State v. Williams
| Decision Date | 28 April 1987 |
| Docket Number | No. WD,WD |
| Citation | 728 S.W.2d 690 |
| Parties | STATE of Missouri, Respondent, v. Randall WILLIAMS, Appellant. 38677. |
| Court | Missouri Court of Appeals |
Janet M. Thompson, Columbia, for appellant.
Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before CLARK, C.J., and TURNAGE and NUGENT, JJ.
Randall Williams was convicted by a jury of the offenses of first degree assault and possession of a weapon about the premises of a correctional institution. He was found by the court to be a prior and persistent offender and was sentenced to concurrent terms of ten years and five years.
The evidence presented at trial, recounted and recast by accepting as true that which was favorable to the verdict and rejecting evidence and inferences to the contrary, State v. Fletcher, 709 S.W.2d 924, 925 (Mo.App.1986), disclosed the following facts. On the afternoon of August 5, 1985, appellant and one Bolden became involved in an argument with the victim, Torrance, about an item of clothing. All were then inmates at the Missouri State Penitentiary. Bolden drew a knife and Torrance ran, with appellant and Bolden in pursuit. According to guards who witnessed the attack when appellant and Bolden caught Torrance, appellant inflicted a superficial laceration on Torrance's right leg using an ice pick like object. Bolden cut Torrance with the knife on Torrance's left leg and left chest. The guards took the ice pick from appellant's hand and found a bloody substance on the tip.
In his first point of error, Williams contends the court erred in giving the jury the verdict directing instruction for assault in the first degree and in failing to order acquittal on that charge because the unchallenged evidence showed Torrance did not sustain serious physical injury. The thesis adopted rests on the assumption that the offense of first degree assault and the instruction both postulate a crime in which the victim is caused to sustain serious physical injury. Under this reasoning, appellant argues that superficial and non-life threatening knife wounds do not cause serious physical injury and therefore made no case of first degree assault.
The applicable statute, § 565.050, RSMo.1986 provides:
It is apparent from the above that the proven occurrence of actual serious physical injury sustained by the victim is only material in the determination of whether the offense is a class A or class B felony. A conviction for first degree assault may be had on proof of the attempt to cause serious physical injury or on proof that serious physical injury was inflicted. If the former, then the offense is a class B felony. If the latter, the crime is a class A felony. The only difference in practical consequence is the range of punishment.
In this case, the verdict directing instruction for assault used the language, "attempted to kill or cause serious physical injury," thereby allowing a guilty verdict to be returned based on proof of an attempted assault with purpose to kill or cause serious bodily injury. The jury was also instructed that if serious physical injury was in fact inflicted, then it should return its verdict so stating. The verdict as returned did not include the last mentioned finding with the consequence that the conviction was for assault in the first degree, a class B felony. This was consistent with appellant's claim that serious physical injury to Torrance was not proved.
Appellant appears to rely on the information which charged the class A felony and on the caption of the judgment entry for his claim that he was convicted and sentenced for the class A felony, despite absence of proof of any serious injury inflicted. Notwithstanding any error in the judgment caption, which is at best unclear, the body of the judgment refers only to assault in the first degree and the punishment imposed was within the range of that provided for a class B felony. Williams was convicted and sentenced for the lower grade felony and therefore cannot base a claim for reversal on the lack of proof that the victim sustained serious physical injury. To the extent the caption on the judgment, which is not a part of the judgment, may indicate otherwise, it may and should be corrected by the trial court by entry nunc pro tunc. Jolly v. State, 616 S.W.2d 569, 571 (Mo.App.1981).
In a second point, Williams contends the court erred when it denied his motion for mistrial following the comment by the prosecutor in closing argument, referring to defendant, " * * * he is the one that has done exactly the same thing before." Williams argues that the statement was improper because it suggested to the jury that Williams was more likely to be guilty because he had previously committed another assault.
The record indicates the trial court sustained defense counsel's objection to the argument. The jury was not instructed to disregard the statement because counsel did not ask that relief, only a mistrial. The declaration of a mistrial is a drastic remedy that should be employed only in those extraordinary circumstances in which prejudice to the defendant can be removed in no other way. Whether a mistrial should be declared rests largely within the discretion of the trial court and its ruling will not be disturbed in the absence of an abuse of discretion. State v. Davis, 653 S.W.2d 167, 176 (Mo. banc 1983). There was no abuse of discretion in...
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