State v. Wright, 38017
| Decision Date | 26 April 1977 |
| Docket Number | No. 38017,38017 |
| Citation | 551 S.W.2d 884 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Wendell Wayne WRIGHT, Defendant-Appellant. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
Paul R. Hales, St. Louis, for defendant-appellant.
John D. Ashcroft, Atty. Gen., Jefferson City, Donald A. Purdy, Jr., Asst. Atty. Gen., Courtney Goodman, Jr., Pros. Atty., Thomas E. Dittmeier, Noel L. Robyn, Asst. Pros. Attys., Clayton, for plaintiff-respondent.
Defendant appeals from judgments of convictions for robbery in the first degree, §§ 560.120, 560.135 1 and assault with intent to kill, § 559.180, and respective sentences of thirty-five (35) years and life imprisonment to run concurrently.
For reversal, defendant urges that the trial court erred: (1) in denying defendant's motion to sever the counts; (2) in overruling defendant's objection to the admission of a shotgun into evidence; and (3) in overruling defendant's motion for judgment of acquittal. For reasons hereinafter stated, we affirm the judgment.
From the evidence at trial the jury could find: On April 5, 1975, Lester A. Slattery, Jr., the owner and operator of a cleaning establishment, was robbed and shot. According to Slattery, the defendant presented himself as a customer, but when he gained entrance he revealed a sawed-off shotgun. After Slattery was shot, he lay on the floor until defendant left. Slattery then called his wife.
At approximately 4:25 p.m., the police arrived and secured the scene. A sawed-off double-barreled shotgun and a brown suede-type jacket were found in an alley a block west of the cleaners. The shotgun contained one live and one spent shell. A fingerprint, later identified as the defendant's was lifted from the cashbox.
When the police spoke with Slattery on June 24, he described his assailant as young, around 20 or 21 years of age, light complected and approximately six feet tall. He had "piercing" eyes. He wore some kind of a leather coat and a large hat. From a group of five photographs Slattery identified a picture of the defendant, Wendell Wayne Wright, as his assailant. Slattery also made an in-court identification of the defendant.
At trial, the sawed-off shotgun was admitted into evidence by stipulation. Slattery testified that he had a good look at his assailant's shotgun and that this gun was "just like" it. Officer Joseph Diggs testified that he seized the shotgun from an area approximately 300 to 350 feet away from the cleaners, within three hours of the time when the crime was committed. After Officer Diggs' testimony, defendant's counsel requested leave to withdraw her stipulation of admissibility of the gun. Leave was not granted.
The defense offered was alibi. Defendant's father testified that he, his sons and daughters visited a funeral home around three o'clock that afternoon. Defendant's girlfriend testified that from approximately 4:00 p.m. until after dark she and the defendant ran errands, including picking up a birthday cake at a store quite a distance away. That evening was defendant's mother's birthday party. There was testimony that the defendant was at the party for the entire evening.
Defendant's first allegation of error is that the trial court denied his motion to sever the counts and try him separately on each offense, on the basis of an unconstitutional rule. The constitutional question, however, was neither asserted to the trial court nor included in the motion for a new trial. In seeking severance originally, counsel argued only that the range of punishment would prejudice the defendant's case. In the motion for a new trial counsel argued only that such a denial prejudices the defendant at trial in that it keeps the jury from considering each count as a separate offense and therefore the state is not held to the proper burden of proof. In the brief, however, counsel cites supreme court rule 24.04, V.A.M.R., which posits the "same transaction" test for joinder as the authority under which the two counts were tried together. Counsel concedes that the offenses charged arose from the same transaction and then challenges the rule as an unconstitutional exercise of supreme court rule making power under Art. V, § 5 of the Missouri Constitution. The law is well-settled on preservation of constitutional questions.
"To raise constitutional grounds the party asserting them must present and direct the trial court's attention to such an objection by clearly stating with particularity the constitutional grounds at the first opportunity, the sections of the constitution claimed to have been violated, and it must be preserved in the motion for a new trial and must be adequately covered in the briefs. . . ." (State v. Bibee, 496 S.W.2d 305, 313 (Mo.App.1973).
See also State v. Meiers, 412 S.W.2d 478 (Mo.1967), State v. Johnstone, 335 S.W.2d 199 (Mo.1953). Because objection to joinder was not made with particular and specific reference to the constitutional question and because the constitutional question was not preserved in the motion for new trial, nothing is preserved for consideration on appeal. State v. Johnson, 472 S.W.2d 393 (Mo.1971); State v. Hammonds, 459 S.W.2d 365 (Mo.1970) and State v. McDaniel, 392 S.W.2d 310 (Mo.1965).
Defendant's second allegation of error is the admission of the sawed-off shotgun into evidence. The gun was admitted into evidence by stipulation during the direct examination of Officer Joseph Diggs. Defendant's counsel then cross-examined Diggs after which court recessed. During the recess, defendant's counsel learned for the first time that no attempt would be made to show that the gun was operable. Thereafter in chambers, defendant's counsel requested leave to withdraw her stipulation and attempted to object to the admission of the gun as irrelevant and prejudicial. The motion was denied.
Defendant alleges that only the trial court can decide a question of admissibility in the first instance. Defendant contends that in the present case the trial court did not reach the question of admissibility in denying leave to withdraw the stipulation and therefore the case must be remanded. However, when defendant's counsel presented the motion to withdraw, she set forth her objections to its admissibility and the state responded. It cannot be presumed that in denying the motion the trial court did not rule on admissibility. Therefore, we proceed to review the trial court's determination of relevance without deciding the general issue whether a case must be remanded if a trial court heard no arguments on admissibility.
In contending that the shotgun was irrelevant and prejudicial, defendant would have us give an unreasonably narrow construction to State v. Parr, 296 Mo. 406, 246 S.W. 903 (Mo.1922). Defendant would have us hold "that the existence or placement of a piece of physical evidence must be shown to follow in time the commission of the crime in order to be relevant and admissible." While in Parr, supra, a bullet obtained from an automobile roof was admitted into evidence along with testimony that there were no bullet holes in the car before the incident, admissibility was not predicated on the testimony. The Parr court enunciated the test in the following manner:
(State v. Parr, supra, 246 S.W. at 905).
This less stringent standard has been followed consistently by this court, permitting admission of objects such as a scarf, State v. Henderson, 510 S.W.2d 813 (Mo.App.1974) and a screwdriver, State v. Rains, 537 S.W.2d 219 (Mo.App.1976), found near the crime scene....
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