State v. Vivone, 17355

Citation998 S.W.2d 146
Decision Date23 July 1999
Docket NumberNo. 17355,17355
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Thomas VIVONE, Defendant-Appellant.
CourtCourt of Appeal of Missouri (US)

Emmett D. Queener, for Appellant.

Jeremiah W. (Jay) Nixon, Barbara K. Chesser, Jefferson City, for Respondent.

KENNETH W. SHRUM, Judge.

Thomas Vivone (Defendant) pleaded not guilty by reason of mental disease or defect to the charge of murder in the first degree, § 565.020.1. 1 He was convicted by a jury and sentenced to life imprisonment without eligibility for parole. This court ruled in State v. Vivone, 857 S.W.2d 489 (Mo.App.1993) (en banc), that Defendant had abandoned or waived his initial appeal of the judgment of conviction and sentence. Id. at 491. On November 4, 1998, this court withdrew its mandate in Defendant's direct appeal (No. 17355). 2 This appeal followed. We affirm.

FACTS

Defendant does not challenge the sufficiency of the evidence. A detailed account of the facts are contained in Vivone, 857 S.W.2d at 489.

Briefly, the record reveals that in the early morning hours of February 11, 1989, Defendant was drinking with Robert Demster and Breck Lingbeck at Demster's apartment. Demster got drunk and went to bed. 3 Defendant and Lingbeck began fighting. According to Lingbeck, Defendant assaulted him after Lingbeck told Defendant to leave. Defendant first struck Lingbeck with his fists and then hit him with a frying pan. Lingbeck got his pocket knife to defend himself but dropped it. Defendant picked up Lingbeck's knife and stabbed him repeatedly. Lingbeck received six stab wounds to the front of his body, five to his back, and sustained a broken ankle and a punctured lung. Defendant then left the Demster apartment and went next door to his apartment to get a larger knife.

After retrieving a kitchen knife, Defendant returned to the Demster apartment. He saw that Lingbeck was not moving. At that point, he went to the bedroom where Demster lay and stabbed him fatally in the chest as he slept. A pathologist testified that two stab wounds in Demster's back were caused by a smaller knife than the kitchen knife found in his chest but that the chest wound caused his death. The pathologist also testified that the fatal wound was exactly perpendicular to the body, there was no evidence of any defensive measures by which Demster tried to protect himself, and there was nothing about his wounds to indicate Demster was standing or moving when the stabbings occurred. The pathologist further testified that his findings were consistent with the theory that Demster was unconscious when he was killed. Defendant told an investigating officer he had stabbed Demster because he (Defendant) thought Demster was a witness.

DISCUSSION AND DECISION
Point I: Plain Error: Instructions MAI-CR3d 310.12 & 310.10

In Point I, Defendant contends, inter alia, that the trial court plainly erred in giving Instruction No. 9 (patterned after MAI-CR3d 310.12) and "in not assuring that the Instruction was submitted in compliance with the Notes on Use." 4 He says that adherence to the Notes on Use would have altered Instruction No. 9 and required an additional instruction patterned after MAI-CR3d 310.10.

Instruction No. 9 was requested by the State and, as submitted, provided:

"If you find and believe from the evidence that the defendant was involved in offenses other than the one for which he is now on trial, you may consider that evidence on the issue of motive or intent of the defendant and you may also consider such evidence for the purpose of deciding the believability of the defendant and the weight to be given to his testimony."

The State presented evidence that Defendant struck, beat, and stabbed Lingbeck just prior to the time he stabbed and killed Demster. Although such evidence was not admissible to show Defendant's propensity to assault or kill Demster, see State v. Skillicorn, 944 S.W.2d 877, 886 (Mo.banc), cert. denied, --- U.S. ----, 118 S.Ct. 568, 139 L.Ed.2d 407 (1997), it was admissible as it had a legitimate tendency to prove the Demster crime. See State v. Trimble, 638 S.W.2d 726, 732-33 (Mo.banc 1982). Specifically, evidence that Defendant assaulted Lingbeck tended to establish Defendant's motive and intent to kill Demster. Id.

With the evidence of Defendant's assault upon Lingbeck in the record, the jury could have found that Defendant "was involved in offenses other than the one for which he was on trial," i.e., first-degree assault of Lingbeck, § 565.050, and armed criminal action against Lingbeck, § 571.015. Accordingly, Instruction No. 9 would have correctly instructed the jury if the only evidence of other crimes had been Defendant's uncharged offenses against Lingbeck. See MAI-CR3d 310.10, Notes on Use 3(d). This was not the case here, however.

The State also presented evidence that Defendant had been convicted of crimes wholly unrelated to the murder of Demster and the assault of Lingbeck. Specifically, the State's cross-examination of Defendant revealed that he had three prior convictions, two of which were for driving while intoxicated. Evidence of Defendant's prior convictions was admissible. This follows because once Defendant testified, he subjected himself to contradiction and impeachment as any other witness and his credibility was subject to challenge by proof of his prior convictions. State v. Hoopingarner, 845 S.W.2d 89, 94 (Mo.App.1993); §§ 491.050 and 546.260.1. Defendant does not argue otherwise.

Defendant contends, however, that the trial court plainly erred by submitting only Instruction No. 9 to the jury on the issue of other offenses as that instruction allowed the jury to consider both the uncharged offenses against Lingbeck and Defendant's prior convictions on the issue of Defendant's motive or intent in connection with the crimes against Demster. He insists that once the State asked for an instruction patterned after MAI-CR3d 310.12, the trial court should have, sua sponte, modified Instruction No. 9 and should have given another instruction patterned after MAI-CR3d 310.10. 5 In making this argument, Defendant points to the Notes on Use for each instruction.

The Notes on Use for MAI-CR3d 310.12 state that its use "is governed by Notes on Use 3 under MAI-CR3d 310.10" and the Notes on Use following MAI-CR3d 310.12. The relevant portion of note 3 under MAI-CR3d 310.10 states:

"(a) Explanation of terms in Notes on Use:

"(i) Prior crimes committed by the defendant will be referred to as either 'related' or 'unrelated.' 'Related crimes' are those which may go to show intent, motive, etc. Such crimes may be shown by the state as substantive evidence of guilt of the crime on trial, whether the defendant testifies or not. See MAI-CR3d 310.12. In addition, if defendant takes the stand as a witness, proof of conviction of, pleas of guilty to, pleas of nolo contendere to, and findings of guilt of 'related crimes' may be considered as impeaching his credibility as a witness.

"(ii) 'Unrelated crimes' are those convictions, pleas of guilty, pleas of nolo contendere, and findings of guilt which may be considered solely for the purpose of impeaching the credibility of the defendant if he testified.

....

"(g) If the defendant testifies and if there is evidence that the defendant was involved in but not 'convicted, etc.' of a 'related crime' but was 'convicted, etc.' of an 'unrelated crime,' then both MAI-CR3d 310.10 and 310.12 should be given. In such case, in MAI-CR3d 310.12

"(1) the phrase 'involved in' will be used instead of the other parenthetical phrases,

"(2) the phrase 'and other than the offense mentioned in Instruction No. ___' will be included,

(3) the parenthetical reference to believability will be omitted, and

(4) the last sentence in parentheses will be included."

Defendant is correct that the applicable Notes on Use were not followed here. However, Defendant did not preserve this error for appellate review. This follows because Defendant did not object to Instruction No. 9 on the basis that it failed to follow the Notes on Use, he did not proffer correct versions of MAI-CR3d 310.10 and 310.12 for submission to the jury, and he failed to state his claims of instructional error in his motion for new trial. See State v. Howard, 896 S.W.2d 471, 482 (Mo.App.1995).

Even so, Defendant requests that we examine his first point under the plain error standard of Rule 30.20. 6 He asserts that this error affected his constitutionally guaranteed right to a fair trial and is, therefore, susceptible to review for plain error. See State v. Frankenberg, 876 S.W.2d 286, 289 (Mo.App.1994). He maintains that giving Instruction No. 9 without instructing per MAI-CR3rd 310.10 misdirected the jury to the point of creating a miscarriage of justice.

Frankenberg is the only case we find and is the only one cited by Defendant in which an appellate court reversed a conviction under the plain error rule based on erroneous use of MAI-CR3d 310.10 or MAI-CR3d 310.12. Thus, we review the pertinent facts of that case.

Frankenberg was convicted of an act of sodomy on an eleven-year-old female victim. The victim's testimony established the elements of the crime charged. Frankenberg testified and denied the victim's allegations. He admitted convictions for prior unrelated charges of selling drugs, burglary, and stealing. There was no evidence of related but uncharged crimes. Even so, the trial court gave an instruction patterned after MAI-CR3d 310.12. This instruction incorrectly advised the jury that it could consider Frankenberg's prior unrelated convictions "on the issue of [his] intent" to commit the charged crime. This instructional error was not preserved due to noncompliance with briefing rules. 7 Nevertheless, this court found that the trial court plainly erred in giving MAI-CR3d 310.12 rather than MAI-CR3d 310.10.

"By not instructing the jury...

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  • State v. Ballard
    • United States
    • Court of Appeal of Missouri (US)
    • 22 Noviembre 1999
    ...opts not to object to inadmissible testimony for strategic reasons, any alleged error in its admission is waived. State v. Vivone, 998 S.W.2d 146, 156-57 (Mo.App.1999). See McMillin v. Union Elec. Co., 820 S.W.2d 352, 355 The case of State v. Jackson, 500 S.W.2d 306 (Mo.App.1973), is partic......

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