State v. Taylor, KCD
| Decision Date | 12 June 1978 |
| Docket Number | No. KCD,KCD |
| Citation | 567 S.W.2d 705 |
| Parties | STATE of Missouri, Respondent, v. Clifton R. TAYLOR, Appellant. 28801. |
| Court | Missouri Court of Appeals |
Joel Pelofsky, Miniace & Pelofsky, Kansas City, for appellant.
John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
Defendant was charged by a multiple count information with burglary, second degree, Sec. 560.045, RSMo1969, stealing, Sec. 560.156, RSMo1969, and forgery (possession with intent to utter), Sec. 561.011, RSMo1969. A jury, although acquitting defendant of burglary and stealing, found him guilty of forgery but was unable to agree upon his punishment. Thereupon, the trial judge assessed defendant's punishment at ten years confinement in the Missouri Department of Corrections.
Defendant raises four points of error on appeal: (1) error on the part of the trial court in denying defendant's oral motion of dismissal (made on the morning of trial) because of improperly joining the multiple charges of burglary, second degree, stealing, and forgery; (2) error on the part of the trial court in overruling defendant's objection to a portion of the state's closing argument which purportedly constituted an expression of opinion as to the believability of one of the state's witnesses; (3) error on the part of the trial court in overruling defendant's objection to a portion of the state's closing argument which purportedly shifted the burden of proof or constituted a comment on defendant's failure to take the stand and testify in his own behalf; and (4) error on the part of the trial court in giving Instruction No. 13 (MAI-CR 4.50) after the jury had retired to deliberate.
A compact statement of facts will be sufficient as the sufficiency of the evidence has not been challenged. On October 24, 1975, a building housing Messina Brothers Construction Company was burglarized. A number of "printed" company checks were stolen after having been run through the company's "check protector". On the day of the burglary, defendant presented one of the "printed" checks which had been run through the company's "check protector" to Rail Sales, Corp. for payment. The maker's signature had been forged. The party at Rail Sales, Corp. to whom the check was presented became suspicious and called the bank upon which the check was drawn before making payment. The bank advised the calling party that a number of "printed" company checks had been stolen from the office of Messina Brothers Construction Company. Defendant, apparently sensing that he was under suspicion, exited the premises of Rail Sales, Corp. before being advised that the check would not be honored. A security officer at Rail Sales, Corp. was alerted and he followed defendant out of the premises occupied by Rail Sales, Corp. and then pursued defendant down a public street. A police officer was also alerted and defendant was apprehended as he was running down the public street.
At first blush it would appear that defendant's first point has been rendered moot by reason of defendant's acquittal on the charge of burglary, second degree, and stealing. Defendant, in anticipation that the continuing viability of his first point of error might be questioned on appeal, argues that the "improper joinder of offenses tainted the entire trial and the forgery conviction". Although imprecisely stated, the import of defendant's argument appears to be that joinder of the charges of burglary, second degree, and stealing with the charge of forgery was wholly improper under Rule 24.04 and the effect of doing so provided a basis for the state to parade otherwise inadmissible evidence of other crimes before the jury.
Rule 24.04 provides: Although there are no Missouri cases specifically approving the joinder of multiple charges of the same or similar nature as those in the case at bar, the following language contained in Rule 24.04, supra, "two or more acts or transactions which constitute parts of a common scheme or plan . . . ", provides ample authority for doing so. The "printed" company checks in and of themselves had no intrinsic value. Forging the purported signature of an authorized officer of Messina Brothers Construction Company to them, coupled with an intent to utter, gave them an entirely different complexion, and in this sense the various offenses were based on "two or more acts or transactions which constitute(d) parts of a common scheme or plan." This conclusion is strengthened by cases construing the applicability of Rule 8(a) of the Federal Rules of Criminal Procedure. Rule 24.04, supra, and its federal counterpart, Rule 8(a), supra, although not cast in identical language, are substantially similar upon comparison and by judicial notation. State v. Brannom, 539 S.W.2d 747, 750 (Mo.App.1976). Their kindred nature is such that federal cases construing the applicability of Rule 8(a), supra, are persuasive when faced with the task of construing the applicability of Rule 24.04, supra. State v. Johnson, 505 S.W.2d 11, 12 (Mo.App.1974). Joining charges of burglarious theft of a credit card and use of the credit card to perpetrate a forgery in a multiple count indictment was held proper under Rule 8(a), supra, in United States v. Leonard, 144 U.S.App.D.C. 164, 445 F.2d 234 (1971). Likewise, in Blunt v. United States, 131 U.S.App.D.C. 306, 404 F.2d 1283 (1968), joining charges of robbery and theft of a checkbook and forging the purported maker's signature and uttering certain of the stolen checks in a multiple count indictment was held proper under Rule 8(a), supra. Defendant's first point of error is meritless.
Defendant's second point of error is directed towards the trial court's failure to have sustained his objection to the following portion of the state's closing argument: "Now, I do not believe but you are the determiners of the fact I do not believe that there was any loss in the chain of the party who presented the check and the arrest of this defendant, but that's ." At this point defendant interposed an objection. This particular point and the argument which accompanies it are far from being paragons of clarity. In an effort to place this portion of the state's closing argument in proper context, it is deemed helpful to point out that although the security officer employed by Rail Sales, Corp. momentarily lost sight of defendant shortly before his apprehension, the security officer positively identified defendant at the trial as the same person to whom he initially gave chase. Immediately after defense counsel's objection was overruled the state's attorney again reminded the jury that they were the ultimate "determiners of the fact" and that he was only "arguing" the case on behalf of the state. It is difficult for this court to perceive how the complained of portion of the state's closing argument is susceptible of being characterized, as urged by defendant, as an expression of...
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