State v. McKinney

528 S.W.2d 1, 1975 Mo. App. LEXIS 2082
CourtMissouri Court of Appeals
DecidedSeptember 9, 1975
DocketNo. 35902
StatusPublished
Cited by5 cases

This text of 528 S.W.2d 1 (State v. McKinney) 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. McKinney, 528 S.W.2d 1, 1975 Mo. App. LEXIS 2082 (Mo. Ct. App. 1975).

Opinion

ALDEN A. STOCKARD, Special Judge.

Grover Cleveland McKinney, Jr., charged by indictment with the murder of Michael Johnson and the robbery of Dorothy Johnson, was found guilty by a jury of both charges. The jury assessed his punishment at life imprisonment for the murder, but it was unable to agree on the punishment for the robbery. The trial court assessed the punishment for robbery at imprisonment for a term of twenty-five years.

A jury reasonably could find the following facts. Eddie Thomas and James Johnson (no relation to Michael Johnson) went to the home of Michael and Dorothy Johnson at 2312 LaSalle Street, St. Louis, Missouri, about 8:30 or 9:00 o’clock on the evening of February 16, 1973. They drank beer with Michael in the kitchen of the house. At approximately 9:30 o’clock appellant and Willie Williams knocked on the door of the Johnson house. Michael answered the door and an argument of some nature occurred. Dorothy was in the bedroom with her two children. She went into the hallway to see what the dispute was about and saw appellant with a gun in his hand. She had been acquainted with appellant for about eight years, and used “to go with him.” She returned to the bedroom and was attempting to obtain a gun from under the bed when Williams entered the room. He was armed with a knife with a “five-inch blade, more or less,” and he grabbed her by the hair and while holding on to her hair he reached under the bed and obtained the gun. Dorothy was also acquainted with Williams and had known him “from grade school.” Williams asked for money, and Dorothy gave him a coin purse containing $40.00. He demanded more money, and when she refused he grabbed her oldest child by the arm and said “you love your kids, don’t you.” Dorothy then obtained about $400 from a footstool located in the bedroom and gave it to Williams. About this time Dorothy heard two shots and heard her husband “holler out.” Someone, whom neither Eddie Thomas nor James Johnson saw, went to the kitchen and told them to “lay on the floor.” Appellant entered the bedroom with a gun in his hand and told Williams to “grab some jewelry off the dresser” and to “come on.” Williams grabbed “some stuff” and he and appellant “went out.” Dorothy found her husband lying on the floor of the front room. He died from the effect of the gunshot wounds.

This is a companion case to State v. Williams, 522 S.W.2d 327 (Mo.App.1975) affirming the judgment whereby Willie Williams was found guilty of murder and robbery arising out of the above circumstances.

Appellant first contends that the trial court erred in submitting the case to the jury because (a) there was “absolutely no evidence connecting the appellant with a murder,” and (b) there was no evidence that appellant “participated in or was a party to the robbery which took place at the time of the shooting.”

This contention borders on the frivolous. Appellant argues that this was a circumstantial evidence case and “the circumstances must be consistent with each other and with the theory of the defendant’s guilt and inconsistent with innocence,” citing State v. Burnley, 480 S.W.2d 881 (Mo.1972). No in[3]*3struction on circumstantial evidence was requested and none was given. The evidence in this case was not wholly circumstantial, and therefore, even if requested, such instruction was not required. Note 2, to MAI-CR 3.42. We see no occasion to encumber the reports with a repetition of the standards to establish a circumstantial case. See, for example, State v. Aguilar, 429 S.W.2d 754 (Mo.1968); State v. Burton, 357 S.W.2d 927 (Mo.1962). The statement of the evidence clearly establishes a submissi-ble case on the murder charge, and that appellant and Williams were acting in concert as to the robbery. Appellant’s first point is totally without merit.

Appellant seeks to invoke the “plain error rule” in his second point. He contends that Instruction No. 3 submitting robbery was inconsistent with the indictment because he was therein charged with robbery by means of a dangerous and deadly weapon, a “handgun,” while Instruction No. 3 submitted that the robbery was committed by means of a “knife.” Appellant did not object to the testimony concerning the use of a knife on the ground that it was at variance with the indictment, and he concedes that he neither objected to Instruction No. 3 for this reason nor did he raise this point in his motion for new trial.

As a general rule, an appellate court “will not consider any matter relating to instructions as ‘plain error’ unless the court has so misdirected or failed to instruct the jury on the law of the case as to cause manifest injustice, * * State v. Bridges, 491 S.W.2d 543 (Mo.1973). This did not occur in this case.

An indictment charging first degree robbery by means of a dangerous and deadly weapon need only allege the language of the statute to be sufficient. State v. Moore, 347 S.W.2d 195 (Mo.1961). To commit the offense of first degree robbery as defined by § 560.120 property must be taken “by violence to his person, or by putting him in fear of some immediate injury to his person.” By § 560.135 the penalty for first degree robbery may be enhanced if the offense was committed by means of a “dangerous and deadly weapon.” There is no statutory requirement that the “dangerous and deadly weapon” be defined or identified in the indictment. Therefore, the allegation in the indictment that the weapon was a “handgun” was surplusage. State v. Kirk, 510 S.W.2d 196 (Mo.App.1974). In this case both the indictment and Instruction No. 3 charged appellant with “putting said Dorothy Johnson in fear of immediate injury to her person,” and for that reason the requirements of § 560.120 were satisfied by each. Also, the indictment and the instruction charged appellant with having committed the robbery “by means of a dangerous and deadly weapon.” The evidence showed that the robbery was committed by use of a knife, but that was nothing more than proof that it was committed by a dangerous and deadly weapon, the only essential allegation in the indictment on this issue. Therefore, appellant was not prejudiced by the superfluous allegation in the indictment that the dangerous and deadly weapon was a handgun, nor was he prejudiced because the instruction unnecessarily submitted the established evidentiary fact that the dangerous and deadly weapon was a knife.

Since the trial of this case, MAI-CR 7.62 has become effective (and mandatory) as the instruction to be used in a case of first degree robbery by means of a dangerous and deadly weapon. No provision is made therein for a description of the weapon. The submission is that the defendant “by means of a dangerous and deadly weapon took the property * * The identification of that weapon is properly a matter of proof.

Under the circumstances, appellant was not misled or prejudiced in any way by the variance, and such variance certainly did not constitute plain error within the meaning of Rule 27.20(c).

Appellant’s next point is that he was “denied effective assistance of counsel.” This is a frivolous contention.

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Cite This Page — Counsel Stack

Bluebook (online)
528 S.W.2d 1, 1975 Mo. App. LEXIS 2082, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mckinney-moctapp-1975.