State v. Pride

• Decision Date: 09 May 1978
• Docket Number: No. 39137,39137
• Citation: 567 S.W.2d 426
• Parties: STATE of Missouri, Respondent, v. R. V. PRIDE, Appellant. . Louis District,Division One
• Court: Missouri Court of Appeals

Page 426

567 S.W.2d 426

STATE of Missouri, Respondent, v. R. V. PRIDE, Appellant.

No. 39137.

Missouri Court of Appeals,St. Louis District,Division One.

May 9, 1978.

O. J. Gibson, Cape Girardeau, for appellant.

John D. Ashcroft, Atty. Gen., Paul R. Otto, Chief Counsel, Asst. Atty. Gen., Jefferson City, William L. Syler, Jr., Sp. Prosecutor, Cape Girardeau, for respondent.

SMITH, Judge.

This case reaches the writer on reassignment. An opinion was originally prepared by Judge McMillian which failed of acceptance by a majority of the division. With the exception of the portion of this opinion dealing specifically with Mr. Berkbigler and Mr. Broker, this opinion is substantially that prepared by Judge McMillian.

Appellant R. V. Pride appeals from a judgment entered upon a jury verdict in the circuit court of Cape Girardeau finding him guilty of robbery in the first degree (Count I), § 560.135 RSMo 1969, and assault with intent to kill with malice (Count II), § 559.180 RSMo 1969. Because the jury was unable to agree upon the punishment, the trial court sentenced appellant to twenty (20) years imprisonment for Count I and five (5) years imprisonment for Count II, the sentences to run consecutively.

For reversal appellant argues that the trial court erred in: (1) refusing to grant appellant's motion for authority to obtain the services of a court reporter, § 600.150(2) RSMo Supp.1977; (2) refusing to give instructions to the jury on self-defense and the lesser offense of assault without malice; (3) failing to strike for cause four members of the jury panel; and (4) allowing the prosecution such wide latitude in closing argument to the jury. For the reasons discussed below, we affirm.

No question as to the sufficiency of the evidence has been raised; therefore, only that evidence necessary for our decision will be discussed. On October 21, 1976, Ms. Mabel Stewart was travelling south on interstate highway I-55. She turned off the highway and parked her car on the truck parking side of the highway rest area in Cape Girardeau. She locked her car and went into the women's restroom. As she was leaving one of the stalls in the restroom, someone grabbed her around the neck and pushed her to the floor. Ms. Stewart testified that she was beaten about the head and robbed of her car keys and watch. She identified Roscoe James Pittman as the robber. She further testified that appellant did not attack or threaten her, but did enter the restroom on one occasion.

Gary Lively, a truck driver, heard Ms. Stewart scream as he was coming out of the men's restroom. He testified that he saw Pittman standing inside the women's restroom and appellant standing "a foot or so away." Pittman and appellant then proceeded toward their car. Lively followed them and copied the license number of the car the two men were about to enter and called the police on his CB radio.

In the meantime, Ms. Stewart had gotten her pistol from her car and enlisted the aid of another truck driver, Phillip Wayne Brough, to help stop Pittman and appellant. Brough took the gun from Ms. Stewart and walked toward the car, holding the gun at his side. Brough testified that when he was within twenty or thirty yards, the man on the passenger side of the car (Pittman) leveled a .22 caliber rifle at him. Brough stopped and jumped behind a picnic table. Pittman and Brough exchanged shots. Then Pittman and appellant got in their car and drove off. Brough further testified that he fired one more shot as the car sped away. No one was seriously injured. Pittman and appellant were arrested later by the Jackson police.

Appellant first argues that the trial court erred in refusing to grant appellant's motion for authority to obtain the services of a court reporter. Appellant argues that, as a poor person, he was entitled to take depositions of the prosecution's three principal witnesses at state expense. See Rule 25.41, V.A.M.R.; § 600.150(2) RSMo Supp.1977, and that the inability to take such depositions was prejudicial to the preparation of his case. Appellant contends that the statute plus State v. McCormick, 426 S.W.2d 62 (Mo. banc 1968), cert. den. 394 U.S. 930, 89 S.Ct. 1199, 22 L.Ed.2d 460 (1969), made the granting of this kind of pretrial motion "virtually mandatory."

Appellant first filed a motion for authority to obtain the services of a court reporter on January 13, 1977. The motion was denied January 19. Appellant renewed this motion just before trial on February 11. The prosecution opposed the motion for several reasons: counsel for appellant had been present throughout the trial of Roscoe James Pittman, appellant's alleged companion, during which counsel heard the testimony of the three witnesses; counsel had a transcript of the preliminary hearing and the opportunity to talk informally with the witnesses at the first trial; and that taking the depositions would only serve to delay the proceedings. The trial court again denied the motion, apparently agreeing with the prosecution.

In McCormick, supra, our Supreme Court held that the denial of an accused's pretrial motion as a poor person to take depositions and for stenographic services at state expense would not be considered a violation of due process where defendant failed to show how he was or could have been prejudiced by the refusal of the trial court to provide free stenographic services. 426 S.W.2d at 63; cf. State v. Wallace, 504 S.W.2d 67, 70 (Mo.1973) (equal protection); State v. Aubuchon, 381 S.W.2d 807, 812 (Mo.1964) (equal protection). The Supreme Court emphasized the lack of legislative authority to provide free stenographic services. 426 S.W.2d at 63, citing State v. Aubuchon, supra. Although there is now specific legislative authority which provides funds for services needed for adequate representation of indigent persons, § 600.150(2) RSMo Supp.1977 (1972 Mo. Laws 1039, § 12, Amended in 1976), we do not read the statute to require the trial court to automatically advance funds. The trial court must first find " . . . after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the indigent person is financially unable to obtain them. . . . " Evidently the trial court did not find the services were necessary in the present case. ¹

Appellant has only alleged generally that the failure of the trial court to grant the motion was prejudicial to the preparation of appellant's case for trial. For this reason we are unable to review the sufficiency of the trial court's finding that the services were not necessary. Appellant has failed to allege or establish how he had been prejudiced by the trial court's failure to advance the funds. See State v. McCormick, supra. Our ruling on this point, however, in no way passes upon the adequacy of the reasons advanced by the prosecution in the present case as substitutes for the taking of depositions.

Secondly, appellant argues that the trial court erred in refusing to give instructions ² to the jury on the law of self-defense and the lesser offense of assault without malice. Appellant argues there was sufficient evidence as a matter of law: the evidence showed Brough approached appellant with a gun in his hand and actually fired at the car as it drove away. Appellant contends this evidence established that appellant could have reasonably believed that his life or personal safety was immediately threatened and was therefore entitled to an instruction on self-defense. E. g., State v. McDonald, 527 S.W.2d 380, 381 (Mo.App.1975). We disagree and find that appellant was not entitled to an instruction on self-defense as a matter of law.

If there is any substantial evidence putting self-defense in issue, it is the duty of the trial court to instruct on self-defense as part of the law of the case. § 546.070 RSMo 1969; Rule 26.02, V.A.M.R.; see, e. g., State v. Austin, 367 S.W.2d 485, 486 (Mo.1963); State v. Nunes, 546 S.W.2d 759, 764 (Mo.App.1977). In such a situation the trial court must instruct on self-defense whether or not the defendant requested the instruction and even though the instruction requested or submitted by the defendant was defective. State v. Spencer, 307 S.W.2d 440, 443 (Mo.1957); State v. Sherrill, 496 S.W.2d 321, 325 (Mo.App.1973). Under the so-called withdrawal doctrine, however, which is as applicable to assault as to homicide, one who was the aggressor or who provoked the difficulty in which he killed (or injured or assaulted) another cannot invoke the right of self-defense to excuse or justify the homicide (or injury or assault), unless he had previously withdrawn from the combat in such a manner as to have shown his intention in good faith to desist. State v. Spencer, supra (assault); State v. Eldridge, 554 S.W.2d 422, 424 (Mo.App.1977) (second degree murder); State v Sherrill, supra (second degree murder); see also MAI-CR Comments, Self-defense 37-40 (Richardson ed. 1974). Furthermore, "(t)here is a difference between 'withdrawal in good faith' from combat, and a mere 'retreat' which may be and often is a continuance of hostilities. A 'withdrawal' is an abandonment of the struggle by one of the parties and such abandonment must be perceived by the other." State v. Mayberry, 360 Mo. 35, 226 S.W.2d 725, 727 (1950), citing State v. Heath, 237 Mo. 255, 141 S.W. 26, 29 (1911).

In the present case it is true that Brough approached Pittman and appellant with a gun in his hand. Although at this point Brough became the aggressor, appellant is not entitled to the defense of self-defense because appellant was himself the aggressor in the robbery and had not indicated in any way that he was withdrawing from the combat so as to revive his right to self-defense. Because the robbery and the assault are so related in time, proximity and purpose, even though the victims are different, we view each as part of a single incident. Pittman and appellant were leaving the rest rooms, the scene of the robbery, and...