State v. Murray, No. 63216

CourtUnited States State Supreme Court of Missouri
Writing for the CourtRENDLEN
PartiesSTATE of Missouri, Respondent, v. Bruce W. MURRAY, Appellant.
Decision Date06 April 1982
Docket NumberNo. 63216

Page 577

630 S.W.2d 577
STATE of Missouri, Respondent,
v.
Bruce W. MURRAY, Appellant.
No. 63216.
Supreme Court of Missouri, En Banc.
April 6, 1982.

Page 578

James G. Gregory and John Edward Cash, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Madeleine O. Birmingham, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Convicted on two counts of second degree burglary and sentenced to concurrent prison terms of three and five years respectively, defendant appeals. We consider the cause, transferred here from the Missouri Court of Appeals, Western District after opinion, as though on original appeal. Art. V, § 10, Mo.Const.

The Summit Realty Company owns the Summit Plaza, a "strip" shopping center in Holts Summit, Missouri, with a large parking area flanked by long one-story buildings on the west and north, each housing a row of stores separated by partition walls.

Page 579

These buildings are arranged in an "L" pattern, one lying on a north-south axis (hereafter the west building) and the other, referred to as the north building, running east at a right angle from the northern end of the west building. The vertex of the "L" is near the northwest corner of the Plaza and at their closest points the buildings are no more than 60 feet apart.

The stores of the west building face east toward the main parking lot while those in the north building face south with their back or north entrances opening on a driveway. All available spaces of the west building had been leased, but only four of the six available stalls in the north building were rented on January 27, 1979. A unit near the middle of that building was occupied by the Eilers Drug Store and the adjacent store space to the west was one of those available for leasing.

Among a number of persons at the "Plaza" during the late night of January 26th and early morning of January 27th, 1979, was a young man who discovered his parked truck had been broken into and a radio stolen. The police were called to the scene to investigate that incident and upon their arrival, the burglar alarm in Eilers Drug Store sounded. An employee of the movie theater located on the east end of the north building ran from the theater to the back of the building in time to see two persons, apparently male dressed in dark clothing, run from the back of one of the stores and up an embankment a short distance to the north. Several of the persons in the parking lot, including the police, also saw the two men as they ran west along the embankment, and immediately took chase on foot. A short time later the police apprehended two men dressed in dark clothing, one of whom was appellant, lying facedown in a ditch west of the Plaza. Footprints in the snow of two persons were traced from the north building, west toward a lagoon not far from where appellant was arrested. An examination of Eilers Drug Store and the adjacent unleased storeroom revealed that the empty store had been entered by breaking the lock of its rear door and access to Eilers Drug Store attained by knocking a hole approximately 2 feet in diameter through the plasterboard wall separating the stores. The burglar alarm, which attracted so much attention, had been activated when the drug store was entered, and footprints discovered inside the store matched inkblots taken from appellant's shoe soles. Also, a chemical analysis of a wallboard sample taken from the breached wall compared with that of a powdery substance found on appellant's jacket, disclosed the substances had "very similar properties."

Appellant was charged and convicted in Count I of burglarizing the empty store by unlawfully entering for the purpose of committing property damage "in the third degree therein" and in Count II with burglarizing Eilers Drug Store by unlawfully entering for the purpose of "stealing therein."

I.

This was a circumstantial evidence case from which reasonable inferences were available to support submission of several theories of guilt including appellant's role as an active participant or as an aider in a manner less than an active participant. In this connection a definitional instruction, MAI-CR2d 2.10, was given but the verdict directors were not in the form of MAI-CR2d 2.12 as required by Note on Use 3 to MAI-CR2d 2.10 in instances when 2.10 is given. Instead, the verdict director selected for submission of each Count, was MAI-CR2d 23.52. 1 Appellant asserts this utilization of MAI-CR2d 23.52, instead of 2.12, was error under Rule 28.02(e) and urges we deem it prejudicial.

Assuming that error occurred, though we do not decide the point, trial error carries a presumption of prejudice that may be rebutted by the facts and circumstances of a particular case, State v.

Page 580

Walker, 484 S.W.2d 284 (Mo.1972); State v. Howard, 601 S.W.2d 308 (Mo.App.1980), and its prejudicial effect is to be judicially determined, State v. Boyington, 544 S.W.2d 300 (Mo.App.1976). This principle is applicable to instances of erroneous jury instructions. Simms v. State, 568 S.W.2d 801 (Mo.App.1978).

MAI-CR2d 2.12, which appellant insists should have been submitted in lieu of those given as the verdict directors for each count, would have allowed the jury to convict appellant if he aided in the crime as an active participant or in a manner less than an active participant and, as noted above, the evidence supported submission of either or both theories of guilt. On the other hand, giving of MAI-CR2d 23.52 permitted the jury to convict appellant only as an active participant. By narrowing the bases for...

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32 practice notes
  • State v. Nicklasson, No. 79163
    • United States
    • Missouri Supreme Court
    • February 24, 1998
    ...of the evidence to support a finding of a valid chain of custody is within the sound discretion of the trial court. State v. Murray, 630 S.W.2d 577, 581 (Mo. banc 1982). The trial court did not abuse its discretion in admitting the knife and key Alleged Improper Remarks to the Jury Nicklass......
  • State v. Malone, No. 65974
    • United States
    • United States State Supreme Court of Missouri
    • August 7, 1985
    ...The trial court exercises wide discretion in this area, and did not abuse its discretion in this instance. State v. Murray, 630 S.W.2d 577 (Mo. banc 1982); State v. Sherrill, 657 S.W.2d 731 (Mo.App.1983). Appellant charges error in informing the jury during the sentencing phase of trial of ......
  • State v. Gustin, No. 17589
    • United States
    • Court of Appeal of Missouri (US)
    • March 18, 1992
    ...there has been no improper tampering with an exhibit is a matter addressed to the sound discretion of the trial court. State v. Murray, 630 S.W.2d 577, 581 (Mo. banc 1982). The proof need not exclude every possibility that the evidence has been disturbed. State v. Huff, 789 S.W.2d 71, 78 (M......
  • State v. Martin, No. 13054
    • United States
    • Court of Appeal of Missouri (US)
    • April 26, 1983
    ...of finding the mental state of Martin or Murphy, coupled with the additional requirements of aiding and abetting. In State v. Murray, 630 S.W.2d 577 (Mo. banc 1982), the evidence supported submission of defendant's guilt as an active participant or "as an aider in a manner less than an......
  • Request a trial to view additional results
32 cases
  • State v. Nicklasson, No. 79163
    • United States
    • Missouri Supreme Court
    • February 24, 1998
    ...of the evidence to support a finding of a valid chain of custody is within the sound discretion of the trial court. State v. Murray, 630 S.W.2d 577, 581 (Mo. banc 1982). The trial court did not abuse its discretion in admitting the knife and key Alleged Improper Remarks to the Jury Nicklass......
  • State v. Malone, No. 65974
    • United States
    • United States State Supreme Court of Missouri
    • August 7, 1985
    ...The trial court exercises wide discretion in this area, and did not abuse its discretion in this instance. State v. Murray, 630 S.W.2d 577 (Mo. banc 1982); State v. Sherrill, 657 S.W.2d 731 (Mo.App.1983). Appellant charges error in informing the jury during the sentencing phase of trial of ......
  • State v. Gustin, No. 17589
    • United States
    • Court of Appeal of Missouri (US)
    • March 18, 1992
    ...there has been no improper tampering with an exhibit is a matter addressed to the sound discretion of the trial court. State v. Murray, 630 S.W.2d 577, 581 (Mo. banc 1982). The proof need not exclude every possibility that the evidence has been disturbed. State v. Huff, 789 S.W.2d 71, 78 (M......
  • State v. Martin, No. 13054
    • United States
    • Court of Appeal of Missouri (US)
    • April 26, 1983
    ...of finding the mental state of Martin or Murphy, coupled with the additional requirements of aiding and abetting. In State v. Murray, 630 S.W.2d 577 (Mo. banc 1982), the evidence supported submission of defendant's guilt as an active participant or "as an aider in a manner less than an......
  • Request a trial to view additional results

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