State v. Rowe

806 S.W.2d 122, 1991 Mo. App. LEXIS 422, 1991 WL 39821
CourtMissouri Court of Appeals
DecidedMarch 26, 1991
DocketNo. 56957
StatusPublished
Cited by9 cases

This text of 806 S.W.2d 122 (State v. Rowe) 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. Rowe, 806 S.W.2d 122, 1991 Mo. App. LEXIS 422, 1991 WL 39821 (Mo. Ct. App. 1991).

Opinion

GARY M. GAERTNER, Presiding Judge.

Appellant, William Rowe, appeals his jury conviction for the crimes of assault, first degree, RSMo § 565.050.1 (1986), and armed criminal action, RSMo § 571.015.1 (1986), for which he was sentenced to two concurrent eight year terms. Appellant also appeals the motion court’s denial of his Rule 29.15 motion without an evidentiary hearing. We affirm.

The evidence reveals that, on the night of July 24, 1987, Glenda Nelson telephoned appellant to arrange the purchase of some drugs for herself and her brother, Chris [124]*124Nelson.1 Because Chris was no longer permitted inside the family home at 4208 Rav-enwood in Pine Lawn, Glenda arranged for appellant to meet her and Chris behind the family home.

When the appellant arrived, he spoke with Chris at the side of the house. Glenda waited at the front of the house for the transaction to be completed. Chris, apparently, had abandoned appellant at the side of the house without having consummated the drug deal and within a few minutes, the appellant approached Glenda demanding that she tell him where Chris had gone. When she responded that she did not know, appellant screamed obscenities at her.2

Upon hearing the argument between appellant and Glenda, Glenda’s other brother, Corey Nelson, came to the front of the house. Corey and the appellant argued and Corey testified at trial that he observed that appellant was carrying a gun. Edna Nelson, the mother of Corey, Glenda and Chris, soon came to the front door and told Corey and Glenda to get inside. They complied. A few minutes later, appellant fired approximately six gunshots into the family home.

Appellant was charged with assault in the first degree and armed criminal action in connection with the assault or, in the alternative, with shooting into a dwelling and armed criminal action in connection with the shooting. A jury trial was held on May 23-25, 1989, and, on May 25, 1989, the jury returned its verdict.

Appellant filed a timely pro se motion pursuant to Rule 29.15 on October 25,1989. A timely, yet unverified,3 amended motion was filed on January 8, 1990. The court denied the pro se motion without an eviden-tiary hearing on April 10, 1990. This appeal followed.

Appellant first contends that the trial court erred in allowing the prosecution to elicit evidence that appellant sold drugs, used drugs and used an unregistered gun at the time of the assault. Appellant claims that this evidence was inadmissible evidence of other crimes. We disagree.

We first note that appellant’s trial attorney failed to object to any of the testimony now complained of. As such, the issues presented were not preserved for purposes of appeal. State v. Ball, 622 S.W.2d 285, 291 (Mo.App., E.D.1981). We will review the points, however, for plain error. Rule 30.20. Under this standard, the plain error complained of must impact so substantially upon the rights of the defendant that manifest injustice or a miscarriage of justice will result if left uncorrected. State v. Driscoll, 711 S.W.2d 512, 515 (Mo. banc) cert. denied 479 U.S. 922, 107 S.Ct. 329, 93 L.Ed.2d 301 (1986).

It is settled law in Missouri that evidence of other crimes committed by a defendant is inadmissible unless the evidence is logically relevant to establish the defendant’s guilt of the crime charged. State v. Kenley, 693 S.W.2d 79, 81 (Mo. banc 1985). Several exceptions exist to this rule, however. These exceptions include evidence tending to establish: 1) the identity of the defendant; 2) motive; 3) intent; 4) absence of mistake or accident; 5) a common scheme or plan embracing two or more crimes so closely related that evidence of the one tends to prove the other; and 6) a continuous occurrence that involves two crimes, so closely linked in point of time and circumstances with the crime charged, that one cannot be fully shown without proving the other. State v. Weatherspoon, 728 S.W.2d 267, 272-73 (Mo.App., W.D.1987).

Appellant’s points of error are focused on three portions of testimony: 1) that appellant sold drugs, 2) that appellant used drugs, and 3) that the gun was unregistered.

[125]*125The evidence that Glenda Nelson phoned appellant for the purpose of a drug deal is certainly relevant in this case to demonstrate motive. “Wide latitude is generally allowed in the development of evidence of motive.” State v. Smith, 772 S.W.2d 760, 764 (Mo.App., W.D.1989). Without evidence of the drug deal, the State would have been asking the jury to believe that defendant argued with the Nelsons and fired six shots into their home for no apparent reason. A failed drug deal provided the all important “why” in this case.

The evidence that the appellant used drugs presents a more difficult question. During the trial, evidence was presented that appellant was involved in a shooting on Lawler in the Northmoor community in St. Louis County. This shooting occurred two weeks after the shooting at the Nelson home.4 Appellant was taken into custody for questioning by then Detective Peter McDermott.5 Detective McDer-mott was permitted to testify without objection that the appellant confessed to the Lawler shooting and that he admitted to consuming Phencyclidine (PCP) and cocaine before the shooting at Lawler. Appellant now claims that the evidence of his drug use was inadmissible evidence of other crimes.

It appears, however, that the failure to object by appellant’s attorney was a matter of trial strategy, and not inadvertent. Indeed, appellant’s attorney went into some detail with Detective McDermott on cross examination — far beyond the detail gone into by the State:

Q Sergeant McDermott, when you interviewed William Rowe on the 12th of August, he was fairly high on drugs, was he not?
A He admitted to having consumed alcohol and drugs earlier on in the evening.
Q Wasn’t there some mention made by him of PCP, that you can recollect?
A In one of the interviews, he did mention PCP. He did challenge us in the first one to find out what drugs he had taken.
Q What is PCP, sir?
A The initials stand for Phencycli-dine.
Q And what kind of a drug is that?
A I guess you could call it a hallucinogenic drug.
Q It was an animal tranquilizer at one time?
A It was used for that, yes.
Q The information that you had received from Mr. Hanes previously which you have testified to, you had also received information that my client was naked at the time he ran away?
A That’s correct.

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Bluebook (online)
806 S.W.2d 122, 1991 Mo. App. LEXIS 422, 1991 WL 39821, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rowe-moctapp-1991.