Worthon v. State, 12764
| Decision Date | 18 April 1983 |
| Docket Number | No. 12764,12764 |
| Parties | Richard Lee WORTHON, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
James A. DeReign, DeReign & DeReign, Caruthersville, for movant-appellant.
John D. Ashcroft, Atty. Gen., John M. Morris, Kristie Green, Asst. Attys. Gen., Jefferson City, for respondent.
In 1978, movant, Richard Lee Worthon, was charged in a two-count information with first degree robbery and assault with intent to kill. At trial, the evidence showed that Worthon had entered a grocery store operated by Oather Brown in Hayti Heights, Missouri, broke a catsup bottle on the counter, cut Brown's throat with the broken bottle, told Brown "This is a hold up", seized Brown's billfold containing in excess of $200, and fled the scene.
Worthon, who had previously been convicted of manslaughter and assault with intent to kill, took the stand and denied the charge. At the close of the evidence, the prosecuting attorney voluntarily dismissed the assault charge because "I thought there might be some possibility of double jeopardy if he were convicted on both." The first degree robbery charge was submitted to the jury. Worthon was found guilty and was sentenced to life imprisonment by the trial court in accordance with the jury's recommendation. Worthon appealed and his conviction was affirmed. State v. Worthon, 585 S.W.2d 143 (Mo.App.1979).
Worthon then filed a pro se motion to vacate his sentence under Rule 27.26. 1 Counsel was appointed. The motion was amended four times, and lengthy evidentiary hearings were held. The trial court then made findings of fact and conclusions of law, and denied the relief sought. This appeal followed.
Worthon's first point relied on is that "The trial court and 27.26 hearing judge erred in denying movant's double jeopardy argument, in that as the assault charge was embodied within the robbery charge, a dismissal of the assault charge barred (i.e., was an acquittal) the state from a verdict director on robbery or verdict on robbery, due to the lack of the evidence on the element on violence to the victim."
While it is difficult to determine from the point relied on what Worthon's specific complaint is, a careful reading of the argument portion of the brief reveals his contention is that the dismissal of the assault charge amounted to an acquittal on the violence to the person issue; that the robbery charge was therefore unsupported by evidence on the violence issue and should not have been submitted to the jury, and that a "lesser graded offense" instruction, such as stealing from the person, should have been submitted to the jury.
No objection was made at time of trial to the verdict directing instruction on robbery, no request was made for an instruction on the lesser included offense of stealing from the person, no objection was raised in Worthon's motion for new trial concerning double jeopardy, or improper instructions, and no such claims were made in Worthon's appeal. Worthon's complaint on this point is not really one of double jeopardy, which is a constitutional issue, but is one of trial court error for failure to properly instruct the jury. Instructional error claims are not cognizable on 27.26 review. Campbell v. State, 515 S.W.2d 453, 456 (Mo.1974); Brager v. State, 625 S.W.2d 892, 895 (Mo.App.1981). Movant's relabelling of trial court error as constitutional error does not make it so. State v. Stegall, 485 S.W.2d 414, 415 (Mo.1972); Richards v. State, 495 S.W.2d 442, 443 (Mo.1973). The point is denied.
Worthon's remaining point is that "The court erred in is [sic] ruling that the jury selection by the sheriff's department...
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