State v. Wahby

• Decision Date: 09 August 1989
• Docket Number: Nos. 70508,70509,s. 70508
• Citation: 775 S.W.2d 147
• Parties: STATE of Missouri, Respondent/Cross-Appellant, v. Vincent P. WAHBY, Appellant/Cross-Respondent.
• Court: Missouri Supreme Court

Page 147

775 S.W.2d 147

STATE of Missouri, Respondent/Cross-Appellant, v. Vincent P. WAHBY, Appellant/Cross-Respondent.

Nos. 70508, 70509.

Supreme Court of Missouri En Banc.

Aug. 9, 1989.

Dennis J. Myers, St. Louis, for respondent/cross-appellant.

William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for appellant/cross-respondent.

HIGGINS, Judge.

Vincent P. Wahby was charged with acceding to corruption (Count I), two counts of failure to execute a warrant (Counts II and III), conspiracy to steal over $150 by coercion (Count IV), and 12 counts of unlawful transfer of a firearm (Counts V through XVI). The jury found Wahby guilty on Counts I through XII, and not guilty on Counts XIII through XVI. In response to Wahby's motion for a new trial, the trial court ordered the verdict on Count I set aside and dismissed the charge. The State appeals that order. Wahby appeals his conviction on Counts II through XII. He alleges: 1) his actions, as proven by the State, do not constitute the crime of unlawful transfer of a firearm as charged in Counts V through XII; 2) multiple firearm charges (Counts V through XII) based on a single transaction violate due process and the double jeopardy clause of the fifth amendment; 3) the State failed to prove that he had a duty to execute a warrant (Counts II and III); 4) the State failed to prove a threat to take or withhold action as a public servant as an element of the conspiracy charge (Count IV); and, 5) a tape recording relating to the conspiracy charge was improperly admitted into evidence. This Court accepted transfer from the Court of Appeals, Eastern District, under Rule 83.02, and consolidated the appeals. The judgment is affirmed with respect to Counts II through IV and reversed with respect to Counts V through XII. The circuit court's order setting aside the jury verdict and dismissing Count I is vacated, and the cause remanded for further proceedings consistent with this opinion.

Vincent P. Wahby became the Marshal of the Court of Appeals, Eastern District, in September 1985. Among his duties was the supervision of convicted individuals free on appeal bond under the jurisdiction of the Eastern District. Incident to this duty, he was to prepare an arrest warrant for those under his supervision whose convictions were affirmed on appeal and send a copy of the court's mandate to the Department of Corrections and Human Resources.

Larry Sutton was one of the individuals free on appeal bond when Wahby assumed his duties as marshal. Sutton was required to report to the marshal once a month. On October 22, 1985, Sutton's conviction for stealing over $150 was affirmed. Wahby prepared a warrant for his arrest which was signed and issued by the chief judge. Sutton's lawyer asked the court to revoke the warrant so that Sutton could remain free pending his decision whether a motion for rehearing or transfer would be filed. The court revoked the warrant. Sutton's lawyer decided not to file any motions, and the court issued its mandate on November 12, 1985. At that time, Sutton was advised to surrender himself.

Sutton reported to Wahby and asked him if he should turn himself in. Wahby said no, and put Sutton in touch with a new lawyer, Robert Hampe. Wahby told Sutton that Hampe would be able to get his conviction reversed. Sutton paid Hampe $750 and was told that motions would be filed when the trial judge in Sutton's case "cooled off." In the meantime, Sutton, Hampe and Wahby discussed "burying" Sutton's file in the archives. Wahby later assured Sutton that his file was indeed buried.

In about March 1986, Sutton started dating Maureen Johnson. In August 1986, Sutton told her that Wahby wanted to have sex with her in return for keeping Sutton out of jail. Wahby and Johnson subsequently had sexual relations.

In September 1986, Sutton went to work in Wahby's gun shop. He was not paid for his work; he testified at trial that he was returning a favor. In the course of his work, he met several of the judges from the Eastern District. Wahby instructed Sutton not to mention his conviction or appeal to any of the judges, and he complied.

In October, Wahby, Sutton and a third person went to a sheriff's auction. All three contributed money, and Wahby purchased three cartloads of guns (approximately 100 individual guns). The guns were taken to Wahby's gun shop. Beginning in November, Sutton took firearms from the shop on two or three occasions. He took a total of 12 guns, all of which were full-length rifles or shotguns purchased at the sheriff's auction. Wahby admitted "transferring" the guns to Sutton, and signed the federal firearm transaction records for those guns. Sutton testified that the dates on the records were falsified so that Wahby would not have to file additional federal reports indicating that Sutton had taken more than one gun in a single day.

During the time Sutton was free and working in the gun shop, Wahby met Marsha Fredrickson. She was free on appeal bond after a conviction for prostitution and reported to Wahby each month. Wahby suggested to Sutton that he try to get some money from her. Sutton subsequently met her and told her that if she did not pay money Wahby could use his influence to make sure her conviction was affirmed regardless of the merits of her appeal. Fredrickson called Wahby, and he indicated that Sutton's representations were true.

Wahby referred Fredrickson to Attorney Hampe who agreed to handle her appeal for $45,000. Fredrickson paid Hampe a total of $70,000 for representation in her pending appeal and another matter in federal court. After her conversation with Wahby, Fredrickson went to Wahby's gun shop on a number of occasions and dropped off a total of over $2,000 in cash. On three occasions, she gave the money directly to Sutton. Sutton let her overhear telephone conversations with Wahby that indicated he knew about the transactions. She left a fourth payment in a box in the restroom; Sutton testified that when he went to retrieve it, it was gone, presumably taken by Wahby.

During the time he was out of jail, Sutton made a series of tape recordings of his conversations with Wahby. He used a voice-activated recording device. The recordings were admittedly poor ones, but one was admitted over objection at trial upon Sutton's representation that it accurately reflected the conversation in which he took part.

Finally, in May 1987, a special agent with the Federal Bureau of Investigation attempted to locate Sutton. The FBI agent contacted the St. Louis County Police because it appeared to him that Sutton should have been in jail. A police detective in turn contacted Wahby and asked him to look into the matter. Wahby called the detective back and said there had been a mix-up; an arrest warrant should have been issued, and one would be issued.

Wahby prepared an arrest warrant on May 28, 1987, and the Honorable Robert O. Snyder signed it the same day. Because he failed to enter the warrant into a law enforcement computer network until June 2, Wahby was the only law enforcement officer who knew about the warrant in the intervening time. Wahby called Sutton at the gun shop on the 28th and told him to stay put. Sutton disappeared until June 16, when he surrendered to the police. On June 10, Judge Snyder questioned Wahby about Sutton, and Wahby admitted to giving Sutton a few days to clear out.

I.

Wahby contends that the transfer of non-concealable weapons to a fugitive from justice is not a crime as defined in section 571.060, RSMo 1986:

1. A person commits the crime of unlawful transfer of weapons if he:

(1) Knowingly sells, leases, loans, gives away or delivers a firearm or ammunition for a firearm to any person who, under the provisions of section 571.070, is not lawfully entitled to possess such[.]

Section 571.070 provides:

1. A person commits the crime of unlawful possession of a concealable firearm if he has any concealable firearm in his possession and:

(1) He has pled guilty to or has been convicted of a dangerous felony, as defined in section 556.061, RSMo, or of an attempt to commit a dangerous felony, or of a crime under the laws of any state or of the United States which, if committed within this state, would be a dangerous felony, or confined therefor in this state or elsewhere during the five-year period immediately preceding the date of such possession; or

(2) He is a fugitive from justice, is habitually in an intoxicated or drugged condition, or is currently adjudged mentally incompetent.

It is not disputed that Sutton is within the class of persons prohibited from possessing concealable firearms. It is also not disputed that the guns Wahby transferred to him were not "concealable firearms" as defined in section 571.010(2). Wahby contends that the above-quoted statutes are interdependent. Therefore, section 571.060(1) prohibits the transfer of only concealable firearms to fugitives from justice. The State argues that the statute prohibits the transfer of all firearms and ammunition to a class, and section 571.070 is to be used only in defining that class.

The primary purpose of statutory construction is to ascertain the intent of the legislature, and to give effect to that intent. State v. Patterson, 729 S.W.2d 226 (Mo.App.1987). Legislative intent is to be determined, where possible, from the language of the statute itself, considering the words used in their plain and ordinary meaning. State v. Sweeney, 701 S.W.2d 420 (Mo. banc 1985). Any doubt as to the meaning of a criminal statute must be resolved in favor of the defendant. State v. Hornbeck, 707 S.W.2d 809 (Mo.App.1986).

Section 571.070 makes it a crime for dangerous felons, fugitives from justice, the habitually intoxicated or drugged and the mentally incompetent to possess concealable firearms. Section 571.060 prohibits the transfer of a firearm or ammunition "to any person who, under the provisions of section 571.070, is...