State v. Tettamble, 38438
| Decision Date | 27 December 1977 |
| Docket Number | No. 38438,38438 |
| Citation | 561 S.W.2d 414 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Nicholas Richard TETTAMBLE, Defendant-Appellant. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Melvin G. Franke, Public Defender, Gary L. Gardner, Asst. Public Defender, Union, for defendant-appellant.
John D. Ashcroft, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Defendant Nicholas Richard Tettamble appeals from judgments entered on jury verdicts in the Circuit Court of Franklin County finding him guilty of possession of burglary tools (Count I), § 560.115 RSMo 1969; burglary in the second degree and stealing (Count II), § 560.110 RSMo 1969; and burglary in the second degree (Count III), § 560.045 RSMo 1969. Defendant was sentenced to sixteen (16) years imprisonment. For reversal, defendant argues that the trial court erred in (1) denying his motion for a second psychiatric examination at state expense, (2) overruling his motions to consolidate Counts II and III, and (3) submitting an erroneous instruction to the jury. For the reasons discussed below, we affirm.
Defendant does not challenge the sufficiency of the evidence. From the evidence presented the jury could have reasonably found that on April 23, 1975, defendant broke into the St. Clair Medical Center in St. Clair, Missouri. In the building were located not only the offices of Dr. George A. Peters but also a Pharmacare Pharmacy operated by Joseph Toole. A sliding glass door or window separated the doctor's offices and the pharmacy. On the night of the burglary the outer window of the doctor's offices was broken to gain entry into the building; the sliding glass door or window was broken to get into the pharmacy. Although nothing had been taken from the doctor's offices, drugs had been taken from the pharmacy. Police officers found defendant hiding above the suspended ceiling in the pharmacy and arrested him.
Defendant first argues that the trial court erred in denying his motion for a second psychiatric examination at the expense of the state. Defendant contends that §§ 552.020(4), .030(4), RSMo 1969 (Amended 1971), which permits a second psychiatric examination by a physician chosen and paid by the party making the request, discriminates against him on account of his indigency and therefore violates the equal protection clause. This point, however, has been previously raised and rejected by our supreme court. State v. Terry, 472 S.W.2d 426 (Mo.banc 1971); see also State v. Sturdivan, 497 S.W.2d 139 (Mo.1973); Op.Atty.Gen., No. 2 (Mar. 29, 1973). Furthermore, our court stated in State v. Mullen, 532 S.W.2d 794, 799 (Mo.App.1975) (Stewart, J.), that this question had been definitely settled in Sturdivan and required no further discussion. We agree and therefore hold that failure to grant an indigent defendant a second psychiatric examination at state expense does not violate the equal protection clause.
Defendant also argues that the trial court erred in overruling his motions to consolidate Counts II and III into a single count of burglary in the second degree and stealing. Count II charging defendant defendant with burglary in the second degree and stealing was based on the burglary of the pharmacy and the taking of the drugs. Count III charging defendant with burglary in the second degree only was based on the breaking and entering of the doctor's offices. Defendant contends that the trial court's refusal to consolidate the two counts placed him in double jeopardy because his actions constituted one offense, not two.
We do not agree with defendant's analysis. In State v. Chambers, 524 S.W.2d 826, 830 (Mo.banc 1975), our supreme court adopted the separate offense rule, not the same transaction rule. In order to determine whether a person has been placed in double jeopardy, the court must determine whether each offense necessitates proof of an essential fact or element not required by the other or, in other words, whether the offenses charged are one and the same. Id. at 828-29, citing United States v. Phillips, 432 F.2d 973 (8th Cir. 1970); United States v. Cardarella, 375 F.2d 222 (8th Cir.), cert. den., 389 U.S. 882, 88 S.Ct. 129, 19 L.Ed.2d 176 (1967).
Applying the Chambers test, there were two separate burglaries in fact and in law. The evidence showed that defendant first broke the outer window of the doctor's offices to gain entry into the building. Thereafter, defendant broke the sliding glass door or window to gain entry to the pharmacy from the doctor's offices. The breaking of an inner door has been held sufficient to constitute a burglary in the...
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State v. Duncan
...State, 371 So.2d 1043 (Fla.App.1979); People v. Palmer, 83 Ill.App.3d 732, 39 Ill.Dec. 262, 404 N.E.2d 853 (1980); and State v. Tettamble, 561 S.W.2d 414 (Mo.App.1977), with A.B.A. Standards for Criminal Justice, Joinder and Severance § 1.3(c), Commentary at 23, 24 The trial court instructe......
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State v. Malveaux, WD 31241.
...however, and the prejudicial effect thereof, is within the province of the courts to be judicially determined, see State v. Tettamble, 561 S.W.2d 414 (Mo.App.1977). The question herein is whether appellant suffered any prejudice as a result of a clerical error which, upon discovery, was imm......
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State v. Crafton, 39073
...error, but its prejudicial effect was to be judicially determined. State v. Grant, 560 S.W.2d 39(10) (Mo.App.1977); State v. Tettamble, 561 S.W.2d 414(4) (Mo.App.1977). Following the mandate of these cases, we hold that the use of those instruction forms, without modification, which have be......