Appendix — Missouri v. Kane

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APPENDIX

APPENDIX A-1

(Filed March 9, 1982)

SUPREME COURT OF MISSOURI

EN BANC

No. 63324

STATE OF MISSOURI,

Respondent,

vs.

ANTHONY J. KANE,

Appellant.

ON TRANSFER FROM THE COURT OF APPEALS

Appellant-defendant appealed to the Missouri Court

of Appeals, Western District, from a conviction by jury

of robbery in the second degree and armed criminal action.

The jury assessed punishment at seven years on the rob-

bery and thirty-five years on the armed criminal action.

The court of appeals affirmed the robbery conviction

under Count I and reversed the armed criminal action

conviction under Count II.

Because of the general reluctance of courts to reverse

the longer sentence and for reason that the Court of Ap-

peals believed this Court had never clearly enunciated its

rationale for reversing the armed criminal action convic-

tion as opposed to the underlying felony either in or fol-

lowing our original opinion in Sours v. State, (Sours I),

593 S.W.2d 208, (Mo. banc 1980), and, because of the gen-

eral interest in this matter, the court of appeals, after

opinion, transferred the case to this Court. 83.02.

While this Court has made no effort to statistically

document the length of sentences imposed by juries in

Sours-type cases, our general observation has been that

something in excess of ninety-five percent of the Ces the

much longer sentence has been assessed on the “underlying

felony” (robbery) and the shorter sentence on the armed

criminal action. We interpret this to mean that juries

believed that they were enhancing the longer sentence

for the basic underlying crime by the assessment of the

penalty on the armed criminal action charge.

In Sours I, we briefly alluded to the fact that in the

armed criminal action section, then § 559.225, RSMo Supp.

1976, “Each subsection contains the sentence: “The punish-

ment imposed pursuant to this subsection shall be in

addition to any punishment provided by law for the crime

committed by, with, or through the use, assistance, or aid

of a dangerous or deadly weapon.’” 593 S.W.2d 208, 222-23.

We then reversed the conviction for armed criminal ac-

tion. Clearly the quoted language in its usual and cus-

tumary meaning was the language of enhancement, even

though the 1976 reenactment of the statute had converted

the statute from an enhancement statute to a statute con-

stituting a separate crime. Laws of Mo. 1976, p. 780

(C.C.S.H.B. 1231, 997, 1024, 1116, 1332, & 1346).

It may be helpful to review the pre-Sours history of

the armed criminal action statute. It was first passed in

1927:

[S. B. 214.

CRIMES AND PUNISHMENT: Providing Penalty

for Commission of Felony While Armed and In-

creasing Penalty for Each Subsequent Felony Com-

AN ACT to provide a penalty for the commission of a

felony while armed with a pistol or any deadly

weapon or instrument and to provide an increased

penalty for each subsequent felony committed

while so armed and providing for the repeal of

all acts and parts of acts inconsiste. t with this act.

SECTION SECTION

1. Providing for increased 2. Repealing inconsistent

penalty for comrutting acts.

felony while armed

with pistol or deadly

weapon.

Be it enacted by the General Assembly of the State

of Missouri, as follows:

Section 1. Providing for increased penalty for

committing felony while armed with pistol or deadly

weapon.—If any person shall be convicted of com-

mitting a felony, or attempting to commit a felony,

while armed with a pistol or any deadly weapon the

punishment elsewhere prescribed for said offense in

the statutes and laws of the state of Missouri for the

felony of which he is convicted shall be increased by

the trial judge by imprisonment in the state peniten-

tiary for two years. Upon a second conviction for a

felony so committed such period of imprisonment

shall be increased by fifteen years. Upon a fourth

or subsequent conviction for a felony so committed

the person so convicted shall be imprisoned for life.

Sec. 2. Repealing inconsistent acts— All acts and

parts of acts inconsistent with this act are hereby re-

pealed.

Approved April 6, 1927.

Laws of Mo. 1927, p. 173.

The statute so remained on our books as an enhance-

ment statute from that time until 1976, at which time it

was by legislative reenactment converted into a statute

constituting a separate and distinct crime:

{C.C.S.H.B. 1231, 997, 1024, 1116, 1332 and 1346]

CRIMES AND PUNISHMENT: Commission of cer-

tain crimes with certain weapons.

AN ACT to repeal section 556.140, RSMo 1969, relating

to the commission of certain crimes with certain

weapons, and to enact in lieu thereof one new

section relating to the same subject, with penalty

provisions.

SECTION SECTION

A. Enacting clause. 1. Armed criminal action

—penalty—exceptions.

Be it enacted by the General Assembly of the State of

Missouri, as follows:

Section A. Enacting clause.—Section 556.140,

RSMo 1969 is repealed and one new section enacted in

lieu thereof, to be known as section 1, to read as fol-

lows:

Section 1. Armed criminal action—penalty-ex-

ceptions.—1. Except as provided in subsection 4 of

this section, any person who commits any felony under

the laws of this state by, with, or through the use,

assistance, or aid of a dangerous or deadly weapon is

also guilty of the crime of armed criminal action and,

upon conviction, shall be punished by imprisonment

by the division of corrections for a term of not less

than three years. The punishment imposed pursuant

to this subsection shall be in addition to any punish-

ment provided by law for the crime committed by,

with, or through the use, assistance, or aid of a dan-

gerous or deadly weapon. No person convicted under

this subsection shall be eligible for parole, probation,

conditional release or suspended imposition or execu-

tion of sentence for a period of three calendar years.

2. Any person convicted of a second offense of

armed criminal action shall be punished by imprison-

ment by the division of corrections for a term of not

less than five years. The punishment imposed pur-

suant to this subsection shall be in addition to any

punishment provided by law for the crime committed

by, with, or through the use, assistance, or aid of a

dangerous or deadly weapon. No person convicted

under this subsection shall be eligible for parole, pro-

bation, conditional release or suspended imposition or

execution of sentence for a period of five calendar

years.

3. Any person convicted of a third or subsequent

offense of armed criminal action shall be punished by

imprisonment by the division of corrections for a term

of not less than ten years. The punishment imposed

pursuant to this subsection shall be in addition to any

punishment provided by law for the crime committed

by, with, or through the use, assistance, or aid of a

dangerous or deadly weapon. No person convicted

under this subsection shall be eligible for parole, pro-

bation, conditional release or suspended imposition or

execution of sentence for a period of ten calendar

years.

4. The provisions of this section shall not apply to

the felonies defined in sections 559.005, 564.590, 564.610,

564.620, 564.630, and 564.640, RSMo.

Approved June 24, 1976.

Laws of Mo. 1976, p. 780, now § 571.015, RSMo 1978.

In order that we may more clearly understand the en-

hancement aspects of our own armed criminal action (fel-

ony firearm) statute, it may be helpful to examine the

history of similar statutes from all of the states.

At least twenty states have enacted enhanced punish-

ment statutes. Some require that so many years be added

to a sentence for the felony or that so many years of the

sentence must be served prior to parole or probation. In

addition to Missouri, at least twelve other states have stat-

utes declaring the use of a firearm during a felony to

be a separate offense requiring imposition of a separate

punishment.

The validity of enhancement statutes is clear. As

stated in State v. Foster, 91 Wash.2d 466, 589 P.2d 789, 797

(1979), We are aware of no authority which supports ap-

pellant’s claim of double jeopardy for this type of enhanced

penalty scheme.” Quoted also in State v. Davison, 614

P.2d 489, 498 (Mont. 1980). See also State v. Reese, 625

S.W.2d 130 (Mo. banc 1981). Other claims challenging

the validity of this type of statute have also been rejected.

State v. Warner, 52 Or.App. 987, 630 P.2d 385 (1981);

People v. Childs, 610 P.2d 101 (Colo. 1980); State v.

Holmes, 276 N.W.2d 823 (Iowa 1979); State v. Frye, 390

A.2d 520 (Me. 1978); State v. Gabaldon, 92 N.M. 230, 585

P.2d 1352 (N.M.App. 1978); State v. Freeman, 233 Kan.

362, 574 P.2d 950 (1978); People v. Bush, 123 Cal.Rptr.

576, 50 Cal.App.3rd 168 (1975); Woofter v. O’Donnell, 91

Nev. 756, 542 P.2d 1396 (1975). In December of 1981, our

own Court unanimously recognized the validity of enhance-

ment statutes in a case dealing with our dangerous offender

statute saying, “It is an enhancement statute and does

not violate the constitutional guarantee against multiple

punishment.” State v. Reese, 625 S.W.2d 130 (Mo. banc

1981).

One court has limited the application of the enhance-

ment statutes to those felonies in which the use of a firearm

is not an element of the crime. State v. Workman, 90

Wash.2d 443, 584 P.2d 382 (1978). However, the rationale

for this decision was that the legislature did not intend

for the enhancement statute to apply in such a case. In

fact several statutes in other states specifically state that

the enhancement statute does not apply where the use of a

firearm is an essential element of the offense for which

the defendant is convicted. Sections 12022 et seq. Cal.

Penal Code (West Supp. 1968); tit. 17-A, § 1252 Me. Rev.

Stat. Ann. (West 1981); chap. 265, § 18 B Mass. Ann. Laws

(LCP 1880); § 193.165 Nev. Rev. Stat. (1968); f 939.63(1)

(6); Wis. Stat. Ann. West Supp. 1981-82); § 6-11-116 Wyo.

Stat. (Michie 1981 Supp.). Only § 43-2336.1 Ark. Stat. Ann.

(Bobbs-Merrill Supp. 1981), specifically states the enhanced

penalty is to be applied even if the felony includes as an

element the use of a firearm.

From the foregoing it appears that enhancement stat-

utes have uniformly been upheld. Statutes that are par-

ticularly well drafted include § 939.63 Wis. Stat. Ann.;'

1. 939.63 Penalties; use of à dangerous weapon

using or th Nr

to dangerous weapon, the

8 prescribed by law for *

crime may eee flows

The maximum term of imprisonment for a Class

A, Bor C misdemeanor may be increased by not more than

6 mon

2. The maximum term of imprisonment for a Class

EA a a: pte Samy meee

The maximum term of imprisonment for a Class

D felony tay be increased by not mare than 4 years

The maximum term of imprisonment for a Class

deine, ae eet pene penalty provided in this subsection

not apply if possessing, using or threatening to use a

(Continued on following page)

§ 6-11-116 Wy. Stat. Ann.; §§ 43-2336 and 43-2336.1 Ark.

Stat. Ann.; § 31-18-16 N.M. Stat. Ann. See also the stat-

utes set out in Woofter v. O’Donnell, supra.

Double jeopardy principles have been more thoroughly

discussed and analyzed in those cases involving double con-

victions and sentences under both a firearm use statute

and a statute defining the underlying felony. The resolu-

tion of the issue of whether double jeopardy prohibits these

multiple convictions and sentences has not been uniform.

In State v. Hudson, 562 S.W.2d 416 (Tenn. 1978), the court

held the statute defining the use of a firearm during the

shall be sentenced to a minimum term of years in prison,

unless the sentencing court otherwise provides. The minimum

term for the first of this subsection is 3 years.

The minimum term any subsequent application of this

subsection is 5 years. If the court places the person on pro-

bation or imposes a sentence less than the presumptive

minimum sentence, it shall place its reasons for so doing on

the record.

Source:

L.1979, c. 114 § 1, eff. March 1, 1980

Wis. Stat. Ann. § 939.63 (West Supp. 1981).

2. § 611-116. Possession of firearm while committing felony;

penalty; applicability.

(a) oe eee ee

commi felony shall be fo

b) Subsection (a) of this section does not apply

33 e

use or a weapon. (Laws ‘

ch. 158, § 1. enn

guage of the statute. See also State v. Buffa, 65 N. J. Super.

421, 168 A.2d 49 (1961). Some states concluded such

double convictions and sentences were not permitted. Hun-

ter v. State, 430 A.2d 476 (Del. 1981); Monroe v. State, 396

So.2d 241 (Fla.App. 1981); State v. Boudreau, 322 A.2d

626 (R.I. 1974); Whitton v. State, 479 P.2d 302 (Alaska

1970). Others held the statutes inapplicable where the

predicate felony included as an element the use of a

firearm. People v. Haron, 85 Ill.2d 261, 52 Ill. Dec. 625,

422 N.E.2d 627 (1981) (so holding on the basis of legisla-

tive intent); Grace v. Harris, 485 P.2d 757 (Ok. Crim. App.

1971), overruled on other grounds in State v. Edens, 565

P.2d 51 (Ok. Crim. App. 1977) (deciding the issue on

double jeopardy grounds). Other courts upheld such mul-

tiple convictions. Wayne County Prosecutor v. Recorder’s

Court Judge, 406 Mich. 374, 280 N.W.2d 793 (1979). These

disparate results are in marked contrast to the earlier

cases illustrating the almost universal approval of enhanced

punishment statutes.

The balance of the history of our armed criminal action

statute appears in Sours v. State, (Sours I), 593 S.W.2d

208 (Mo. banc 1980), vacated, 446 U.S. 962, 100 S.Ct. 2935,

64 L.Ed.2d 820 (1980); Sours v. State, (Sours II), on re-

mand, 603 S.W.2d 592 (Mo. banc 1980), cert. denied, sub

nom, Missouri v. Sours, 449 U.S. 1131, 101 S.Ct. 953, 67

L.Ed.2d 118 (1981); and, State v. Haggard, 619 S.W.2d 44

(Mo. banc 1981), in which we examined our Sours holdings

in light of Albernaz v. United States, 450 U.S. 333, 101 S.Ct.

1137, 67 L.Ed.2d 275 (1981), application for certiorari pend-

HB. 1228 Bist

Alo

It is clear from the foregoing that had our armed

eriminal action statute remained in its original form as

an “enhancement statute,” we would not have been re-

quired to meet the double conviction issue raised and dealt

with in Sours. When confronted in Sours I with the double

conviction on a single set of facts, we reversed the armed

criminal action sentence which was the shorter of the

two sentences and which appeared to have been intended

by the jury to be an enhancement of the penalty assessed

on the underlying felony of robbery.

It is our conclusion that in order to establish uniformity

of sentencing in Sours type cases, the armed criminal action

sentence should be reversed in all instances. We recognize

and respect the apparent logic of the lesser included of-

fense analysis discussed by the court of appeals in its

opinion, but we are convinced that in the historical back-

ground of the armed criminal action statute, the net effect

of such statute is to enhance (in pure sense of enlarging)

the penalty assessed for the underlying felony, whether

the statute be phrased in terms of “enhancement” or “sepa-

rate and distinct offense”. The attempt to enhance or en-

large having failed because of being phrased in terms of

separate crime or offense and in our opinion thereby vio-

lative of the constitutional prohibition against double jeop-

ardy, we are left with only the penalty assessed on the

underlying felony. Regrettable as it may be that this

ruling may result in the striking of the greater penalty

in this and a very few other cases, the application of this

rule to all cases will assure that in the great majority

of cases the defendant will be required to serve the longer

sentence assessed and the law will be uniformly applied as

to all defendants by the appellate courts of the state.

The court of appeals reached the correct result when

they reversed the armed criminal action. The original

All

opinion of the court of appeals is approved subject to this

opinion. A copy of the original court of appeals opinion is

attached hereto and is ordered published as the opinion of

the court of appeals to be followed in the reporter by this

opinion on transfer from the court of appeals. The final

judgment on appeal will stand that:

The conviction on Count II for armed criminal

action is reversed. The judgment and sentence is

hereby amended by striking each and every reference

therein to ‘robbery first degree’ and substituting there-

for ‘robbery second degree.’ As so amended, the con-

viction, judgment and sentence under Count I of the

information is affirmed.‘

Warren D. Welliver, Judge

Donnelly, C.J., Seiler, Morgan

and Higgins, JJ. concur; Bardgett,

J. concurs in concurring opinion

filed; Rendlen, J. concurs in part

and dissents in part in separate

opinion filed.

4. State v. Kane. S. W. 2e (Mo.App. 1981), (No.

WD 31611, decided August 6, 1981).

Al2

(Filed March 9, 1982)

SUPREME COURT OF MISSOURI ©

EN BANC

No. 63324

STATE OF MISSOURI,

Respondent,

VS.

ANTHONY J. KANE,

Appellant.

CONCURRING OPINION

I concur in the principal opinion and file this concur-

ring opinion to state what the present situation is in Mis-

souri regarding the trial of an armed criminal action charge

and the underlying felony. This discussion, of course,

was unnecessary to the decision of the principal opinion,

but I think it is of some general importance to note that

the problem of deciding which conviction shall stand as

between armed criminal action and the underlying felony

should not occur in cases tried after publication of State

ex rel. Westfall v. Ruddy, $21 S.W.2d 42 (Mo. banc 1981).

In Westfall, the general question was whether the

circuit judge had the authority to order dismissal of either

the count charging the underlying felony or the count

charging armed criminal action, or whether the state was

entitled to try the defendant on both counts. This Court

held that the prosecution was entitled to try the accused

on both counts, however under the law, the accused could

be convicted of only one of them. Therefore, in cases tried

after Westfall, the jury should convict the accused of armed

criminal action if it finds the defendant committed the

felony with the use of a deadly weapon and should assess

punishment accordingly. If the jury finds the accused

Al3

guilty of committing the underlying felony, but without

the use of a deadly weapon, it should convict of the under-

lying felony and assess punishment accordingly.

This leaves the matter to the jury. It will result,

however, in one conviction for all that the defendant did

and the assessment of one sentence which will be in full

accord with the conviction obtained.

John E. Bardgett, Judge

(Filed March 9, 1982)

SUPREME COURT OF MISSOURI

EN BANC

No. 63324

STATE OF MISSOURI,

Respondent,

ANTHONY J. KANE,

Appellant.

OPINION CONCURRING IN PART AND

DISSENTING IN PART

I respectfully dissent from that portior: of the majority

opinion vacating defendant’s armed criminal action con-

viction. Defendant was charged with and convicted of

armed criminal action, § 571.015, RSMo 1978 (effective

January 1, 1979), and second degree robbery, § 569.030,

RSMo 1978, (effective January 1, 1979). As the crimes

occurred after January 1, 1979, the statutes prescribing

these charges are found in the new criminal code, effective

on that date.

Without presenting a clear rationale explaining why

it chose to strike down one of the convictions instead of

Al4

the other, the majority reverses defendant’s armed criminal

action conviction, vacating the 35 year sentence imposed

thereunder, but leaves intact the second degree robbery

charge which carried only a seven year sentence. Resorting

to the statutory elements test for determining a violation of

the double jeopardy proscription, the majority, following

Sours v. State, 593 S.W.2d 208 (Mo. banc 1980) (Sours I),

Sours v. State, 603 S.W.2d 592 (Mo. banc 1980) (Sours II),

and State v. Haggard, 619 S.W.2d 44 (Mo. banc 1981), in

some manner not clear from the opinion applies the doctrine

announced in those cases to the crimes at bar. Those cases

stand for the proposition that the 5 statutory elements

of armed criminal actiou (§ 559.225.1, RSMo Supp. 1976),

(A) felonious taking,

(B) property of another,

(D) by violence or fear,

(E) deadly weapon,

equaled and were identical to the 5 statutory elements of

robbery first degree by means of a dangerous and deadly

weapon (§ 560.120, RSMo 1969, and § 560.135, RSMo Supp.

1975),

(A) felonious taking,

(B) property of another,

(D) by violence or fear,

(E) deadly weapon.

Concluding that conviction of these equivalent crimes vio-

lated double jeopardy, the Court, as previousiy noted in

my dissent in those cases, arbitrarily and without ex-

plication of rationale invalidated the armed criminal action

convictions but not the robberies. However, in the case

Al5

at bar the crimes (robbery second degree and armed crim-

inal action) are not equivalent because the statutory ele-

ments and the prescribed punishments for each crime differ.

The armed criminal action here charged, § 571.015, RSMo

1978, includes the following statutory elements:

(A) stealing,

(B) by use or threat of force,

(D) deadly weapon.

The Class B felony of robbery second degree, § 569.030,

RSMo 1978, which is a lesser crime, includes fewer statu-

tory elements, which are:

(A) stealing,

(B) by use or threat of force,

I submit that logic compels that the crime consisting of

4 statutory elements which carries the potential for a

greater punishment is the greater offense and that which

contains only 3 of those elements and which carries the

potential for a lesser punishment is the lesser offense.

Nevertheless, the majority curiously holds that conviction

of the lesser offense precludes conviction and punishment’

for the greater. This quixotic application of the principles

announced in Sours I, Sours II and Haggard seems specious

and is destined to produce further aberrant results in this

area of our criminal law.

In addition, the principal opinion is burdened by other

patent inconsistencies. The majority concedes the validity

Als

of what it denotes as a simple enhancement statute, stating

that the armed criminal action statute under consideration

defines a separate crime from the underlying or predicate

felony, and the majority asserts that because of this fact

any convictions under both statutes involved is violative of

the double jeopardy clause. However, for the purpose of

determining which conviction shall stand, the majority now

analogizes armed criminal action to an enhancement statute

and pronounces that the so-called underlying felony will

always be upheid. Of course, the majority’s denomination

of the armed criminal action as an enhancement statute

this second breath contradicts the doubie jeopardy anal-

ysis urged in the first.

Finally, if the Sours I and II and Haggard synthesis is

indeed applicable to these crimes which occurred after

January 1, 1979, I must further dissent for the reasons

set forth in my dissents in Sours I and II and Haggard.

As noted above, these crimes occurred on March 10,

1979, (after the effective date of the new criminal code,

January 1, 1979). The analysis contained in the concurriag

opinion of Bardgett, J., suggests the decision of this Court

in State ex rel. Westfall v. Ruddy, 621 S.W.2d 42 (Mo. banc

1981), and its accompanying rationale, as controlling.” If

that analysis is apt, I would dissent for the reasons set

forth in the dissent of Donnelly, C.J., and in my dissent to

Westfall. Further, if Westfall were applied, the result

would still be flawed by the arbitrary invalidation of con-

Al?

APPENDIX A-2

OPINION FILED: August 6, 1981

MISSOURI COURT OF APPEALS

WESTERN DISTRICT

No. WD31611

STATE OF MISSOURI,

Respondent,

vs.

ANTHONY J. KANE,

Appellant.

APPEAL From THE Circuit Court or Jackson County

HONORABLE WILLIAM J. PETERS, JUDGE

Before Kennedy, P.J., Shangler, Wasserstrom, JJ.

Defendant appeals from a conviction by jury of rob-

bery in the second degree and armed criminal action, each

crime being separately charged in different counts of the

information. The jury assessed punishment at seven years

under the robbery count and thirty-five years under the

count for armed criminal action.

Defendant’s three points on appeal may be summarized

as follows: (1) that the legislature did not intend to au-

thorize prosecution for and conviction of both robbery

second degree and armed criminal action; (2) that robbery

second degree is a lesser included offense of armed crim-

inal action, and that conviction and sentences for both

placed defendant in double jeopardy in violation of the

Fifth and Fourteenth Amendments to the United States

Constitution; and (3) that the judgment and sentence erro-

neously found defendant guilty of robbery first degree.

The offenses charged in this case occurred on March 10,

1979, and are therefore subject to the provisions of The

Als

Criminal Code, which became effective January 1, 1979.

The determination of defendant's first two points is there-

fore controlled by State ex rel. Westfall v. Ruddy, ........

S. W. d [No. 61958] decided by ihe Missouri Supreme

Court en bane July 23, 1981. Under that decision, defen-

dant’s convictions under both counts cannot stand.

A difficult problem remains as to what remedy should

be adopted. State ex rel. Westfall v. Ruddy, supra, holds

that the prosecution may submit to a jury a charge of

armed criminal action together with a charge of the under-

lying felony, but in that event the jury must be instructed

that it can only find the defendant guilty of one, not both.

No such instzuction was given in this case. It could be

argued logically that the failure to so instruct was revers-

ible error which should require remand for a new trial.

Another possibility would be to say that the proper

manner ia which the jury should have been instructed

on this point would have been pursuant to MAI-CR 2.05

(2nd Ed.), which tells the jury that if it does not find

the defendant guilty of the principal offense charged, then

it must consider whether he is guilty of a lesser included

offense. Had the jury been so instructed in this case, it

would have found defendant guilty of armed criminal

action and then stopped. It would have had no occasion

to go further by undertaking consideration of the robbery

charge. On that reasoning, the appropriate remedy would

be to set aside the conviction for robbery on Count I.

However, we feel bound to a third course of action,

which appears to be required under State v. Fletcher, No.

62049, decided by the Missouri Supreme Court en banc on

July 14, 1981. In that case, the defendant was convicted

of kidnapping, rape, robbery first degree, and armed crim-

inal action. The instructions, quoted in the opinion, show

that the crimes charged were committed on May 17, 1979,

Alg

subsequent to the effective date of The Criminal Code.

Notwithstanding this time element, which brought the

case within the temporal period governed by Ruddy, the

Court nevertheless held that the proper remedy was to

reverse the conviction for armed criminal action in accor-

dance with Sours v. State, 593 S.W.2d 208 (Mo.banc 1980),

vacated Missouri v. Sours, 446 U.S. 962 (1980), on remand

Sours v. State, 603 S.W.2d 592 (Mo.banc 1980), cert. den.

Missouri v. Sours U.S. (January 26, 1981).

It may be that we have read Fletcher too broadly,

especial'y since that opinion was decided before Ruddy.

Because of our doubt on this matter, and because of the

general interest and importance of the question involved,

we transfer this case to the Missouri Supreme Court under

Rule 83.02.

With respect to defendant’s third point, he is correct

in saying that the judgment and sentence improperly re-

ferred to his having been convicted of robbery first degree.

The charge in the information and the verdict of the jury

both clearly delineated the crime as being robbery second

degree. However, this clerical error does not require re-

versal, since this court may remedy that mistake under

the authority of Rule 30.23. City of Independence v. Peter-

son, 487 S.W.2d 168 [7] (Mo.App. 1969).

The conviction on Count II for armed criminal action

is reversed. The judgment and sentence is hereby amended

by striking each and every reference therein to “robbery

first degree” and substituting therefor “robbery second

degree.” As so amended, the conviction, judgment and

sentence under Count I of the information is affirmed.

However, for the reason hereinabove stated, this case

is transferred to the Missouri Supreme Court.

All concur.

Solbert M. Wasserstrom, Judge

A20

APPENDIX B-1

(Filed March 9, 1982)

SUPREME COURT OF MISSOURI

EN BANC

No. 63325

STATE OF MISSOURI,

Respondent,

vs.

RAY A. THOMPSON,

Appellant.

ON TRANSFER FROM THE COURT OF APPEALS

The appellant-defendant Thompson appealed to the

Missouri Court of Appeals, Western District, from convic-

tions and consecutive sentences of fifteen years for robbery

second degree (Count I), seventy-five years for armed

criminal action (Count II), and fifteen years for kidnapping

(Count III). The court of appeals reversed the conviction

and sentence on the armed criminal action (the longer

sentence) and affirmed the other sentences. On the same

date of the opinion in this case, the court of appeals after

opir ‘on transferred to this Court the case of State v. Kane,

No. 63324, also involving the question whether the armed

criminal action sentence or the sentence on the underlying

felony should be vacated. In this background, this case

also was transferred after opinion because it involved the

same issue of general importance. Rule 83.02.

The court of appeals in the instant case reached the

A2¹

bane 1982), (No. 63324, decided March 9, 1982), heard and

decided contemporaneously herewith.

The original opinion of the court of appeals is ap-

proved subject to this opinion. A copy of the original court

of appeals opinion is attached hereto and is ordered pub-

lished as the opinion of the court of appeals to be fol-

lowed in the reporter by this opinion on transfer from the

court of appeals. The final judgment on appeal will stand

that:

The conviction for armed criminal action under

Count II is reversed and the defendant is discharged

from that judgment. The convictions for robbery sec-

ond degree under Count I and for kidnapping under

Count III are affirmed, but the sentences are set aside,

and the causes are remanded to the trial court for

reimposition of sentences.

Warren D. Welliver, Judge

Donnelly, C.J., Seiler, Morgan,

Higgins and Bardgett, JJ. con-

cur; Rendlen, J. concurs in part

and dissents in part in separate

opinion filed.

1. State v. Thompson S. W. ae (Mo.App. 1981),

(No. WD 31513, decided March 30, 1981).

A22

OPINION FILED March 30, 1981

IN THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT

No. WD 31,513

STATE OF MISSOURI,

Respondent,

VS.

RAY A. THOMPSON,

Appellant.

An AppeaL From THE Circuit Courr or Jackson County

THe HonoraBce WILLIAM J. Perers, J upon

Before Kennedy, P.J., Shangler and Somerville, JJ.

The defendant Thompson appeals from convictions and

consecutive sentences of 15 years for robbery second degree

[Count I], 75 years for armed criminal action [Count

II] and 15 years for kidnapping [Count III]. The court

found the defendant both a persistent offender and a dan-

gerous offender under § 558.016, RSMo 1978, and enhanced

the robbery sentence [Count I] by 15 years and the kid-

napping sentence Count III] by 15 years. The punish-

ments were for a total of 135 consecutive years.

The convictions rest on a robbery of an automobile

from the person of one McLin, her forced asportation in

the vehicle, threats to her in the course, the robbery of

other goods from her person, and eventual release. The

proof of the offenses rested, among other evidence, on

the identification of the defendant as the perpetrator. The

defendant raised the competency of that evidence in limine

by a motion to suppress the lineup and in-court identifica-

tions made by witness McLin, and by the motion for new

trial.

The evidence most favorable to the verdict shows that

McLin had concluded purchases at a market and as she

proceeded to place them in her car, an object pressed

into her side. She turned, looked down, and saw a man

[identified as defendant] crouched with a pistol aimed

at her. He looked directly at her and ordered her into

the car. She noticed that he wore an orange turtleneck

sweater extended over the neck, chin, mouth and beneath

the nose. The nose, itself, and forehead were visible;

the eyes were distinctively ruddy. She noticed the other

garb: jeans, short jacket and a cap atop the head from

which protruded hair in unusual braids. The man pushed

her into the car, a red and white Mercury, took the keys,

and drove off. The abduction was at about 2:30 in the

afternoon. She entreated the man to take the car and

let her go, but he told her to shut up. He spied a police

car ahead, and directed that she keep her head to the

side or he would “blow her brains out” - that he had killed

five people that week and “one more black bitch

wouldn't make nv difference.” The car finally stopped

at a wooded area. She was told to get out and “run

in front of the car before he blowed my brains out.”

The man took the money from her wallet, kept the grocery

purchases, and drove off with the vehicle. McLin ran

into Swope Park woods and hid behind a clump of snow,

fearful that the gunman meant to kill her. She then

ran to the road and was given assistance by a motorist.

The lapse between abduction and release was about an

hour and a half. Some three days later, McLin identified

the defendant Thompson as the robber-abductor from

among a display of four black males conducted by the

police. [The defendant was taken into custody while

A24

in operation of the stolen vehicle after pursuit and cap-

ture, ]

One point of error on appeal asserts that the preindict-

ment and trial identification of the defendant by witness

McLin were unreliable. The former by virtue of imper-

missibly suggestive police procedures and the latter iden-

tification from want of time to observe. The identification

evidence was received at the trial without timely objection,

however, so the contention of error was not preserved.

State v. McFadden, 530 S.W.2d 440, 444[5,6] (Mo. App.

1975). The merits of the contention considered, the line-

up procedures were not tainted with undue suggestiveness,

nor was there want of opportunity for the witness during

the prolonged episode of abduction, asportation and rob-

bery to observe salient aspects of the features of the per-

petrator. That the witness did not notice prominences

on the forehead of the defendant and was inconsistent

in particulars among the various recountals of that descrip-

tion, does not render the in-court identification so untrust-

worthy as to invalidate the proof. The garb used by

the robber to distort identity may very well have suc-

ceeded to conceal that distinctive facial feature. The iden-

tification by witness McLin of the defendant as the criminal

was insistent from the very first identification encounter.

In the totality of circumstances [according to the prescrip-

tions of State v. Higgins, 592 S.W.2d 151, 160[13,14] (Mo.

banc 1979) J, the in- court identification by the witness that

the defendant was the abductor-robber rests on reliable

evidence and serves as an independent basis for the com-

petency of the proof. State v. White, 549 S.W.2d 914,

917[2] (Mo. App. 1977).

The red and white Mercury automobile stolen from

McLin was detected in a parking lot by police. The officers

established surveillance. A black male entered the car,

A25

started up and drove away. The police car followed, then

sounded the siren and gave pursuit. The other automobile

slid into a snow bank and the driver [identified as the

defendant] emerged. The officer recognized him as Ray

Thompson, jumped out of the car, and shouted: Thomp-

son, police! Halt!” The man gave no heed but ran off

into an apartment project area where, after a chase and

search, he was apprehended in the bathroom of a vacant

flat. The defendant contends that this shout of recognition

amounts to evidence of a separate and distinct crime from

that charged at the trial, and so is prejudicial. The objec-

tion to the testimony was delayed until after the full

narrative of chase, recognition and identification of the

driver as the defendant on trial were fully in evidence,

and then repeated. Even then, the only remedy sought

was for a mistrial.

A trial court reserves the exercise of so drastic a

correction of error for those instances when a demonstrable

prejudice can be expunged by no other means. State

v. Stowers, 580 S.W.2d 516, 519[3,4] (Mo. App. 1979).

The prejudice from the remark of recognition, however,

is far from palpable. It is a remote inference that the

shout: “Thompson, police! Halt!“ means the defendant

was known to the officer from other illicit conduct, and

so proves a crime other than the charge on trial. The

officer could have as readily known Thompson from com-

munity or other events. These speculations aside, the

evidence bears relevantly to prove the offenses charged

at the trial, if for no other reason than to show that

the police clearly identified themselves to the defendant,

so that his flight from arrest - after command to halt -

was evidence of guilt. State v. Rutledge, 524 S.W.2d 449,

458[14] (Mo. App. 1975).

A26

The defendant contends next that the abduction and

asportation of McLin under threat was to accomplish the

robbery of her automobile and so, as an incident of the

robbery, was not subject to prosecution as a separate

crime - kidnapping. The defendant cites kidnapping stat-

ute, § 565.100, RSMo 1978, and the commentary to the

[then] proposed criminal code to sustain that exegesis.

We do not suggest the contention has validity under the

evidence, but rather do not reach a review because the

claim of error was not preserved in the motion for new

trial. State v. Wells, 585 S.W.2d 267, 268[4,5] (Mo. App.

1979).

The court exercised the authority given by §§ 558.016

and 558.021 to extend the term of a persistent or dangerous

offender to enhance the punishment of 15 years returned

by the jury against the defendant on each, Count I [rob-

bery] and Count III [kidnapping] by an additional 15

years each. The defendant contends that the judgment

unlawfully declared the 15-year enhancements as addi-

tional sentences rather than merely extensions of the sen-

tences returned by the jury, so that the adjudications

against the defendant on the three counts result, not in

three convictions, but in five convictions. The defendant

contends also that the court neglected the directive of

§ 558.021.1(3) that specific findings by the court as to

the existence of the basis for the extended term precondi-

(1) The indictment or information, original, amended or

in an indictment, pleads all essential facts warranting im-

position of an extended term; and

2) After a finding of guilty plea of . tenc-

err e

(Continued on following page)

ea" =

A27

The extended term section 558.016 of the recently

adopted criminal code invests a trial court with the alto-

gether new power to enhance a sentence of imprisonment

beyond that determined by the jury or prescribed by stat-

ute as punishment for the offense. The persistent offender

Footnote continued—

an extended term is presented in open court with full ts of

confrontation and cross-examination, and with the endant

having the opportunity to present evidence; and

(3) The court determines the existence of the basis for the

extended term and makes specific findings to that effect.

2. in this section shall prevent the use of pre-

sentence or commitments under sections 557.024

3. At the sentencing both the state and the defen-

guilty to or has been found guilty of a class B, C, or D felony to

an extended term of imprisonment if it finds the defendant is a

36 t offender” is one who has been previously

convicted two felonies committed at different times and not

related to the instant crime as a single criminal episode.

* 8 is one who:

IIIA Gutne the comminten

of which he knowingly” murdered rin, © —

another knowingly or attempted

(2) Has been ly convicted of a class A or B felony

ofa an

and

ai r

class

a) % any sentence authorized for a

(2) For a class B felony, a term of years not to exceed

thirty years;

(3) For a class C felony, a term of years not to exceed

years;

(4) For a class D felony, a term of years not to exceed ten

— »

term by either means, however, rests on the proof of

a charge beyond the offense for which the jury returned

conviction. The due process of law concomitant by which

a valid criminal conviction obtains, therefore, also attends

the facts upon which that imposition rests [§ 558.021.1

(1)], proof by evidence in open court subject to the cross-

examination and opportunity to defend [§ 558.021.1(2)],

and the determination of basis for the extended term by

specific finding - presumably, beyond a reasonable doubt

§ 558.021.1(3)]. State v. Berry, 609 S.W.2d 948, 954 [20]

(Mo. banc 1980).

That the statute, conformed to the exigency of due

process, prescribes a separate proceeding after the adjudi-

cation of guilt to adjudicate further the issue of an extended

sentence, however, does not mean that the term of punish-

ment declared by the jury verdict and the term of punish-

ment as extended adjudge two separate sentences against

the defendant. The code shows a different scheme. In

the usual sequence of criminal procedure, the imposition

of sentence follows upon the adjudication of guilt. [§

557.036.1]. Where the defendant is found to be a persistent

or dangerous offender, however, “the court shall proceed

as provided in § 558.016.” [§ 557.036.3-(2) (a) (b)].

A29

That latter section authorizes that the total maximum term

for a persistent or dangerous offender convicted of a class

B felony [second-degree robbery] shall be “a term of

years not to exceed thirty years.” [§ 558.016.4(1)]. The

code clearly contemplates that the determination of per-

sistent or dangerous offender [any more than the adjudica-

tion of habitual criminal under the second offender act

now repealed - State v. Maxwell, 411 S.W.2d 237, 239[1,2]

(Mo. 1967)] does not constitute a separate offense, but

that a single sentence culminates from a single accusation

and adjudication of guilt. Sours v. State, 603 S.W.2d 592,

605 (Mo. banc 1980); North Carolina v. Pearce, 395 U.S.

711, 717[{1] (1969). The determination of persistent or

dangerous offender results in one extended term, not two

separately imposed. State v. Johnson, 605 S.W.2d 151,

155[8] (Mo. App. 1980).

The persistent and dangerous offender procedures

merely allow, they do not compel, the court to extend

sentence. § 558.016.1. Thus, the imposition of sentence

and judgment for a conviction returned on an information

which alleges also the basis for an extendei term of punish-

ment, is properly deferred until the court adjudicates the

issue and then determines from the full sources [§

558.021.2 and 3] the condign enhancement - if any. The

New Missouri Criminal Code: Manual for Court Related

Personnel § 3.3.

The defendant Thompson complains that the extended

sentences imposed by the trial court on Count! [robbery]

and Count III [kidnapping] were not single and unitary,

as contemplated by the statute, but double and separate,

and so invalid.

The indictment pleaded three separate counts: rob-

bery, armed criminal action and kidnapping. To enhance

punishment on Count I and Count III, the indictment

A30

pleaded also that the defendant Thompson was both a

persistent and a dangerous offender within § 558.016.

The jury returned verdicts of guilty on each count and

declared sentences on Count I [robbery] of 15 years,

on Count II [armed criminal action] of 75 years and

on Count III [kidnapping] of 15 years. In due course,

the motion for new trial was overruled and ihe court

gave allocution, pronounced judgment in accordance with

the verdicts of the jury, and ordered that the sentences

run consecutively. In immediate sequence, the court re-

ceived evidence from the prosecutor of prior convictions

to prove the issue of persistent offender, and then took

notice of the evidence of the prosecutions under the indict-

ment to prove the issue of dangerous offender. At the

conclusion of the evidence the court adjudged: that de-

fendant is both a persistent offender and a dangerous

offender .. land therefore] enhances the sentence in

Count I an additional fifteen years [and] the punishment

in Count III an additional fifteen years. All of said sen-

tences are to be consecutive.”

On the face, the two separate impositions of sen-

tences - once upon the jury verdicts and again upon the

court determination of persistent and dangerous offender -

compound a single sentence into two so that the convictions

on the three counts result in five sentences, rather than

three. That procedure violates both the rationale of the

statutes [§§ 557.036, 558.016 and 558.021] that under

a persistent offender or dangerous offender adjudication,

the court shall assess punishment in the first instance

by a single - albeit enhanced - sentence. State v. Hampton,

607 S.W.2d 225, 226[4,5] n. 1 (Mo. App. 1980). The

jury declaration of punishment does not bear on that exer-

cise of judicial function. On the face, also, the separate

sentences on Count I and the separate sentences on Count

III treat the extended sentence not as an enhancement

A31

of punishment but as an additional punishment for the

same offense, and so offends constitutional double jeopardy.

Sours v. State, 603 S.W.2d 592, 603 (Mo. banc 1980); North

Carolina v. Pearce, 395 U.S. 711, 717{1] (1969). The

procedure also treats the extended term inquiry as a sepa-

rate prosecution and so amounts to a reprosecution after

conviction, a practice also within the prohibition of double

jeopardy. O’Clair v. United States, 470 F.2d 1199, 1203/4,

5] (Ist Cir. 1972).

We cannot determine from the sentences adjudged on

Count I and Count III: the 15-year term returned by

the jury and imposed by the court as enhanced by the

15-year term imposed by the court and made consecutive

to the sentence adjudged on the jury verdict - whether

the court understood its statutory prerogative under §§

557.036 and 558.016 to decide and assess sentence in the

first instance. The maximum extended term authorized

for each, robbery in the second degree and kidnapping,

{class B felonies] is a term of years not to exceed thirty

years. § 558.016.4(1). The compound sentences on each

Count I and Count III do not exceed the statutory limit,

but are not derived validly Count I and Count III are

remanded, therefore, for adjudgment of no more than a

single extended term on each count.

The defendant Thompson contends that the extended

terms were not validly adjudicated for the additional rea-

son that they do not rest on specific findings of the basis

for the enhanced punishments. The extended term pro-

cedures of § 558.021 provide:

1. The court shall not impose an extendea term under

section 558.016 unless

(1) The indictment or information . pleads all

essential facts warranting imposition of an ex-

tended term; and

A32

(2) After a finding of guilty . . . a sentencing

hearing is held at which evidence establishing

basis for an extended term is presented in open

court with full rights of confrontation and

cross-examination, and with the defendant hav-

ing the opportunity to present evidence; and

(2) The court determines the existence of the basis

for the extended term and makes specific find-

ings to that effect. [emphasis added]

The peremptory tone of the statute - at lease as to subsec-

tion (2) - is only ostensible. Our Supreme Court en banc

has determined that the procedure to determine the basis

for the extended term, with attendant rights of confronta-

tion and cross-examination and opportunity to make proof,

need not entail new evidence - but may rest on judicial

notice of the conviction proceedings. State v. Berry, 609

S.W.2d 948, 954[20] (Mo. banc 1980). [But see, concur-

rence in part and dissent in part of Bardgett, C.J.; dissent

of Seiler, J.]; The New Criminal Code: Manual for Court

Related Personnel, § 3.4.

The defendant does not complain of the evidential

aspect of the extended term proceeding, however, but only

that the findings of fact were not determined as predicate

to enhanced sentence as directed by subsection (3) of

the statute. At the conclusion of the proofs on the indict-

ment allegations of persistent offender and dangerous of-

fender the court recited:

The Court does find that the defendant is one who

has been previousl~ convicted of two felonies at dif-

ferent times, and not related to the instant crime.

The Court further finds that defendant. is being sen-

tenced for a felony, during the commission of which

he knowingly endangered or threatened the life of

A33

another person, or knowingly threatened to inflict seri-

ous physical injury on another person.

The Court, therefore, finds that defendani ‘= both a

persistent offender and a dangerous offender.

The Court, therefore, enhances the sentence... .

The theory of the notice by indictment, adversary hearing,

and determinations of fact anew, antecedent to an extended

term adjudication under § 558.021 is that the imposition

of an enhanced sentence goes beyond the verdict of guilty

and so must be sustained by an independent basis of fact

determined by due process of law. Specht v. Patterson,

386 U.S. 605, 61015] (1967). Our Supreme Court en banc

determined in State v. Berry, supra, l.c. 954120] that

the extended term procedure for dangerous offender does

not require new evidence but may rest on the judicial

notice of the conviction proceedings recently concluded.

The finding of the trial court, antecedent to imposition

of enhanced punishment, that the “defendant had pre-

viously been convicted of a dangerous felony, forcible rape

. and defendant had ‘knowingly murdered or endangered

or threatened the life of another person or knowingly

inflicted or attempted or threatened to inflict serious physi-

cal injury on another person’” was the predicate for en-

hancement of sentence. The findings of the trial court

to extend the term against the defendant Thompson as

a dangerous offender are without distinctive difference.

That contention is denied on the authority of State v.

Berry, supra. [But see, concurrence in part and dissent

in part of Bardgett, C. J., and dissent of Seiler, J.] The

extended terms of Count I and Count III rest on evidence

of dangerous offender presented and found.

A trial court determination of persistent offender, how-

ever, necessarily rests on new evidence not given to the

A34

jury,’ so that the findings are not made implicit by the

conviction, but must be found expressly as the basis for

the extended term by specific findings to that effect. §

558.021.1(3). That conforms to tue concern of due process

that a punishment enhanced beyond that otherwise allow-

able under a jury conviction of guilt rest on an independent

basis of evidence. Specht v. Patterson, 386 U.S. 605, 610

{5} (1967). The decisions under superseded § 556.280(2)

{Habitual Criminal Act] that the neglect of the judge

to enter specific findings did not invalidate the effect of

that section [State v. Blackwell, 459 S.W.2d 268, 272[3]

(Mo. bane 1970)] have no authority as precedent. The

scheme of the Habitual Criminal Act was merely to trans-

pose the duty to sentence from the jury to the judge

- but only within the limits permitted for that offense.

State v. Maxwell, 376 S.W.2d 170, 174[12,13] (Mo. 1964).

The persistent offender statute, rather, extends the punish-

ment beyond that otherwise imposable by law for the

offense - in this case, from 15 years to 30 years for robbery

second degree and kidnapping [each a Class B felony].

Another distinction marks the present persistent offender

procedure from the former habitual criminal procedure.

The statute does not impose a peremptory duty on the

judge to extend sentence even afier a determination of

persistent offender.‘ Thus, the court may conform to the

jury assessment of punishment as more efficacious than

enhancement. The habitual criminal procedure simply

3. Section 558.016.2

A t offender” is one who has been previously con-

victed two felonies committed at different times and not re-

lated to the instant crime as a single criminal episode.

4. Section 558.016.1.

This court may sentence a person . an extended term

I Rome bye ov Ray = SUA, Rn re

fender [emphasis added]

A35

took the function of punishment assessment from the jury

altogether, even as a tentative advisement.

The persistent offender was pleaded by Count I and

Count III of the indictment by specific allegations that:

(1) On or about October 1, 1971, defendant, RAY

A. THOMPSON a/k/a Ray Anthony Thompson, was

convicted of the felony of Robbery in the First Degree

in Division One of the Circuit Court of Jackson County,

Missouri, C-40365, and

(2) On or about July 29, 1975, the defendant, RAY

A. THOMPSON a/k/a Ray Anthony Thompson, was

convicted of the felony of Robbery in Division Four

of the District Court of Wyandotte County, Kansas,

No. 21112Cr.

The previous convictions were the basis for extended pun-

ishment as a persistent offender. They were proved by

evidence on that separate issue after the jury verdict.

The defendant does not dispute the validity of that proof

as the basis for an extended term, if specifically found

to that effect. The court found: “that the defendant is

one who has been previously convicted of two felonies

at different times, and not related to the instant crime.”

That does not suffice. The statute contemplates that the

convictions be found according to indictment, that the proof

shall conform with the charge, and that the findings de-

scribe the offenses which constitute the proof.

We conclude that the extetided term for persistent

offender was imposed without the determination of the

existence of the basis for that enhancement of punishment

prerequisite to that exercise of judicial authority. §

558.021.1(3). The extended terms on Count I and Count

III rest validly, otherwise, on the determination that the

A36

defendant was a dangerous offender. Those judgments

will not be disturbed, other than for reimposition of sen-

tence for the other reasons given.

The final point contends that the conviction for the

Count I robbery second degree [in this case, committed

by deadly weapon] and the conviction for the Count II

armed criminal action violates constitutional principle. It

has been decided authoritatively that convictions for both

armed criminal action and the underlying felony infringes

the prohibition against double jeopardy. Sours v. State,

603 S.W.2d 592 (Mo. banc 1980).

The conviction for armed criminal action under Count

II is reversed and the defendant is discharged from that

judgment. The convictions for robbery second degree un-

der Count I and for kidnapping under Count III are af-

firmed, but the sentences are set aside, and the causes

are remanded to the trial court for reimposition of sen-

tences. All concur.

Charles Shangler, Judge

OFINION CONCURRING IN PART AND

DISSENTING IN PART

The crimes of second degree robbery and armed

criminal action,’ for which the defendant was charged and

convicted, occurred on January 24, 1979. His second de-

gree robbery conviction, § 569.030, RSMo 1978, resulted in

a 15 year term of imprisonment, while under the armed

criminal action conviction, § 571.015, RSM~ 1978, he re-

ceived a 75 year sentence.

I respectfully dissent in part and concur in part for

the reasons expressed in my separate opinion in State v.

Kane, decided concurrently herewith. I would affirm.

Albert L. Rendlen, Judge

1. There is no issue regarding the kidnapping conviction and

its 15 e

in this terms of imprisonment (15 years each

for the robbery and kidnapping convic-

tions under § 558.016, RSMo 1978.

APPENDIX B-2

OPINION FILED March 30, 198%

IN THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT

No. WD 31,513

STATE OF MISSOURI,

Respondent,

vs.

RAY A. THOMPSON,

Appellant.

An Appeal from the Circuit Court of Jackson County

The Honorable William J. Peters, Judge

Before Kennedy, P.J., Shangler and Somerville, JJ.

The defendant Thompson appeals from convictions and

consecutive sentences of 15 years for robbery by a deadly

weapon [Count I], 75 years for armed criminal action

[Count II] and 15 years for kidnapping [Count III]. The

court found the defendant both a persistent offender and a

dangerous offender under § 558.016, RSMo 1978, and en-

hanced the robbery sentence [Count I] by 15 years and the

kidnapping sentence [Count III] by 15 years. The punish-

ments were for a total of 135 consecutive years.

The convictions rest on a robbery of an automobile

from the person of one McLin, her forced asportation in

the vehicle, threats to her in the course, the robbery of

other goods from her person, and eventual release. The

proof of the offenses rested, among other evidence, on

the identification of the defendant as the perpetrator. The

defendant raised the competency of that evidence in limine

by a motion to suppress the line-up and in-court identifica-

A39

tions made by witness McLin, and by the motion for new

trial.

The evidence most favorable to the verdict shows that

McLin had concluded purchases at a market and as she

proceeded to place them in her car, an object pressed

into her side. She turned, looked down, and saw a man

[identified as defendant] crouched with a pistol aimed

at her. He looked directly at her and ordered her into

the car. She noticed that he wore an orange turtleneck

sweater extended over the neck, chin, mouth and beneath

the nose. The nose, itself, and forehead were visible;

the eyes were distinctively ruddy. She noticed the other

garb: jeans, short jacket and a cap atop the head from

which protruded hair in unusual braids. The man pushed

her into the car, a red and white Mercury, took the keys,

and drove off. The abduction was at about 2:30 in the

afternoon. She entreated the man to take the car and

let her go, but he told her to shut up. He spied a police

car ahead, and directed that she keep her head to the

side or he would “blow her brains out” - that he had killed

five people nat week and “one more black bitch

wouldn’t make no difference.” The car finally stopped

at a wooded area. She was told to get out and “run

in front of the car before he blowed my brains out.”

The man took the money from her wallet, kept the grocery

purchases, and drove off with the vehicle. McLin ran

into Swope Park woods and hid behind a clump of snow,

fearful that the gunman meant to kill her. She then

ran to the road and was given assistance by a motorist.

The lapse between abduction and release was about an

hour and a half. Some three days later McLin identified

the defendant Thompson as the robber-abductor from

among a display of four black males conducted by the

police. [The defendant was taken into custody while

A40

in operation of the stolen vehicle after pursuit and cap-

ture. ]

One point of error on appeal asserts that the preindict-

ment and trial identification of the defendant by witness

McLin were unreliable. The former by virtue of imper-

missibly suggestive police procedures and the latter iden-

tification from want of time to observe. The identification

evidence was received at the trial without timely objection,

however, so the contention of error was not preserved.

State v. McFadden, 530 S.W.2d 440, 444[5,6] (Mo. App.

1975). The merits of the contention considered, the line-

up procedures were not tainted with undue suggestiveness,

nor was there want of opportunity for the witness during

the prolonged episode of abduction, asportation and rob-

bery to observe salient aspects of the features of the per-

petrator. That the witness did not notice prominences

on the forehead of the defendant and was inconsistent

in particulars among the various recountals of that descrip-

tion, does not render the in-court identification so untrust-

worthy as to invalidate the proof. The garb used by

the robber to distort identity may very well have suc-

ceeded to conceal that distinctive facial feature. The iden-

tification by witness Mcl.in of the defendant as the criminal

was insistent from the very first identification encounter.

In the totality of circumstances [according to the prescrip-

tions of State v. Higgins, 592 S.W.2d 151, 160[13,14] (Mo.

banc 1979) ], the in-court identification by the witness that

the defendant was the abductor-robber rests on reliable

evidence and serves as an independent basis for the com-

petency of the proof. State v. White, 549 S.W.2d 914,

917[2] (Mo. App. 1977).

The red and white Mercury automobile stolen from

McLin was detected in a parking lot by police. The officers

established surveillance. A black male entered the car,

A4l

started up and drove away. The police car followed, then

sounded the siren and gave pursuit. The other automobile

slid into a snow bank and the driver [identified as the

defendant} emerged. The officer recognized him as Ray

Thompson, jumped out of the car, and shouted: Thomp-

son, police! Halt!” The man gave no heed but ran off

into an apartment project area where, after a chase and

search, he was apprehended in the bathroom of a vacant

flat. The defendant contends that this shout of recognition

amounts to evidence of a separate and distinct crime from

that charged at the trial, and so is prejudicial. The objec-

tion to the testimony was delayed until after the full

narrative of chase, recognition and identification of the

driver as the defendant on trial were fully in evidence,

and then repeated. Even then, the only remedy sought

was for a mistrial.

A trial court reserves the exercise of so drastic a

correction of error for those instances when a demonstrable

prejudice can be expunged by no other means. State

v. Stowers, 580 S.W.2d 516, 519[3,4] (Mo. App. 1979).

The prejudice from the remark of recognition, however,

is far from palpable. It is a remote inference that the

shout: “Thompson, police! Halt!“ means the defendant

was known to the officer from other illicit conduct, and

so proves a crime other than the charge on trial. The

officer could have as readily known Thompson from com-

munity or other events. These speculations aside, the

evidence bears relevantly to prove the offenses charged

at the trial, if for no other reason than to show that

the police clearly identified themselves to the defendant,

so that his flight from arrest - after command to halt -

was evidence of guilt. State v. Rutledge, 524 S.W.2d 449,

458[14] (Mo. App. 1978).

A42

The defendant contends next that the abduction and

asportation of McLin under threat was to accomplish the

reybery of her automobile and so, as an incident of the

robbery, was not subject to prosecution as a separate

crime - kidnapping. The defendant cites kidnapping stat-

ute, § 565.100, RSMo 1978, and the commentary to the

[then] proposed criminal code to sustain that exegesis.

We do not suggest the contention has validity under the

evidence, but rather do not reach a review because the

claim of error was not preserved in the motion for new

trial. State v. Wells, 585 S.W.2d 267, 268[4,5] (Mo. App.

1979).

The court exercised the authority given by §§ 558.016

and 558.021 to extend the term of a persistent or dangerous

offender to enhance the punishment of 15 years returned

by the jury against the defendant on each, Count I [rob-

bery] and Count III [kidnapping] by an additional 15

years each. The defendant contends that the judgment

unlawfully declared the 15-year enhancements as addi-

tional sentences rather than merely extensions of the sen-

tences returned by the jury, so that the adjudicatious

against the defendant on the three counts result, not in

three convictions, but in five convictions. The defendant

contends also that the court neglected the directive of

§ 558.021.1(3) that specific findings by the court as to

the existence of the basis for the extended term precondi-

tion imposition.’

§ 558.021. Extended term procedures

1. The court shall not impose an extended term under sec-

tion 558.016 unless

lieu

ining ot guilty or «pen of wut 8

The extended term section 558.016“ of the recently

adopted criminal code invests a trial court with the alto-

gether new power to enhance a sentence of imprisonment

beyond that determined by the jury or prescribed by stat-

ute as punishment for the offense. The persistent offender

Footnote continued

for an extended term is presented in open court with full

of confrontation and cross-examination, and with the t

having the opportunity to present evidence; and

(3) ae Orne re

extended term of imprisonment of it the t is a

persistent offender or a dangerous

2. A t offender” is one who has been

1) Is tenced for the commission

(1) being sen c

Se tiie of — inflicted ——

person or or or

threatened to inflict serious injury on another person

(2) Has been convicted of a class A or B felony

or of a dangerous ,

. I.. nS pein Seep of ingetemaet

for a persistent offender or a dangerous offender are:

class A

(2) . mo Seis a0 cates cat > eee

years;

(3) For a class C felony, a term of years not to exceed

fifteen years;

(4) For a class D felony, a term of years not to exceed ten

A4tM4

component of the statute [I 558.016.2] replaces and re-

clothes the former second offender procedure [repealed

§ 556.280]. The dangerous offender component of the

statute § 558.016.3], however, enacts an entirely unique

theory of punishment. The imposition of an extended

term by either means, however, rests on the proof of

a charge beyond the offense for which the jury returned

conviction. The due process of law concomitant by which

a valid criminal conviction obtains, therefore, also attends

the determination of the new matter upon which a valid

extension of term rests. Specht v. Patterson, 386 U.S.

605, 610/5] (1967); The New Missouri Criminal Code:

Manual for Court Related Personnel, §§ 3.3, 34. The

statute heeds the constitutional necessity for notice and

hearing by provisions that the information formally plead

the intention to invoke the extended term penalty and

the facts upon which that imposition rests [§ 558.021.1

(1)], proof by evidence in open court subject to the cross-

examination and opportunity to defend [§ 558.021.1(2)],

and the determination of basis for the extended term by

specific finding - presumably, beyond a reasonable doubt

I 558.021.1(3)]. State v. Berry, 609 S.W.2d 948, 954

[20] (Mo. banc 1980).

That the statute, conformed to the exigency of due

process, prescribes a separate proceeding after the adjudi-

cation of guilt to adjudicate further the issue of an extended

sentence, however, does not mean that the term of punish-

ment delcared by the jury verdict and the term of punish-

ment as extended adjudge two separate sentences against

the defendant. The code shows a different scheme. In

the usual sequence of criminal procedure, the imposition

of sentence follows upon the adjudication of guilt. [§

557.036.1]. Where the defendant is found to be a persistent

or dangerous offender, however, “the court shall proceed

as provided in § 558.016." [§ 557.036.3-(2)(a)(b)].

A45

That latter section authorizes that the total maximum term

for a persistent or dangerous offender convicted of a class

B felony [second-degree robbery] shall be “a term of

years not to exceed thirty years.” [§ 558.016.4(1)]. The

code clearly contemplates that the determination of per-

sistcat or dangerous offender [any more than the adjudica-

tion of habitual criminal under the second offender act

now repealed - State v. Muxwell, 411 S.W.2d 237, 239[1,2]

(Mo. 1967)] does not constitute a separate offense, but

that a single sentence culminates from a single accusation

and adjudication of guilt. Sours v. State, 603 S.W.2d 592,

605 (Mo. banc 1980); North Carolina v. Pearce, 395 U.S.

711, 717[1] (1969). The determination of persistent or

dangerous offender results in one extended term, not two

separately imposed. State v. Johnson, 605 S.W.2d 151,

155[8] (Mo. App. 1980).

The persistent and dangerous offender procedures

merely allow, they do not compel, the court to extend

sentence. § 558.016.1. Thus, the imposition of sentence

and judgment for a conviction returned on an information

which alleges also the basis for an extended term of punish-

ment, is properly deferred until the court adjudicates the

issue and then determines from the full sources [§

558.021.2 and 3] the condign enhancement - if any. The

New Missouri Criminal Code: Manual for Court Related

Personnel § 3.3.

The defendant Thompson complains that the extended

sentences imposed by the trial court on Count I [robbery]

and Count III [kidnapping] were not single and unitar)

as contemplated by the statute, but double and separate,

and so invalid.

The indictment pleaded three separate counts: rob-

bery, armed criminal action and kidnapping. To enhance

punishment on Count I and Count III, the indictment

A46

pleaded also that the defendant Thompson was both a

persistent and a dangerous offender within § 558.016.

The jury returned verdicts of guilty on each count and

declared sentences on Count I [robbery] of 15 years,

on Count II [armed criminal action] of 75 years and

on Count III [kidnapping] of 15 years. In due course,

the motion for new trial was overruled and the court

gave allocution, pronounced judgment in accordance with

the verdicts of the jury, and ordered that the sentences

run consecutively. In immediate sequence, the court re-

ceived evidence from the prosecutor of prior convictions

to prove the issue of persistent offender, and then took

notice of the evidence of the prosecutions under the indict-

ment to prove the issue of dangerous offender. At the

conclusion of the evidence the court adjudged: “that de-

fendant is both a persistent offender and a dangerous

offender . . . [and therefore] enhances the sentence in

Count I an additional fifteen years [and] the punishment

in Count III an additional fifteen years. All of said sen-

tences are to be consecutive.”

On the face, the two separate impositions of sen-

tences - once upon the jury verdicts and again upon the

court determination of persistent and dangerous offender -

compound a single sentence into two so that the convictions

on the three counts result in five sentences, rather than

three. That procedure violates both the rationale of the

statutes [§§ 557.036, 558.016 and 558.021] that under

a persistent offender or dangerous offender adjudication,

the court shall assess punishment in the first instance

by a single - albeit enhanced - sentence. State v. Hampton,

607 S.W.2d 225, 226[4,5] n. 1 (Mo. App. 1980). The

jury declaration of punishment does not bear on that exer-

cise of judicial function. On the face, also, the separate

sentences on Count I and the separate sentences on Count

III treat the extended sentence not as an enhancement

of punishment but as an additional punishment for the

same offense, and so offends constitutional double jeopardy.

Sours v. State, 603 S.W.2d 592, 603 (Mo. banc 1980); North

Carolina v. Pearce, 395 U.S. 711, 717[1] (1969). The

procedure also treats the extended term inquiry as a sepa-

rate prosecution and so amounts to a reprosecution after

conviction, a practice also within the prohibition of double

jeopardy. O Clair v. United States, 470 F.2d 1199, 1203/4,

5] (Ist Cir. 1972).

We cannot determine from the sentences adjudged on

Count I and Count III: the 15-year term returned by

the jury and imposed by the court as enhanced by the

15-year term imposed by the court and made consecutive

to the sentence adjudged on the jury verdict - whether

the court understood its statutory prerogative under §§

557.036 and 558.016 to decide and assess sentence in the

first instance. The maximum extended term authorized

for each, robbery in the second degree and kidnapping,

[class B felonies] is a term of years not to exceed thirty

years. § 558.016.4(1). The compound sentences on each

Count I and Count III do not exceed the statutory limit,

but are not derived validly. Count I and Count III are

remanded, therefore, for adjudgment of no more than a

single extended term on each count.

The defendant Thompson contends that the extended

terms were not validly adjudicated for the additional rea-

son that they do not rest on specific findings of the basis

for the enhanced punishments. The extended term pro-

cedures of § 558.021 provide:

1. The court shall not impose an extended term under

section 558.016 unless

(1) The indictment or information . pleads all

essential facts warranting imposition of an ex-

tended term; and

A48

(2) After a finding of guilty ... a sentencing

hearing is held at which evidence establishing

basis for an extended term is presented in open

court with full rights of confrontation end

cross-examination, and with the defendunt hav-

ing the opportunity to present evidence; and

(2) The court determines the existence of the basis

for the extended term and makes specific find-

ings to that effect. [emphasis added}

The peremptory tone of the statute - at least as to subsec-

tion (2) - is only ostensible. Our Supreme Court en banc

has determined that the procedure to determine the basis

for the extended term, with attendant rights of confronta-

tion and cross-examination and opportunity to make proof,

need not entail new evidence - but may rest on judicial

notice of the conviction proceedings. State v. Berry, 609

S.W.2d 948, 954[20] (Mo. banc 1980). [But see, concur-

rence in part and dissent in part of Bardgett, C.J.; dissent

of Seiler, J.]; The New Criminal Code: Manual for Court

Related Personnel, § 3.4.

The defendant does not complain of the evidential

aspect of the extended term proceeding, however, but only

that the findings of fact were not determined as predicate

to enhanced sentence as directed by subsection (3) of

the statute. At the conclusion of the proofs on the indict-

ment allegations of persistent offender and dangerous of-

fender the court recited:

The Court does find that the defendant is one who

has been previously convicted of two felonies at dif-

ferent times, and not related to the instant crime.

The Court further finds that defendant is being sen-

tenced for a felony, during the commission of which

A49

he knowingly endangered or threatened the life of

another person, or knowingly threatened to inflict seri-

ous physical injury on another person.

The Court, therefore, finds that defendant is both a

persistent offender and a dangerous offender.

The Court, therefore, enhances the sentence... .

The theory of the notice by indictment, adversary hearing,

and determinations of fact anew, antecedent to an extended

term adjudication under § 558.021 is that the imposition

of an enhanced sentence goes beyond the verdict of guilty

and so must be sustained by an independent basis of fact

determined by due process of law. Specht v. Patterson,

386 U.S. 605, 61015] (1967). Our Supreme Court en banc

determined in State v. Berry, supra, lc. 954[20] that

the extended term procedure for dangerous offender does

not require new evidence but may rest on the judicial

notice of the conviction proceedings recently concluded.

The finding of the trial court, antecedent to imposition

of enhanced punishment, that the “defendant had pre-

viously been convicted of a dangerous felony, forcible rape

... and defendant had ‘knowingly murdered or endangered

or threatened the life of another person or knowingly

inflicted or attempted or threatened to inflict serious physi-

cal injury on another person’” was the predicate for en-

hancement of sentence. The findings of ths trial court

to extend the term age ust the defendant Thompson as

a dangerous offender »re without distinctive difference.

That contention is denied on the authority of State v.

Berry, supra. [But see, concurrence in part and dissent

in part of Bardgett, C. J., and dissent of Seiler, J.] The

extended terms of Count I and Count III rest on evidence

of dangerous offender presented and found.

A trial court determination of persistent offender, how-

ever, necessarily rests on new evidence not given to the

A50

jury,“ so that the findings are not made implicit by the

conviction, but must be found expressly as the basis for

the extended term by specific findings to that effect. §

558.021.1(3). That conforms to the concern of due process

that a punishment enhanced beyond that otherwise allow-

able under a jury conviction of guilt rest on an independent

basis of evidence. Specht v. Patterson, 386 U.S. 605, 610

[5] (1967). The decisions under superseded § 556.280 (2)

{Habitual Criminsi Act] that the neglect of the judge

to enter specific findings did not invalidate the effect of

that section [State v. Blackwell, 459 S.W.2d 268, 272[3]

(Mo. bane 1970)] have no authority as precedent. The

scheme of the Habitual Criminal Act was merely to trans-

pose the duty to sentence from the jury to the judge

- but only within the limits permitted for that offense.

State v. Maxwell, 376 S.W.2d 170, 174[12,13] (Mo. 1964).

The persistent offender statute, rather, extends the punish-

ment beyond that otherwise imposable by law for the

offense - in this case, from 15 years to 30 years for robbery

second degree and kidnapping [each a Class B felony].

Another distinction marks the present persistent offender

procedure from the former habitual criminal procedure.

The statute does not impose a peremptory duty on the

judge to extend sentence even after a determination of

persistent offender. Thus, the court may conform to the

jury assessment of punishment as more efficacious than

enhancement. The habitual criminal procedure simply

3. Section 558.016.2

A “persistent offender” is one who has been previously con-

victed of two felonies committed at different times and not re-

lated to the instant crime as a single criminal episode.

4. Section 558.016.1.

This court may sentence a an extended term

4. 3 3

A51

took the function of punishment assessment from the jury

altogether, even as a tentative advisement.

The persistent offender was pleaded by Count I and

Count III of the indictment by specific allegations that:

(1) On or about October 1, 1971, defendant, RAY

A. THOMPSON a/k/a Ray Anthony Thompson, was

convicted of the felony of Robbery in the First Degree

in Division One of the Circuit Court of Jackson County,

Missouri, C-40365, and

(2) On or about July 29, 1975, the defendant, RAY

A. THOMPSON a/k/a Ray Anthony Thompson, was

convicted of the felony of Robbery in Division Four

of the District Court of Wyandotte County, Kansas,

No. 21112Cr.

The previous convictions were the basis for extended pun-

ishment as a persistent offender. They were proved by

evidence on that separate issue after the jury verdict.

The defendant does not dispute the validity of that proof

as the basis for an extended term, if specifically found

to that effect. The court found: “that the defendant is

one who has been previously convicted of two felonies

at different times, and not related to the instant crime.”

That does not suffice. The statute contemplates that the

convictions be found according to indictment, that the proof

shall conform with the charge, and that the findings de-

scribe the offenses which constitute the proof.

We conclude that the extended term for persistent

offender was imposed without the determination of the

existence of the basis for that enhancement of punishment

prerequisite to that exercise of judicial authority. §

558.021.1(3). The extended terms on Count I and Count

III rest validly, otherwise, on the deterinination that the

A52

defendant was a dangerous offender. Those judgments

will not be disturbed, other than for reimposition ‘of sen-

tence for the other reasons given.

The final point contends that the conviction for the

County I robbery second degree [in this case, committed

by deadly weapon] and the conviction for the Count II

armed criminal action violates constitutional principle. It

has been decided authoritatively that convictions for both

armed criminal action and the underlying felony infringes

the prohibition against double jeopardy. Sours v. State,

603 S.W.2d 592 (Mo. banc 1980).

The conviction for armed criminal action under Count

II is reversed and the defendant is discharged from that

judgment. The convictions for robbery second degree un-

der Count I and for kidnapping under Count III are af-

firmed, but the sentences are set. aside, and the causes

are remanded to the trial court for reimposition of sen-

tences. All concur.

Charles Shangler, Judge

A53

APPINDIX C- 1

(Filed March 9, 1982)

SUPREME COURT OF MISSOURI

DIVISION II

No. 62999

STATE OF MISSOURI,

Respondent,

vs.

CHARLES ARNOLD,

Appellant.

AppeaL From THE Circurr Court or Jackson CouUNTY

Honoras_e JAMES A. Moore, JUDGE

Appellant was charged with Class B rape in Count I,

a violation of § 566.030,' armed criminal action in Count II,

a violation of § 571.015, and burglary, first degree in Count

III, a violation of § 569.160. A jury found him guilty on

all three counts and assessed his punishment at 5 years

on each count. The court sentenced him in accordance

with the jury verdicts and ordered each sentence to be

served consecutively. The Court of Appeals, Western Dis-

trict, affirmed his convictions for rape and burglary, first

degree, reversed his conviction for armed criminal action,

and transferred the case to this court. We have jurisdic-

tion pursuant to Mo. Const. Art. V, § 10.

The Western District ordered the case transferred so

that we might determine whether a remark by the pros-

ecuting attorney during closing argument constituted a

comment on the failure of the appellant to testify. We

1. All citations are to RSMo. 1978 unless otherwise indi-

A5⁴

consider the case now the same as on original appeal. We

affirm appellant's convictions for rape and burglary, first

degree, and reverse his conviction for armed criminal

action.

On January 22, 1979, at 9:30 p.m. and again, later,

at 10:30 p.m., appellant knocked on the door of the man-

ager of an apartment building in Kansas City, Missouri,

and asked for a tenant by the name of John Bush. Bush

had apparently lived in the building two years earlier,

but the appellant was advised by the manager on both

occasions that Bush no longer resided there.

At about 11:00 or 11:30 p.m. on the same evening,

a 30 year old female tenant of a third floor apartment

of this building answered a knock on her door. When she

opened the door, she was confronted by appellant who

asked her if she knew a man named Bush. After she

told him she did not, appellant asked her if she was alone

in the apartment. Even though she was by herself, she

told him her husband was home but in bed. Appellant

insisted that she wake him. Hearing the apartment man-

ager outside and fearing for her safety, she started out

her door. The appellant, however, pulled a knife, put

his hand to her neck and pushed her back into the apart-

ment. Once inside, he pushed her onto a bed and raped

her.

After the attack, the victim left the apartment and

went to her neighbor’s apartment. There, she related

the details of the rape. The police were summoned and

appellant was apprehended trying to leave the apartment

complex. While she was in her neighbor’s apartment,

the apartment manager noticed red marks on the victim’s

neck.

2. We have drawn freely from the opinion of Manford, P.J.

The defense was consent. While appellant did not

testify, he called three witnesses. The first was the med-

ical examiner who had examined the victim at the hospital.

He testified he conducted a pelvic examination of the

victim and found motile semen in the victim’s vagina.

He also testified no red marks were apparent on the vic-

tim’s neck and there was no other evidence of physical

injury to the victim. The second witness was a friend

of appellant who testified that at his request, she secured

several items from his apartment, including luggage, sheets,

and pillowcases. The victim identified these items as

coming from her apartment and they were introduced into

evidence. The third witness for appellant was an inves-

tigator for the public defender who testified as to the

chain of custody surrounding this property. The victim

testified that she had not given these items to the appel-

lant and he had not taken them while in her presence.

She further noted that he had not had time to steal them

at the time of the rape. She testified that several weeks

prior to the instant events, however, burglaries had oc-

curred in and near the apartment complex. At that time,

she had notified her landlord that several items were

missing from her apartment. The landlord noted the bur-

glaries and notified law enforcement authorities.

In addition, the victim and others were thoroughly

cross-exar-ined by defense counsel in an attempt to gain

an admission that the victim knew appellant and had

been with him on prior occasions. All of the state’s wit-

nesses, including the victim, disclaimed knowing or having

ever seen appellant prior to the instant events.

In his first and second points on appeal, appellant

asserts trial court error in convicting and sentencing him

for both rape and armed criminal action. In light of

previous decisions of this Court, we agree with the Western

District that appellant’s conviction for armed criminal

action constituted double jeopardy and should be reversed.

See, State v. Haggard, 619 S.W.2d 44 (Mo. banc 1981);

State v. Morgan, 592 S.W.2d 796 (Mo. banc 1980), vacated

449 U.S. 809 (1980), on remand 612 S.W.2d 1 (Mo. banc

1981); State v. Olds, 603 S.W.2d 501 (Mo. banc 1980).

In appellant’s third point, he alleges error because

of three remarks made by the prosecuting attorney during

closing argument. Appellant promptly objected to the

first two vemarks and made a motion for a mistrial, both

of which are overruled by the trial court. He did not

object to the third remark, consequently, it must be re-

viewed under the plain error doctrine. We shall treat

each of the three challenged remarks separately.

Appellant first contends that the prosecutor’s state-

ment, “Nobody told you it didn’t happen,“ constituted

3. Now, I am going to talk about the elements you have

AAN Ie.

ne “Count No. I. if vou

“find and believe from AL ie a reasonabic

doubt: Uy ay, - 4 dt in the

County of Jackson, State of Missouri, the the defendant was not

married to Clara

There is no evidence that all of those elements are not

Clara told .

“In the County of Jackson, State of Missouri,” they all

told you that that apartment building was located in Kansas

City, Jackson County, Missouri—uncontroverted. “Clara

ED ** told that she was not married to him (indicat-

ing) Charles There is no evidence that she was—

uncontroverted.

A57

Unquestionably, a prosecutor is prohibited from ad-

versely commenting on an accused’s failure to testify.

a direct reference to his failure to testify and constituted

a misstatement of the burden of proof. His argument

State v. Hutchinson, 458 S.W.2d 553 (Mo.banc 1970). The

under this point abandons the latter contention.

Mo. Const. Art. I, § 19. It is also provided by § 546.270

and Rule 27.05 (a) that:

Missouri Constitution provides that “no person shall be

compelled to testify against himself in a criminal cause

If the accused shall not avail himself or herself

. it shall not be con-

strued to affect the innocence or guilt of the accused,

of his or her right to testify, . .

nor shall the same raise any presumption of guilt,

nor be referred to by any attorney in the case, nor

be considered by the court or jury before whom the

trial takes place. (emphasis added).

full elt

1 ,

e Hi Ut

n pty | in

15511 e 7 2240

1 11 5 : 1 0 1 H

Appellant cites State v. Frankoviglia, 514 S.W.2d 536

(Mo. 1974) in support of his contention that this was a

direct refe ence to appellant's failure to testify. Where

there is a direct and certain reference to failure of the

accused to testify, that constitutes reversible error. State

v. Rothaus, 530 S.W.2d 235, 237 (Mo.banc 1975). In

Frankoviglia, this court held: “The key words of the

rule and statute are ‘accused’ and ‘testify’... at 541.

Crucial to the determination of whether the state has

made a direct and certain reference to the accused’s failure

to testify is the use of these words or their equivalent.“

State v. Cockrum, 592 S.W.2d 300, 302 (Mo.App. 1979).

No such words were used here.

Appellant argues that even if it is not a direct refer-

ence to the failure of the accused to testify, it is an in-

direct reference, citing Eichelberger v. State, 524 S.W.2d

890 (Mo.App. 1975). The court must review the state-

ment in the context it was made and determine whether

it “highlighted” or was “reasonably apt to have directed

the jury’s attention to the fact he did not testify.” Eichel-

berger at 894. If under the circumstances of the case,

only the accused could deny the evidence on a vital por-

tion of the case, the general statement that such proof

was undisputed or zadenied has been held to be an in-

direct reference to tie accused's failure to testify. See,

State v. Robinson, 184 S.W.2d 1017 (Mo. 1945); State v.

Shuls, 44 S.W.2d 94 (Mo. 1931); State v. Snyder, 82 S.W.

12 (Mo. 1904).

A59

Implicit in these cases is that the evidence referred

to must be vital to the state's case and damaging to the

accused. If it is not, a jury would not expect contrary

testimony by the accused. His failure to testify is then

neither highlighted nor the jury’s attention directed to it.

Here, the prosecutur stated: “(T]he defendant had

sexual intercourse with Clara Clara told you

Nobody told you it didn’t happen.” The testimony

to which the prosecutor referred was vital to the state’s

case, but it was not damaging to appellant because his

defense was consent.

The issue of consen* permeated the entire trial. De-

fense counsel introduced evidence of personal articles be-

longing to the victim. The inference counsel tried to

create was that the appellant received the items as gifts

and therefore the victim and the appellant knew each

other. The defense counsel vigorously cross-examined the

victim and the other state’s witnesses as to their previous

knowledge of the appellant. It was a witness for appellant

that provided the medical evidence the victim had sexual

intercourse that evening. In closing argument to the jury,

defense counsel stated:

Now, Instruction No. Five tells you—Mr. Gnefkow

has already gone over the basic elements—the one

element that I want to focus on at this time and the

third element, “That the defendant did so without

her consent by the use of forcible compulsion.”

Consent, that is what we are basing our defense

on, and that is consent. (emphasis added).

Our research has revealed no Missouri case which

has reached this precise point but has discovered a Texas

case we find instructive. In Scobey v. State, 169 S.W.2d

185, 189 (Tex. Crim. 1943), the prosecuting attorney stated

in his closing argument to the jury, “It seems to me that

the issue is uncontradicted that Mr. Howell was robbed

....”" The Court of Appeals, answering the appellant’s

contention that such remark was a reference to his failure

to testify, or to contradict testimony which he alone could

deny, stated:

There was no issue 2s to whether Howell was

robbed. The sole question was: Did appellant do it?

The language used by State’s counsel did not—

directly or by inference—call upon appellant to an-

swer that question before the jury. The argument

was not, therefore, a reference to his failure to testify.

Similarly, here, the issue in this case was not whether

the victim and the appellant had sexual intercourse, but

whether there was consent. The prosecuting attorney’s

reference to evidence of the former did not in this case

call upon the appellant to refute it.

The defense attorney inaccurately argued to the ti 1

court that the prosecutor’s statement went to the issue

of consent. “I would object to counsel’s remarks regarding

nobody told you that there was no consent.” The pros-

ecutor, however, had not mentioned consent. That was

not mentioned until later, “[a]nd Third, that the defen-

dant did so without her consent

Under the circumstances of this case, the prosecutor’s

remark no more highlighted or directed the jury’s atten-

tion to the fact that appellant did not testify than did

the prosecutor’s earlier references to the “uncontroverted”

facts that the appellant and the victim were not married,

and these events took place on January 28, 1979, in Jack-

son County, Missouri. There is no merit to appellant's

point.

A61

The second remark by the prosecuting attorney chal-

lenged by appellant is contained in the following colloquy:

Mr. Brown asks all of the State’s witnesses—I

asked all of the State’s witnesses, have they ever seen

Charles Arnold and Clara together? There

was no evidence that anybody ever saw them together.

MR. BROWN: Your Honor, I will again object to

that in the same—

(Counsel approached the bench.)

MR. BROWN: I will renew my objection in that the

defendant has no burden of proof in this case, and

that counsel’s remark on, there is no evidence that

anybody saw her with him, is objectionable, and this

is prejudicial, and I ask for a mistrial again for the

same reason that I stated earlier.

THE COURT: The objection is overruled and the

motion is overruled.

Appellant asserts that this is an improper attempt

to misstate the burden of proof. Appellant does not now

contend that this is an indirect comment on defendant’s

right not to testify, as he alleged in his motion for new

trial and is consequently considered abandoned on appeal.

State v. Perkins, 543 S.W.2d 805, 807 (Mo.App. 1976).

Appellant apparently argues that since MAI-CR2d 2.20

establishes that the statt has the burden of proof, any

attempt to shift that burden in closing argument is error.

The challenged statement by the prosecuting attorney was

a comment upon the evidence and did not constitute an

improper attempt to shift the burden of proof to the de-

fendant. The victim was extensively cross-examined as

A62

to whether she knew the appellant. In addition, one of

her friends testified that she had never seen the victim

and the appellant together. The defense was predicated

on the victim and the appellant being friends, but yet

there was no testimony that they were. Counsel is per-

mitted to argue matters directly in evidence and to draw

proper inferences therefrom. State v. Briggs, 579 S.W.2d

819, 821 (Mo.App. 1979).

The third challenged remark occurred in the second

half of the prosecutor’s closing argument:

Occasionally, sometimes, a jury wili say, “We

know he did it, but you didn’t prove it.” Ladies and

gentlemen, when you came into this courtroom during

voir dire, I gave you a brief outline of what the case

was about. And none of you knew anything about,

and I submit to you ladies and gentlemen, if now you

know he did it. I have proved it to you beyond a

reasonable doubt. Thank you very much.

Appellant argues this constituted a definition of rea-

sonable doubt. There was no objection to this portion

of the prosecutor’s argument, and hence appellant urges

we review it as plain error. This requires error affecting

substantial rights which results in manifest injustice or

a miscarriage of justice. Rule 29.12 (b). Appellant’s point

is controlled by State v. Burnfin, 606 S.W.2d 629, 631

(Mo. 1980). In Burnfin, this court held a statement sim-

ilar to this made by the prosecuting attorney in closing

argument, and reviewed under the plain error doctrine,

did not constitute a miscarriage of justice or result in

manifest injustice. Appellant’s point is without merit.

In his final point, appellant alleges the court erred

in overruling his motion for acquittal on the charge of

A63

burglary, first degree, because of the insufficiency of the

evidence. We do not agree.

Appellant was charged with burglary, first degree,

a violation of § 569.160.1 by unlawfully entering an in-

habitable structure for the purpose of committing rape

and while within that structure causing immediate phys-

ical injury to a person who was not a participant in the

crime. Appellant contends there was insufficient evidence

to establish that he caused immediate physical injury to

the victim.’ We disagree.

The victim testified that appellant squeezed her neck

with his hand after entering the partment. The manager

of the apartment building testified that immediately after

the rape, the victim “had red marks all around her neck.”

The doctor who examined her at an unstated later hour

found no marks nor other evidence of physical injury.

Appellant appears to argue that § 569.160.1 requires

an injury of a permanent type. This court cannot find

within that section such a requirement. In the verdict

directing instruction, physical injury was def ed as “phys-

ical pain, illness or impairment of physica: condition.”

5. r

SRP

degree if he knowingly enters unlawfully or knowingly re

mains unlawfully in a building or inhabitable structure for

the purpose of committing a crime therein, and when in

effecting entry or while in the building or inhabitable struc-

ture or in immediate flight therefrom, he or another par-

ticipant in the crime:

(1) Is armed with explosives or a deadly weapon; or

(2) Causes or threatens immediate physical injury to

any person who is not a participant in the crime; or

(2) There is present in the structure another person

who is not a participant in the crime.

e The state chose to

A64

We think the evidence established the appellant caused

the victim pain.

Webster’s Third New International Dictionary defines

pain as “a sensation which injures the skin;” or “a state

of physical uneasiness ranging from mild discomfort .. .

to... agony.” The fact that the red marks did not appear

or were not observed by the examining physician some

time after the rape does not directly rebut the evidence

that such marks appeared and were observed by another

witness immediately after the attack. Appellant was en-

titled to rebut this evidence in the manner he chose.

Conflicts in the evidence and the determination of the

credibility of the witnesses are within the province of

the jury. State v. Edwards, 574 S.W.2d 956, 957 (Mo.

App. 1978).

We think a jury could infer from the testimony that

appellant squeezed the victim’s neck severely enough to

cause her at least mild discomfort. The evidence was

sufficient to support the finding by the trier of fact that

appellant caused the victim physical injury. There is

no merit to appellant’s point and it is ruled against him.

Affirmed as to Count I and ITI; Reversed as to Count II.

James R. Reinhard, Special Judge

Welliver, P.J. Higgins

and Seiler, JJ. and

Roper, Sp.J. concur.

A65

APPENDIX C-2

OPINION FILED March 30, 1981

MISSOURI COURT OF APPEALS

WESTERN DISTRICT

No. WD 31326

STATE OF MISSOURI,

Respondent,

vs.

CHARLES ARNOLD,

Appellant.

APPEAL FROM THE Circurr Court or Jackson County

HONORABLE JAMES A. Moore, JuDGE

Before Manford, P.J., Dixon and Nugent, JJ.

This is a direct appeal from a jury conviction for

rape, armed criminal action and burglary first degree.

The judgment is affirmed in part and reversed in part.

Appellant presents four points of error, which in sum-

mary allege the trial court erred (1) in overruling appel-

lant’s motion for acquittal because of the insufficiency

of the evidence; (2) in sentencing appellant for both rape

and armed criminal action because the trial court had

no jurisdiction to sentence for both offenses under § 556.014

(1) and 556.046(1), RSMo 1978 in that rape was estab-

lished by proof of less than all the facts required to

establish armed criminal action, the one fact less being

the absence of a weapon; (3) in failing to dismiss the

count of armed criminal action because said count placed

appellant in double jeopardy and (4) in overruling appel-

lant’s motions for mistrial because of the closing argument

A66

by respondent which amounted to direct reference to ap-

pellant's failure to testify, and such comments were a

misstatement of the burden of proof and a definition of

reasonable doubt.

On January 22, 1979, at approximately 9:00 or 9:30

p.m., appellant knocked on the door of the manager of

an apartment complex at 17 East 34th Street, Kansas

City, Missouri and asked for a tenant by the name of

John Bush. He was advised that Bush no longer lived

in the building. At about 10:30 p.m., appellant returned

to the manager’s door and again asked for a tenant named

Bush. The manager told appellant that she did not know

anyone named Bush and that such a person did not live

in the building.

At about 11:00 or 11:30 p.m. on the same evening,

a 30-year-old female tenant of this apartment complex,

whose apartment was on the third floor, heard a knock

on her apartment door. She answered the door, only to

find appellant who asked her if she knew a man named

Bush. She stated she did not know Bush, whereupon

appellant asked her if she was alone in the apartment.

She replied “no”, and appellant insisted that she wake

her husband. (The victim was alone, but told appellant

that her husband was home and she would not wake him.)

At this moment, she heard her landlady and started to

walk out of her apartment door to holler at the landlady.

At this point, appellant put a knife to her neck and pushed

her back into the apartment. While he was pushing her,

he placed the knife in his pocket. He pushed her onto

a bed, opened her housecoat and raped her. She later

testified that as appellant pushed her into the apartment,

he put his hand on her neck. Other testimony indicated

that she had red marks on her neck while at a friend’s

apartment (after the alleged re pe), but medical testimony

A867

for appellant indicated no red marks when she was later

examined at a local hospital.

During the course of the attack, appellant heard a

knock at the door, jumped up and got behind the door.

The victim answered the door. At the door was another

tenant who had come to warn the victim that there was

a possible prowler in the building. The victim left her

apartment with her neighbor and they went to the neigh-

bor’s apartment. There, the victim related the details of

the rape by appellant. The police were summoned and

appellant was apprehended trying to leave the apartment

complex.

While appellant did not testify, he called three wit-

nesses. The first was the medical examiner, who had

examined the victim at the hospital. This witness testi-

fied that he conducted a pelvic exam of the victim and

found semen in the victim’s vagina. He testified that he

found no other physical injuries to the victim. The second

witness was appellant’s friend who testified that at appel-

lant’s request she secured several items from appellant’s

apartment. These items were identified as the victim’s

property and were introduced into evidence. The third

witness for appellant was an investigator for the public

defender who testified as to the chain of evidence sur-

rounding the victim’s property.

Several weeks prior to the instant events, burglaries

had occurred in and near the apartment complex. During

this time, the victim had notified her landlord that several

items were missing from her apartment, the landlord

noted the burglaries and notified law enforcement author-

ities. In addition, the victim and others were thoroughly

cross-examined in an attempt to gain an admission that

the victim knew appellant and had been with him on

prior occasions. All of the state’s witnesses, including

A68

the victim, disclaimed knowing or having ever seen appel-

lant prior to the instant events. The victim admitted that

appellant had not stolen the linen and other items while

in her presence, and noted that he did not have time to

steal them at the time of the rape. Apparently, the de-

fense was to establish that the victim knew appellant,

consorted with him and had given him the personal prop-

erty later retrieved from his apartment.

The jury, after due deliberation, returned its verdict

on all counts and the court assessed punishment at 5 years

on each count, said sentences to be served consecutively.

In his point (1), appellant attacks the sufficiency of

the evidence to support a finding of burglary, first degree.

Appellant argues that the evidence was insufficient to

support a finding that appellant caused immediate physical

injury to the victim. The information charged appellant

with burglary first degree by knowingly and unlawfully

entering the inhabitable structure of the victim for the

purpose of committing rape and while within the structure,

causing immediate physical injury to the victim. The

verdict-directing instruction (No. 8) required the jury to

find as a fact (before it could convict for burglary first

degree) that appellant caused immediate physical injury

to the victim.

Burglary, first degree, is set forth in §569.160, RSMo

1978 and reads as follows:

“569.160. Burglary in the first degree. 1. A per-

son commits the crime of burglary in the first degree

if he knowingly enters unlawfully or knowingly re-

mains unlawfully in a building or inhabitable struc-

ture for the purpose of committing a crime therein,

and when in effecting entry or while in the building

or inhabitable structure or in immediate flight there-

from, he or another participant in the crime:

A69

(1) Is armed with explosives or a deadly weapon or;

(2) Causes or threatens immediate physical injury

to any person who is not a participant in the crime; or

(3) There is present in the structure another person

who is not a participant in the crime.

2. Burglary in the first degree is a class B felony.”

Appellant centers his argument around §569.160.1(2),

alleging that since the examining physician found no

physical injury to the victim, the evidence was rendered

insufficient to support a conviction for burglary first

degree.

The other subparagraphs of §569.160 aside (and it

should be noted that the elements listed under this section

are not conjunctive but are distinct elements, each of

which support a burglary first conviction and which could

support a finding of burglary first degree against appel-

lant in the instant case), appellant elects to overlook

positive direct testimony of not only the victim, but of

other witnesses for the prosecution which established that

the victim had red marks on her neck immediately after

being raped.

From the record, it is obvious that the jury, as the

trier of fact, simply elected to believe the victim and

other witnesses that appellant had placed his hand on the

vietim's neck producing red marks on her neck. This

was contrasted with the testimony of the examining physi-

cian, who viewed the victim at the hospital in the early

morning hours following the rape. The record does not

disclose the exact lapse of time between the rape, the

placing of appellant’s hand on the victim’s neck and the

physical examination.

A70

Appellant appears to argue that §569.160.1(2) requires

an injury of a permanent type. This court cannot find

within that section such a requisite of permanent physical

injury. The evidence surrounding the existence of red

marks upon the victim’s neck was in fact uncontroverted.

The fact that the marks did not appear or were not

observed by the examining physician some time after the

rape does not directly rebut the evidence that such marks

appeared and were observed by the victim and another

witness immediately after the attack. Appellant was en-

titled to rebut this evidence in the manner he chose. The

triers of fact were entitled to view this evidence in the

manner they chose. The evidence was sufficient to sup-

port the finding by the trier of fact that appellant placed

his hand upon the neck of the victim and thereby caused

physical injury. There is no merit in appellant’s point

(1) and it is ruled against him.

Appellant’s point (2) charges that the trial court

lacked jurisdiction to sentence appellant for both rape and

armed criminal action pursuant to §556.014(1) and §556.046

(1) because the rape was established by proof of less

than all the facts required to establish armed criminal

action, save one fact less, that being the absence of a

weapon. This allegation is totally without merit. Appel-

lant’s argument challenges the intent of the legislature

concerning multiple punishment for underlying felonies

and armed criminal action. Appellant’s contention has

been addressed in the cases of Sours v. State, 593 S.W.2d

208 (Mo. banc 1980) (Sours I), and Sours v. State, 603

S.W.2d 592 (Mo.banc 1980) (Sours II). For a recent

pronouncement on this precise point, see State v. Upshaw,

— S. W. ad (Mo. App. 1981) (4WD 31443, March 30,

1981). Since there is a direct disposition of this issue

by our state Supreme Court, (in the Sours decisions) it

serves no purpose to discuss this issue in further detail,

A71

nor does it serve appellant's purpose or others to persist

in raising this point. Point (2) is found to be without

merit and is ruled against appellant.

Point (3) is appellant’s contention that the trial cou-t's

failure to dismiss the armed criminal action placed appel -

lant in double jeopardy. Appellant's point (3) must be

sustained because of our state Supreme Court's decisions

in Sours I and II. That Sours I and II applies to any

underlying felony and not just armed robbery, see State

v. Greer, 609 S.W.2d 423 (Mo.App. 1980). Further, that

the case of Brintley v. Michigan, 444 U.S. 948 (1978)

does not control as argued by respondent, see State v.

Upshaw, supra. Under Sours I and II, point (3) is sus-

tained to appellent’s favor. The conviction and sentence

for armed criminal action is hereby set aside.

Appellant's final point (4) is in three parts. Appel-

lant contends that the trial court erred in refusing to

grant a mistrial because of remarks made by the prose-

cutor in closing argument. Appellant argues that the re-

marks (a) amounted to a definition of reasonable doubt;

(b) were misstatements of the burden of proof and (c)

amounted to a direct reference to appellant’s failure

to testify.

The comments by counsel for the state are referenced

in particular as follows:

“Gecond, that at thet time and place the defendant

5 told you. She told you it happened. Nobody

told you it didn’t happen.”

After these comments, a discussion took place between

counsel and the court at the bench:

“MR. BROWN: Your Honor, may we appreach

the bench.

A72

(Counsel approached the bench and the following pro-

ceedings were had: )

MR. BROWN: Your Honor, I would object to

counsel’s remarks regarding ‘nobody told you,’ the

jury that there was no consent. State has a burden

to prove that it was without consent. The defendant

has no burden of proof in this case until it brings

forth any evidence. I think that’s a prejudicial remark

on the burden of proof, and I would ask that you

declare a mistrial at this point, because defendant

is not held to produce any evidence or to controvert

the lack of consent.

THE COURT: You can argue your side of the

case for the defense, but all the counsel has said is

that there is nothing to the contrary. He says the

State has proved that there is nothing to the contrary.

There has been no comment on the failure to testify,

and I hope that there will not be by either of the

counsel. I see nothing wrong. The objection is over-

ruled, and the motion is overruled.”

Also, the record then revealed the following remarks and

discussion between counsel and the court:

“MR. GNEFKOW: The bookstore—what did she

tell you. I went to the bookstore to take the dinner

to Marisa Brown’s husband. I wasn’t interested in

what was in the bookstore. That is logical, ladies

and gentlemen, that makes sense. Use your common

sense. She was doing a friend a favor. She didn’t

go to the bookstore for an illicit relationship or to

meet anybody. Mr. Brown asks of all the State's

witnesses—I asked all of the State’s witnesses, have

gether? There was no evidence that anybody ever

saw them together.

A73

MR. BROWN: Your Honor, I will again object

to that in the same—

(Counsel approached the bench.)

MR. BROWN: I will renew my objection in that

the defendant has no burden of proof in this case,

and that counsel’s remark on, there is no evidence

that anybody saw her with him, is objectionable, and

this is prejudicial, and I ask for a mistrial again for

the same reason that I stated earlier.

THE COURT: You are awfully sensitive to think

that it was error that will call for a mistrial. I don’t

see any error. What did you do, Mr. Gnefkow?

MR. GNEFKOW: Your Honor, I am just com-

menting on the facts that everybody was asked

whether they had seen them together, and the answer

was no. I am bringing home the point that questions

don’t mean anything, only the answers.

THE COURT: The objection is overruled and the

motion is overruled.

MR. BROWN: May I add to my comment. Coun-

sel can couch his argument in terms of what the wit-

nesses said, but this refers to no evidence, I still think

implies that the defendant has to presume evidence

in that case.

THE COURT: Nobody is arguing that the State

doesn’t have that burden or (sic) proof, but the argu-

ment is a legitimate argument.”

Finally, the record reveals:

“Occasionally, sometimes, a jury will say, We

know he did it, but you didn’t prove it.’ Ladies and

gentlemen, when you came into this courtroom during

voir dire, I gave you a brief outline of what the

A7⁴

case was about. And none of you knew anything

about it, and I submit to you ladies and gentlemen,

if now you know he did it. I have proved it to

you beyond a reasonable doubt. Thank you very

much.”

It must be noted that there is no objection to this

last portion of the state’s argument, and review is urged

under the plain error rule. Appellant, under (a) above,

argues that it was “plain error” for the trial court to

have permitted the prosecutor to state, and I submit

to you ladies and gentlemen, if now you know he did

it. I have proved it to you beyond a reasonable doubt.”

Appellant contends that this statement was tantamount

to a definition of reasonable doubt. He appears to argue

that the prosecutor attempted to redefine reasonable doubt

by his (the prosecutor’s) statement, “if now you know

he did it. I have proved it to you beyond a reasonable

doubt.” In support of his argument, appellant cites State

v. Belleville, 530 S.W.2d 392 (Mo.App. 1975) and State

v. Henderson, 547 S.W.2d 141 (Mo.App. 1976). Neither

of these authorities controls herein. Belleville was a case

where the prosecutor commenced to discuss reasonable

doubt by declaring to the jury, “At this time it can be

explained to you as a jury what reasonable doubt is. Rea-

sonable doubt is defined by the law in the State of Mis-

souri...” Belleville at 394. This statement was objected

to as an improper argument. The objection was overruled.

The prosecutor’s continued remarks that reasonable doubt

was not merely the possibility of innocence but that of

substantial doubt as to guilt was held on review to be

improper. In Henderson, supra, reference by the prose-

cution that reasonable doubt does not mean “beyond a

shadow” or “beyond any doubt” was not held improper.

Belleville and Henderson do not control because in the

instant case, the prosecutor’s remarks, when viewed in

A75

the light of the entire argument of record, reflect no at-

tempt to redefine or define the term reasonable doubt.

The argument is the mere assertion by the prosecutor

that he has proven appellant’s guilt beyond reasonable

doubt. Such is a proper and permissible argument. In

order for this court to provide relief under the plain error

rule (Rule 29.12[b]), there must be a showing of manifest

injustice or a miscarriage of justice. This court finds

neither and point 4(a) is ruled against appellant.

In his point 4(b), appellant argues that the prosecutor's

comments were a misstatement of the burden of proof.

The pertinent portion of the prosecutor’s argument, which

appellant attacks as a misstatement of the burden of proof,

is as follows:

„. . . Mr. Brown asks all of the State’s witnesses—

I asked all the state’s witnesses, have they ever seen

Charles Arnold and | AR together?

There was no evidence that anybody ever saw them to-

gether.”

Appellant appears to argue that by the foregoing state-

ment, the prosecution intimated to the jury that he (ap-

pellant) was required to produce evidence that he and

the victim had been seen or had seen together and thereby

misrepresented to the jury that the burden of proof was

on him. The victim was artfully cross-examined regarding

her having known appellant and having been with him on

prior occasions. The victim, repeatedly and without con-

tradiction, denied knowing appellant. In addition, another

state’s witness who knew the victim quite well and who

spent a great deal of time with the victim, testified that

she never had seen the victim with appellant. The fore-

going statement by the prosecutor amounted to nothing

more than a comment upon the evidence. In closing argu-

ment, counsel is permitted to argue matters directly in evi-

A76

dence and to draw proper inferences therefrom, see State

v. Briggs, 579 S.W.2d 819 (Mo.App. 1979) and State v.

Treadway, 558 S.W.2d 646 (Mo. banc 1977), cert.denied

439 U.S. 838 (1978), overruled on other grounds in Sours

v State, 593 S.W.2d 208, 210 (Mo.banc 1980). Point 4(b) is

found to be without merit and is ruled against appellant.

It should be pointed out that in appellant’s motion

for new trial, parallel to the specific contentions considered

under 4(a) and 4(b), were allegations that such statements

were also indirect comments on appellant’s right not to

testify. On this appeal, under those particular points, how-

ever, those attending allegations are neither presented nor

explained. They are considered abandoned on this appeal,

see State v. Perkins, 543 S.W.2d 805 (Mo.App. 1976) and

State v. Umfleet, 538 S.W.2d 55 (Mo.App. 1976).

As his final point of error, appellant argues that com-

ments by the prosecutor in closing argument amounted

to a direct reference to appellant’s failure to testify (or

4[c] above). The pertinent language attacked is.

She told you it happened. Nobody told you it didn’t hap-

pen.”

In his motion for new trial, appellant coupled the

above attack (failure to testify) with the allegation that

the foregoing was also a misstatement of the burden of

proof. On this appeal, this allegation is not advanced

along with this particular point and is considered aban-

doned, see Perkins and Umfleet, supra. However, see 4(b)

where this allegation is directly considered by this court

under the point of alleged error.

_ Appellant argues that the proscecutor’s comments

amounted to a direct reference to appellant’s failure to

testify and cites as controlling, State v. Frankoviglia, 514

S.W.2d 536 Mo. 1974). Frankoviglia, at 541, stands for a

ATT

restatement of the prohibitory rule that the words accused

and testify be referenced, and addresses the issue of

whether or not the jury’s attention is directed to the ac-

cused’s failure to testify. This court holds that the instant

case does not violate the rule delineated in Frankoviglia.

The wording of the above comment fails to amount

to a direct reference to the failure of appellant to testify

and was not thereby violative of appellant’s constitutional

guarantee under the 5th Amendment to the United States

Constitution; Mo. Const. Art. I, §19; Rule 27.05 and §546.270,

RSMo 1978. See State v. Hutchinson, 458 S.W.2d 553 (Mo.

banc 1970); State v. Pruitt, 479 S.W.2d 785 (Mo.banc 1972);

State v. Rothaus, 530 S.W.2d 235 (Mo.banc 1975); State

v. Williams, 597 S.W.2d 722 (Mo.App. 1980) and State v.

Sechrest, 485 S.W.2d 96 (Mo. 1972).

Appellant is not content to only argue that the prose-

cutor’s statements were a direct comment on his (appel-

lant’s) failure to testify, but offers an alternative argument

that if those comments are not direct, then they are in-

direct and violate the rule of Eichelberger v. State, 524

S.W.2d 890 (Mo.App. 1975). To be sure, our courts have

construed the constitutional and statutory prohibition

against comment upon an accused’s failure to testify in

both a direct and an indirect context. State v. Shields, 391

S.W.2d 909 (Mo. 1965). The rule of indirect comment, how-

ever, contains certain requirements before it becomes ap-

plicable in any given case. As pointed out in Eichelberger,

the test as to the applicability of the indirect reference

prohibition is the determination of whether, under all the

circumstances, such comments or references highlight the

defendant’s failure to testify. When that requirement is

applied to the instant case, it cannot be held that the state-

ment “highlighted” appellant’s failure to testify.

A78

Appellant called three witnesses to the stand. The

prosecution is entitled to comment upon the weakness of

the defense evidence. The statement herein does not refer-

ence appellant or his failure to testify, but merely refers

to the quality of the defense evidence. Such comments are

permissible, see State v. Hayzlett, 265 S.W.2d 321 (Mo.

1954).

In addition to the failure of the foregoing comment to

amount to a direct or an indirect comment on appellant’s

failure to testify, any error would have been rendered

harmless by the jury’s having been instructed as follows:

“INSTRUCTION NO. 11

Under the law, a defendant has the right not to

testify. No presumption of guilt may be raised and

no inference of any kind may be drawn from the fact

that the defendant did not testify. (MAI-CR2d 3.76 De-

fendant)”

See State v. Bronaugh, 571 S.W.2d 788 (Mo.App. 1978).

This court concludes that the comments by the prosecu-

tor herein did not amount to a direct or indirect comment

or reference to appellant’s failure to testify. See Hutchin-

son, Pruitt, Rothaus, Sechrest and Williams, supra. It is

further held that the comment herein was a conuuwent upon

the quality of the evidence permitted under Hayzlett,

supra. Further, under Bronaugh, supra, the submission of

MAI-CR2d 3.76 would render such comment harmless

error.

Point 4(c) is found to be without merit and is ruled

against appellant.

For the reasons set forth herein, that portion of the

judgment related to the conviction and sentencing for the

offense of armed criminal action is set aside and declared

A79

void. That portion of the judgment related to the convic- -

tion and sentencing for the offenses of rape and burglary

first degree is in all respects affirmed.

Donald L. Manford, P.J.

Nugent, J. concurs; Dixon, J., dissents u separate dissent-

ing opinion.

Opinion Filed: March 30, 1981

MISSOURI COURT OF APPEALS

WESTERN DISTRICT

No. WD31326

STATE OF MISSOURI,

Respondert,

vs.

CHARLES ARNOLD,

Appellant.

DISSENTING OPINION

I respectfully dissent. I believe the comment in this

case, “Nobody told you it didn’t happen,” is an even more

pointed reference than that used in State v. Zagorski, No.

WD31363, [February 2, 1981]. For the reasons stated in

Zagorski, I would reverse and remand.

The issue posed in this case will undoubtedly be re-

solved by the decision of the Supreme Court in State v.

Zagorski, supra, which has already been transferred. I

believe this case should likewise be transferred to the

Supreme Court.

David J. Dixon, Judge

A80

APPENDIX D

Section 556.041, RSMo 1978, reads as follows:

“556.041. Limitation on conviction for multiple of-

fenses.— When the same conduct of a person may estab-

list the commission of more than one offense he may

be prosecuted for each such offense. He may not,

however, be convicted of more than one offense if

(1) One offense is included in the other, as

defined in section 556.046; or

(2) Inconsistent findings of fact are required to

establish the commission of the offenses; or

(3) The offenses differ only in that one is de-

fined to prohibit a designated kind of conduct generally

and the other to prohibit a specific instance of such

conduct; or

(4) The offense is defined as a continuing course

of conduct and the person’s course of conduct was

uninterrupted, unless the law provides that specific

periods of such conduct constitute separate offenses.”

Section 566.030, RSMo 1978, reads as follows:

“566.030. Rape.—1. A person commits the crime

of rape if:

(1) He has sexual intercourse with another per-

son to whom he is not married, without that person’s

consent by the use of forcible compulsion; or

(2) He has sexual intercourse with another per-

son to whom he is not married who is less than four-

teen years old.

2. Rape is a class B felony unless in the course

thereof the actor inflicts serious physical injury on

A81

any person or displays a deadly weapon in a threat-

ening manner, in which cases rape is a class A felony.”

Section 569.030, RSMo 1978, reads as follows:

“569.030. Robbery in the second degree.—1. A

person commits the crime of robbery in the second

degree when he forcibly steals property.

2. Robbery in the second degree is a class B

felony.”

Section 571.015, RSMo 1978 (effective Jan. 1, 1979),

reads as follows:

“571.015. Armed criminal action, defined, penalty.

—1. Except as provided in subsection 4 of this sec-

tion, any person who commits any felony under the

laws of this state by, with, or through the use, as-

sistance, or aid of a dangerous instrument or deadly

weapon is also guilty of the crime of armed criminal

action and, upon conviction, shall be punished by im-

prisonment by the division of corrections for a term

of not less than three years. The punishment imposed

pursuant to this subsection shall be in addition to

any punishment provided by law for the crime com-

mitted by, with, or through the use, assistance, or

aid of a dangerous instrument or deadly weapon. No

person convicted under this subsection shall be eligible

for parole, probation, conditional release or suspended

imposition or execution of sentence for a period of

three calendar years.

2. Any person convicted of a second of‘ense of

armed criminal action shall be punished by i: iprison-

ment by the division of corrections for a term of

not less than five years. The punishment imposed

pursuant to this subsection shall be in addition to

any punishment provided by law for the crime com-

mittee by, with, or through the use, assistance, or

aid of dangerous instrument or deadly weapon. No

person convicted under this subsection shall be eligible

for parole, probation, conditional release or suspended

imposition or execution of sentence for a period of five

calendar years.

3. Any person convicted of a third or subsequent

offense of armed criminal action shall be punished

by imprisonment by the division of corrections for

a term of not less than ten years. The punishment

imposed pursuant to this subsection shall be in addition

to any punishment provided by law for the crime

committed by, with, or through the use, assistance,

or aid of a dangerous instrument or deadly weapon. No

person convicted under this subsection shall be eligible

for parole, probation, conditional release or suspended

imposition or execution of sentence for a period of ten

calendar years.

4. The provisions of this section shall not apply

to the felonies defined in sections 564.590, 564.610,

564.620, 564.630, and 564.640, RSMo.”

Section 559.225, RSMo Supp. 1976 (repealed, Jan. 1,

1979) , reads as follows:

“559.225. Armed criminal action—penalty—ex-

ceptions.—1. Except as provided in subsection 4 of

this section, any person who commits any felony un-

der the laws of this state by, with, or through the

use, assistance, or aid of a dangerous or deadly weapon

is also guilty of the crime of armed criminal action

and, upon conviction, shall be punished by imprison-

ment by the division of corrections for a term of

not less than three years. The punishment imposed

pursuant to this subsection shall be in addition to any

A83

punishment provided by law for the crime committed

by, with, or through the use, assistance, or aid of

a dangerous or deadly weapon. No person convicted

under this subsection shall be eligible for parole, pro-

bation, conditional release or suspended imposition or

execution of sentence for a period of three calendar

years.

2. Any person convicted of a second offense of

armed criminal action shall be punished by imprison-

ment by the division of corrections for a term of not

less than five years. The punishment imposed pur-

suant to this subsection shall be in addition to any

punishment provided by law for the crime committed

by, with, or through the use, assistance, or aid of a

dangerous or deadly weapon. No person convicted

under this subsection shall be eligible for parole, pro-

bation, conditional release or suspended imposition or

execution of sentence for a period of five calendar

year.

3. Any person convicted of a third or subsequent

offense of armed criminal action shall be punished by

imprisonment by the division of corrections for a term

of not less than ten years. The punishment imposed

pursuant to this subsection shall be in addition to any

punishment provided by law for the cr e committed

by, with, or through the use, assistance, or aid of a

dangerous or deadly weapon. No person convicted

under this subsection shall be eligible for parole, pro-

bation, conditional release or suspended imposition or

execution of sentence for a period of ten calendar years.

4. The provisions of this section shal] not apply

to the felonies defined in sections 559.005, 564.590,

564.610, 564.620, 564.630, and 564.640, RSMo.”

A8&4

APPENDIX E

Section 750.227 (b), M.C.L.A., reads as follows:

“Michigan Compiled Laws Annotated, 750.227b.

Possession at time of commission or attempted commis-

sion of felony; additional sentence, punishment—

“Sec. 227b (1) A person who carries or has in

his possession a firearm at the time he commits or

attempts to commit a felony except the violation of

section 227 or section 227a, is guilty of a felony, and

shall be imprisoned for 2 years. Upon a second convic-

tion under this section, the person shall be imprisoned

for 5 years. Upon a third or subsequent conviction

under this section, the person shall be imprisoned for

10 years.

“(2) The term of imprisonment prescribed by

this section shall be in addition to the sentence imposed

for the conviction of the felony or the attempt to

commit the felony, and shall be served consecutively

with and preceding any term of imprisonment imposed

for the conviction of the felony or attempt to commit

the felony.

“(3) The term of imprisonment imposed under

this section shall not be suspended. The person subject

to the sentence mandated by this section shall not

be eligible for parole or probation during the manda-

tory term, imposed pursuant to subsection (1). P.A.

1931, No. 328, f 227b, added to P.A. 1976, No. 6,

§ 1, Eff. Jan. 1, 1977.” [footnote omitted.)

Section 750.529, M.C.L.A.., reads as follows:

“750.529. Armed robbery; aggravated assault—

Any person who shall assault another, and shall feloni-

ously rob, steal and take from his person, or in his

presence, any money or other property, which may

be the subject of larceny, such robber being armed

with a dangerous weapon, or any article used or fash-

ioned in a manner to lead the person so assaulted

to reasonably believe it to be a dangerous weapon,

shall be guilty of a felony, punishable by imprisonment

in the state prison for life or for any term of years.

If an aggravated assault or serious injury is inflicted

by any person while committing an armed robbery

as defined in this section, the sentence shall be not

less than 2 years’ imprisonment in the state prison.

As amended P.A. 1959, No. 71, § 1, Eff. March 19,

1960.”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.