre where to drive. They went to a particular street in Higginsville. Johnson left the vehicle and returned a few minutes later. Johnson testified he returned with a handgun which he had retrieved from beneath his grandmother's porch. Johnson then directed Kahre to park in the parking lot of a local funeral home about a block from the Thriftway store. Johnson again left the vehicle, this time taking with him a pair of gloves and a stocking cap belonging to Kahre.
Johnson walked to the parking lot of the Thriftway store. At this time (approximately 9:30 a.m.), an employee of the store was returning from the bank carrying over $4,000.00 in various bills and coins contained in bank money bags. Johnson robbed the employee and returned to Kahre's vehicle with the gun and the money contained in a pillow case. Johnson directed Kahre to return to the location and street where he (Johnson) had first alighted from Kahre's vehicle. Kahre testified he observed Johnson go behind a mobile home trailer and return moment's later without the gun, money, or pillow case. Johnson testified he took the gun and money to appellant who was inside the mobile home trailer of one Betty Woods. The Woods' trailer and that of Johnson's grandparents were in close proximity to each other. Johnson and Kahre then departed for Warrensburg where they were arrested as they approached the city limits. Johnson was questioned by a Missouri Highway patrolman and a special investigator of the Lafayette County Sheriff's office and denied to both any knowledge of the offense. Johnson was then taken to Kansas City and freely took a polygraph examination. He was returned to Lafayette County and questioned by the Sheriff. He continued to deny any knowledge of the offense. Johnson was then returned to Kansas City for a second polygraph examination. Upon his return to Lafayette County, Johnson signed a statement admitting the offense. In his statement, Johnson implicated appellant stating appellant had given him (Johnson) instructions for the commission of the offense.
At trial, Johnson testified that appellant had threatened him with a gun on two prior occasions. Johnson further testified that sometime just prior to January 25, 1980, appellant and he were riding around, during which time appellant pointed a gun at him and told him to rob Bucks Thriftway Store. Johnson testified he committed the offense out of fear of appellant and in compliance with appellant's instructions.
The defense was alibi. Appellant did not testify. A Kansas City, Missouri attorney and his receptionist testified. The attorney verified he was handling a personal injury case for appellant, but that he did not personally see appellant on January 25, 1980. The receptionist testified appellant was in the law office on January 26, 1980, at about 9:00 a.m. Cross-examination developed that the receptionist had seen appellant both before and after the date of the offense. Another witness testified that appellant "gassed up" his vehicle at a local service station where this witness was employed. This witness recalled the date of January 25, 1980, but stated that, as best he could recall, appellant purchased gas sometime before noon. Betty Woods stated she had dated appellant, but denied appellant ever "lived" in her trailer. She testified her trailer was right next door to the Britt's trailer. (The Britts are appellant's grandparents). She further testified there were only two keys to her trailer and those were in the possession of her mother and herself. She also stated she leaves for work at about 5:30 a.m. and her mother comes to her trailer to get "my daughter off to school every morning as soon as I leave ..." She testified appellant never had a key to her trailer, could not have entered it alone and that she was not present when Johnson brought the gun and pillow case of money to appellant, as Johnson testified.
Sterling Woods, another witness, testified that he knew appellant, recalled the date of the offense, and picked up appellant at about 8:10 or 8:20 a.m. on January 25, 1980, at the Britt mobile home. This witness stated he drove with appellant to the local service station, purchased gasoline, and drove appellant to the attorney's office in Kansas City. This witness further stated he and appellant arrived at the attorney's office after 9:00 a.m. and left some five to ten minutes later. According to this witness, after they left the attorney's office, they rode around in Kansas City, obtained a haircut, got something to eat, visited appellant's mother, and returned to Higginsville at about midnight. On cross-examination, this witness admitted he really did not know if the events to which he testified occurred on January 25, 1980.
The grandparents of appellant testified appellant lived with them. Mrs. Britt testified she leaves for work each workday about 6:00 a.m. She testified she and her husband freely allowed authorities to search their mobile home and the surrounding area. She disclaimed any knowledge about the pillow case or gun. Mr. Britt testified he leaves for work at about 9:45 a.m. each workday. He also confirmed that appellant lived with him and his wife. He stated he recalled the date of the offense. He disclaimed ever seeing Johnson and knew nothing about the gun or pillow case with the money. He stated appellant left the mobile home around 8:00 or 8:30 a.m. the morning of January 25, 1980.
The final witness for the defense was Jay Frakes. Frakes met appellant in the Lafayette County Jail. This witness was serving time when appellant was arrested and identified Johnson as a result of seeing him in the County Jail and the fact he and Johnson had attended high school together. This witness stated that Johnson discussed the case while they were in jail and told him he had gotten scared and had "[l]ied on Michael Moore in them statements."
During cross-examination, Johnson admitted writing letters to the trial judge which stated he had lied about implicating appellant. On re-direct, Johnson testified that while in jail, appellant came to his cell and told him to write the judge, telling the judge he had lied. Johnson testified he wrote the letters because he feared appellant. There was also introduced another letter written by Johnson to his attorney telling the attorney that if he (Johnson) did not write to the judge and advise the judge he lied about appellant, that appellant was going to pay his friends in jail $50.00 "to jump on me". There was yet another letter written to the Sheriff by Johnson advising the Sheriff that appellant had threatened him and that is why he wrote the judge the letters. Johnson testified the letters to the judge were not true regarding his statements to the judge that he had originally lied about appellant.
The evidence closed. The jury returned its verdict. Judgment and sentence were entered. This appeal followed the overruling of timely filed after-trial motions.
Under point (1), appellant contends the trial court erred in failing to dismiss the charges against him because he was not tried within 180 days of his arraignment, as required by § 545.780.2, RSMo 1978. Appellant sets forth pertinent calendar dates to support his argument. This information is as follows:
Date of offense--1-25-80; Complaint filed January 29, 1980, and arraignment was conducted March 6, 1980. The first trial setting was for May...
To continue reading
Request your trial
-
People v. Moses
...v. Stewart, 375 Mass. 380, 377 N.E.2d 693 People v. Dukes, 120 Mich.App. 662, 327 N.W.2d 319; Gandy v. State, 438 So.2d 279 State v. Moore, 642 S.W.2d 917 State v. Huffman, 214 Neb. 429, 334 N.W.2d 3; State v. Thresher, 122 N.H. 63, 442 A.2d 578; State v. Butler, 32 N.J. 166, 160 A.2d 8; St......
-
State v. Ellis
...and informations containing the following general allegations of dates have been approved. An unknown day in January, State v. Moore, 642 S.W.2d 917 (Mo.App.1982); March 15 to April 14, 1981, State v. Edwards, 657 S.W.2d 343 (Mo.App.1983); March 15 to November 16, 1976, State v. Murray, sup......
-
State v. Collins, 65285
...presumptions and inferences and couched holdings in terms of either the state's or defendant's burden of proof. See, e.g., State v. Moore, 642 S.W.2d 917 (Mo.App.1982); State v. Reed, 640 S.W.2d 188 (Mo.App.1982); State v. Harris, 639 S.W.2d 122 (Mo.App.1982); State v. Ratliff, 633 S.W.2d 2......
-
Yates v. State, CR
...624, 40 Ill.Dec. 90, 405 N.E.2d 1182 (1980); State v. Christopher, 134 N.J.Super. 263, 339 A.2d 239 (1975). But see State v. Moore, 642 S.W.2d 917 (Mo.App.1982); Anderson v. State, 241 So.2d 390 In the commentary to Rule 17.1, it is noted that: Broad pretrial disclosure would seem to be not......