State v. Repp

603 S.W.2d 569, 1980 Mo. LEXIS 404

• Court: Supreme Court of Missouri
• Decided: August 18, 1980
• Docket: 62081
• Status: Published

Opinions

HIGGINS, Judge.

William Repp, with two prior convictions of issuing no account checks in violation of § 561.450, RSMo 1969, was charged as a second offender under § 556.280, RSMo 1969 with six counts of issuing no account checks. He was convicted by a jury on all six counts and the court fixed his punishment at five years’ imprisonment on each count. Judgment was rendered accordingly with the sentences to run consecutively.

The court of appeals affirmed the judgment. This Court transferred the appeal to review whether it was plain error for the trial court to have admitted, without objection, certain hearsay evidence, and whether the punishment imposed is cruel and unusual. Affirmed.

Between March 25 and April 2, 1978, the six no account checks in issue were passed at the Town and Country Supermarket in Farmington, Missouri. The checks were placed in evidence and four employees of Town and Country identified defendant as the person who passed them. An employee of the bank upon which the checks were drawn established that they were drawn against an account that had been closed before they were passed. Town and Country’s manager stated that value was given for the checks. August Nilges, a handwriting expert, gave his opinion that defendant’s signature appeared on each of the checks.

Sufficiency of evidence to support conviction is not questioned and the foregoing demonstrates evidence from which a jury reasonably could find defendant guilty as charged.

During the testimony of Mr. Nilges, the State introduced the written report of William H. Storer, the expert whom defendant had commissioned on his own behalf. Mr. Storer was not called as a witness. Defendant made no objection to the admission of this report, which, in agreement with the opinion of the State’s expert, was an opinion that defendant signed the checks. Through the remainder of trial, the State made a number of references to Mr. Storer’s report.

In recognition of failure to preserve a charge of error, appellant charges plain error to the admission into evidence of the handwriting analysis report of Mr. Storer. In his effort to invoke the plain error rule, he argues that the report was hearsay and that with its author unavailable to him for cross-examination, he was denied his right to confront such witness.

Rule 29.12(b) provides:

Plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.

In this case, Mr. Storer was defendant’s expert. His report was evidence of defendant’s signature on the six checks. That defendant signed the checks was otherwise proved by testimony of the supermarket employees and the State’s handwriting expert. Mr. Storer’s report was thus cumulative of a matter otherwise proved in the State’s case. In these circumstances, had the report been excluded as hearsay, there would still be a sufficiency of evidence, particularly in proof of the agency of the defendant. Thus, this Court does not find, in the admission of Mr. Storer’s report “manifest injustice or miscarriage of justice” necessary to relief under Rule 29.12(b). Compare State v. Socket, 490 S.W.2d 336 (Mo.App.1973) where evidence erroneously admitted was the only evidence in support of the verdict, conviction was reversed under the plain error rule.

Again conceding failure to preserve his charge, appellant contends that the punishment imposed amounts to cruel and unusual punishment in violation of the 8th Amendment to the United States Constitution.

Appellant admits that the punishment as to each offense falls within the limits prescribed by the Legislature; and he does not contend that the statute setting out the limits of punishment is invalid.

Section 561.450, RSMo 1969 provides that upon conviction of issuing a no account check, a defendant shall “be punished by imprisonment by the department of corrections for a term not exceeding seven years * * * >>

A punishment within statutory limits cannot as a matter of law be held cruel and unusual when the statute authorizing the punishment is not invalid, State v. Grimm, 461 S.W.2d 746, 754 (Mo.1971); when punishment imposed is within the range prescribed by statute, it cannot be judged excessive by the appellate court, State v. Crider, 419 S.W.2d 13, 15 (Mo.1967); and where defendant' is convicted of separate offenses and the sentences imposed are within statutory limits, consecutive effect of the sentences doés not constitute cruel and unusual punishment, State v. Neal, 514 S.W.2d 544, 549 (Mo.1974). See State v. Williams, 603 S.W.2d 562 (Mo. banc 1980); See also Rummell v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) holding that mandatory life sentences imposed under Texas recidivist statute following defendant’s third felony conviction for obtaining $120.75 by false pretenses does not constitute cruel and unusual punishment.

Accordingly, the judgment is affirmed.

DONNELLY, RENDLEN, WELLIVER and MORGAN, JJ., concur. BARDGETT, C. J., concurs in part and dissents in part in separate opinion filed. SEILER, J., dissents in separate dissenting opinion filed.