State v. Stephens, 13921
| Decision Date | 24 September 1985 |
| Docket Number | No. 13921,13921 |
| Citation | 699 S.W.2d 106 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Fred Joe STEPHENS, a/k/a Freddie J. Stephens, a/k/a Mike Carmichale, Defendant- Appellant. |
| Court | Missouri Court of Appeals |
William L. Webster, Atty. Gen., Carrie Francke, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Holly G. Simons, Columbia, for defendant-appellant.
Defendant, Fred J. Stephens, was jury-convicted of first degree robbery, § 569.020, 1 and armed criminal action, § 571.015. The trial court found Stephens to be a prior offender, by reason of his having entered a plea of guilty to a prior robbery, and sentenced him to concurrent terms of 25 years' imprisonment on each charge.
Since no claim is made on appeal that the evidence was insufficient to sustain the convictions, it suffices to say that there was substantial evidence from which the jury could have found that Stephens, on October 4, 1983, obtained an unspecified amount of currency from George Major, a cashier at a Quik Shop convenience store in Joplin, Missouri, by means of pointing a .22 caliber pistol at Major and causing him to fear for his life if he did not comply with Stephens' demand for money.
Stephens' first claim of trial court error is that the procedures used in selecting the names to go in the jury box, to draw names from the box for the general panel and to excuse jurors "were not in substantial compliance with the statutes governing jury selection in second class counties."
We have examined the record and find the claim is meritless. We also note that nowhere in her brief does Stephens' attorney even allege where any deviation from the statutorily directed jury selection process in this case prejudiced any legal right of Stephens.
Since jury selection statutes are directory only, a defendant must show that he was prejudiced by any substantial deviation from the statutory selection process. State v. Pettis, 522 S.W.2d 12, 15 (Mo.App.1975). No such showing was made here.
Stephens next claims trial court error in the denial of his motion to suppress his in-court identification by Major, claiming impermissible suggestiveness in a photo array of six mug shots and in a police lineup, prior to trial, which Major had viewed. Major picked out Stephens' photo as a picture of the man who robbed him. He also identified Stephens in a police lineup of six persons as the person who committed the robbery. An examination of the exhibits, consisting of the mug shots and a photograph of the lineup, does not indicate any suggestiveness from the pictures themselves that would have prompted Major to pick Stephens. There is nothing in the record to indicate that the police who were investigating the robbery suggested to Major that Stephens was the culprit.
In his testimony, Major said he had a full view of the robber, under good light, for a period of from five to seven minutes. Even if there was a question here of impermissible suggestiveness in the pretrial identification procedures, which there is not, there was a substantial independent basis for the in-court identification of Stephens by Major. That is enough. State v. Young, 534 S.W.2d 585, 589 (Mo.App.1976).
Stephens next asserts trial court error in refusing to allow three defense witnesses to testify that they had identified Stephens as the perpetrator of other robberies, but had subsequently recanted and identified Jan Don LaMont as the robber.
There is nothing in the record to indicate that LaMont committed any act linking him with the robbery for which Stephens was tried. This being so, the offered testimony was inadmissible. State v. Umfrees, 433 S.W.2d 284, 287-288 (Mo. banc 1968).
Stephens next claims instructional error contending the trial court failed to define "serious physical injury." That term was not used in instruction No. 6, the state's verdict directing instruction (MAI-CR2d 23.02), which reads as follows:
As to Count I, if you find and believe from the evidence beyond a reasonable doubt:
then you will find the defendant guilty under Count I of robbery in the first degree.
However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.
However, the trial court, on its own motion in instruction No. 9 (MAI-CR2d 33.01), defined "deadly weapon" as used in instruction No. 6, as meaning "any firearm, loaded or unloaded, or any weapon from which a shot, readily capable of producing death or serious physical injury may be discharged, or a switchblade knife, dagger, billy, blackjack or metal knuckles." The trial court did not take the additional step of defining "serious physical injury." That term is defined in MAI-CR2d 33.01 as meaning "physical injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ." Notes on Use 3 to MAI-CR2d 23.02 (state's verdict directing instruction No. 6) provide that if the term "serious physical injury" is used in "any of the instructions" then that term must be defined.
While this requirement seems utterly ridiculous in cases such as this, where the assailant is armed with a pistol, nevertheless, the requirement is part of Missouri law. The state concedes that the trial court erred in failing to define the term. The only remaining question for our review on the issue is whether the error is prejudicial. Rule 28.02(e).
Trial court failure to follow the dictates of MAI-CR2d and its applicable notes on use is presumed prejudicial unless the contrary clearly appears from the facts and circumstances of the particular case. State v. Murray, 630 S.W.2d 577, 579-580 (Mo. banc 1982). Stephens cites State v. Rodgers, 641 S.W.2d 83 (Mo. banc 1982), and State v. Ogle, 627 S.W.2d 73 (Mo.App.1981), as support for the proposition that failure to define the term "serious physical injury" is reversible error. Rodgers is a rape case in which the defendant choked his victim...
To continue reading
Request your trial
-
State v. Ivy, s. 58271
...any prejudice resulting from the selection process, i.e., that the jury as chosen was not fair and impartial. See State v. Stephens, 699 S.W.2d 106, 107 (Mo.App.1985). Point three is Finally, defendant asserts as error the dismissal of his Rule 29.15 motion as time barred. Specifically, def......
-
Shafer v. State
...representation, resulted in the prejudice of any of his legal rights. This Court has addressed the same issues in State v. Stephens, 699 S.W.2d 106 (Mo.App.1985). Statutes relating to the jury selection process are directory only. Deviations therefrom, if true, absent a clear showing of dep......
-
State v. Hyzer, 14472
...were not in compliance with the controlling statutes, §§ 495.040-495.100, RSMo 1978. Identical issues were raised in State v. Stephens, 699 S.W.2d 106 (Mo.App.1985), and ruled against the defendant in that case, which was also tried in Jasper County. The point has no more merit in this case......
-
State v. Williams, 14041
...governing jury selection in second class counties. This identical contention was raised and rejected by this court in State v. Stephens, 699 S.W.2d 106, 107 (Mo.App.1985). That decision is controlling here. The point has no merit. Williams next asserts that the trial court erred in denying ......