State v. McCrary

621 S.W.2d 266, 1981 Mo. LEXIS 400

• Court: Supreme Court of Missouri
• Decided: September 8, 1981
• Docket: 62236
• Status: Published

Opinions

WELLIVER, Judge.

Appellant was tried on a four count indictment and convicted by a jury on all four counts. Count I charged appellant with assault with intent to kill with malice aforethought, § 559.180, RSMo 1969, and concerned a shooting that occurred on November 13,1978. The jury assessed the punishment on this count at life imprisonment. Counts II and III concern the firebombing of a house on March 8, 1979. Count II charged appellant with arson in the first degree, § 569.040.1, RSMo 1978, and the jury assessed the punishment on this count at a term of fifteen years imprisonment. Count III charged appellant with assault in the first degree, § 565.050.1(3), RSMo 1978, and the jury assessed the punishment on this count at a term of thirty years imprisonment. Count IV charged appellant with carrying a concealed weapon, § 571.115, RSMo 1978, on March 12,1979, and the jury assessed the punishment on this count at a term of five years imprisonment. Count IV charged that appellant is a persistent offender under § 558.016, RSMo 1978. The trial court found appellant to be a persistent offender. The trial court did not increase the punishment assessed by the jury but imposed sentences in accordance with the jury’s verdicts. This Court has jurisdiction over this case, because a sentence of life was imposed. Mo.Const. Art. V, § 3.

Appellant contends that the trial court erred: (I) in not dismissing either Count II or III, because the charging of both counts placed appellant twice in jeopardy for the same offense; (II) in not granting appellant’s motion to sever, because there was an improper joinder of offenses; and (III) in admitting evidence obtained through an unconstitutional search and seizure. We affirm appellant’s convictions.

Appellant lived with Lydia Penermon without the benefit of marriage for a number of years, having two children by her. Their relationship was somewhat turbulent, and, in May of 1978, Lydia left appellant. Shortly thereafter, Lydia started to live with Rufus Penermon, whom she married on July 16, 1978.

Early Monday morning, November 13, 1978, Rufus, Lydia, and the children were leaving their home, located at 4241 East Evans, St. Louis, Missouri. As Lydia and the children were getting into a car, Rufus walked out into the backyard to unlock a gate. As Rufus returned to the car, three gunshots were fired. One shot struck Rufus in the back, and he was subsequently hospitalized. Neither Rufus nor Lydia could identify the man who fired the shots. The police recovered two spent bullets near one of the parked cars in the backyard. The next day, Lydia received a telephone call from appellant in which he said, “I wanted to see the kids. Next time I’m going to kill him.” About a month prior to the shooting, appellant had telephoned Rufus and said, “If you don’t stay away from my woman, . .. I’m going to kill you.” Both Rufus and Lydia testified that appellant made numerous threats against them.

Appellant had told Lydia that, “If I can’t see the kids I’m going to burn the house down.” On March 8, 1979, while Rufus Penermon was recuperating, appellant telephoned Lydia and told her, “If you don’t come back to me ... I’m going to do something bad tonight.” At about 9:40 that evening, Rufus, Lydia, and the children were in their respective bedrooms on the second floor of 4241 East Evans. John Pen-ermon, Rufus’ father, was on the first floor of the house, where he permanently resided. John testified that as he was walking through his bedroom he looked out the window just as appellant threw a firebomb which landed in his bedroom. The firebomb burst into flames burning John’s face and hands, and he was hospitalized for these injuries.

On March 12, 1979, Officer Richard Arthur responded to an anonymous call to investigate a suspicious person described as, “A [Njegro male wearing a black hat, black coat, black trousers and, ... a black shirt and holding a long or large cardboard box.” Officer Arthur arrived in the vicinity of 4226 East Evans and saw a black man who was dressed in black and carrying a long cardboard box. This man was later identified as appellant.

Upon seeing Officer Arthur, appellant dropped the cardboard box on the ground near the street and walked away. Officer Arthur testified that he stopped appellant and determined that he was not carrying a weapon. At this time, Officer Clyde Bailey arrived and watched appellant as Officer Arthur went back to the place where appellant had dropped the cardboard box on the ground. One end of the box was open and the contents were clearly visible to anyone who picked the long narrow box up from the ground. Officer Arthur discovered a .22 rifle, live shells, and a homemade silencer inside the box. A firearms identification expert testified that bullets fired from the .22 rifle matched the two spent bullets recovered near the Penermons’ car on November 13, 1978, indicating that the .22 rifle that was found in the box fired the bullets at the November 13,1978, shooting.

Lydia Penermon testified that appellant often came by and did things like throwing something into the house or shooting into the house to harass them.

I

Appellant contends that the charging of Count II (arson in the first degree) and Count III (assault in the first degree) placed appellant twice in jeopardy for the same offense, because arson in the first degree is a lesser included offense within assault in the first degree under the facts of this case.

In Sours v. State, 593 S.W.2d 208 (Mo. banc 1980), vacated and remanded sub nom. Missouri v. Sours, 446 U.S. 962, 100 S.Ct. 2935, 64 L.Ed.2d 820 (1980), incorporated by reference on remand, Sours v. State, 603 S.W.2d 592, 603 (Mo.banc 1980), cert. denied, - U.S. -, 101 S.Ct. 953, 67 L.Ed.2d 118 (1981), we stated:

The test for determining whether two offenses are “the same” for double jeopardy purposes was stated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932):

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421 [422], 55 L.Ed. 489, and authorities cited.

593 S.W.2d at 213. See also State v. Haggard, 619 S.W.2d 44 (Mo.banc 1981).

The General Assembly has codified the Blockburger definition of lesser included offenses in § 556.046.1(1), RSMo 1978, and has provided in § 556.041, RSMo 1978, that a criminal defendant may not be convicted of more than one offense which arise out of the same conduct if the offenses are included within each other as defined in § 556.-046.1, RSMo 1978.

Applying the Blockburger test, we find that arson in the first degree requires, in part, that the defendant “[damage] a building or inhabitable structure, .... ” § 569.-040.1, RSMo 1978. Assault in the first degree does not require any such element be established before that crime is committed. Assault in the first degree requires, in part, that the defendant “[cause] serious physical injury to another person.” § 565.050.1(3), RSMo 1978. Arson in the first degree does not require any such element be established before that crime is committed. Each of these statutes requires proof of a fact that the other does not. The Blockburger test for lesser included offenses has not been met.

Section 556.041, RSMo 1978, provides that as a general rule, “When the same conduct of a person may establish the commission of more than one offense he may be prosecuted for each such offense.” None of the exceptions to this rule listed in § 556.041 are applicable to this case. Therefore, it is not error to convict appellant under both Counts II and III.¹

II

Appellant contends there was an improper joinder of offenses under former Rule 24.04(b), now, Rule 23.05(b). The constitutionality of the Rule is not challenged.² Rather, appellant argues: (1) that there was a misjoinder of offenses, /. e., including the counts appellant was charged with in the same indictment or information was not permissible under former Rule 24.04(b); and (2) that there was a prejudicial joinder of offenses, i. e., even though joinder of offenses may be permitted under former Rule 24.04(b), it was the duty of the trial court to grant appellant’s motion to sever the counts, because the joinder of offenses was unduly prejudicial to appellant.

Former Rule 24.04(b)³ stated:

(b) With the exception stated in (a) hereof [subsection (a) dealt with the join-der of offenses when one or more of the offenses charged was capital murder⁴], all offenses which are based on the same act or on two or more acts which are part of the same transaction or on two or more acts or transactions which constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts, or in the same count where authorized by statute. Any indictment or information may contain counts for the different degrees of the same offense or for any one of such degrees.

It is apparent that former Rule 24.04(b) permitted, but did not require, the joinder of offenses, other than capital murder, in the same indictment or information when the offenses charged were based: (1) on the same act; (2) on the same transaction; or (3) on a common scheme or plan. The underlying theme of the Rule is the achievement of judicial economy through the join-der of related offenses.⁵ State v. Williams, 554 S.W.2d 524, 528 (Mo.App.1977). See State v. Brannom, 539 S.W.2d 747, 750 (Mo.App.1976). A “common scheme or plan” by its very definition presupposes that it involves a series of separate transactions or acts. In the present case, three separate criminal acts were charged. First, Count I charged an act of assault by shooting that occurred on November 13, 1978. Second, Counts II and III charged a single act of “firebombing” that occurred on March 8, 1979. Third, Count IV charged the act of carrying a concealed weapon on March 12, 1978.

Our research has not revealed an opinion by this Court construing the meaning of the words “a common scheme or plan” as used in former Rule 24.04(b). However, all districts of the court of appeals have considered the issue.⁶ We find that the essential test in determining whether a common scheme or plan exists, in a case involving a single defendant acting alone, is the requirement that all the offenses charged must be “products of a single or continuing motive.” ⁷ State v. Jackson, 566 S.W.2d 227, 228 (Mo.App.1978); State v. Prier, 561 S.W.2d 437, 440 (Mo.App.1978) (emphasis added).

In this case, the state’s evidence⁸ showed that appellant’s actions were the product of the single, continuing motive of revenge by harassment for the loss of his paramour and children. With regard to Counts I, II, and III, the state’s evidence shows that appellant made numerous threats on the life of Rufus Penermon, and that appellant threatened to burn down the Penermons’ house. The state’s evidence concerning the Count IV charge showed testimony that appellant had a history of throwing things into and shooting into the Penermons’ house, that appellant had in his possession the weapon used in the assault upon Rufus Penermon that occurred on November 13,1979, and that he was arrested a short distance from the Penermon residence. There is ample evidence of the existence of a plan of harassment and revenge aimed at the Penermon family. There was no misjoinder of offenses under former Rule 24.04(b).

Appellant’s second argument is that, although the joinder of offenses was proper under former Rule 24.04(b), the trial court was under a duty to order severance, because the joinder of offenses was unduly prejudicial to appellant. There is no Missouri Supreme Court Rule requiring the trial court to sever counts that are property joined under former Rule 24.04(b) because of the prejudice created by the joinder of offenses. See also Fed.R.Crim.P. 14. However, this Court “has evinced a willingness to consider the question of whether a trial court has abused its discretion in denying a request for separate trials, even though, as a matter of pleading, the offenses were properly joined in one information.” State v. Prier, 561 S.W.2d 437, 439 n.4 (Mo.App.1978) (emphasis in original).

In State v. Duren, 556 S.W.2d 11 (Mo. banc 1977), rev’d on other grounds sub nom. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), after concluding that the joinder of offenses was proper under former Rule 24.04, this Court stated:

Further, severance is a matter within the sound discretion of the trial court directed toward achieving a fair determination of the defendant’s guilt or innocence of each offense charged. The court should consider, among other relevant factors, the number of offenses charged, the complexity of the evidence to be offered and whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense. The court remains under a continuing duty during trial to counter prejudice and order severance if necessary to achieve the fair result intended.

556 S.W.2d at 20 (emphasis added). See also State v. Williams, 603 S.W.2d 562, 567 (Mo.1980).

Applying the Duren criteria, we find that the evidence in this case is not complex. The three criminal acts charged occurred at distinctly different times. The jury could intelligently distinguish the law and evidence applicable to each offense and were instructed to do so in Instruction No. 5 (MAI-CR2d 2.70), which stated in part, “Each offense and the evidence and law applicable to it should be considered separately.” Appellant’s argument here made is based upon speculation. See State v. Easton, 577 S.W.2d 953, 956-57 (Mo.App. 1979), cert. denied, 444 U.S. 863, 100 S.Ct. 131, 62 L.Ed.2d 85 (1979). The penalties imposed by the jury do not appear excessive under the circumstances. We find no abuse of discretion in the trial court’s refusal to sever the offenses here charged.

Ill

Appellant argues with respect to the Count IV charge that the .22 rifle, live shells, and homemade silencer seized on March 12, 1979, should have been suppressed, because these articles were obtained through an unreasonable search and seizure in violation of the fourth and fourteenth amendments to the federal constitution and Mo.Const. Art. I, § 15.

Prior to trial, appellant moved to suppress the admission of the .22 rifle and other evidence seized on March 12,1979. A hearing was held on this motion, and the motion to suppress was overruled. Appellant did not object when this evidence was offered at trial, nor did appellant include this allegation of error in his motion for new trial. Appellant has failed to preserve this error for review. Rule 29.11(d); State v. Yowell, 513 S.W.2d 397, 402 (Mo.1974); State v. Hall, 534 S.W.2d 508, 510 (Mo.App.1976). Our review is limited to plain errors that result in a manifest injustice or a miscarriage of justice. Rule 29.12(b); State v. Bryson, 506 S.W.2d 358, 361 (Mo.1974).

In Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978), the Court concluded that before one can complain of the violation of the fourth amendment, as incorporated into the fourteenth one has to have a “legitimate expectation of privacy” in the place or thing being searched. The Court created a two-part test for determining whether a criminal defendant has a legitimate expectation of privacy in the thing or place searched. See Rakas, 439 U.S. at 143 n.12, 99 S.Ct. at 430 n.12; Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979). First, the defendant must have an actual, subjective expectation of privacy in the place or thing searched. Second, the expectation of privacy must be “reasonable” or “legitimate.”⁹ The legitimacy or reasonableness of the expectation is measured “by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Rakas, 439 U.S. at 143 n.12, 99 S.Ct. at 430 n.12.

In In re J.R.M., 487 S.W.2d 502, 508 (Mo. banc 1972), this Court held that the test for standing under Mo.Const. Art I, § 15, to be “whether defendant was entitled to and did have a reasonable expectation that the property would be free from governmental intrusion other than by a proper and lawful search and seizure.” We now hold that the “reasonable expectation” test for standing under Mo.Const. Art. I, § 15, adopted by this Court in In re J.R.M. is identical to the “legitimate expectation of privacy” test adopted by the United States Supreme Court in the Rakas case.¹⁰

We conclude then, that in order for appellant’s fourth and fourteenth amendment rights to have been violated or for appellant to have standing to assert a violation of Mo.Const. Art. I, § 15, appellant must have had a legitimate expectation of privacy in the place or thing searched.¹¹ At the hearing on appellant’s motion to suppress, appellant made no claim that he had either an actual, subjective expectation of privacy in the cardboard box that was searched or that his expectation of privacy was legitimate. “The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.” Rakas, 439 U.S. at 131 n.1, 99 S.Ct. at 424 n.1. See Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980). Missouri follows this rule. State v. Hornbeck, 492 S.W.2d 802, 808 (Mo.1973).

In State v. Achter, 512 S.W.2d 894, 899 (Mo.App.1974), it was stated:

It is settled law that one has no standing to complain of the search or seizure of property which he has voluntarily discarded, left behind, or otherwise relinquished his interest so that he no longer retains a reasonable expectation of privacy with regard to it at the time of search or seizure.

See also State v. Hall, 534 S.W.2d 508, 510 (Mo.App.1976); State v. Browner, 514 S.W.2d 355, 356 (Mo.App.1974). We find no manifest injustice constituting plain error.

The judgment is affirmed.

MORGAN and HIGGINS, JJ., concur. DONNELLY, C. J., concurs in result in separate opinion filed. RENDLEN, J., concurs in result. BARDGETT, J., dissents in separate dissenting opinion filed. SEILER, J., dissents and concurs in separate dissenting opinion of BARDGETT, J.

1 . Appellant also argues that the offenses of assault in the first degree, § 565.050.1(3), and arson in the first degree, § 569.040.1, were committed as a single act of force, making conviction of both offenses violative of the double jeopardy guarantee. Appellant relies on State v. Parsons, 513 S.W.2d 430, 437-38 (Mo.1974).

In Parsons, the defendant was charged with “first degree murder by bombing” and bombing, §§ 564.560-.570, RSMo 1969. This Court held that conviction of both first degree murder and bombing violated the double jeopardy guarantee. Most of the supportive language for the holding was couched in terms of “a single act of force” or “a single transaction” test. In retrospect, we do not view the result of Parsons to be inconsistent with our holdings in State v. Morgan, 612 S.W.2d 1 (Mo.banc 1981); State v. Olds, 603 S.W.2d 501 (Mo.banc 1980); State v. Sours, 603 S.W.2d 592 (Mo. banc 1980), cert. denied, 449 U.S. 1131, 101 S.Ct. 953, 67 L.Ed.2d 118 (1981); or the Block-burger test as codified in § 556.046.1(1), RSMo 1978. The test is not “a single act of force” or “a single transaction” test.

2 . Former Rule 24.04(b) (effective 1/1/79 to 12/31/79), now, Rule 23.05(b) (effective 1/1/80), formerly, Rule 24.04 (effective 7/1/71 to 12/31/78), has withstood attacks on its constitutionality. In State v. Neal, 514 S.W.2d 544, 549-50 (Mo.banc 1974), this Court upheld former Rule 24.04 against a claim that it in combination with a consecutive sentencing statute, § 546.480, RSMo 1969, chilled a defendant’s right to a jury trial. In State v. Baker, 524 S.W.2d 122, 126 (Mo.banc 1975), this Court upheld former Rule 24.04 by holding that “[a] defendant does not have either a federal or state constitutional right to be tried on only one offense at a time.” In State v. Duren, 556 S.W.2d 11, 19-20 (Mo.banc 1977), rev’d on other grounds sub nom. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), this Court upheld former Rule 24.04 against a claim that the Rule reaches beyond this Court’s rulemaking power under Mo.Const. Art. V, § 5, because it affects substantive rights.

3 . Former Rule 24.04(b) (effective 1/1/79 to 12/31/79), now, Rule 23.05(b) (effective 1/1/80), is substantially the same as former Rule 24.04 (effective 7/1/71 to 12/31/78). For a comparison of the Rule before and after it was amended on July 1, 1971, see State v. Baker, 524 S.W.2d 122, 126 n.3 (Mo.banc 1975). See also State v. Morgan, 539 S.W.2d 660, 663-65 (Mo.App.1976).

Former Rule 24.04(b) is similar to Fed.R. Crim.P. 8(a). State v. Pittman, 569 S.W.2d 277, 280 (Mo.App.1978); State v. (Charles Deason) Johnson, 505 S.W.2d 11, 12 (Mo.App.1974); State v. (Leroy) Johnson, 508 S.W.2d 18, 20 (Mo.App.1974). See State v. Baker, 524 S.W.2d 122, 126 (Mo.banc 1975). However, Fed.R.Crim.P. 8(a) is broader than former Rule 24.04(b) in that the federal rule allows the join-der of offenses “ ‘of the same or similar character,’ language not found in Rule 24.04 ... . ” State v. Prier, 561 S.W.2d 437, 439 n.3 (Mo.App.1978) (emphasis in original). See State v. Howard, 601 S.W.2d 308, 310 (Mo.App.1980).

4 . On May 18, 1981, this Court ordered that the present Rule 23.05 be repealed effective 1/1/82, and a new Rule 23.05 be substituted therefor. This new Rule 23.05 abolishes the special provision for capital murder contained in the present Rule 23.05(a) and allows “All offenses ...” based on the same act, transaction, or common scheme or plan to be charged in the same accusatorial document.

5 . 2 American Bar Association, Standards for Criminal Justice 13-1.2 (2d ed. 1980) states: “Two or more offenses are related if they are based upon the same conduct, upon a single criminal episode, or upon a common plan.”

6 . See, e. g., State v. Howard, 601 S.W.2d 308 (Mo.App., E.D.1980); State v. Buford, 582 S.W.2d 298 (Mo.App., W.D.1979); State v. Mack, 576 S.W.2d 550 (Mo.App., E.D.1978); State v. Pittman, 569 S.W.2d 277 (Mo.App., E.D.1978); State v. Jackson, 566 S.W.2d 227 (Mo.App., E.D.1978); State v. Prier, 561 S.W.2d 437 (Mo.App., S.D.1978).

7 . Two decisions of the court of appeals, State v. Buford, 582 S.W.2d 298, 302 (Mo.App.1979) and State v. Prier, 561 S.W.2d 437, 441-42 (Mo.App.1978), analogize the joinder of offenses rule to the common law evidentiary rule excluding the admission of evidence of unrelated crimes to establish a defendant’s guilt of the crime charged. See, e. g., State v. Reed, 447 S.W.2d 533, 534 (Mo.1969); State v. Reese, 364 Mo. 1221, 1226-27, 274 S.W.2d 304, 307 (banc 1954). The evidentiary rule deals with what evidence is properly admissible to prove the crime charged. The joinder of offenses rule deals with the more basic question of what crimes can be charged in a proceeding. The two rules deal with different questions, making the wholesale importation of the evidentiary rule into the law dealing with the joinder of offenses inappropriate. However, upon proper motion, see, State v. Williams, 603 S.W.2d 562, 567-68 (Mo. 1980); State v. Terry, 325 S.W.2d 1, 4 (Mo.1959), the trial court is required to consider the prejudicial impact created by proof of related offenses in determining whether or not there is a prejudicial joinder of offenses. See at 272, infra. Whether the join-der of offenses is unduly prejudicial to a criminal defendant is a separate issue from the question of whether offenses have been properly joined under former Rule 24.04(b).

8 . In deciding whether there was a misjoinder of offenses under former Rule 24.04(b), we examine only the state’s evidence, because former Rule 24.04(b) dealt with the offenses that the grand jury or prosecutor (the state) may include in the same indictment or information.

9 . The Court gave the following example: “A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as ‘legitimate.’” Rakas, 439 U.S. at 143 n.12, 99 S.Ct. at 430 n.12.

10 . In Rakas, 439 U.S. at 139, 99 S.Ct. at 428, the Court held that the federal doctrine of standing was “subsumed under substantive Fourth Amendment doctrine.” This Court has refrained from incorporating the standing doctrine under Mo.Const. Art. I, § 15, into the substantive rights protected by that constitutional provision. See State v. Johnson, 598 S.W.2d 123, 127-28 (Mo.banc 1980), cert. denied, 449 U.S. 1067, 101 S.Ct. 795, 66 L.Ed.2d 611 (1980) (decided after Rakas). The interests that give rise to standing remain separate from the substantive rights protected by Mo.Const. Art. I, § 15.

11 .Appellant was charged under Count IV with carrying a concealed weapon, § 571.115, RSMo 1978. Carrying a concealed weapon may be a possessory offense. In Jones v. United States, 362 U.S. 257, 263, 80 S.Ct. 725, 732, 4 L.Ed.2d 697 (1960), the Court created an “automatic standing” rule for possessory offenses. The automatic “standing” rule of Jones was abolished in United States v. Salvucci, 448 U.S. 83, 92, 100 S.Ct. 2547, 2553, 65 L.Ed.2d 619 (1980). The hearing on the motion to suppress in this case was held on February 25, 1980. The Sal-vucci case was handed down on June 25, 1980. Since we are reviewing this case under the plain error doctrine for errors that result in a manifest injustice or a miscarriage of justice, we need not decide whether the Salvucci case applies retrospectively or prospectively only. We apply the law as it presently exists.