State v. Bowling

734 S.W.2d 565, 1987 Mo. App. LEXIS 4149
CourtMissouri Court of Appeals
DecidedJune 1, 1987
Docket14685
StatusPublished
Cited by12 cases

This text of 734 S.W.2d 565 (State v. Bowling) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bowling, 734 S.W.2d 565, 1987 Mo. App. LEXIS 4149 (Mo. Ct. App. 1987).

Opinions

CROW, Chief Judge.

Appellant, tried as a prior offender, § 558.016.2, RSMo Cum.Supp.1984, and as a persistent offender, § 558.016.3, RSMo Cum.Supp.1984, was found guilty by a jury of robbery in the first degree, § 569.020, RSMo 1978, and armed criminal action, § 571.015, RSMo 1978. The trial court sentenced appellant to 25 years’ imprisonment for each crime, ordering that the sentences run consecutively.

Appellant briefs nine points. As the sufficiency of the evidence to support the verdicts is unassailed, we synopsize only such evidence as is necessary to consider appellant’s fourth assignment of error, which is dispositive of the appeal.

The evidence and all inferences reasonably to be drawn therefrom, considered in the light most favorable to the verdicts, with all contrary evidence and inferences disregarded, State v. Guinan, 665 S.W.2d 325, 327 (Mo. banc 1984), cert. denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984); State v. McDonald, 661 S.W.2d 497, 500[1] (Mo. banc 1983), cert. denied, 471 U.S. 1009, 105 S.Ct. 1875, 85 L.Ed.2d 168 (1985), established that on the afternoon of February 23, 1985, appellant entered the St. James Prescription Shop, and remained there 30 to 45 minutes, conversing intermittently with an employee, Emmis Feeler, and with Peggy Caligiuri, the wife of Louis A. Caligiuri, a pharmacist and manager of the store.

Appellant then departed, but returned 15 to 20 minutes later, and watched as customers entered and had prescriptions filled. When all customers were gone, and Mr. and Mrs. Caligiuri were behind the counter, appellant walked through a gate into that area, and pointed a gun at the Caligiuris. At that time, Emmis Feeler was working at a desk “behind the drug area.” Appellant ordered Mr. Caligiuri to call Ms. Feeler, and Caligiuri complied.

When Ms. Feeler arrived, appellant pointed the gun at her, motioned toward a safe where narcotics were kept, and said, “Clean out your safe.” Ms. Feeler knelt by the safe, and appellant tossed her a pillowcase, saying “Fill it up.” As Ms. Feeler was putting drugs in the pillowcase, appellant ordered her to hurry.

After some 3,000 pills and other forms of drugs had been placed in the pillowcase, appellant stated, “That’s enough,” and seized the pillowcase. He then told the Caligiuris a,nd Ms. Feeler to stay where they were until he left. Appellant then fled just as a customer, Karen Pompe, was entering the store.

Louis Caligiuri testified that the cost of the drugs stolen was $590.61, and that they were worth $60,000 to $70,000 “on the street.”

Before addressing the dispositive issue, we must resolve a threshold question. Appellant’s first point avers:

[567]*567The court erred in denying [appellant’s] joint application for change of venue and change of judge and in assigning the case to the associate circuit judge in that a defendant is permitted one change of venue as a matter of right under Supreme Court Rule 32.03 and, upon joint application for changes of venue and judge in a two-judge circuit, Supreme Court 32.08(c)(3) requires the assignment of the cause to the other circuit judge.”

Were we to find this point meritorious, reversal would be ordained, and we would not reach any other assignment of error. The point arises from the following facts.

This prosecution began by indictment in Phelps County, one of the four counties that constitute Judicial Circuit 25. § 478.-137, RSMo 1978. There are two circuit judges in Judicial Circuit 25; they sit in divisions numbered one and two. § 478.-700.1, RSMo 1978.

The indictment was filed in Division Two. Honorable Weldon W. Moore is the judge of Division Two, and at all times pertinent herein was the presiding judge of Judicial Circuit 25.1 Appellant was arraigned May 9, 1985, before Judge Moore, and entered pleas of not guilty to both charges. On May 15, 1985, appellant filed a document styled, “Joint Application for Change of Venue and Change of Judge,” which stated:

“Comes now defendant, by counsel, pursuant to Rules 32.03 and 32.08, and hereby makes application for change of venue from Phelps County, Missouri, where venue now lies, to Texas County, Missouri, and for a change of Judge from Honorable Weldon W. Moore, Division II, to Honorable Douglas Long, Division I, of the 25th Judicial Circuit.... In support of this application, defendant states:
1. This application has been filed not later than 30 days after arraignment.
2. Phelps County, Missouri is a county of seventy-five thousand or fewer inhabitants.
WHEREFORE, the Court is requested to grant defendant a change of venue and change of Judge.”

At the foot of the motion, the following appeared in handwriting: “James L. Elliott, Jr. (lm).” Beneath the handwriting appeared these typewritten words: “James L. Elliott, Jr., Assistant Public Defender.”

On May 17, 1985, Judge Moore entered an order stating, in pertinent part: “... the Court denies the request of [appellant] for a change of judge and change of venue for the reason that the application does not comply with the rules of criminal procedure applicable thereto.” That same day, Judge Moore entered an order assigning this case to Honorable Robert M. Becker, an associate circuit judge.

Nearly five months later, after Judge Becker had heard and ruled on sundry pretrial motions, appellant filed a document styled, “Motion for Rehearing on Denial of Joint Application for Change of Venue and Change of Judge,” which stated, in pertinent part:

“... Honorable Weldon W. Moore, Circuit Judge of Division II, denied the joint application for the reason that the application ‘does not comply with the Rules of Criminal Procedure applicable thereto’.
... Counsel for defendant believes that the reason why the joint application was denied was because of the fact that counsel’s name, as it appears on the joint application, was written by the secretary. Counsel would show that the secretary who executed counsel’s name on the joint application was authorized to do so.
... there is insufficient reason for denying defendant’s joint application for change of venue and change of judge, that said motion should have been sustained, and the matter should have been assigned to either the other circuit judge in the 25th Judicial Circuit, or to the [568]*568Supreme Court of Missouri for assignment.
... Associate Circuit Judge R.M. Becker, who was assigned the case ... lacks jurisdiction to preside over this trial.
WHEREFORE, ... defendant requests that this cause be remanded to the Circuit Judge of Division II, the Honorable Weldon W. Moore, for rehearing, and that upon rehearing, this matter be properly assigned pursuant to Rules 32.-07 and 32.08....”

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Keller v. Keller
224 S.W.3d 73 (Missouri Court of Appeals, 2007)
Salinas v. State
96 S.W.3d 864 (Missouri Court of Appeals, 2002)
State v. Mouse
989 S.W.2d 185 (Missouri Court of Appeals, 1999)
State Ex Rel. Mountjoy v. Bonacker
831 S.W.2d 241 (Missouri Court of Appeals, 1992)
State v. Byler
810 S.W.2d 677 (Missouri Court of Appeals, 1991)
State ex rel. Campbell v. Moon
809 S.W.2d 458 (Missouri Court of Appeals, 1991)
In Re Elliston
789 S.W.2d 469 (Supreme Court of Missouri, 1990)
State v. McGowan
774 S.W.2d 855 (Missouri Court of Appeals, 1989)
State v. Hubbard
759 S.W.2d 387 (Missouri Court of Appeals, 1988)
State v. Bowling
734 S.W.2d 565 (Missouri Court of Appeals, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
734 S.W.2d 565, 1987 Mo. App. LEXIS 4149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bowling-moctapp-1987.