State v. Wright

810 S.W.2d 86, 1991 Mo. App. LEXIS 629, 1991 WL 72452
CourtMissouri Court of Appeals
DecidedMay 7, 1991
DocketNos. 54957, 58238 and 58470
StatusPublished
Cited by3 cases

This text of 810 S.W.2d 86 (State v. Wright) 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. Wright, 810 S.W.2d 86, 1991 Mo. App. LEXIS 629, 1991 WL 72452 (Mo. Ct. App. 1991).

Opinion

STEPHAN, Judge.

Mark Edwin Wright appeals from his convictions, after a three day jury trial, on one count of first degree burglary, Section 569.160, RSMo 1986, and one count of stealing over $150.00, Section 570.030, RSMo 1986. Additionally, Wright appeals the dismissal of his Rule 29.15 motion for post-conviction relief without an evidentia-ry hearing. We affirm.

On November 24, 1987, a grand jury indicted Wright on five counts of burglary in the first degree, Section 569.160, RSMo 1986, and one count of stealing over $150.00, Section 570.030 RSMo 1986. In this indictment, the grand jury alleged that Wright was a prior offender. On April 5, 1988, the State filed a motion to sever counts I and VI, two of the counts of burglary in the first degree, and to proceed on counts II, III, IV and V of the indictment. The court granted this motion, and the cause proceeded to trial. The jury: (1) found Wright not guilty on one count of burglary (Count II of the indictment); (2) was hung on another count of burglary (Count V of the indictment); and (3) found Wright guilty of one count of burglary in the first degree (Count III of the indictment) and one count of stealing over [88]*88$150.00 (Count IV of the indictment). The court declared a mistrial on the count in which the jury was hung. The court sentenced Wright to twelve years imprisonment for the burglary, and three years imprisonment for stealing over $150.00. The court ordered the sentences to run concurrently.

Wright subsequently pled guilty to counts I, V and VI of the indictment. The court sentenced Wright to: (1) five years imprisonment on count I to run consecutive to counts III and IV; (2) five years imprisonment on count V to run concurrent to counts I, III and IV; and (3) five years imprisonment on count VI to run concurrent to counts I, III, IV and V. The court therefore sentenced Wright to a total of seventeen years imprisonment. Additionally, the court ordered Wright to pay $36.00 to the Crime Victim’s Compensation Fund.

Since Wright’s appeal only involves counts III and IV of the indictment, we will only recite those facts necessary for a determination of Wright’s allegations. The State adduced the following evidence at trial. On July 19,1987, Sadie Cook’s neighbor knocked on her door at about 1:00 to 2:00 a.m. Cook answered the door, talked to the neighbor, and discovered that a 13-inch Sears Silverstone television was missing from her home. The television had been sitting atop another television in Cook’s front room when she last saw it, just prior to retiring at about 12:05 a.m. Cook did not give anyone permission to remove the set or be inside her home during the period in which the television set disappeared. Though Cook originally paid $218.00 for the television, Sears informed Cook it would cost $250.00 to replace.

In late September, 1987, St. Louis Police Detectives Robert Froehlich and Charles Thompson believed that Wright was responsible for several unsolved burglaries in their district. Detective Thompson therefore requested that William Fitzpatrick, a St. Louis Police Department latent fingerprint examiner, compare Wright’s fingerprints to prints taken from burglaries in the sixth district. Wright’s fingerprints tied him to a burglary on Church Road.1

On September 30, 1988, Detective Froeh-lich arrested Wright. He took Wright to the sixth district detective bureau and read him his Miranda rights. Wright signed a statement, waiving his rights. Wright then confessed to the burglary on Church Road.

The next day, Detective Joseph McCul-loch questioned Wright. Detective McCul-loch again read Wright his rights. Wright waived his rights, for the second time. Wright then admitted to burglarizing Cook’s residence, taking a small television set that he found sitting atop another television. Wright told the detectives that the television was at his girlfriend’s apartment. Thereafter, Wright additionally confessed to a burglary on Gimblin.2

After the detectives finished questioning Wright, Detectives Froehlich and Thompson went to Wright’s girlfriend’s apartment. Wright’s girlfriend turned a television set over to the police. Cook later positively identified the television.

At the end of the State’s case, Wright made a motion for judgment of acquittal. The trial court overruled this request. Thereafter, Wright testified on his own behalf. Wright alleged that he was coerced and beaten into: (1) making incriminating statements; (2) signing Miranda waivers; and (3) confessing. Wright denied any involvement in the burglaries. Wright again made a motion for judgment of acquittal. The court similarly overruled this motion. The jury subsequently found him guilty, as previously stated.

On February 16,1989, Wright filed a pro se motion for post-conviction relief pursuant to Rule 29.15. On February 21, 1989, the trial court appointed the Special Public Defender’s Office to represent Wright in his post-conviction efforts. However, on March 7, 1989, the trial court permitted [89]*89that office to withdraw, due to a conflict of interest.

On July 17, 1989, Michael Hardcastle, appointed counsel, appeared on Wright’s behalf. He requested additional time to file Wright’s amended Rule 29.15 motion, up to and including August 4, 1989. His request was granted. On August 10, 1989, the State filed a motion to dismiss. The following day, Hardcastle again requested additional time to file Wright’s amended Rule 29.15 motion. On August 21, 1989, at Hardcastle’s request, the cause was continued so that he could file an amended motion on Wright’s behalf. On September 15, 1989, the cause was reset for a hearing on September 29, 1989, at which time the court overruled both the State’s motion to dismiss and Wright’s motion to vacate. At that time, no amended motion had been filed. The court, therefore, entered Findings of Fact and Conclusions of Law on October 10, 1989, denying Wright’s Rule 29.15 motion.

Wright’s first point on appeal is that the trial court abused its discretion in failing to declare a mistrial, sua sponte, when the prosecutor asked Detective Froehlich whether another officer compared Wright’s fingerprints to those lifted at various burglaries in the sixth district. Wright contends that the question elicited evidence of alleged prior acts of misconduct, which were similar to the charged offense. Wright argues that this prejudiced him and denied him his right to a fair trial.

At the outset, we note that Wright did not make any reference to Detective Froehlich’s testimony in his motion for a new trial. Since Wright did not present an issue regarding Detective Froehlich’s testimony to the trial court in his motion for a new trial, this issue is not preserved for appellate review. State v. Woodland, 768 S.W.2d 617, 618 (Mo.App.1989); Rule 29.-11(d).

Though the error of which Wright complains is not preserved for review, we will gratuitously review his contention pursuant to Rule 30.20. Under this rule, Wright bears the burden of demonstrating the action of the trial court was not only erroneous, but that the error so substantially impacted on his rights that manifest injustice will result if the error is left uncorrected. State v. Hornbuckle, 769 S.W.2d 89, 93 (Mo. banc 1989), cert. denied, - U.S. -, 110 S.Ct. 171, 107 L.Ed.2d 128.

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Bluebook (online)
810 S.W.2d 86, 1991 Mo. App. LEXIS 629, 1991 WL 72452, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wright-moctapp-1991.