text:
    Robert J. HOWARD, d/b/a Howard Construction Company, Plaintiff-Appellant, v. Terry NICHOLSON and George G. Nicholson, his wife, Defendants-Respondents.
    No. 37156.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 13, 1977.

      Paxton H. Ackerman, Clayton, for plaintiff-appellant.
    Ziercher, Hocker, Tzinberg, Human & Mi-chenfelder, Robert C. Jones, John G. Young, Jr., Herbert E. Bryant, Clayton, for defendants-respondents.
   McMILLIAN, Presiding Judge.

Appellant Robert J. Howard appeals from a judgment entered by the circuit court of St. Louis County, Missouri, in favor of defendants Terry Nicholson and George G. Nicholson, his wife, denying appellant’s claim for loss of profits in a breach of contract action.

Appellant and respondent Terry Nicholson entered into the contract which is at issue on November 6, 1969. Appellant was to construct a building in accordance with certain plans and specifications provided by Honey’s International, Ltd. (Honey’s) for $199,740 with a completion date of May 1, 1970. The building was designed to be used as a bridal salon. Respondents had signed a lease with Honey’s on October 15, 1969. The lease provided that Honey’s was to use the premises as a bridal salon for a term of 20 years.

Respondents later met with the Security Title Company to complete the financing arrangements. On November 14, 1969, respondents signed a note, deed of trust and a construction and disbursing escrow agreement. The escrow agreement provided for the construction and completion of all improvements by December 14, 1970, and was signed by both appellant and respondents, as well as representatives of Security Title Company and Hamiltonian Federal Savings and Loan Association (the mortgagee).

In December, 1969, appellant began demolition work at the building site and, at the request of respondent Terry Nicholson, rerouted electric, sewer and water lines across the property. During the late fall and winter months, appellant had also been trying to obtain necessary building permits from the City of Bridgeton (municipality where the property was located). Appellant had to assemble various documents and obtain the approval of the City Planning Commission. On March 6, 1970, appellant received a phone call from the City of Bridgeton informing him that the permits were ready to be picked up.

The next day appellant phoned respondent to tell him the good news. Appellant’s version of this conversation was that respondent said that Honey’s was having financial problems and to hold up on the permits and that if he (respondent) could not work with Honey’s because of this financial situation he would work out something with appellant on another building in view of appellant’s effort and time on the job. Respondent’s version of the conversation was that he (respondent) was startled to learn that appellant was just getting the building permits, that although he said that it would be impossible to build the building in six weeks (by May 1, 1970), appellant nevertheless said he could, that he would have to call Honey’s to find out if they approved, and that appellant should not do anything until he got in touch with him.

On March 10, 1970, appellant received a letter from respondent dated March 7,1970. The letter stated that respondent was can-celling the construction contract because of appellant’s breach of contract. The contract terms called for completion by May 1, 1970, that this was impossible in six weeks and Honey’s would not accept occupancy.

Honey’s filed a Chapter 11 petition in bankruptcy proceedings on December 16, 1969. The trial court awarded judgment to appellant on Count I, not presented on appeal, for the reasonable value of labor, work and materials furnished for the job and against respondents’ counterclaim, and in favor of respondents on Count II, finding that respondents were excused from nonperformance by the doctrine of commercial frustration and appellant’s breach.

For reversal, appellant argues that (1) the trial court erred in finding that respondents were excused from nonperformance on the doctrine of commercial frustration in that the rule in Missouri requires an Act-of-God, an act of law — an impossibility and (2) the trial court erred in finding May 1, 1970, as the completion date and that appellant was unable to complete the building by that date. We affirm the judgment for the reasons discussed below.

The standard of review exercised by this court is that of review of both the law and the evidence as in suits of an equitable nature, Rule 73.01. The supreme court of this state has interpreted this to mean that the judgment of the trial court sitting without a jury should be sustained on appeal unless there is no evidence to support the judgment, the judgment is against the weight of the evidence, the judgment erroneously declares the law, or the judgment erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). In addition the power of the court to set aside the judgment of a trial court on the ground that it is against the weight of the evidence must be exercised “with caution and with a firm belief that the decree or judgment is wrong.” Id. at 32.

First, we consider appellant’s second point. Appellant challenges the sufficiency of the evidence supporting the findings of the trial court. The trial court specifically found that (1) the completion date in the construction contract was May 1, 1970; (2) time was of the essence in this construction contract, and (3) appellant had not diligently performed so as to be able to complete construction by May 1, 1970. On the basis of these facts the trial court concluded that respondents had sufficient grounds to cancel the contract and to excuse them from further performance. Appellant argues that (1) the completion date had been changed to a later date, December 14, 1970, by a second contract between the parties (the construction and disbursing escrow agreement), and that the building could have been constructed by that date and (2) the conclusions of the trial court that appellant did not perform diligently was contrary to the evidence and that appellant could not complete construction by May 1, 1970, was merely an adoption of respondents’ unilateral conclusion.

There were two separate contracts entered into which involved the construction of a building by appellant for respondents. The first contract executed November 6, 1969, was a standard construction contract between owner and contractor which incorporated the plans and specifications of Honey’s and specified the price and the completion date of May 1, 1970. The second contract, the construction and disbursing escrow agreement, was executed November 14, 1969, by appellant-contractor, respondents-owners, and representatives of the mortgagee, Hamiltonian Federal Savings and Loan Association, and the escrowee, Security Title Company and provided for a construction date of December 14, 1970, which was different from that provided in the first contract.

Appellant argues that where there are two inconsistent contracts that do not expressly provide to what extent the second operates to discharge or as a substitution for the first, that the later contract, if valid, will control, e. g., Berry v. Crouse, 376 S.W.2d 107 (Mo.1964); Ragan v. Schreffler, 306 S.W.2d 494 (Mo.1957); Dill v. Poindexter Tile Company, 451 S.W.2d 365 (Mo.App.1970). This rule is inapplicable to the facts of this case. In each of the three cases cited the trial court found that the parties intended or contemplated that a later contract would supersede an earlier contract and thus control any inconsistent terms. Each set of contracts had been executed as part of the same transaction and concerned the same subject matter, for example the sale of farm land.

In the present case, the two contracts were executed as part of the same transaction, on the same subject matter but containing inconsistent provisions. Even if two instruments are executed as part of the same overall transaction, it does not necessarily mean that those instruments constitute one contract or that one contract has merged with another, absent some reasonable basis for finding that such merger was the intention of the parties. Elliott v. Richter, 496 S.W.2d 860 (Mo.1973); Four-Three-O-Six Duncan Corp. v. Security Trust Co., 372 S.W.2d 16 (Mo.1963). The parties executed the contracts for different purposes and never intended one contract to supersede or substitute for the other. The contracts were really complementary instruments — the construction contract was the basic contract, setting forth the price and completion date. The escrow agreement was the financing agreement which was intended to disburse the construction loan in such a fashion as to protect the under-mortgagee, Hamiltonian Federal. In fact the completion date of December 14, 1970, had been selected by the representative of Security Title only because that was the date that the construction loan was due to expire and the permanent loan was to be put on by the mortgagee.

In addition there was evidence to support the conclusion of the trial court that time was of the essence in the construction contract. Cf. Transport Manufacturing & Equipment Co. v. Fruehauf Trailer Co., 295 F.2d 223 (8th Cir. 1961). Appellant was aware of the fact that Honey’s required that the building be ready for occupancy by May 1, 1970, because the peak time for bridal business was in May and June.

There was also evidence to support the conclusion of the trial court that appellant could not have completed the building by May 1, 1970, and therefore breached the contract. Appellant testified that it would take approximately four months to obtain the necessary permits and complete the building according to the plans and specifications. Appellant experienced some difficulty with the administrative procedures of the City of Bridgeton, but himself contributed partially to the delay. Appellant was unaware that the building permit application required a state architect’s seal, approval by the City Engineer and Planning Commission, and certain other documents, including authorization from the state highway department for the access onto the highway (Lindbergh Boulevard), all of which required additional time to prepare and assemble. In all appellant required nearly four months to obtain the building permits, leaving only six weeks to build the entire building. Under these circumstances respondents were justified in concluding that appellant would be unable to complete construction by May 1, 1970, and in cancel-ling the contract.

Appellant’s first argument challenges the validity of the trial court’s finding that this was the proper situation for the application of the doctrine of commercial frustration to excuse respondents from performance. Appellant argues that the appropriate rule in Missouri is the doctrine of impossibility of performance: if a party, by his contract, obligates himself to a performance which is possible to be performed, he must make it good unless his performance is rendered impossible by an Act of God, the law, or the other party. E. g., Ellis Gray Milling Co. v. Sheppard, 359 Mo. 505, 222 S.W.2d 742 (1949); Ward v. Haren, 139 Mo.App. 8, 119 S.W. 446 (1909); MFA Mut. Ins. Co. v. Farmers & Merchants Ins. Co., 443 S.W.2d 220 (Mo.App.1969); Missouri Pacific RR v. C.W. Terrell, 410 S.W.2d 356 (Mo.App.1966); Stein v. Bruce, 366 S.W.2d 732 (Mo.App.1963). Missouri courts have narrowly expanded the Act of God exception to include all casualty losses without fault of either party, Mo. Code Comments, 20A Mo.Stat.Ann. § 400.2-613; Bunge Corp. v. Recker, 519 F.2d 449 (8th Cir. 1975) (crop losses); Semo Grain Co. v. Oliver Farms, Inc., 530 S.W.2d 256 (Mo.App.1975) (crop losses), but in general have reaffirmed the impossibility of performance doctrine.

The applicability of the doctrine of commercial frustration presents a question of first impression in Missouri. The Missouri Supreme Court recognized the doctrine but did not apply it to the facts presented in the Ellis Gray Milling Co. case. The doctrine has been followed in other states and in the federal courts. See, e. g., West Los Angeles Institute for Cancer Research v. Mayer, 366 F.2d 220 (9th Cir. 1966); Pacific Trading Co. v. Mouton Rice Milling Co., 184 F.2d 141 (8th Cir. 1950); New York Trust Co. v. SEC, 131 F.2d 274 (2nd Cir. 1942); Parrish v. Stratton Cripple Creek Mining & Dev. Co., 116 F.2d 207 (10th Cir. 1940); Garner v. Ellingson, 18 Ariz.App. 181, 501 P.2d 22 (1972); Autry v. Republic Prod., 30 Cal.2d 144, 180 P.2d 188 (1947) (in banc); Lloyd v. Murphy, 25 Cal.2d 48, 153 P.2d 47 (1944); Berline v. Waldschmidt, 159 Kan. 585, 156 P.2d 865 (1945); Perry v. Champlain Oil Co., 101 N.H. 97, 134 A.2d 65 (1957); Dorsey v. Oregon Motor Stages, 183 Or. 494, 194 P.2d 967 (1948); North American Capital Corp. v. McCants, 510 S.W.2d 901 (Tenn.1974); Beaudoin & Sons, Inc. v. County of Milwaukee, 63 Wis.2d 441, 217 N.W.2d 373 (1974). See also American Law Institute, Restatement 2d Contracts, § 288; 6 Corbin, Contracts, § 1322 (1962); 6 Williston, Contracts, § 1954 (rev.ed. 1938); Conlen, The Doctrine of Frustration as Applied to Contracts, 70 U.Pa.L.Rev. 87 (1922); Rothschild, The Doctrine of Frustration Or Implied Condition in the Law of Contracts, 6 Temple L.Q. 336 (1932); Note 27 Calif.L. Rev. 460 (1939); Note, Impossibility & The Doctrine of Frustration of the Commercial Object, 34 Yale L.J. 91 (1924); cf., Hurst, Freedom of Contract in an Unstable Economy: Judicial Reallocation of Contractual Risks Under UCC, § 2-615, 54 N.C.L.Rev. 545 (1975-76); Note, Contractual Excuse Based on Failure of Presupposed Conditions, 14 Duquesne L.Rev. 235 (1975-76).

The doctrine of commercial frustration was first recognized in England as an excuse for nonperformance in the so-called coronation cases, Krell v. Henry, 2 K.G. 740 (1903); Blakeley v. Muller, 19 T.L.R. 186 (K.B.); Clark v. Lindsay, 19 T.L.R. 202, 88 L.T.R. 198, and has been applied in the United States in a variety of circumstances, e. g., Marks Realty Co. v. Hotel Hermitage Co., 170 App.Div. 484, 156 N.Y.S. 179 (1915) (cancellation of yacht races by war excused nonperformance of advertising contracts). Under the doctrine, if the happening of an event not foreseen by the parties and not caused by or under the control of either party has destroyed or nearly destroyed either the value of the performance or the object or purpose of the contract, then the parties are excused from further performance. The doctrine of commercial frustration is close to but distinct from the doctrine of impossibility of performance. Both concern the effect of supervening circumstances upon the rights and duties of the parties but in cases of commercial frustration “[performance remains possible but the expected value of performance to the party seeking to be excused has been destroyed by a fortuitous event, which supervenes to cause an actual but not literal failure of consideration.” Lloyd v. Murphy, 25 Cal.2d 48, 153 P.2d 47, 50 (Cal. en banc 1944).

In Parrish v. Stratton Cripple Creek Mining & Develop., 116 F.2d 207 (10th Cir. 1940), the court applied the doctrine of commercial frustration stating, “where parties enter into a contract on the assumption that some particular thing essential to its performance will continue to exist and be available for the purpose and neither agrees to be responsible for its continued existence and availability, the contract must be regarded as subject to an implied condition that if, without the fault of either party, the particular thing ceases to exist or be available for the purpose, the contract shall be dissolved and the parties excused from performing.” 116 F.2d at 209-10. In this case a mining company had contracted with a milling company to process its ore and also contracted with a trucking firm to transport the ore to the mill for processing. The milling company went bankrupt and the mining company transferred its ore to the only other available mill by railroad. The court held that the continued operation of the non-bankrupt mill was an implied condition to the contract between the mining company and trucking firm and because the mill had ceased to operate, the parties were excused from further performance.

Other cases and commentators have approached the doctrine of commercial frustration as a problem of “allocating, in the most generally satisfactory way, the risks of harm and disappointment that result from supervening events.” 6 Corbin, Contracts, § 1322 (1962); Autry v. Republic Prod., 30 Cal.2d 144, 180 P.2d 188 (1947) (in banc); Lloyd v. Murphy, 25 Cal.2d 48, 153 P.2d 47 (1944) (in banc); Dorsey v. Oregon Motor Stages, 183 Or. 494, 194 P.2d 967 (1948). Justice Traynor in Lloyd v. Murphy, supra, stated that the problem in commercial frustration cases was “whether an unanticipated circumstance, the risk of which should not be fairly thrown on the promisor, has made performance vitally different from what was reasonably to be expected.” 153 P.2d at 50. If the event was reasonably foreseeable then the parties should have provided for its occurrence in the contract and its absence indicates an assumption of risk by the promisor.

Courts consider the relation of the parties, the terms of the contract and the circumstances surrounding its formation in determining whether the supervening event was reasonably foreseeable. In Berline v. Waldschmidt, 159 Kan. 585, 156 P.2d 865 (1945), the court found certain wartime regulations to be reasonably foreseeable by the parties and therefore capable of being covered by the terms of the contract. In North American Capital Corp. v. McCants, 510 S.W.2d 901 (Tenn.1974), the court held the failure of government agency officials to approve the site for a proposed savings and loan association as required was reasonably foreseeable and that therefore the defense of commercial frustration was not applicable in an action for rent due. In West Los Angeles Institute for Cancer Research v. Mayer, 366 F.2d 220, 225 (9th Cir. 1966) the court stated that it was applying the “more widely accepted view that foreseeability of the frustrating event is not alone enough to bar rescission if it appears that the parties did not intend the promisor to assume the risk of its occurrence.” In this view the primary question remains that of assumption of risk of subsequent events rather than whether the “unanticipated circumstance [was] wholly outside the contemplation of the parties.” Lloyd v. Murphy, 25 Cal.2d 48, 153 P.2d 47, 51 (1944) (in banc).

It is also necessary to establish that there was a total or practically total destruction of the purpose or object of the transaction. In Lloyd v. Murphy, supra, the court found that the doctrine was inapplicable because not only were the wartime regulations at issue reasonably foreseeable on the basis of facts commonly known at the time of contract, but also the promisor failed to show that the value of performance under the contract had been destroyed. In the West Los Angeles Institute case the entire transaction had been structured around certain tax advantages of sale and lease-back arrangements. When the IRS rejected this tax premise, the selling parties were able to demonstrate that this ruling denied the tax consequences of such arrangements, completely frustrating the purpose of the transaction. See also William Beaudoin & Sons, Inc. v. County of Milwaukee, 63 Wis.2d 441, 217 N.W.2d 373 (1974) (where another contractor had removed parts of bridge in process of demolition, item in contract of plaintiff contractor to perform the same task was frustrated by such intervening act).

The doctrine of commercial frustration, like that of impossibility of performance, grew out of the demands of the commercial world to excuse performance in cases of extreme hardship. Sound public policy, while requiring that the doctrine be limited in its application so as to preserve the certainty of contract requires the law to be jflexible and equitable in situations where 'unexpected contingencies operate to make performance valueless and the allocation of contractual risks capricious or fortuitous. See American Law Institute, Restatement 2d, Contracts, §§ 288, 458-60; 20A Mo.Stat. Ann., § 400.2-615 (Vernon’s 1975) (Analogy to transactions in goods.)

In this case the proposed building could have been built. But in view of the findings by the trial court that the building had been specifically designed for use as a bridal salon by Honey’s and for the sale of bridal fashions and accessories and that it was not suited for other uses, the value of the building as such was destroyed by the supervening circumstance of the bankruptcy of Honey’s, the proposed tenant. In addition, appellant was at all times aware of respondents’ ultimate purpose in purchasing the property and in construction of the building, its use as a Honey’s Bridal Salon. In fact there was some evidence that appellant, interested in construction of Honey’s Bridal Salons in this area, had gone to Chicago several times to meet with representatives of Honey’s before he ever met respondents and had obtained plans and specifications directly from Honey’s. Both parties to the construction contract contemplated construction of a building to be used as a Honey’s Bridal Salon.

The other factor to consider in the application of commercial frustration as an excuse of performance is the foreseeability of the supervening event — was the bankruptcy of Honey’s a reasonably foreseeable event that should have been provided for in the construction contract? While the possibility of bankruptcy of businesses in general is a foreseeable and all-too-frequent occurrence, the future bankruptcy of a particular company, the continuing existence of which was essential to complete the entire transaction, was not reasonably within the contemplation of the parties at the time of contracting such that the parties would have made provision for such an event. The bankruptcy of Honey’s was a fortuitous and unexpected supervening event over which neither party had any control. See Parrish v. Stratton Cripple Creek Mining & Develop. Co., supra; Dorsey v. Oregon Motor Stages, supra. The doctrine of commercial frustration “reads into” a contract an implied condition that Honey’s would be able to rent the proposed building and use it as a bridal salon. The bankruptcy of Honey’s effectively destroyed the value of the building which was suitable only for such use and excused performance by respondents.

In this case it is not inequitable to maintain that appellant had assumed part of the risk in the contract in light of appellant’s active participation and knowledge of the entire transaction. Appellant was aware that the construction of the proposed building was for one purpose only, the long-term lease by Honey’s and operation as a bridal salon. Inasmuch as the bankruptcy of Honey’s made this objective unattainable and destroyed the value of performance of the contract, the doctrine of commercial frustration will operate to excuse further performance under the contract.

Accordingly, judgment is affirmed.

STEWART and REINHARD, JJ., concur.


source: Caselaw Access Project

author: CLEMENS, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Richard SMITH, Appellant.
    No. 38669.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 13, 1977.
    Robert C. Babione, Public Defender, Joseph Webb, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Richard G. Callahan, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

The state charged defendant as a second offender with first degree robbery by means of a deadly weapon. Section 536.-120, RSMo. 1969. After a guilty verdict the trial court sentenced defendant to 20 years’ imprisonment. He appeals, asserting error in refusing his cautionary instruction on his identification by the victim and also in giving the “hammer instruction,” MAI-CR 1.10.

Victim Gregory Joiner had known defendant by sight for several weeks, having seen him pass by his filling station almost daily. On the night in issue Joiner was preparing to close his station when defendant came from across the street, calling out to him about buying cigarettes. As Joiner turned away, defendant put a gun to his back, demanded and took currency and a money changer.

Identification came in four stages: First, Joiner picked out defendant at a lineup; second, at the preliminary hearing Joiner equivocally identified another — and then defendant — as the robber; third, Joiner pointed out defendant from a group of seven photos and fourth, Joiner identified defendant in open court. On the strength of the equivocal identification, defendant offered — and the court refused — a verbose, argumentative instruction on reasonable doubt concerning identification.

We uphold the court’s ruling on two grounds: First, cautionary instructions are discretionary. Here, the one equivocal identification was outweighed by three positive identifications; hence there was no abuse of discretion in denying the proffered cautionary instruction. Second, MAI-CR 2.01, by its second paragraph, fully instructed the jury on the believability of witnesses. Notes on Use to MAI-CR 2.01 preclude further instructions on believability. In sum, the court did not err in refusing defendant’s cautionary instruction.

Defendant challenges the “hammer instruction,” MAI-CR 1.10, which may be given “when appropriate after extended deliberation by the jury.” After a day and a half of trial the jury began its deliberations. Three and a half hours later the court inquired as to its numerical division; the jury foreman responded it was divided ten to two. The court then gave MAI-CR 1.10. Fifty minutes later the jury returned its guilty verdict.

Defendant relies strongly on this court’s opinion in State v. Sanders, 552 S.W.2d 39 (Mo.App.1977) (filed April 26, 1977), reversing a conviction for giving MAI-CR 1.10. The distinguishing factor there was that before giving the instruction the jury had announced it stood nine to three for conviction and just ten minutes later returned a guilty verdict. We held those circumstances indicated coercion warranting reversal. The cited facts here are readily distinguishable.

We have considered the cases relied upon by defendant and the host of “hammer instruction” cases annotated in 27A Mo.Dig., Trial, and find no comparable case holding error in giving a “hammer instruction” under circumstances comparable to those here. We deny defendant’s point.

Judgment affirmed.

DOWD and SMITH, JJ., concur.


author: SMITH, Judge.

text:
    Joseph Edward REEDER, Appellant, v. STATE of Missouri, Respondent.
    No. 38433.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 13, 1977.

      Robert C. Babione, Public Defender, Thomas Motley, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Asst. Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., W. Earl Jacobs, Asst. Circuit Atty., St. Louis, for respondent.
   SMITH, Judge.

Movant appeals the order of the trial court denying his Rule 27.26 motion to vacate sentence. The sole contention raised here is that defendant was denied an opportunity to appeal his conviction for armed robbery. We affirm.

The trial court found the movant’s testimony devoid of credibility. We are bound by that finding. Movant’s former attorney testified to the circumstances which led to no motion for new trial or notice of appeal being filed in defendant’s robbery case. The trial court found this testimony credible. That testimony indicated that prior to trial the prosecutor refused to consider making any recommendation in exchange for a plea less than 35 years imprisonment. This was based upon movant’s lengthy criminal record and the brief period of time elapsing between his release from prison and commission of the robbery with which he was charged. Following trial to the court with jury waived and a finding of guilt, the prosecutor indicated his willingness to recommend a sentence of fifteen years if movant would waive his right to file a motion for new trial and notice of appeal. This offer was presented to defendant by his attorney who fully advised his client of the consequences. The offer was accepted by defendant. The recommendation was made as promised and the court sentenced movant to fifteen years. The trial court found on the basis of this testimony that movant had freely, voluntarily and understandingly waived his right to file a motion for new trial and notice of appeal. We find this factual determination supported by the evidence.

Movant contends that he was coerced to abandon his appeal by threats of a longer sentence and relies upon Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). That case has no application here. Rather than threatening to “up the ante” if movant appealed, the prosecutor agreed to reduce his previously determined recommendation in exchange for movant’s waiver of his appeal rights. This is closely akin to pre-trial plea bargaining and does not constitute coercion. See Wells v. State, 504 S.W.2d 96 (Mo.1974); McNamara v. State, 502 S.W.2d 306 (Mo.1973); Brown v. State, 485 S.W.2d 424 (Mo.1972) [7, 8]; State v. Jackson, 514 S.W.2d 638 (Mo.App.1974) [3].

Judgment affirmed.

CLEMENS, P. J., and DOWD, J., concur.


author: FLANIGAN, Judge.

text:
    Leslie Allen SANDERS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10362.
    Missouri Court of Appeals, Springfield District.
    Sept. 19, 1977.

      Robert P. Baker, Sarcoxie, for movant-appellant.
    John C. Danforth, Atty. Gen., David L. Baylard, Asst. Atty. Gen., Jefferson City, for respondent.
   FLANIGAN, Judge.

Movant Leslie Allen Sanders appeals from a denial, after evidentiary hearing, of his Rule 27.26 V.A.M.R. motion to set aside a judgment and sentence for murder in the second degree. Sanders was one of three persons charged with robbing, kidnapping and murdering James Stemmons. Movant was convicted by a jury of the first degree murder of Stemmons. The verdict was set aside by the trial court on the ground of instruction error. Thereafter, on August 4, 1975, attorney William Fleischaker, the public defender of Jasper County, was appointed to represent Sanders.

On September 9, 1975, in the murder case, the state filed an amended information reducing the charge to murder in the second degree. On that date Sanders, represented by Fleischaker, entered his plea of guilty to the amended charge. On September 11,1975, the state dismissed the kidnapping charge and the robbery charge. On October 14, 1975, movant, represented by Fleischaker, received a life sentence imposed by Judge Robert P. Warden.

The instant motion was filed on December 10, 1975. An evidentiary hearing on the motion was held before Judge Warden on April 15, 1976. Movant was present at that hearing and was represented by attorney Robert P. Baker, who had represented him at the jury trial. At the conclusion of the hearing Judge Warden, after making findings of fact and conclusions of law, overruled the motion.

Movant appealed to this court. On February 4, 1977, this court entered an order remanding the cause to the circuit court “for the limited purpose of affording mov-ant-appellant and the state, if they so desire, opportunity to adduce additional testimony and evidence of the particular elements and conditions of all plea bargainings conducted between the public defender on behalf of movant and the state, with particular reference to whether the state satisfied and performed all things it may allegedly have agreed to do in exchange for movant’s plea of guilty to the charge of second degree murder.”

On April 6, 1977, an evidentiary hearing was held before Hon. Herbert C. Casteel (who had replaced Judge Warden as Judge of Division I of the Circuit Court of Jasper County). Movant appeared in person and by attorney Baker. On April 8,1977, Judge Casteel made findings of fact and conclusions of law, in compliance with the order of this court.

Although both sides were accorded the privilege of filing supplemental briefs based on the transcript of the hearing before Judge Casteel, neither side exercised that privilege and this appeal is predicated upon the original briefs.

Movant’s first point is that the trial court erred in refusing to vacate and set aside the sentence because “the court’s finding of fact that there was no plea bargain whereby charges of robbery and kidnapping would be dismissed in return for a plea of guilty was clearly erroneous in light of the uncontradicted testimony by all involved that there was in fact such a plea bargain.”

This point is based upon movant’s misinterpretation of a portion of the findings made by Judge Warden. That portion reads: “The court finds that Mr. Fleischaker did not tell the defendant that he would get ten years in the penitentiary if he entered his plea of guilty to second degree murder, and that the charges of robbery and kidnapping would be dismissed against him. The court finds there was no such agreement. The court finds that neither the prosecuting attorney nor his assistants ever made such an agreement with Mr. Fleischaker nor conveyed such an agreement to Mr. Fleischaker as attorney for the defendant.”

The evidence adduced at both hearings showed that the state and attorney Fleisc-haker entered into a plea agreement on the following terms:

1.The state would file an amended information reducing the murder charge from first degree murder to second degree murder and Sanders would enter a plea of guilty to the amended charge.

2. The state would dismiss the robbery and kidnapping charges.

3. The state would not oppose a presen-tence investigation.

4. The state would make no recommendation as to the sentence on the second degree murder conviction.

The evidence shows that the state performed all of its promises under the plea agreement.

It is true that Sanders (who did not testify at the motion hearing before Judge Warden) had alleged in his motion that the plea agreement included the provision that Sanders “would get 10 years for a plea of guilty” to the second degree murder charge. At the motion hearing before Judge Cas-teel, Sanders so testified. Such testimony was in direct conflict with that of attorney Fleischaker and that of the assistant prosecutor Ross T. Roberts (both called by mov-ant). The attorneys testified, and Judge Casteel found, that the plea bargaining agreement contained no provision with respect to a 10-year sentence.

In a Rule 27.26 proceeding “the weight of the evidence and credibility of the witnesses are matters for the trial court. Our function is to determine whether the judgment of the trial court was ‘clearly erroneous.’ ” Shoemake v. State, 462 S.W.2d 772, 775[2, 3] (Mo. banc 1971).

Movant’s brief construes Judge Warden’s finding, quoted above, to be equivalent to a finding “that there was no plea bargain whereby charges of kidnapping and robbery would be dismissed in return for a plea of guilty and [the state] never made such an agreement.” A fair construction of Judge Warden’s finding is that there was no plea agreement which included a provision that movant would receive a 10-year sentence. Such finding, which Judge Casteel also made, was clearly supported by the evidence.

Movant’s first point has no merit.

Movant’s second point is that Judge Warden’s finding that Mr. Pleischaker “adequately represented movant was clearly erroneous in that counsel’s misapprehension of the law of duress in the state of Missouri, resulting in the giving of improper legal advice, rendered counsel ineffective and deprived movant of his right to assert that defense, and counsel was further ineffective in failing to insist upon the plea bargain.”

Significant misleading advice of counsel may constitute a denial of due process of law and vitiate a judicial proceeding. Ray v. State, 532 S.W.2d 478, 482[9] (Mo.App.1975) (citing authorities).

Movant’s brief, referring to State v. St. Clair, 262 S.W.2d 25 (Mo.1958), says: “St. Clair held that where from the evidence a jury could have found that the accused participated in a robbery not of his own volition, but rather, because of a well grounded fear of present, imminent and impending death or serious bodily injury, it was mandatory that the jury be instructed upon the issue of duress. But in the present case, [Mr. Fleischaker] clearly conveyed to his client that the trial court would not be obliged to instruct upon duress. In so doing, defense counsel was mistaken in law and therefore, ineffective.”

In St. Clair, which was a robbery case, the court said at p. 27:

“The appellate courts of this State seem not to have dealt with duress or coercion as a defense to an otherwise criminal act. At least, we have not been cited nor have we found any such case. However, the question has been considered with some frequency in other jurisdictions. Numerous cases are cited in Wharton’s Criminal Law, Vol. 1, § 384, p. 514. From these cases and others cited below it is established by the great weight of authority that although coercion does not excuse taking the life of a innocent person, yet it does excuse in all lesser crimes. Nall v. Commonwealth, 208 Ky. 700, 271 S.W. 1059; 15 Am.Jr., Criminal Law, § 318, p. 16. But, to constitute a defense to a criminal charge, the coercion must be present, imminent, and impending and of such a nature as to induce a well grounded apprehension of death or serious bodily injury if the act is not done. Threat of future injury is not enough. Nor can one who has a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily injury invoke the doctrine as an excuse.”

Movant’s brief is neither fair nor accurate in stating that Mr. Pleischaker “clearly conveyed to his client that the trial court would not be obliged to instruct upon duress.”

Mr. Pleischaker testified that he discussed with Sanders the “factual and legal” aspects of the defense of duress. Mr. Pleischaker said that he told movant “that although apparently the court had allowed the duress defense in the first trial, I had some question as to whether we were legally entitled to it and that if the court determined not to give a duress instruction to the jury, we would be stuck in a very difficult situation.”

That testimony does not support mov-ant’s construction of Mr. Fleischaker’s advice. Mr. Pleischaker did not “clearly convey” to his client that the trial court would not be obliged to instruct upon duress. Mr. Pleischaker said that he “had some question as to whether we were legally entitled to such an instruction.”

Moreover, the record shows that on September 22, 1975, a hearing was held before Judge Warden where the movant appeared in person and by Mr. Pleischaker. This occurred between the acceptance of the plea and the imposition of the sentence. At that hearing the following took place:

“THE COURT: All right, this is Case Number 14704, Mr. Sanders, when you were previously here before me on the 9th day of September, the state filed an amended information charging you with second degree murder and you entered a plea of guilty to that charge. Now at that time I did not inquire from you about the defense which you asserted in the first jury trial that was held that you were coerced into doing this act by virtue of threats made against you and your family by your brother-in-law, John Martin. Is it John Martin?
MR. FLEISCHAKER: Yes.
THE COURT: Now, at this time, I would inquire from you as to whether or not you are now telling the Court that you in fact were not coerced in doing this and did in fact do it willingly and freely without any coercion on the part of Mr. Martin?
THE DEFENDANT: Yes, that’s correct.
MR. FLEISCHAKER: Your Honor, may I address the Court on Mr. Sanders’ behalf? I discussed this with him previously this morning, having been advised what the Court was concerned about, about it. Mr. Sanders told me that there was some amount of pressure put upon him from John Martin however, he’s thought about it and he feels that there was not so much coercion that he could not — there was no time but what — where he couldn’t have backed out of it; there were certain threats but he was acting on his own, he was acting solely on his own, he was not acting solely because of those threats by Mr. Martin and he could have backed out at any time; he would have taken his chances with Mr. Martin and as far as the defense of coercion is concerned, although there was some coercion from Mr. Martin, there at the time was not certainly enough coercion to keep him from backing out if he wanted to do it.
THE COURT: You have heard the statement made by your attorney, is that a correct statement of your position?
THE DEFENDANT: Yes, sir.
THE COURT: All right, that’s all. Thank you very much.”

The foregoing record reflects that both Judge Warden and Mr. Fleischaker meticulously respected movant’s legal rights with regard to the potential defense of duress. By movant’s own statements at the September 22,1975, hearing it is plain that Mr. Fleischaker was justified in “having some question” as to whether the evidence at a second trial would support the giving of an instruction on duress.

The second prong of movant’s second point is that Mr. Fleischaker “was further ineffective in failing to insist upon the plea bargain.” The contents of the plea agreement have been set forth and the fact is, as Judge Casteel found, that the state performed all of its promises under the plea agreement.

Movant’s second point has no merit.

Movant’s third point is: “By taking into account the verdict of the jury on the previous trial, as prompted by the prosecution in violation of the plea bargain, the sentencing judge both penalized the defendant for exercising his right to a jury trial and deprived him of the benefits of his plea bargain.”

During the pendency of the charges against Sanders, the prosecuting attorney was William H. Burden, Jr. Ross T. Roberts, assistant prosecuting attorney, was “primarily in charge of the prosecution of Sanders.” The plea agreement was reached between Mr. Roberts and Mr. Fleischaker.

On September 9,1975, when the plea was entered to the reduced charge, the state was represented by Mr. Burden and Mr. Roberts was not present. After the plea had been accepted Mr. Fleischaker asked the court to order a presentence investigation. The court (unaware of the plea agreement) asked Mr. Burden to comment on the request. The following ensued:

“MR. BURDEN: Your Honor, the only thing I have to say on that point is, a jury of Jasper County citizens—
MR. FLEISCHAKER: Now, Your Hon- or — my understanding is that, with Mr. Roberts and Mr. Burden yesterday, that the state would not oppose — would not go on record either way on a presentence investigation. If I have a misunderstanding of what was said—
MR. BURDEN: Mr. Roberts is not here today and I am here, and unfortunately I have not had an opportunity to communicate with him, but if that is what your understanding was with him, I will not say anything.”

Immediately after sentencing the defendant to life imprisonment, on October 14, 1975, Judge Warden said:

“Now let me say this if this defendant is subject to rehabilitation we have got a real good parole system in Jefferson City and he will have an opportunity to show them he is entitled to be rehabilitated. and released. This defendant was convicted of first degree murder by 12 of his peers in this county. The only reason and the sole reason the motion for new trial was granted was not because of failure of any evidentia-ry material or matter presented but because the court made an error in instructing the jury. Without going into great detail about that it appears to me all the facts and circumstances in the case warrants the punishment inflicted by the court. That’s all.”

Mr. Burden’s comment (innocently solicited by the court) on the request for a presen-tence investigation was interrupted (and properly so) by Mr. Fleischaker. Manifestly that comment, which was promptly withdrawn by Mr. Burden, had no adverse effect upon the ordering of a presentence investigation because one was ordered and conducted.

In response to a request by movant that he determine whether the state “adhered both to the letter and the spirit of the plea bargain,” Judge Casteel found that the state did so. The record supports that finding.

Movant argues that Judge Warden penalized the defendant “for exercising his right to a fair trial by taking into account the verdict of the jury on the previous trial.” It is true that Judge Warden, after imposing sentence, mentioned the fact, and certainly it was a fact, that the defendant had been convicted of murder in the first degree by a jury. It is also a fact that the verdict, which was set aside, imposed a life sentence. Judge Warden, having presided over the jury trial, was aware of the evidence there adduced and the verdict which was returned. However, Judge Warden’s reference to the jury verdict does not demonstrate that he, as the sentencing judge on a plea of guilty, felt bound by the jury’s assessment of punishment or in any way abdicated his judicial responsibility.

At the Rule 27.26 hearing, over which he presided, Judge Warden said: “The court will state for the record that upon sentencing of this defendant, the court, as the transcript of the proceedings will state, made this statement, ‘This defendant was convicted of first degree murder by 12 of his peers in this county’ and that statement was made by the court to reflect the fact that the credibility of the defense of coercion was ruled upon by 12 persons as not being a correct defense, or one which they felt as a practical matter was available to this defendant. The court will further state that upon hearing the testimony in the case that was tried to the jury, the court did not believe the testimony of the defendant that he was coerced, nor the testimony of any other witness that bore on that defense; the court as a practical matter did not feel from listening to the evidence that the defendant was coerced and that was the primary reason for making reference to the jury’s verdict. The court’s verdict was based on all the factors in this case, the court did not believe as I indicated earlier, that this defendant was coerced in doing the activities which resulted in the death of Mr. Stemmons. The court felt that the defendant was an active participant in the entire proceedings from start to finish, willing participant and that he shared in the proceeds of the robbery, willingly shared in the proceeds of the robbery and never once made any effort to act consistently with being coerced. The court had benefit of the presentence report and took matters stated therein into consideration at the time of sentence.”

Judge Casteel found as a fact that “nothing said by [Mr. Burden] had any bearing on Judge Warden’s” assessment of the punishment. That finding is supported by the record.

The record fails to show that the verdict of the jury was the governing, or even a contributing, factor in influencing Judge Warden’s determination of the appropriate sentence.

Movant’s third point has no merit.

The judgment is affirmed.

All concur.

      . Peculiarly and inexcusably movant’s brief makes no mention of the September 22, 1975, hearing.


author: BILLINGS, Chief Judge.

text:
    M. C. MILLER, d/b/a Miller Auto Sales, Plaintiff-Respondent, v. Linda Lee Hodge ILER, Defendant-Appellant.
    No. 10094.
    Missouri Court of Appeals, Springfield District.
    Sept. 20, 1977.
    Dan L. Birdsong, Routh, Thomas & Birdsong, Rolla, for plaintiff-respondent.
    Jerry L. Wilkerson, Ball & Wilkerson, Salem, for defendant-appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

A Phelps County jury denied recovery on plaintiff’s petition and defendant’s counterclaim for damages, allegedly resulting from a collision of two vehicles. Defendant appealed, claiming the court erred in not excluding the testimony of the investigating highway patrolman called by plaintiff because this witness had not been disclosed by plaintiff in answer to a continuing interrogatory filed by the defendant. We affirm.

Defendant’s interrogatory, reciting it was filed pursuant to the provisions of “Rule 56, V.A.M.R.,” asked for plaintiff to “State the name and address of all persons whom you intend to call as witnesses in the trial. . . . ”

Rule 56.01 does not require a party to state the names of witnesses he will call and use at trial. Such an interrogatory “. . . invades the area of judgment and trial strategy as to which persons actually will be used as witnesses. This usually will be governed by the opinion and advice of trial counsel. To require an answer to this inquiry would be to invade the work product of counsel and the privileged relationship between attorney and client.” State ex rel. Gray v. Jensen, 395 S.W.2d 143 (Mo. banc 1965).

The judgment is affirmed.

All concur.


author: McMILLIAN, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Charles POOLE, Defendant-Appellant.
    No. 38403.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 20, 1977.

      Terry Burnet, Robert G. O’Blennis, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Presiding Judge.

Defendant appeals from a judgment of conviction for assault with intent to kill with malice, § 559.180, RSMo 1969, entered by the circuit court of the City of St. Louis. Defendant was sentenced to 20 years in the Missouri Department of Corrections pursuant to the Second Offender Act, § 556.280, RSMo 1969.

For reversal, defendant urges that the trial court erred in overruling his objection to that part of the prosecutor’s closing argument in which the prosecutor referred to the defendant as a hoodlum, and that part in which the prosecutor put the sole burden of ending crime in St. Louis on the jurors. Defendant also alleges the trial court erred in admitting Exhibits 21-A and 22-B, two spent shotgun shells, because inadequate foundation was laid for their admission and even if the proper foundation was laid, the prejudice introduced by the shells outweighed their probative value. We find that the above allegations of error were not properly preserved or are of no merit and accordingly affirm.

On January 25, 1974, about half an hour before the alleged assault, appellant and several of his friends were involved in a fight with two of the victim’s brothers, Leroy and Randy Wilson, at Lee’s Market. Appellant was struck and injured by Randy Wilson.

The Wilsons returned to their home at 915 Clarendon Street. Shortly thereafter Andrew Wilson left the house and crossed the street to go to a liquor store. As he was about to enter the store, Morris By-num, one of defendant’s friends involved in the fight, walked up to Andrew, exchanged a few words and shot Andrew, injuring him. Andrew ran into the liquor store, fell down and then ran back across the street to his house. It was while he was returning to his house that he was allegedly shot by the appellant, who was in the Wilson garage. As Andrew reached his house, his brother Willie Wilson came out on the porch and fired one shotgun blast which killed John Frederick, and injured Lydia Wilson, Tommy Davis and Mary Thomas.

The following excerpt from the prosecutor’s argument and the defense counsel’s objections constitutes the basis of the defendant’s first two allegations of error:

“Well, ladies and gentlemen, there is nobody, and I mean nobody, that cares about the problems of the City of St. Louis except the City of St. Louis residents. There is nobody in Washington or in East St. Louis that cares, or in St. Louis County that cares, and the only people who care as to what happens in this city are the citizens. As you sit here, you represent this community. Are you going to tolerate acts like this going on on our streets? Have we finally reached the end of the rope? Are we going to announce to the other hoodlums in this city that we are not going to—
“Mr. O’Blennis: I object to that.
(Whereupon, the following proceedings were had at the bench, in the presence but out of the hearing of the jury;)
“Mr. O’Blennis: The final argument is, is it a reasonable inference, and the facts involved, and there is nothing about crime in the City of St. Louis and protecting everyone else.
“MR. ROGERS: It’s clearly the function and proper argument.
“THE COURT: I will overrule that objection.
(Thereafter, the following proceedings were had within the presence and hearing of the jury:)”

As can be seen, the defense counsel, at trial, objected neither to the prosecutor’s implication that the defendant was a hoodlum nor to that part of the prosecutor’s argument in his motion for a new trial. Therefore, this objection is not preserved for our review, State v. Hill, 539 S.W.2d 521, 528-30 (Mo.App.1976), Rule 27.20(a). Nor do we find it so prejudicial as to warrant review as plain error. Rule 27.20(c), V.A.M.R. Courts have consistently held that such name-calling is ill advised, intemperate and unnecessary but it is not prejudicial, especially where there is evidence which would support such a characterization. State v. Wallace, 504 S.W.2d 67, 72 (Mo.1973) (prosecutor called the defendant a “young punk”); State v. Harris, 351 S.W.2d 713, 716 (Mo.1961) (prosecutor called the defendant a “lying thief”); State v. Ayers, 305 S.W.2d 484, 487 (Mo.1957) (prosecutor called the defendant a “desperado” and “hoodlum”); State v. Eison, 271 S.W.2d 571, 572 (Mo.1954) (prosecutor called the defendant a “drunken killer”); State v. Armstead, 283 S.W.2d 577, 583 (Mo.1955) (prosecutor called the defendant a “pimp”). Here, even if the prosecutor’s reference to “other hoodlums” implied that the defendant was a hoodlum, such a characterization is not totally unsubstantiated by the evidence for the defendant was involved in one fist fight and at least present at a shoot-out in the same evening. While we admonish the prosecutor to maintain the decorum consonant with his position as representative of the state and to avoid such odius characterizations of the defendant, we do not believe the prosecutor’s argument in this case so overstepped the bounds of propriety as to create manifest injustice so as to require our review pursuant to Rule 27.20(c).

The defendant also alleges that the trial court erred in overruling his objection to that part of the prosecutor’s argument in that prosecutor put the sole burden of ending crime in St. Louis on the jurors. This objection was properly preserved and we will consider it on its merits. The prosecutor may “properly call the attention of the jury to the prevalence of crime, if such be the commonly known fact, the necessity of convicting those proved guilty of crime and evil results that will flow to society from a failure of the jury to do its duty.” But the prosecutor cannot “arouse [the] personal hostility of the jurors toward the defendant, especially by implanting fear in them that acquittal of defendant will endanger their own safety or the safety of some member of their family.” State v. Groves, 295 S.W.2d 169, 174 (Mo.1956). See also State v. Burnett, 429 S.W.2d 239, 246 (Mo.1968); State v. Evans, 406 S.W.2d 612, 616-17 (Mo.1966); State v. Laster, 365 Mo. 1076, 293 S.W.2d 300, 306 (Banc 1956).

By comparing the prosecutor’s argument in this case with other arguments which have been found to be prejudicial it is apparent that the prosecutor here has not stepped beyond the permissible boundaries for argument. In State v. Groves, supra, where the defendant was charged with assault with intent to rape the following argument by the prosecutor was found to be prejudicial:

“ ‘Send this man to five years in the Pen. Don’t let him out running around the streets ’cause if any of you have any daughters and if this defendant ever got the opportunity your daughter could be the next one, or your grandchild or something.’ . . .” (State v. Groves, 295 S.W.2d at 173)

Clearly when the prosecutor begins to suggest that this particular defendant could endanger the daughters and granddaughters of the jurors, he has implanted fear in them that the defendant’s acquittal will endanger their families.

In State v. Heinrich, 492 S.W.2d 109 (Mo.App.1973), where the defendant was charged with first degree robbery, the prosecutor argued:

“ ‘. . . Should this man ever be allowed to walk the streets, will he ever be able to walk into society without all of us being afraid1 . . . There are some people that can’t be permitted to walk into stores, walk down the street, can’t be permitted to walk into a hardware or filling station because they know their only means of making a living, in fact, they’ve chosen that way of life, is to use force, brute force, and use a gun in order to extract money from people. This man could hurt someone . . . He’s not going to do it in jail but wait until he gets out, what will happen the next time?’ ” (State v. Heinrich, supra, at 115)

Again, here the prosecutor has purposely tried to make the jurors personally afraid if they should acquit the defendant, and the court properly held that it was prejudicial.

Compared with the above arguments the prosecutor’s argument here is within the proper bounds for he merely refers to the crime problem in St. Louis City, which is common knowledge, and reminds the jurors that they represent the community in this trial.

Defendant’s last claim of error that the shotgun shells were improperly introduced, was not preserved for our review because the defendant completely changed the substance of his trial objection in his motion for a new trial and on appeal. At trial the defendant objected to the introduction of the shells on the ground that the “. . . proper chain of custody has not been shown.” In his motion for a new trial and on appeal the defendant abandoned this objection and claimed that inadequate foundation was laid for their admission and that they were prejudicial. This shift in the substance of his objections is impermissible and, by doing so the defendant has failed to preserve this point for review. State v. Adams, 531 S.W.2d 763, 765 (Mo.App.1975); State v. Larkins, 518 S.W.2d 131, 135-36 (Mo.App.1974). This result is equitable for when the defense counsel objected to the admission of the shells at trial on the ground that the “. . . proper chain of custody has not been shown” the prosecutor adequately rebutted this objection by explaining that the officer who found the shells identified them as the ones he found on the night of the shootings. If the defense counsel had properly objected that insufficient foundation was laid for their admission, the prosecutor would have had the opportunity to explain that sufficient foundation had been laid or to lay the necessary foundation. To allow the defendant to change his objection after trial is to circumvent the prosecutor’s opportunity to satisfy the defendant’s objection.

To review this allegation of error it is necessary that we do so as “plain error” pursuant to Rule 27.20(c), which we decline to do. While much of the testimony is confusing there is sufficient circumstantial evidence for the jury to find that the defendant fired at Andrew Wilson without whatever probative effect the shotgun shells would have had. Nor can we accept the defendant’s frivolous argument that the introduction of the two shells together, one presumably from Willie Wilson’s gun, caused “the jury to see Charles Poole and Willie Wilson as equally involved in a ‘shoot-out’ which resulted in one death and four injuries.” This claim is not borne out by the evidence or the manner in which the trial was conducted.

For the above reasons the judgment is affirmed.

STEWART and REINHARD, JJ., concur.


text:
    Ralph Carol BOUNDS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38256.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 20, 1977.
    Huck, Kasten & LaBeaume, Graham W. LaBeaume, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., James W. McCartney, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Movant-defendant appeals the denial of his Rule 27.26 motion to vacate a ten-year sentence imposed on his “Alford plea” of guilty to manslaughter, entered despite his protestation of innocence. He contends the trial court erred in finding the plea was voluntary because it was entered “without an awareness of the consequences.”

In the foundation case, the indictment charged defendant with second degree murder and a prior felony conviction. The state’s evidence was that defendant was running a small crap game when James Swims, one of the players, went broke. Swims insisted that defendant should follow a local custom that the man running the crap game must give a loser one dollar to get back in the game. Defendant refused and Swims tried to stop the game. “One word led to another” and defendant shot and killed Swims.

On the second day of trial defendant entered a plea of guilty to a reduced charge of manslaughter, although protesting his innocence, as in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The trial court accepted the plea. Before doing so Judge Mehan thoroughly interrogated defendant, as required by Rule 25.04. He concluded the plea was made voluntarily and with full understanding of the nature of the charge and the effects of pleading guilty. The court later denied probation and sentenced defendant to ten years’ imprisonment.

The issue now raised on appeal from the denial of his Rule 27.26 motion is whether defendant entered his guilty plea “voluntarily without an awareness of the consequences.” On the Rule 27.26 hearing defendant testified his attorney, Mr. Thomas Prebil, misled him as to the consequences of the “Alford plea.” He testified he entered the guilty plea believing he could obtain a pre-sentence investigation and possibly probation, without admitting guilt to the crime charged. Mr. Prebil testified as to his thorough trial preparation, his belief that the state’s evidence would take the case to the jury for second-degree murder, that defendant had but a slim chance of acquittal. Counsel had discussed with defendant the effect of an “Alford plea” and the comparative range of punishment for murder and manslaughter.

At the close of the hearing Judge Mehan, who had taken defendant’s plea, filed comprehensive findings of fact and conclusions of law, reciting the guilty-plea proceedings and accepting the testimony of Mr. Prebil as true and rejecting defendant-movant’s contention of involuntariness. The comparative credibility of the two witnesses was for the trial court to determine. Trice v. State, 540 S.W.2d 613[3] (Mo.App.1976).

Both the state and defendant rely on Alford where defendant had pleaded guilty despite his refusal to expressly admit his guilt. The supreme court held: “The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” In holding a guilty plea can be accepted when accompanied by protestations of innocence, the court explained that reasons other than the fact a defendant believed himself innocent may induce him to plead guilty. It likened this to a nolo contendere, a plea whereby defendant does not expressly admit his guilt, but nonetheless waives his right to a trial and authorizes the court for purposes of the case to treat him as if he were guilty. The court reasoned: “Implicit in the nolo contendere cases is a recognition that the Constitution does not bar imposition of a prison sentence upon an accused who is unwilling expressly to admit his guilt but who, faced with grim alternatives, is willing to waive his trial and accept the sentence.” The court concluded: “Thus, while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.”

Missouri courts have cited Alford with approval. Bradley v. State, 494 S.W.2d 45[3, 4] (Mo.1973), and Pulliam v. State, 480 S.W.2d 896[4-7] (Mo.1972). In Lewis v. State, 539 S.W.2d 578[1, 2] (Mo.App.1976), when arraigned defendant admitted killing the victim but said he did it in self defense. After sentence was imposed on his plea of guilty defendant contended his self-defense assertion vitiated his guilty plea. We held: “In Missouri if defendant pleads guilty voluntarily, knowingly and with understanding, his actual guilt, or an express admission of guilt, is not a constitutional prerequisite to the imposition of a criminal penalty. Bradley v. State, 494 S.W.2d 45[4] (Mo.1973). Likewise, a guilty plea knowingly and voluntarily rendered will be accepted if at the time of the plea the defendant stated to the court facts showing a defense of self-defense. Rayford v. State, 504 S.W.2d 285, 289 (Mo.App.1973).”

Even assuming defendant was misinformed by counsel, at his guilty-plea proceeding the trial court examined defendant at length and thoroughly disabused him of any preconceived notions regarding the consequences of a guilty plea. The trial court admonished defendant that it alone would determine punishment. Defendant indicated he was satisfied with the services of his attorney. He showed an understanding of the range of punishment involved and admitted no promises had been made to him. Defendant also acknowledged he was waiving his constitutional rights to a jury trial, to call witnesses on his own behalf and to cross examine the state’s witnesses, as well as the presumption of innocence. The court specifically questioned defendant with respect to his “Alford plea.”

The court: You are saying you are not guilty of manslaughter?
The defendant: Yes.
The court: But you would rather enter a plea of guilty to manslaughter and be subject to the punishment by the court rather than be found guilty by the jury of murder in the second degree?
The defendant: Yes.

No more could have been done to insure that defendant’s plea of guilty was entered voluntarily and with full knowledge of the consequences. It was a valid guilty plea. See Williams v. State, 538 S.W.2d 759 (Mo.App.1976).

To avoid any miscarriage of justice we have examined the entire record and find that the facts supported defendant’s guilty plea. During the plea hearing, the prosecutor recited the state’s evidence: Defendant and several others were shooting craps; during the course of the game defendant refused to give the victim, Swims, a dollar to continue to play; when Swims tried to stop the game a fight broke out and defendant shot Swims. The court then asked defendant: “You heard that recitation of those facts. Are those facts true, sir, what Mr. White just said?" The defendant answered, “That is the way it started out. There was more than that to it, but Mr. White does not have everything that was did.”

Before accepting a guilty plea it is not necessary to elicit from defendant a recital of the acts committed as long as he understands the facts recited by the prosecutor. Matthews v. State, 501 S.W.2d 44[1-5] (Mo.1973). And, a defendant will not be heard to complain the trial court was unaware of a factual basis for the plea where defendant has admitted the recounted facts are substantially correct. Robinson v. State, 482 S.W.2d 492[3] (Mo.1972). Defendant’s reference to additional facts was not a denial of the inculpatory facts he did admit.

We hold defendant’s guilty plea was voluntarily entered with an awareness of its consequences and the trial court did not err in denying post-conviction relief.

Judgment affirmed.

DOWD and SMITH, JJ., concur.


author: TITUS, Judge.

text:
    STATE of Missouri, Respondent, v. John David HOLMAN, Appellant.
    No. 10458.
    Missouri Court of Appeals, Springfield District.
    Sept. 22, 1977.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Stanley Robinson, Asst. Attys. Gen., Jefferson City, for respondent.
    Robert W. Freeman, Greene, Cassity, Ferguson, Carnahan & Freeman, Springfield, for appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   TITUS, Judge.

Defendant was jury-convicted of first degree robbery and assault with intent to do great bodily harm without malice aforethought and sentenced to consecutive prison terms of five and two years. In our appellate review of this cause, we are committed to a consideration of the facts in evidence and the inferences that may be reasonably drawn therefrom in the light most favorable to the state. Evidence and inferences in conflict therewith will be disregarded. State v. Zimpher, 552 S.W.2d 345, 346[1] (Mo.App.1977). When so viewed, the record discloses the following.

The crimes occurred near 7 p.m. January 1, 1975, in a Springfield liquor store. Carl Johnson, the sole clerk on duty, was robbed by a male Negro at gunpoint. The Negro was wearing a gray knitted cap with only eye-slit openings which was pulled down “well over his chin, down around his shoulders.” Johnson described the robber as five feet 10 or 11 inches tall, 160 to 170 pounds and 19 to 21 years old. Admitting to being “no gun expert”, Johnson said the revolver used by the robber was “short-barreled, blue . . . a .38 [caliber], possibly.” After robbing Johnson, the robber directed Johnson to walk up a ramp leading to the rear of the store; but before he could comply, the robber fired a bullet into the door of a walk-in cooler. Thereafter, as Johnson was ascending the ramp, another shot was fired and the bullet grazed Johnson’s head. Fragments of the two fired bullets were recovered by the police.

On February 6, 1975, two Springfield reserve police officers investigated a report that a male Negro wearing green trousers and driving a white Cadillac with a certain license number had attempted to pass a stolen check. Also, via police radio, the two officers were advised of a recent armed robbery committed by a male Negro wearing a gray stocking cap mask. About 10:30 p.m. or one hour after receiving the radio report on the robbery, the officers saw a white Cadillac bearing the reported license number and occupied by two male Negroes. The officers followed the Cadillac and radioed for backup assistance. Just as the red lights on the police car were turned on, the Cadillac was stopped at a liquor store. The two occupants alighted and started to enter the store when they were halted by the officers. Defendant, who had been driving the Cadillac, was wearing green trousers and fit the physical description of the man who attempted to pass the check and the man who committed the armed robbery. Defendant and his passenger, Willie Skel-ton, were placed under arrest, handcuffed and “read their rights.” Defendant told the officers that the Cadillac was not his property but had been borrowed. By looking through a window of the Cadillac, one of the officers saw a gray stocking cap of the type reportedly used in the recent armed robbery. After obtaining the stocking cap “with eyeholes cut in it”, the officer found a .357 magnum revolver under the front seat on the passenger’s side of the Cadillac.

At trial Johnson, the liquor store clerk, said the gray stocking cap was “similar to the mask” worn by the man who robbed him and that the revolver was “similar— looks like the gun that was used to [on?] me.” A ballistic expert testified for the state that he had tested the revolver found in the Cadillac driven by defendant and the bullet fragments recovered at the liquor store. This witness was of the opinion that the bullet fragments had been fired from the revolver.

On February 10, 1975, two Springfield detectives were talking to defendant after he had been “advised of his constitutional rights pursuant to the Miranda Warning” when the subject of the liquor store robbery came up “in sort of a roundabout way.” In substance, defendant told the detectives that he had been at the liquor store in a vehicle outside the store when the robbery occurred, that he did not participate in the robbery and that he would not tell the detectives the identity of the robber. Johnson, the robbed clerk, when confronted at trial with Willie Skelton, defendant’s passenger in the white Cadillac on February 6, stated there was no way that Skelton could be the man that robbed him.

Over defendant’s objections, the state introduced two letters into evidence. The first was written by an inmate of the Missouri State Penitentiary, William Kilgore, to defendant. The other was defendant’s reply-

The inmate wrote:

“I saw James Bryan [sic] in H-Hall this morning and he said that you said i was going to testify against you and that i signed a statement against you. I don’t know who’s told you these things but whoever it is is a liar. I never signed nothing against you . . ..I don’t know anything about the charge or charges they have on you . . .. You never told me anything about your charge or charges. And if i am called back to court this is exactly what i will tell them.”

Defendant’s reply reads:

“I got your scribes in the mail today. And was glad to hear that this statement down here that the D.A. is got is a false one. ... I never thought that you were gonna come back to testify against me anyway. You see, when I went to try to get this dam gun and mask that they’ve got suppress, [the prosecutor] told the judge that you were coming back to testify to the fact that you over heard me braging about how I had shot the old man and how I was gonna get away with it, and then I said to myself, T know that that’s a dam lie!’ because I knew right then that you had told me once before that you wasn’t a ‘snitch’ but [the prosecutor] went ahead and endorsed you as a state’s witness anyway, so that’s when I skin it to James Bryant and he didn’t believe it either ... we both had you figured as a confidential little guy .. So once again . . ., I was glad to hear from ya, and as far as I am concern everything is still mellow between me and you, understand? So stay solid!”

Defendant raises four points on appeal. Generally his point regarding the sufficiency of the evidence to sustain the conviction would be considered initially. However, that point cannot be ascertained until a determination of the other points. If defendant’s motion to suppress and objections to the opinion-testimony of the state’s ballistic expert and the above letters should prove correct, we would doubt that the state adduced evidence sufficient to warrant a conviction.

One of defendant’s points is that the trial court erred in permitting the opinion-testimony of the state’s ballistic expert that the bullet fragments recovered at the liquor store had been fired from the revolver found in the white Cadillac driven by defendant because the chain of custody of the revolver, between its removal from the vehicle and its testing by the expert, had not been proved by the state.

The purpose and application of the chain of custody or possession rule is amply stated in State v. Lemon, 504 S.W.2d 676, 684[15, 16] (Mo.App.1973) and need not be repeated here. Trial testimony of the liquor store clerk that the revolver tested by the state’s ballistic expert was “similar— looks like” the gun employed by the robber was sufficient to warrant its admission into evidence. State v. Kern, 447 S.W.2d 571, 574-575[3, 4] (Mo.1969); State v. Johnson, 286 S.W.2d 787, 791[3, 4] (Mo.1956). Identification of an exhibit need not be entirely unqualified — the weight to be given to the identification is for the jury. State v. Stancliff, 467 S.W.2d 26, 30[2] (Mo.1971). Moreover, when an exhibit itself is susceptible to positive identification in the singular sense, chain of custody becomes an irrelevant issue. State v. Granberry, 484 S.W.2d 295, 300-301[13-14] (Mo.banc 1972). The unob-jected-to trial identification of the revolver-exhibit by the reserve officer as being the one he found in the Cadillac was sufficient [State v. Alderman, 498 S.W.2d 69, 72 (Mo.App.1973); State v. Orr, 493 S.W.2d 374, 377[11-12] (Mo.App.1973)], and when the state’s ballistic expert, without objection, stated that he had used the revolver-exhibit in conducting his tests, the court did not err in admitting his opinion-testimony for the reason now advanced by defendant.

Another of defendant’s points relates to the overruling of his motion to suppress as evidence the stocking cap and revolver found by the officers in the white Cadillac. The point states: “Said search and seizure was unlawful in that it was made without a warrant; without consent; not incidental to a valid arrest. The items taken were not in plain view and the arresting and searching officer had no probable cause to believe the occupants were involved in any criminal activity.”

The Fourth Amendment’s absolute admonition against unreasonable searches is not violated (a) by a search incident to a lawful arrest, (b) by seizure of items falling within the plain view doctrine, (c) by the search of an automobile where probable cause exists to believe that it contains a substance which offends against the law, or (d) by protective searches by officers for weapons upon less than probable cause to arrest. State v. Hall, 508 S.W.2d 200, 202-203[1] (Mo.App.1974).

At the time of the arrest on February 6, the officers were aware that recent felonies had been committed by a male Negro having a certain physical description. In the attempted passing of a stolen check, the man was reported to have been wearing green pants and driving a white Cadillac bearing a certain license number. In the armed robbery, the male Negro had been wearing a gray stocking cap as a mask. Therefore, when the officers saw the two male Negroes in a white Cadillac which bore the reported license and thereafter, subsequent to defendant’s departure from the automobile, observed that defendant was wearing green trousers and fit the description of the man who attempted to pass the stolen check and who committed the armed robbery, the arrest of defendant without a warrant was lawful because the arresting officer then had reasonable grounds or probable cause to suspect that defendant had committed a felony. State v. Henderson, 510 S.W.2d 813, 818[2] (Mo.App.1974). In the course of defendant’s arrest, the sighting in plain view of the gray stocking cap of the type said to have been used in the recent armed robbery gave the officers reasonable grounds to suppose that the automobile might contain contraband or a substance which offends against the law. “A reasonable belief or probable cause for believing that a felony has been committed and that an automobile contains that which by law is subject to seizure, will justify a search of an automobile and seizure incident to a lawful arrest, without a search warrant.” State v. Camper, 353 S.W.2d 676, 680[7, 8] (Mo.1962). Under the related circumstances the search of the automobile and seizure of the revolver and stocking cap without a warrant or consent were not unreasonable but were based on probable cause as an incident to a lawful arrest. State v. McCarthy, 452 S.W.2d 211 (Mo.1970); State v. Camper, supra, 353 S.W.2d at 680. Moreover, reception into evidence of the stocking cap clearly exposed on the car floor and seen by the officer by a look through the window of the vehicle was proper. Discovery and recovery of the cap did not involve a search because it was in plain view. No search was needed to discover it. State v. Rankin, 477 S.W.2d 72, 75[4, 5] (Mo.1972). The fact that the officers additionally sought to justify the search of the Cadillac on grounds which may have been untenable, did not negative their right and duty to make the investigative search on the bases above noted. State v. Eaton, 504 S.W.2d 12, 19[13] (Mo.1973).

Defendant’s point concerning the letter written by penitentiary inmate Kilgore to defendant and defendant’s reply thereto, supra, has this factual background. Kil-gore, a state’s witness, testified on direct examination that he had first become acquainted with defendant and James Bryant when the three of them were cell mates in the Greene County jail in February 1975 and that he had talked to defendant and overheard defendant talking to others in the jail. However, the state did not ask Kilgore about and Kilgore did not testify to anything defendant may have said to him or anyone else. Kilgore identified the letter he had written to defendant and defendant’s reply letter to him. When the state offered the two letters as exhibits, defendant’s objection thereto (as it concerns this appeal) was: “I object to each of these .. It is a form of character assassination of my client. This individual was called by the state and has stated under oath that no such statement was made. Therefore, the state is bound by that and cannot impeach its own witness.” The objection was overruled.

On cross-examination Kilgore testified that defendant had never made any statement to him or to anyone else in his hearing about the liquor store robbery. Whereupon, defendant renewed “My objection on this and, in particular, [to defendant’s letter to Kilgore] for the reason that by implication it would be an attempt for the state to contradict and impeach its own witness.” The objection was overruled.

Defendant’s point relied on in this connection is that the trial court erred in admitting the letters into evidence for the reasons: “A. That the state’s own witness . specifically testified that defendant never made any statement to him concerning the robbery and assault [at the liquor store] on January 1, 1975, nor did he overhear defendant make any such statement to any other person, and said exhibits were used to impeach Mr. Kilgore’s testimony and imply in the minds of the jury that Mr. Kilgore was lying. B. That said exhibits were a form of character assassination of defendant when defendant’s character was not in issue. C. That said exhibits, when taken cumulative, implied in the minds of the jury that certain incriminating statements had been made by defendant and as such was tantamount to testimony in the minds of the jury and since Mr. Kilgore denied that such statements were made and the exhibits could not be tested by cross-examination, defendant was denied his Sixth Amendment right of confrontation and cross-examination.”

As to subsection C of defendant’s point: An assignment of error made in a motion for new trial and on appeal must be predicated upon an objection made in the trial of the case [State v. Jones, 515 S.W.2d 504, 506[3] (Mo.1974); State v. Blankenship, 536 S.W.2d 520, 521[5] (Mo.App.1976)], and if a defendant proposes to raise a question pertaining to the violation of a constitutional right, he must object to the introduction of the evidence which he construes to be in violation of that right and must clearly and specifically state the constitutional grounds for the objection. Otherwise, introduction of evidence in a supposed violation of such rights will not be a sufficient basis for an assignment of error in his motion for new trial or on appeal. State v. Price, 422 S.W.2d 286, 289[3] (Mo.1967); State v. Meiers, 412 S.W.2d 478, 481[3] (Mo.1967); State v. Graham, 527 S.W.2d 936, 942[4] (Mo.App.1975). As defendant did not object to the exhibits on any constitutional grounds at trial, his complaints voiced in subsection C of the point are not for review.

As to subsection B of the point: Rule 84.04(d), V.A.M.R., is made applicable to appeals involving criminal cases by Rule 28.18, V.A.M.R. State v. Orr, supra, 493 S.W.2d at 376. The point, i. e., “That said exhibits were a form of character assassination of defendant when defendant’s character was not in issue,” is a mere abstraction. Wherein and why the exhibits constituted character assassination is left to conjecture and guess. Furthermore, the point does not isolate and formulate a precise issue to be reviewed. State v. Morrow, 541 S.W.2d 738, 740[1] (Mo.App.1976). We have no duty to resort to the argument portion of defendant’s brief to discover what “form of character assassination” defendant claims the exhibits took. The point is not preserved for review on appeal. State v. Milentz, 547 S.W.2d 164, 170[7] (Mo.App.1977); State v. McClain, 541 S.W.2d 351, 354[6, 7] (Mo.App.1976). Nevertheless, we note that if the state’s evidence is otherwise competent, relevant and material, it affords no valid ground for objection that such evidence may incidentally tend to put defendant’s character in issue. Cochran v. United States, 310 F.2d 585, 589[2] (8th Cir. 1962); State v. Lorts, 269 S.W.2d 88, 91-92[5] (Mo.1954); 22A C.J.S. Criminal Law § 676, at p. 707.

As to subsection A of the point: The primary thing wrong with defendant’s assertion and his initial objection to the letters at trial, is that both are based on an assumed inaccuracy. At the time the letters were identified and received into evidence as exhibits, Kilgore had not been asked and had not testified as to what defendant had or had not told him or anyone else concerning the liquor store robbery. Therefore, the exhibits could not have then served to impeach Kilgore as a witness. It was not until cross-examination and in response to defendant’s questioning that Kilgore stated he had not heard defendant say anything about the robbery and assault at the liquor store. If this cross-examination testimony somehow served as impeachment, it was not prompted by the state and did not constitute an effort by the state to impeach its own witness.

Since the state apparently could not establish the authenticity and genuineness of defendant’s letter through Kilgore’s testimony, it was required to resort to the so-called reply letter doctrine to gain its entry into evidence. The doctrine is that a letter received in reply to one which has been proved to have been sent to the party is admissible. This is based on the presumption that a letter is delivered to the person to whom addressed, and that the reply to such letter was written by him or by his authority. Crawford v. Metropolitan Life Ins. Co., 167 S.W.2d 915, 923[9] (Mo.App.1943); United Factories v. Brigham, 117 S.W.2d 662, 666[4] (Mo.App.1938), certiorari quashed State ex rel. United Factories v. Hostetter, 344 Mo. 386, 126 S.W.2d 1173 (1939); 32 C.J.S. Evidence § 706 b., pp. 982-983. Proof of the genuineness and authenticity of Kilgore’s letter to defendant was required before defendant’s reply would be admissible. But even were we to assume, arguendo, that one or both of the letter exhibits tended to impeach Kilgore as a witness, the rule is that where proof of a former contradictory statement is admissible as independent evidence, as, for example, where it might be shown as an admission against interest, the fact that such proof also tends to discredit or impeach the party’s own witness does not require exclusion. Dailey v. Grand Lodge, Brotherhood of R. Trainmen, 311 Ill. 184, 142 N.E. 478, 479[1] (1924); 98 C.J.S. Witnesses § 578 k., at p. 549.

Finally for determination is defendant’s asseveration that the evidence was not sufficient to sustain the conviction. In his point on this matter he avows that the state’s case was wholly circumstantial and inconsistent, and the conviction cannot be sustained without stacking inferences upon inferences. Specifically, the inconsistencies averred by defendant are: “First, the state’s own witness [Kilgore] testified that [defendant] never made an incriminating statement . . . but the court allowed the state to enter into evidence [defendant’s letter to Kilgore] which implied that such a statement was made; and second, [the two detectives] testified that [defendant] told them he was [at the scene of the robbery and assault] but did not go in while it was the thrust of the state’s case that [defendant] was the person that went in and robbed the store; and third, the state argued that the gun . . . and the cap . . . belonged to the defendant while the evidence disclosed that the gun was found 36 days after the robbery under the seat of another occupant in a car owned by another third person.”

“It is well established that when a conviction is dependent upon circumstantial evidence and evidence of a defendant’s agency in connection with the crime charged is entirely circumstantial, the facts and circumstances relied on by the state must not only be consistent with each other and with the hypothesis of defendant’s guilt, but must also be inconsistent and irreconcilable with his innocence, and must point so clearly and satisfactorily to his guilt as to exclude every reasonable hypothesis of innocence. Mere suspicion of guilt, however great, is not sufficient to authorize a conviction of a crime.” State v. Gonzales, 533 S.W.2d 268, 272[2-3] (Mo.App.1976). Nonetheless, “the prevailing circumstantial evidence rule, supra, is realistically tempered in its application since ‘[i]n a case involving circumstantial evidence the circumstances need not be absolutely conclusive of guilty, and they need not demonstrate impossibility of innocenceQ] . . . the mere existence of other possible hypothesis is not enough to remove the case from the jury.’ ” State v. Franco, 544 S.W.2d 533, 534-535[3] (Mo.banc 1976). The rule is likewise tempered with the repeatings that “the facts in evidence and all favorable inferences reasonably to be drawn therefrom must be considered in the light most favorable to the state and all evidence and inferences to the contrary must be disregarded.” State v. Franco, supra, 544 S.W.2d at 534[1]. In addition to the foregoing, it must be remembered that the circumstantial evidence rule “is applicable only where the evidence of the defendant’s agency in connection with the crime charged is entirely circumstantial. State v. Allen, 420 S.W.2d 330, 333[1] (Mo.1967); State v. Stead, 473 S.W.2d 714, 716[3, 4] (Mo.1971).” State v. McClure, 504 S.W.2d 664, 667[1] (Mo.App.1974).

We do not accept defendant’s assertion that the state’s case against defendant was wholly circumstantial. Admissions or declarations against interest made by a defendant are direct evidence of his guilt and do not require the application of the circumstantial evidence rule nor the giving of an instruction pertaining to circumstantial evidence. State v. Ayers, 470 S.W.2d 534, 536[1] (Mo.banc 1971); State v. Spica, 389 S.W.2d 35, 53[27, 28] (Mo.1965), cert. den., 383 U.S. 972, 86 S.Ct. 1277, 16 L.Ed.2d 312 (1966); Notes on Use to MAI-CR 3.42. Defendant’s letter to Kilgore and his statement to the detectives that he had been outside the liquor store when the charged crimes were committed were ad missible as an exception to the hearsay rule if they constituted admissions against interest even though they included statements purporting to be exculpatory in nature. State v. McCloud, 328 S.W.2d 586, 588[2] (Mo.1959). In determining the nature of the letter to Kilgore and his statement to the detectives, we construe them in the light of all of the circumstances to determine whether they constitute an admission or declaration against interest. Boiled to essentials, the issue is whether the nature of the statement and letter is incriminating. “It has been said that any statement evincing a consciousness of guilt is such an admission.” State v. Patterson, 516 S.W.2d 571, 573[3] (Mo.App.1974).

There is no substance to defendant’s claim of inconsistency between what defendant told the detectives about not participating in the liquor store crimes and the state’s contention that he was the perpetrator of those crimes. “The State was not bound by the self-serving statements made by the defendant even though the statements were testified to by the police officers in the State’s case.” State v. Caldwell, 434 S.W.2d 571, 575[5] (Mo.1968). The jury was free to disbelieve or reject the self-serving statement made by the defendant to the detectives. Thus, by rejecting the self-serving exculpatory portion of defendant’s statement, the circumstance of defendant’s admission to being present at the liquor store remained intact.

Defendant’s letter to Kilgore did not pose an inconsistency between Kilgore’s cross-examination testimony and what the state sought to establish. The letter was not proffered as proof that Kilgore had heard defendant bragging about how he had shot the liquor store clerk and was going to get away with it. Rather, the letter was evidence of an oblique admission by defendant that he had, in fact, so bragged. Moreover, defendant’s reminder that Kilgore had said he “wasn’t a snitch”, and defendant’s suggestion to Kilgore to “stay solid” and “that everything is still mellow between me and you [sic], understand” (our emphasis), could reasonably be interpreted as a veiled threat against Kil-gore’s testifying “to the fact that you heard me braging [sic] about how I had shot the old man and was gonna [sic] get away with it.” If a defendant threatens or attempts to persuade a potential witness to give false testimony, such a showing is properly receivable as evidence to establish defendant’s guilt of the original charge and to show consciousness of guilt. State v. Hicks, 535 S.W.2d 308, 311[4] (Mo.App.1976).

Contrary to defendant’s point, the last claimed inconsistency is not tenable for the simple reason that the state did not argue that the stocking cap and revolver belonged to defendant. Finding, in the car driven by defendant 36 days after the robbery and assault, the gun that was used in the robbery and a stocking which was “similar to the mask” worn by the robber was evidence that the items were accessible to defendant and permitted an inference, when considered with all the other facts, that the person to whom the instrumentalities of the robbery were available was the robber.

The proscription against inference-stacking is that an inference may not arise which is “dependent for establishment of one fact upon inference to be drawn from some other fact shown only by inference”. State v. Ring, 346 Mo. 290, 304, 141 S.W.2d 57, 64-65[16] (banc 1940). The prohibition does not apply to drawing several inferences from the same proven facts if each inference is supported thereby [State v. Feger, 340 S.W.2d 716, 722[4] (Mo.1960)], and an inference based in part upon another inference and in part upon factual support is approved as being a parallel inference provided it is a reasonable conclusion for the jury to deduce. Hurt v. Charles J. Rogers Transportation Co., 164 Ohio St. 329, 130 N.E.2d 820, 823[3] (1955). As advocated by defendant’s point, the inference-stacking contended by defendant occurred in the three areas of what he terms to be inconsistencies. However, since the claimed inconsistencies have been dispelled, defendant’s contentions anent inference-stacking have no merit.

We are of the opinion that the jury could reasonably infer from the collective impact of the following evidence that defendant committed the crimes in question: (1) A male Negro 5 feet 10 or 11 inches tall, weighing 160 to 170 pounds and 19 to 21 years of age robbed the liquor store clerk at revolver point; (2) defendant was a male Negro 5 feet 11 inches tall, weighing 165 pounds and was 20 years old; (3) during the course of the robbery two bullets were fired and recovered by the police; (4) one of the fired bullets hit the clerk; (5) the robber was wearing a gray stocking cap with two eyeholes cut in it; (6) when defendant was arrested 36 days after the robbery, the car he had been driving contained a revolver and a gray stocking cap; (7) the revolver found in the car looked like the revolver used in the robbery; (8) a ballistic testing of the revolver found in the car and the bullets recovered at the scene of the robbery and assault revealed that the recovered bullets had been fired from the revolver; (9) the gray stocking cap found in the car was similar to the mask worn by the robber and had two eyeholes cut in it; (10) defendant admitted to the detectives that he had been at the liquor store at the time the crimes in question were committed; (11) defendant had bragged about how he had shot the old man in the liquor store and was going to get away with it; and (12) defendant’s letter to Kilgore contained a veiled threat or entreaty that Kilgore should not testify about defendant’s bragging.

The reasonable inferences from the foregoing collection of facts impel this court to hold that there was sufficient substantial evidence to support the jury’s verdict.

Judgment affirmed.

AH concur.

      . When defendant was booked into the Greene County jail on February 17, 1975, he told the booking sergeant his height was 5 feet 11 inches, that he weighed 165 pounds and was 20 years old.