State v. Smith

665 S.W.2d 663, 1984 Mo. App. LEXIS 4446
CourtMissouri Court of Appeals
DecidedJanuary 25, 1984
DocketNo. 12929
StatusPublished
Cited by8 cases

This text of 665 S.W.2d 663 (State v. Smith) 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. Smith, 665 S.W.2d 663, 1984 Mo. App. LEXIS 4446 (Mo. Ct. App. 1984).

Opinion

CROW, Presiding Judge.

Appellant, found guilty by a jury of the class A felony of robbery in the first degree, § 569.020, RSMo 1978, was sentenced as a prior offender by the court to 15 years’ imprisonment. Appellant does not challenge the sufficiency of the evidence to support the verdict, consequently we need not summarize it. We have, however, reviewed the record, accepting as [665]*665true all evidence and inferences that tend to support the verdict, disregarding all evidence and inferences to the contrary, and viewing the evidence in the light most favorable to the State. State v. Bolder, 635 S.W.2d 673, 679[1] (Mo. banc 1982). So viewed, we find the evidence sufficient to support a finding that appellant, acting in concert with one Melvin Parrow, committed the offense charged: robbery of two employees of Coleman’s Barbecue, in Cape Girardeau,1 on December 10/1981.

Appellant’s three points are directed to the prior offender procedure.

Trial occurred April 20, 1982. The information alleged that appellant had previously pleaded guilty to the felony of attempted burglary in the second degree in the Circuit Court of Cape Girardeau County on or about December 25, 1980.

No hearing was held on the prior offender issue until the court was in the midst of instructing the jury prior to final arguments. The court had read five instructions,2 and was reading a sixth,3 when the court called counsel to sidebar and pointed out the oversight.

After a brief bench conference, the court recessed the jury and conducted a hearing at which the prosecutor offered one document in support of the prior offender allegation. That document was a “docket sheet” (Exhibit A) from the Circuit Court of Cape Girardeau County showing that an information was filed against one Aaron Smith on January 19, 1981, in case number CR580-673FX-A, hereafter called “the pri- or case” to differentiate it from the instant case. Exhibit A further showed that an amended information was filed in the prior case on February 25, 1981, and on that day Aaron Smith appeared with counsel and entered a plea of guilty to the amended information. Aaron Smith was “found guilty as charged,” and a presentence investigation was ordered.

No copy of the original information or the amended information in the prior case was offered during the hearing on the prior offender issue. The only clue to the charge to which the guilty plea was entered was a notation at the top of Exhibit A stating: “BURGLARY, Second Degree Class C Felony, amended to Class D.”

The next entry on Exhibit A was April 6, 1981. On that day, Aaron Smith appeared with counsel and was sentenced to three years in the “State Department of Corrections.” Execution of sentence was suspended and probation was granted.

The court pointed out that Exhibit A did not show “what the man pled guilty to.” Additionally, the court observed that the prior offender allegation in the instant case stated the plea was entered in the prior case on or about December 25, 1980 (Christmas Day).- This was at odds with Exhibit A, which showed the plea was entered February 25, 1981.

Counsel thereafter argued whether Exhibit A was sufficient to prove the prior offender allegation, with the prosecutor declaring he would “be happy to take that risk.”

The court (evidently convinced that appellant was the Aaron Smith in the prior case) found that appellant was sentenced to the Department of Corrections for three years on April 6, 1981. The court then took judicial notice that appellant could not have been so sentenced unless he had entered a plea of guilty to, or been found guilty of, a felony. The court made no finding as to what that felony was, concluding such was unnecessary.

The prosecutor then requested leave to amend the information in the instant case to show that the sentencing in the prior case had occurred April 18, 1980. Apparently realizing that date was incorrect [666]*666(both as to day and year), the court announced the amendment would be allowed to show the date “April 6th,” in lieu of December 25, 1980. If the court intended by this to substitute the date April 6, 1981, for the date December 25, 1980, where the latter appeared in the prior offender allegation, the effect was to allege the plea of guilty in the prior case was entered April 6, 1981. Exhibit A, as noted earlier, shows the plea was entered February 25,1981. It was the sentencing that occurred April 6, 1981. This, however, went unnoticed, and the jurors were returned to the courtroom.

The court finished reading the instruction that was being read when the recess was taken, and read four others.4 The issue of punishment was not submitted to the jury. The jury retired, deliberated and returned the verdict. In due time, appellant’s motion for new trial was denied, allo-cution was granted, and sentence was imposed.

Appellant’s first point asserts the trial court erred in interrupting the reading of the instructions to hold the prior offender hearing. Appellant moved for a mistrial when that occurred, but his motion was denied. He argues it should have been granted because the interruption (a) violated the requirement that the final instructions be read together, (b) offended the requirement that the jury not be instructed until the close of the State’s evidence, (c) allowed the jurors to speculate on appellant’s guilt during the recess, in that they had heard the verdict directing instruction before the interruption, but not the instructions on burden of proof, presumption of innocence, reasonable doubt, right not to testify, and accusation of crime creating no inference of guilt, and (d) was not preceded by the cautionary instruction, MAI-CR 2d 1.08(b).

In considering these complaints, we first note that declaration of recesses is part of the conduct of a trial and within the trial court’s discretion. State v. Cook, 637 S.W.2d 110, 111[2] (Mo.App.1982). An appellate court will not interfere with the exercise of that discretion unless it is clearly abused. State v. Green, 534 S.W.2d 600, 604[4] (Mo.App.1976).

Appellant cites no case holding it is error for a trial court to declare a recess while instructing the jury, and we find none. Indeed, a rule prohibiting a recess during that phase could prove troublesome because, as any experienced trial judge knows, recesses at unexpected moments are sometimes necessary for the personal comfort of someone participating in a trial.

The record before us does not reveal the length of the recess; however, the prior offender hearing occupies only 10 pages of the transcript and there is nothing to indicate the delay was excessive. After the recess, the judge resumed the instructions at the point where he had stopped when the recess was called. No instruction was repeated.

While recognizing the desirability of the jury receiving the instructions without interruption, we find no abuse of discretion in the circumstances here. We reject argument “(a)” of appellant’s first point.

In argument “(b),” appellant asserts the proper time to instruct the jury is at the close of all the evidence, citing Rule 28.02(a), Missouri Rules of Criminal Procedure (13th ed. 1982).

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Bluebook (online)
665 S.W.2d 663, 1984 Mo. App. LEXIS 4446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-smith-moctapp-1984.