State v. Williams, 23085

• Decision Date: 04 January 2001
• Docket Number: No. 23085,23085
• Citation: 34 S.W.3d 440
• Parties: (Mo.App. S.D. 2001) State of Missouri, Plaintiff-Respondent v. Michael A. Williams, Defendant-Appellant 0
• Court: Missouri Court of Appeals

34 S.W.3d 440 (Mo.App. S.D. 2001)

State of Missouri, Plaintiff-Respondent v. Michael A. Williams, Defendant-Appellant

No. 23085

Missouri Court of Appeals Southern District

01/04/2001

Appeal From: Circuit Court of Greene County, Hon. Calvin R. Holden, Judge

Counsel for Appellant: Irene Karns

Counsel for Respondent: Susan K. Glass

Opinion Summary: None

Shrum and Montgomery, JJ., concur

John E. Parrish, Presiding Judge

Michael A. Williams (defendant) appeals his convictions, following a jury trial, of robbery in the first degree, section 569.020, and armed criminal action, section 571.015.¹ This court affirms.

In 1998 Rick Fiedler owned a jewelry store in Springfield, Missouri. The name of the business was Jewelry Marketing. Mr. Fiedler purchased the business in February 1998 from Roy Wolfinbarger and Jeanie Wolfinbarger. Sometime after Mr. Fiedler purchased the business, Ricky Choate came to the store and inquired about buying jewelry. Mr. Fiedler and Mr. Choate met one or two more times before March 31.² Mr. Choate scheduled an appointment for the morning of March 31. Mr. Choate showed up about 11:00 a.m. Defendant was with him. They went to the sales office in the rear of the store. Mr. Choate asked Mr. Fiedler whether he had certain types of jewelry. Mr. Fiedler showed him various jewelry items he had removed from his safe.

Mr. Choate asked about a Rolex watch. Mr. Fiedler went back to the safe. He explained, "And I was leaned over picking up this Rolex watch when a gun came by the door and pressed into my ribs. And he told me don't move, I've got a gun." Ricky Choate was the one holding the gun.

Rick Fiedler's hands and feet were tied. Defendant and Choate went through the safe emptying the jewelry trays. Mr. Fiedler told the trial court and jury that before the two men left with the jewelry, they took a nylon tie device and "zipped in down" against his neck. He said it cut off his air. He explained, "Well, they headed for the door. And as soon as I heard the door knob move, I started trying to get loose because I couldn't breathe."

Mr. Fiedler got his hands free. He held the nylon strip away from his neck so he could breathe and went to his office and hit a silent alarm on the side of his desk. Security personnel came to the door. He went to the door and let them in. Defendant's brief sets out five points on appeal. A footnote to Point V states, "This point submitted pro se by [defendant]."

"[A] defendant in a criminal case has a constitutional right under the Sixth and Fourteenth Amendments to represent himself and waive counsel." Henderson v. State, 786 S.W.2d 194, 197 (Mo.App. 1990), citing Faretta v. California, 422 U.S. 806 (1975). A criminal defendant, however, has no right to hybrid representation, a combination of self-representation and assistance of counsel. State v. Williams, 681 S.W.2d 948, 951 (Mo.App. 1984), citing U.S. v. Weisz, 718 F.2d 413, 426 n.72 (D.C.Cir. 1983). See also State v. Hurt, 931 S.W.2d 213, 214 (Mo.App. 1996); State v. Harris, 669 S.W.2d 579, 582 (Mo.App. 1984). The determination of what legal issues are appropriately presented in an appeal of a criminal case is a decision for counsel. It is not a decision that reposes with the defendant.³ This court perceives no reason to address an appellant's pro se point on appeal when that appellant is represented by counsel. To do so would be to permit hybrid representation. Defendant's appellate counsel had the opportunity to review the issue set forth in Point V. Had she believed it meritorious, she, as defendant's counsel, would have pursued it. This court declines to consider the pro se point. Point V is stricken. Point I is directed to a jury instruction tendered to the trial court on behalf of defendant. The trial court refused to give the instruction. It was marked "Instruction No. A" and filed without being read or otherwise given to the jury. It states⁴

INSTRUCTION NO. A

As to Count I, if you find and believe from the evidence beyond a reasonable doubt:

First, that on or about the 31st day of March, 1998, in the County of Greene, State of Missouri, the defendant or Ricky Choate took a Rolex watch, a diamond and gold ring, a marquis solitaire diamond ring, and other assorted gold and diamond jewelry, which was property in the charge of Rick Fiedler, and

Second, that defendant or Ricky Choate did so for the purpose of withholding it from the owner permanently, and

Third, that defendant or Ricky Choate in doing so used physical force or threatened the immediate use of physical force on or against Rick Fiedler for the purpose of preventing resistance to the taking of the property, and

Fourth, that defendant did not honestly believe that he had a right to take such property, and

Fifth, that in the course of taking the property, the defendant or Ricky Choate displayed or threatened the use of what appeared to be a deadly weapon, and

Sixth, that Ricky Choate was a participant with defendant in the commission of the offense, then you are instructed the offense of robbery in the first degree has occurred, and if you further find and believe from the evidence beyond a reasonable doubt;

Seventh, that with the purpose of promoting or furthering the commission of that robbery in the first degree, the defendant acted together with or aided Ricky Choate in committing that offense, then you will find the defendant guilty under Count I of robbery in the first-degree.

However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

If you do find the defendant guilty under Count I of robbery in the first degree, you will assess and declare one of the following punishments.

1. Life imprisonment

2. Imprisonment for a term of years fixed by you, but not less than ten years and not to exceed thirty years.

Point I asserts that the trial court erred in refusing Instruction No. A because "it prevented the jury from considering [defendant's] defense that he believed the robbery was planned with the cooperation of the owner." The part of Instruction No. A to which Point I is directed is its paragraph fourth that would have required the jury to find "that defendant did not honestly believe that he had a right to take such property" in order to find him guilty.

Defendant relies on section 570.070.1 in making this claim. It provides:

A person does not commit an offense under section 570.030 if, at the time of the appropriation, he

(1) Acted in the honest belief that he had the right to do so; or

(2) Acted in the honest belief that the owner, if present, would have consented to the appropriation.

Defendant's reliance on section 570.070.1 is misplaced. He disregards the language limiting that statute to the commission of "an offense under section 570.030." Section 570.030 addresses the offense of stealing.⁵ Defendant was not charged with stealing. He was charged with and convicted of the offenses of robbery in the first degree and armed criminal action as identified in section 569.020 and section 571.015, respectively. Point I is denied.

Point II is directed to the trial court's refusal to admit an exhibit tendered by defendant, Defendant's Exhibit E.⁶ Point II contends the trial court erred in limiting defendant's trial counsel's examination of Rick Fiedler about the exhibit and in refusing to admit it in evidence. Defendant argues the exhibit was relevant because "it tended to prove that Ricky Fiedler submitted third-party claims to the insurance company that exceeded the amount he later paid to those persons out of the insurance proceeds." Defendant suggests the exhibit and inquiry would have provided "evidence that Fiedler had a motive to join a conspiracy to defraud the insurance company"; that the evidence that was excluded "would have supported [defendant's] argument that there was in fact no robbery because Fiedler willingly relinquished the jewelry."

Mr. Fiedler testified as a witness for the state in its case-in-chief. On cross-examination, defendant's trial attorney inquired about how insurance money paid as a consequence of the robbery had been distributed. Mr. Fiedler testified that the wholesale value of jewelry taken in the robbery was in excess of $200,000. He stated that some pieces of jewelry that were taken were items he had been holding for sale on consignment. He estimated the value of consignment property taken was approximately $150,000. He estimated that around $80,000 of his personal stock had been taken. He had $150,000 insurance coverage. His insurance carrier paid the face amount of the policy.

Mr. Fiedler was asked if all the people whose jewelry had been consigned to him had been compensated for their losses. He testified that some had not been paid. Some received partial payment. He was asked if it was fair to say that some people got about 70 percent of the value of their consignment jewelry with a promise from him that he would pay the remaining 30 percent. Mr. Fiedler said that was correct. He testified that he later filed for bankruptcy and asked to be discharged from those claims.

Mr. Fiedler was asked about the procedure followed in disbursing the insurance proceeds. He said the $150,000 had been placed in "a separate robbery account" at Empire Bank. He testified that there were bank records that would show how the money was disbursed; that there had been no request on behalf of defendant to look at those records. Mr. Fiedler told the court and jury he had not profited in any way from the robbery; that it had been financially devastating to him. At the end of Mr. Fiedler's testimony during the state's case-in-chief, defendant's attorney requested the trial court to remind him he was "under defense subpoena still."

Rick Fiedler was called as a witness for defendant. Before tendering his testimony, defendant's trial attorney told the trial judge the state might have a...