author: MORGAN, Chief Justice. BARDGETT, Judge, DONNELLY, Judge, SEILER, Judge,

text:
    STATE of Missouri, Respondent, v. Larry G. WICKIZER, Appellant.
    No. 60587.
    Supreme Court of Missouri, En Banc.
    June 29, 1979.

      Lee M. Nation, Kevin R. Locke, Asst. Public Defenders, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.
   MORGAN, Chief Justice.

A jury found the defendant, Larry G. Wickizer, guilty of the crime of rape in violation of § 559.260, RSMo Supp.1975, and of the crime of sodomy in violation of § 563.230, RSMo 1969. He was sentenced to concurrent terms of 35 years for rape and 10 years for sodomy. We affirm.

The events in question took place in Jackson County, Missouri, on May 6,1977. Jana Lombardo and Dale Corum, a friend, drove to Shelter House No. 11 at Lake Jacomo. Shortly after arriving, they were approached by appellant and another and asked to join a party. They agreed and went to the Shelter House where they joined six or seven, other persons. Some marijuana was smoked. Appellant encouraged Jana to take a ride on his motorcycle and after several requests she reluctantly did. Following their absence for forty-five minutes, Corum went to the Sheriff’s Patrol Headquarters at Lake Jacomo. Neither appellant nor Jana had been seen or heard of by the sheriff’s office, so he returned to the Shelter House. Neither Jana nor appellant was there. Later, he again returned to the sheriff’s office. Not seeing the motorcycle, he again returned to the Shelter House. He then went for a walk and as he approached his car he heard a voice say “he’s leaving.” Three or four people came up to him and Jackie Wickizer, appellant’s brother, grabbed him by the neck and dragged him down. Wickizer checked his wallet, asked him who he was, and then let him up. Corum then saw Susan Gordon, appellant’s girl friend, inspecting the interior .of the car. Following the assault, Corum returned to the sheriff’s office to get help. Approximately one and one-half hours later, Jana was brought to the sheriff’s office in another car by two couples. She complained of being raped and was crying. Her hair was messed and her clothes were dirty.

Jana’s version of the events prior to the time she and appellant left on the motorcycle parallels the above story. According to Jana, after the appellant had driven around for awhile, appellant said he was lost. At approximately midnight, he pulled off into a field, approximately 200 yards from a public road, where appellant ordered her to get off the motorcycle. At that time, appellant said: “You know I brought you here for a reason.” Appellant shoved her and threatened various acts of violence, saying he would cut her into little pieces. He ordered her to undress. Appellant then raped her. They redressed, and appellant threatened to kill her. He ordered her to commit an act of oral sodomy upon him and again raped her. He eventually drove her back to the Shelter House. A car came by and Jana ran from the appellant and asked for a ride. She was then taken to the sheriff’s office.

The jury trial began November 28, 1977. Appellant took the stand and testified in his own behalf. According to appellant, after Jana and he departed from Shelter House No. 11, they rode about for a short time. Later, they pulled off into a field. He and Jana began talking, in part, about their respective dates. At this time, appellant removed his clothes, feeling a little bit high. Jana then took off her clothes, except for her bra, and the two ran around the field feeling silly. They then sat down and “one thing led to another.” He stated that the intercourse was voluntary with no struggling taking place. He denied any act of oral sodomy and stated that during their second intercourse she showed no signs of being hurt. He denied assaulting her or threatening her.

In this appeal, appellant alleges three errors. First, appellant argues the trial court erred in sentencing appellant pursuant to the Habitual Criminal Act, § 556.280, RSMo 1969, because the information filed was fatally defective in that it failed to allege appellant had been previously convicted of a crime that was “punishable by imprisonment in the penitentiary.” Second, appellant charges Missouri’s sodomy statute, § 563.230, is unconstitutional because it invades appellant’s right to sexual privacy. Third, appellant alleges the court erred in admitting the testimony of Corum concerning the attack, allegedly made by appellant’s brother on him, because such testimony was irrelevant, inflammatory and highly prejudicial.

I.

SUFFICIENCY OF THE INFORMATION

The first point of controversy raises the issue of whether the allegations contained within the information were sufficient to invoke the provisions of the Habitual Criminal Act.

On November 28,1977, an amended information in lieu of indictment was filed which charged, in part:

* * * that LARRY G. WICKIZER * * * on the 29th day of November, 1967, at the County of Jackson, State of Missouri, did plead guilty to the charge of stealing a motor vehicle; that thereafter on the 29th day of November, 1967, said defendant was sentenced to five (5) years in the Missouri Department of Corrections; that thereafter on the 4th day of September, 1968, said defendant was confined in the Missouri Department of Corrections, Jefferson City, Missouri, that thereafter on the 15th day of September, 1971, said defendant was released from said Penitentiary on commutation of sentence; * * *

Under this portion of the indictment, the court held the appellant to be a proper person to be tried under the Habitual Criminal Act, § 556.280.

As stated by appellant, in order for an information to invoke the Habitual Criminal Act it must allege: (1) that he had been previously convicted of an offense punishable by imprisonment in the penitentiary; (2) that sentence was imposed; and, (3) that he was subsequently placed on probation, parole, fined or imprisoned. State v. Blackwell, 459 S.W.2d 268, 272 (Mo.banc 1970). In the present case, appellant charges the information failed to establish the first element of the Habitual Criminal Act.

Essentially, appellant contends that the Habitual Criminal Act is highly penal and must be strictly construed. State v. Myers, 470 S.W.2d 803 (Mo.App.1971); State v. Hacker, 291 S.W.2d 155 (Mo.1956). Consequently, it is not sufficient merely to allege appellant pled guilty to the charge, but rather, the information must also allege that appellant was convicted of a crime “punishable by imprisonment in the penitentiary” or that he was convicted of a felony. (Felony is the judicially regarded synonym for punishment by imprisonment in the penitentiary. Myers, supra, at 804.)

In response, respondent argues that although the act is highly penal and must be strictly construed, it is not necessary that the specific language of the statute be followed. The act only requires that an information or indictment plead sufficient facts to inform defendant that he has been previously convicted of a felony. An information alleging that the appellant has been previously convicted of stealing a motor vehicle is sufficient to inform appellant of a prior conviction of a felony.

In reviewing appellant’s and respondent’s arguments, it appears that respondent’s position is the correct view. As noted by respondent, the court in State v. Ellifrits, 459 S.W.2d 293, 296 (Mo.banc 1970), has previously been faced with an analogous situation. In Ellifrits, the defendant alleged that the information was insufficient in that it did not comply with the statutory requirement of an allegation that defendant “was placed on probation, paroled, fined, or imprisoned,” in that it did not specifically allege he was. imprisoned. In response, the court stated, at 296, that:

It is true, under the provisions of § 556.-280, that the information should allege sufficient facts to inform the defendant that he is charged with having been previously (1) convicted of a felony, (2) sentenced, and (3) subsequently placed on probation, paroled, fined, or imprisoned. We do not think, however, that it was imperative that the word “imprisoned” be used. Any allegation from which it necessarily would be inferred that he had been imprisoned should be sufficient.

(Emphasis added.)

Respondent offers two bases upon which the court may find that the allegation in the information of the instant case necessarily implies appellant was convicted of a felony. First, stealing a motor vehicle, by statutory definition under § 560.165, RSMo 1959, is deemed a felony regardless of the value of the property. Inasmuch as the offense has been statutorily declared to be a felony, the allegation of stealing a motor vehicle necessarily implies a felony. Second, in addition to alleging that appellant stole a motor vehicle, the information also alleges he was sentenced to a term of five years and imprisoned in the Missouri Division of Corrections. In view of the fact that a felony, under § 556.020, RSMo 1969, is defined as “any offense for which the offender . . . shall be liable by law to be punished with . . imprisonment” in a correctional institution of the State Department of Corrections, this allegation also necessarily implies the conviction of a felony.

In addition, we note that the court is empowered to take judicial notice of the statutory definition of a felony, and thus by analogy, the court may take judicial notice of the provisions of § 560.161.2. See State v. Abernathy, 515 S.W.2d 812, 816 (Mo.App.1974).

The allegation requirements are designed for the purpose of informing a defendant of any prior conviction under which he may be charged pursuant to the Habitual Criminal Act. The additional language offered by appellant will do little to further that goal since the present information specifically alleges the prior conviction.

II.

NOT PRESERVED FOR APPEAL

The second controversy raises the question of whether the sodomy statute (§ 563.-230, RSMo 1969) constitutes an unconstitutional invasion of privacy. Essentially four issues have been raised, to wit:

(1) whether the matter has been preserved for appeal,
(2) whether the right of sexual privacy extends to unmarried adults,
(3) whether the act occurred in “public,” and
(4) whether appellant has standing to raise his claim.

In Missouri, the rule is clearly established that in order to preserve a constitutional issue for appellate review, it must be raised at the earliest time consistent with good pleading and orderly procedure and must be kept alive during the course of the proceedings. See State v. Flynn, 519 S.W.2d 10, 12 (Mo.1975) and Magenheim v. Bd. of Education of School Dist. of Riverview Gardens, 340 S.W.2d 619, 621 (Mo. 1960).

Appellant failed to raise the privacy issue at the earliest possible time. Prior to trial appellant, by counsel, filed several motions: (1) an application for change of venue which was overruled; (2) motion to dismiss the original indictment and the amended information in lieu thereof which were likewise overruled, and (3) an oral motion to disqualify the judge, also overruled. None of these dealt with the privacy issue. Although appellant filed a Motion to Dismiss Count II, the motion only alleged the statute as unconstitutionally arbitrary and unreasonable. More importantly, in appellant’s Motion for New Trial, there is no contention that the sodomy statute was unconstitutional. The constitutional attack on the statute, which asserted the statute was an unconstitutional invasion of sexual privacy absent a defense of consent, was raised for the first time on appeal.

Absent a showing of “plain error,” appellant’s failure to raise the alleged error in his motion for new trial resulted in the point not being preserved for appeal. See State v. Peterson, 518 S.W.2d 1, 3 (Mo.1974); State v. Bowens, 476 S.W.2d 495 (Mo.1972); State v. Brownridge, 459 S.W.2d 317, 319 (Mo.1970); State v. Nolan, 423 S.W.2d 815, 817 (Mo.1968); State v. Greenhaw, 553 S.W.2d 318, 323 (Mo.App.1977); State v. Williams, 546 S.W.2d 533, 537 (Mo.App.1977). No “plain error” is apparent in this case.

Finding that the sexual privacy issue has not been adequately preserved for appeal, we need not address the substantive issues relating to sexual privacy.

III.

DALE CORUM’S TESTIMONY

Appellant’s third argument maintains that the court erred in allowing Corum’s testimony regarding the attack upon him by Jackie Wickizer, defendant’s brother. As noted earlier, the testimony in question indicates that while appellant was committing the alleged offenses of rape and sodomy, Corum was involved in an altercation with a group of persons that remained at the Shelter House. The altercation' involved Dale being “grabbed around the neck and drug across the back of the car and onto the ground” by appellant’s brother, while appellant’s girl friend searched his car. Prior to trial, the admission of this testimony was the subject of heated discussion between counsel and judge. Over appellant’s objection, .the judge excluded the full details of the assault, particularly evidence regarding a cigarette being put out in Corum’s eye, but nevertheless allowed Dale to testify to the occurrence of an altercation between these parties.

The crux of appellant’s argument asserts that the admission of this evidence was highly prejudicial and inflammatory, in that it implied that appellant was the member of a crowd engaged in some serious criminal activity. In response, respondent argues that the amount of evidence was not extensive, drawing attention to the fact that after making allowances for rulings of the court and objections, the testimony amounted to less than a page, and thus urges the court to view this as a harmless error.

In support of his argument, appellant directs the court’s attention to cases prohibiting the introduction of separate and distinct criminal activity for which the defendant is not standing trial. Although the rules of evidence regarding prior crimes of a defendant are closely related to the problem at hand, this controversy does not involve a question regarding crimes or acts performed by appellant, but rather the testimony in question deals with the acts between third .parties. As such, appellant’s objections deal with the rule of “res inter alios acta.”

Generally, the evidence regarding the transactions between third persons is inadmissible as irrelevant. Such evidence is excluded as “res inter alios acta,” which means a thing done between third parties and strangers. As stated in 22A C.J.S. Criminal Law § 602, pp. 406-408:

The rule “res inter alios acta” forbids the introduction of collateral facts which by their nature are incapable of affording any reasonable presumption or inference as to the principal matter in dispute. Evidence as to acts, transactions, or occurrences to which accused is not a party, or as to other matters with which he is not shown to have any connection, being res inter alios acta, is inadmissible, unless it is so interwoven with other relevant evidence as to make it impossible to try the case without admitting it.

Both the rule and the exception are consistent with the practice in this state. State v. Dupree, 477 S.W.2d 129, 131 (Mo.1972). Apparently, the key factors followed by the court include: whether the defendant was present at the alleged incident, whether he took part in the activity, whether there was proximity in time of the alleged crime and the collateral incident, and whether the defendant was in some manner connected with the third party and the incident. Du-pree, supra (wherein the court held activities of defendant and third party accomplice were sufficiently interwoven where defendant was present at time of activities and activities of third party also involved defendant’s activities).

It is difficult to say, applying the rule to the case at hand, whether Corum’s testimony should have been totally excluded. The testimony in question was the subject of extensive debate between the judge and counsel at the pre-trial hearings, and had previously served as the basis of a mistrial. On retrial, the court, however, apparently decided the event was interwoven with relevant evidence, and felt that by excluding the highly inflammatory evidence the remainder would be admissible. In response to appellant’s position that the assault was irrelevant, the court stated that:

I doubt it, because the trial will boil down to the question of consent or not. The trial is going to boil down to that, and I am afraid these other things we are talking about have a bearing on consent, the length of time involved that they were gone and what transpired and who was or wasn’t there when they left and when they got back, all these things are too tied to the question of consent. Those are all collateral matters, quite honestly.

On matters of relevancy and materiality, the trial court has broad discretion. State v. Martin, 530 S.W.2d 447, 452 (Mo.App.1975). Its decision will be overruled only if it has abused its discretion. We find no abuse of discretion. In light of the heinous nature of the crimes of rape and sodomy, the mere introduction of the altercation between Corum and “the group” was too insignificant to prejudice the jury’s decision. The inflammatory portions of the incident (including the cigarette in the eye occurrence) were kept from the jury. Even if error was committed, it was harmless, and thus not grounds for reversal. State v. Degraffenreid, 477 S.W.2d 57, 64 (Mo.banc 1972).

Finding no reversible error, judgment is affirmed.

RENDLEN, J., concurs.

SIMEONE, J., concurs and concurs in separate concurring opinion of BARD-GETT, J.

BARDGETT, J., concurs in separate concurring opinion filed.

DONNELLY, J., concurs in separate concurring opinion filed.

SEILER, J., dissents in separate dissenting opinion filed.

FINCH, Senior Judge, not participating.

WELLIVER, J., not participating because not a member of the court when cause was submitted.

BARDGETT, Judge,

concurring.

The principal opinion asserts that appellant’s attack upon the facial constitutionality of sec. 563.230, RSMo 1969, the sodomy statute, cannot be entertained because it was not preserved for appeal in the trial court. A similar contention was made by the state in State v. Mitchell, 563 S.W.2d 18 (Mo.banc 1978). In Mitchell we quoted with approval from Kansas City v. Hammer, 347 S.W.2d 865 (Mo.1961), as follows:

“This state is thoroughly committed to the proposition that the unconstitutionality of an ordinance or statute on which a prosecution is based cannot be waived. The invalidity of such an act on constitutional grounds goes to the subject matter of the prosecution and may be raised at any stage of the proceedings, even by a collateral attack after conviction. Ex parte Lerner, 281 Mo. 18, 218 S.W. 331; Ex parte Taft, 284 Mo. 531, 225 S.W. 457; Ex parte Smith, 135 Mo. 223, 229, 36 S.W. 628, 33 L.R.A. 606; Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398; and State v. Finley, 187 Mo.App. 72, 172 S.W. 1162.” 563 S.W.2d 22-23.

The point should be entertained and decided. Upon entertaining this point I would hold that the statute is not facially unconstitutional as an illegal invasion of appellant’s privacy.

I therefore concur in affirming the judgment.

DONNELLY, Judge,

concurring.

The principal opinion applies the harmless error tests articulated in State v. Degraffenreid, 477 S.W.2d 57, 64, 65 (Mo.banc 1972) and finds the error in this case harmless. I agree.

However, from this day forward, I would abandon the Degraffenreid tests and would hold that error in the admission of evidence is “presumptively harmful * * * where the life or liberty of the citizen is at stake,” State v. Shipley, 174 Mo. 512, 516, 74 S.W. 612, 613 (1903), and will be reversible error unless we are able to declare a belief that it was harmless beyond a reasonable doubt. Cf. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

I concur.

SEILER, Judge,

dissenting.

I respectfully dissent. My reason is that I believe the introduction of the evidence about the attack upon Dale Corum, the friend of the prosecutrix, by defendant’s brother, prevented defendant from having a fair trial.

In the atmosphere of this trial, involving motorcycles, smoking marijuana, young people chasing around aimlessly at night, drinking, gang action and general mindless violence, the attack by defendant’s brother on the prosecutrix’s date could not have done other than inflame the jury.

The attack on one third party by another, at a time when the defendant was not present or in any way aiding and abetting in what was happening, was immaterial, irrelevant and incompetent and was highly prejudicial, especially in a case in which rape and sodomy were the charges. Defendant should have a new trial.

On the issue of how we should deal with error in the admission of evidence, I agree with Judge Donnelly’s views as expressed in his concurring opinion.

On the issue of whether the attack upon the constitutionality of the statute must be entertained, I agree with Judge Bardgett’s views as expressed in his concurring opinion.


source: Caselaw Access Project

author: MORGAN, Chief Justice.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Archie Lee PHILLIPS, Appellant.
    No. 60896.
    Supreme Court of Missouri, En Banc.
    June 29, 1979.
    Robert C. Babione, Public Defender, Cornelius T. Lane, Jr., Sp. Asst. Public Defender, St. Louis, for appellant. •
    John D. Ashcroft, Atty. Gen., Michael Elbein, Asst. Atty. Gen., Jefferson City, for respondent.
   MORGAN, Chief Justice.

This case was transferred after opinion by the then St. Louis Court of Appeals, and we now consider the same as on original appeal.

Archie Lee Phillips was found guilty of murder second degree by a jury and punishment was assessed at 35 years by the trial court. In order to reach its verdict, the jury had to have found that the victim, Pierre Walker, died as a result of a shootout between the appellant and one Edward Nathan Bell. The evidence supported such a conclusion.

On December 31, 1974, a conversation started between the appellant and Bell in a Chinese carry-out after the former allegedly became fresh with Bell’s girlfriend, Brenda Taylor; the appellant and Bell went outside; the latter went across Union Boulevard towards his car and the appellant walked south on the east side of Union Boulevard; appellant entered Hudson’s record shop and came out with a gun. Testimony by a bystander indicated that appellant began firing shots at Bell. A shoot-out between Bell and Phillips ensued, with the victim (seven year old Pierre Walker) being killed in the crossfire.

On voir dire, the State’s attorney was allowed to ask the jury if they could find the appellant guilty even if the State could not prove who actually fired the shot that killed the victim. The court called Brenda Taylor as a court witness, over the objection of the defense counsel, even though said witness had previously testified before the Grand Jury and had been endorsed as a State’s witness. Ms. Taylor had testified at the trial of Bell, wherein Bell was acquitted.

This case was submitted to the Jury by instructions including MAI-CR 2.40 on self-defense. The court also gave the State’s tendered instruction on self-defense which was not approved in MAI-CR. The State also submitted an instruction on murder second, modified to include the issue of transferred intent. Appellant’s instruction MAI-CR 6.08 on Manslaughter was refused by the trial court.

On appeal it is alleged that the trial court erred by: (1) allowing the State on voir dire to ask the jury for a commitment to find the appellant guilty; (2) calling Brenda Taylor as a court’s witness; (3) giving the State’s tendered instruction of self-defense; and, (4) failure to give appellant’s manslaughter instruction.

We find the appellant’s third objection dispositive and reverse and remand for a new trial on the ground that the trial court erred in the giving of an extra self-defense explanation instruction in addition to the MAI-CR instruction designed to cover the issue.

An examination of the history of MAI-CR is warranted. In 1964 this court embraced the concept of pattern jury instructions when it adopted Missouri Approved Instructions (MAI) for use in civil cases. The value of that system and the benefits it offered quickly became apparent and the Board of Governors of the Missouri Bar decided that pattern jury instructions for use in criminal cases should also be formulated. A committee chaired by Judge Orville W. Richardson was formed. After years of study and preparation the committee brought its work product to this court, where additional time and energy were expended in an effort to eliminate perceivable bias. The result was adoption of Supreme Court Rule 20, which became effective January 1, 1974.

Subparagraph (c) of Rule 20.02 states that:

(c) MAI-CR Excludes Use of Other Forms. Whenever there is an MAI-CR instruction or verdict form applicable under the law to the facts, the MAI-CR instruction or verdict form shall be given or used to the exclusion of any other on the same subject.

This rule is essentially the same as Supreme Court Rule 70.02(b) which applies to civil cases.

The need for making use of the approved pattern instructions mandatory was best explained by the Missouri Supreme Court Committee on Jury Instructions in its 1963 report:

There are hundreds of currently acceptable instructions which use language more favorable to one site or the other than the proposed instructions. If counsel are permitted to “improve” the approved instructions, even within the confines of specific precedents, the value of these instructions will be lost. Each such “improvement” by one counsel will prompt an offsetting “improvement” by his opponent and after a while the court will not be able to find the original with a divining rod.

Missouri Approved Jury Instructions (2d ed. 1969) p. XXVII

This rationale is as equally applicable to criminal cases as it is to civil cases.

In the present case the court submitted MAI-CR 2.40, modified, at the request of the appellant on the issue of self-defense. MAI-CR 2.40 is a justifiable homicide instruction which, the Notes on Use state, should be slightly modified and used in assault cases where applicable under the law and the evidence. This instruction was warranted by the facts in this case. Modification for assault was necessary because the case is based on a felony murder theory with assault as the underlying felony. It was submitted as Instruction 7, an MAI-CR 2.40 modified instruction.

The court then, at the request of the respondent (State), introduced an additional instruction explaining that the law of self-defense does not give one a right to attack another or a right to retaliate or seek revenge. It was submitted as Instruction 8. This instruction was not from MAI-CR, nor is there any similar instruction provided for in MAI-CR. The respondent based the instruction on one which was found not to be prejudicial in the case of State v. Williams, 522 S.W.2d 641 (Mo.App.1975). While it is true that a similarly worded instruction was approved in Williams, and that- Williams was tried after the adoption of MAI-CR, Williams relied on pre-MAI cases. More importantly, the instruction in Williams was not challenged on the basis that it was an additional instruction upon a subject covered by MAI-CR and the contention, that the additional instruction was erroneous because it was not authorized by MAI-CR, was not specifically met.

The respondent contends that the extra instruction was necessary because MAI-CR 2.40, while setting forth general law on self-defense, does not address itself to the issue of whether self-defense can be claimed by one who has entered into a difficulty with another in order to punish or wreck vengeance upon him. Thus, respondent asserts, Instruction 8 addressed itself to an area not covered by MAI-CR 2.40 and therefore supplemented, rather than transplanted, the pattern instruction. Such supplementation, it is contended, does not violate Supreme Court Rule 20.02.

At the outset, we note that the instructions tendered by both sides in this case were defective. The wording could not have helped but confuse the jury.

Instruction 7, tendered by the appellant, is set forth below as it was submitted to the jury.

Instruction No. 7
One of the issues in this case is whether the assault [death] of Edward Nathan Bell [name of victim] was a justifiable assault [homicide]. By “justifiable assault ” [“justifiable homicide”] is meant the assault [killing] of another in lawful self-defense. On that issue you are instructed as follows;
1. The state has the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. If the evidence in this case leaves in your mind a reasonable doubt as to whether the defendant acted in lawful self-defense, then you must find the defendant not guilty.
2. If the defendant had reasonable ' cause • to believe arid did believe that he was in immediate danger of death or serious bodily harm and had reasonable cause to believe and did believe that is [it] was necessary for him to act as he did to protect himself from such danger, then you are instructed that he acted in lawful self-defense and must be acquitted.
3. Even if the defendant provoked the use or threat of force against himself, nevertheless if he in good faith withdrew or attempted to withdraw from the difficulty and clearly indicated to Edward Nathan Bell [name of victim] that he desired to withdraw and end the use of force, and if Edward Nathan Bell [name of victim] then began, continued and resumed the use or threat of force on his part, and if the defendant at that time had reasonable cause to believe and did believe at that time [that he was in immediate danger of death or serious bodily harm and had reasonable cause to believe and did believe that] it was necessary for him to act as he did to protect himself from such danger, then you are instructed that he acted in lawful self-defense and must be acquitted.
4. In determining whether or not the defendant acted in lawful self-defense you should consider all of the evidence in the case.
(If Edward Nathan Bell [name of victim] prior to the assault [killing] made threats which were known by or communicated to the defendant, you may consider such threats as explaining the conduct or apprehensions of the defendant at the time of the assault [killing] and for the further purpose of determining who was the aggressor at the time and place of the assault [killing].)
(If Edward Nathan Bell [name of victim] prior to the killing [sic] assaulted or directed any specific acts of violence against the defendant, you may consider them as explaining the conduct or apprehension of the defendant at the time of the killing [sic] and for the further purpose of determining who was the aggressor at the time and place of the killing [sic].)
(5. If the defendant had reasonable cause to believe and did believe that he was in immediate danger of death or serious bodily harm and that it was necessary for him to act as he did, it is of no consequence that the appearances later turned out to be false. If he acted in lawful self-defense, as submitted in this instruction, he must be acquitted even though there was (no purpose on the part of Edward Nathan Bell [name of victim] to kill him or do him serious bodily harm) (and) (no immediate danger that it would be done) (and) (no actual necessity to use the force which he did).)

As can readily be seen, the instruction deviates from MAI-CR 2.40 in several respects; it is modified in an inconsistent manner, and it is — at best — confusing.

In the second numbered paragraph the word “is” was substituted for the word “it.” Most likely a careless typographical error. But in the third numbered paragraph the phrase “at that time” has been added and the phrase “that he was in immediate danger of death or serious bodily harm and had reasonable cause to believe and did believe that” has been deleted. There seems to be no reason for such a wholesale carving up of MAI-CR 2.40.

Furthermore, the instruction has been modified for assault all the way through until the second subparagraph of the fourth numbered paragraph. At that point the word “assault” is no longer substituted for the word “killing” and the instruction reverts from an instruction on justifiable assault to one on justifiable homicide.

Similarly, the instruction tendered by the respondent was also worded in an improper and misleading fashion — leaving aside the issue of whether the additional instruction was proper at all. The instruction read:

Instruction No. 8
The Court instructs the jury that the law of self-defense does not imply the right of attack, nor will it permit acts done in retaliation or for revenge. Therefore, if you believe and find from the evidence beyond a reasonable doubt that the defendant sought, brought on or voluntarily entered into a difficulty with the deceased (sic) for the purpose of wreaking vengeance upon him, or if you shall find and believe from the evidence beyond a reasonable doubt that Archie Lee Phillips shot at Edward Nathan Bell at a time when he had no reasonable apprehension of immediate and impending injury to himself, and did so from a spirit of retaliation and revenge for the purpose of punishing Edward Nathan Bell, then the defendant cannot avail himself of the law of self-defense, and you should not acquit the defendant on that ground.

(Emphasis added.)

The deceased, of course, was not involved in a difficulty with anyone, he was the tragic victim of this whole senseless affair.

Because of the sloppy draftsmenship on the part of both the State and the appellant in their modifications of MAI and additions thereto, confusion of the jury could become readily apparent. ' Reversal seems indicated unless we are to find that the appellant has little ground to complain in view of the fact that his careless modification of MAI-CR 2.40 encouraged the State to submit a clarifying instruction. The clarifying instruction, however, did not address the inappropriate modifications of Instruction No. 7. . Instead, the State addressed itself to elements which were not part of the definition of self-defense, as it feared the jury might read into Instruction No. 7 the act of revenge as a justification for self-defense. We might assume that the State thought that the element of revenge was assumed in the present case and that modification by negation of the assumption was necessary for clarity. While perhaps clarity is its motive, Instruction No. 8 was argumentative in its effect and thus is inappropriate as an instruction in that it emphasizes one element (or lack of element) over and above all other elements.

The State contends that its Instruction No. 8 covers an area not covered in MAI-CR and thus the instruction is not preempted by MAI-CR. Instructions are by their nature positive declarations of what the law is and not explanations of what the law is not. Self-defense not only is not justified by revenge, it is also not justified by an endless list of irrelevant nonelements. Only in the most extreme instances does it become necessary to clarify what is not an element. Even when such an instance is apparent, it is generally for the Rules Committee and the Court to make this change in a uniform change of MAI and not for the individual proponent to submit an unapproved instruction on an ad hoc basis when an approved instruction is available.

Again, we return to our opening observation: if we are to have a system of patterned instructions, those patterned instructions must be followed. To invite one unapproved “improvement” invites more unapproved, nonuniform “improvements.” Ultimately, the result would be no patterned instructions. Patterned instructions serve to clarify the law as succinctly and clearly as possible. To invite additions, in areas covered by MAI civil or criminal, is to invite confusion.

Reversal is warranted, and we think it unnecessary to consider other points of alleged error. Even if they arise on retrial, the prosecution will be aware of their thrust and can act accordingly.

When an issue challenging an MAI modified instruction or a not-in-MAI instruction is preserved for appeal, the burden is on the party deviating from MAI to show that its deviation is not prejudicial.

It is asserted, and we think rightfully so, that the challenge to the additional self-defense instruction on the ground that it was an additional not-in-MAI instruction was not preserved for appeal. In appellant’s motion for new trial he asserted that the instruction was not supported by the evidence. He did not challenge the instruction on the basis that it was an additional not-in-MAI instruction. If the issue was not preserved for appeal, Plain Error is the standard to be applied rather than shifting the burden of non-prejudiciality to the State.

Review of self-defense instructions has frequently been accorded under plain error principles under Rule 27.20(c). In State v. Tindall, 496 S.W.2d 267, 268 (Mo.App.1973), wherein a self-defense instruction challenged was not preserved for appeal, the court stated that:

. plain error Rule 27.20(c) is “particularity appropriate”, State v. Randall, 476 S.W.2d 593 (Mo.1972), [where a self-defense instruction was also challenged] and that the alleged error directly involves the constitutionally guaranteed rights of the defendant to a fair trial.

See also, State v. Jackson, 511 S.W.2d 771, 776 (Mo.1974) and State v. Robinson, 516 S.W.2d 40, 43 (Mo.App.1974).

Finding plain error in the giving of the additional self-defense “explanatory” instruction, we reverse and remand for new trial.

DONNELLY, RENDLEN, SEILER, SI-MEONE and WELLIVER, JJ., concur.

BARDGETT, J., concurs in result.

      . Underlined portions indicate phrases added to or substituted for the wording of MAI-CR; words and phrases in brackets indicate wording which was deleted from MAI-CR. The bracketed notation [sic] appears after wording which should have been modified to fit the facts of the case, but which was not. Portions of the instruction enclosed in parentheses are optional portions provided for in MAI-CR 2.40 which the court chose to include in the submission.


author: DOWD, Presiding Judge. STEWART, Judge,

text:
    STATE of Missouri, Plaintiff-Respondent, v. Bryan T. REED, Defendant-Appellant.
    No. 39080.
    Missouri Court of Appeals, Eastern District, Division Four.
    March 27, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court June 15, 1979.

      J. Justin Meehan, Howard, Singer & Mee-han, Morris A. Shenker, Jeffrey J. Shank, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, John M. Morris, III, Brenda Farr En-gel, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Edwin Rodgers, Asst. Circuit Atty., St. Louis, for plaintiff-respondent. .
   DOWD, Presiding Judge.

Bryan Timothy Reed was found guilty by a jury of murder in the second degree and sentenced to 10 years imprisonment. In his appeal from the judgment entered on the verdict, Reed alleges that the trial court erred in four respects.

Among the points relied on is the contention that the trial court erred in overruling appellant’s motion for judgment of acquittal because the evidence was insufficient to sustain the verdict. Our review of this issue is confined to a consideration of all the direct and circumstantial evidence found in the record which tends to prove the defendant’s guilt, and from which all reasonable inferences in favor of the State are to be drawn. State v. Allen, 555 S.W.2d 36 (Mo.App.1977). Our review of the record causes us to find that the verdict is supported by the evidence.

Reed was charged with the murder of Earl Robinson which allegedly occurred during a fight concerning a woman at a party on March 13, 1976. The evidence adduced at trial regarding the inception of the altercation is conflicting. The record reveals that a dispute arose when a person in attendance at the party, Johnny Fleming, expressed interest in dancing with a particular woman. It is unclear if the argument involved Fleming and the appellant or Fleming and the appellant’s brother, Carlos. In any event, Fleming enlisted the aid of his friends, one of whom was Earl Robinson, to meet the resistance. The agitation was continued outside the home which had been the site of the party.

The State introduced two witnesses who testified to having seen the shooting. One witness, Wendy Webb, viewed the shooting which took place in the backyard, from a kitchen window. While Ms. Webb admitted that she did not see the appellant with a gun, she testified to having seen flashes of light issue from the appellant causing Earl Robinson to collapse.

Another witness, Roy Jenkins, testified that he viewed the shooting from the doorway in the back of the house. He recollected that Earl Robinson took a swing at one of the appellant’s friends who was outside the house. Jenkins testified that the appellant then fired three shots at Robinson from the right hand corner of the house. Following Robinson’s collapse, the appellant and his friends fled the scene. Robinson died approximately one hour after the shooting.

There is sufficient evidence in the record of the fact that the killing was premeditated, willful and with malice aforethought to support appellant’s conviction of second degree murder. Accordingly, this point is ruled against the appellant.

In another point, appellant contends that two comments made by the prosecutor during the trial constitute improper references to his failure to testify. We consider this error as requiring the reversal of the judgment, and the granting of a new trial.

The first remark was made by the prosecutor at the close of the State’s case. Following the trial court’s overruling of the appellant’s motion for acquittal, the defense rested. At this point the following exchange transpired in the presence of the jury:

“Prosecutor: Your honor, I am a little unprepared for this. I was given a list of witnesses you [the defendant] were going to call.
“Court: I don’t think you should make that statement in front of the jury.”

After a discussion out of the hearing of the jury the appellant’s motion for mistrial was denied, and it was stipulated that the jury would be instructed to disregard the statement. In the jury’s absence the trial court admonished the prosecutor, describing his conduct as “completely out of order”, without reason, and “completely uncalled for”. The prosecutor agreed that his statement was improper.

The second comment was recited during the State’s closing argument. Following a summary of the testimony of the State’s witnesses, the prosecutor remarked:

“You should not judge Earl Robinson in talking about the Defendant. You know, if Earl Robinson was the worst person on earth, this would be no less a crime. So you know Earl Robinson is not on trial. Charles Thompson is not on trial and Roy Jenkins isn’t. There is not a single witness who took the stand who is on trial. Bryan Reed is on trial.” (Emphasis added).

The defense did not object to this statement. References to the accused’s failure to testify, however, which were not objected to at trial or alleged as error in a motion for new trial have been regarded as justifying the invocation of the plain error rule when such references deprived the accused of his right to a fair trial. See, State v. Johnson, 536 S.W.2d 851 (Mo.App.1976); State v. Gray, 503 S.W.2d 457 (Mo.App.1973), State v. Howard, 540 S.W.2d 86 (Mo. 1976). We are of the opinion that the prosecutor’s remarks infringed upon the appellant’s right against self-incrimination, and warrant our review pursuant to the plain error doctrine of Rule 27.20(c).

Previous analyses of this issue have been organized according to whether the comment has a direct or indirect reference to the defendant's failure to take the stand, language such as “defendant”, “accused”, and “testify” have been deemed crucial. State v. McNeal, 517 S.W.2d 187, 188 (Mo.App.1974). To constitute an indirect reference, the comment, when viewed in context, must be of a type which would cause a jury to infer that the remark was a reference to the accused’s failure to testify. State v. Hayzlett, 265 S.W.2d 321 (Mo.1954); Eichelberger v. State, 524 S.W.2d 890, 894 (Mo.App.1975).

Upon the direct criterion, only a comment by the prosecutor which is a direct and certain reference to the failure of the accused to testify would be considered as satisfying the test. State v. Hutchinson, 458 S.W.2d 553 (Mo.1970).

The State urges that we view the prosecutor’s comments as proper retaliatory remarks which were offered in response to the defense counsel’s references to the veracity of the State’s witnesses. The State also suggests that the comments may be classified as permissible references to the appellant’s failure to present adequate evidence.

We do not agree that the remarks may be so classified. We find the following cases to be persuasive on this issue. In State v. Shuls, 329 Mo. 245, 44 S.W.2d 94 (Mo.1931) the challenged statement was uttered during closing argument:

“who was there at the hold-up, gentlemen of the jury? There were three parties there and these two girls were the only ones that testified, and what did they say?”
(44 S.W.2d 94, 96)

The Supreme Court reversed the judgment entered against the defendant, and held:

“The reference to the defendant’s failure to testify could not have been more obvious had he been called by name and the facts baldly [states] that he had not taken the witness stand and denied the testimony of the girls.”
(44 S.W.2d 94, 97)

In the case before us, the prosecutor used the name of the accused in his indirect reference to the former’s failure to testify. The comment highlighted the fact that the appellant did not take the stand, by emphasizing that Byran Reed, not the witnesses who testified, was on trial.

In State v. Lindner, 282 S.W.2d 547 (Mo.1955) the challenged comment consisted of the following:

“I don’t know what this boy says. There is no evidence of any type by him in this case.”

The Supreme Court construed these remarks, taken together, as being equivalent to a pronouncement that “this boy hasn’t said anything in this case.” The Court reversed the judgment entered against the accused, holding:

“Except for a direct statement that ‘defendant has not testified’, we can conceive of no clearer way to express that idea than by the phraseology used in the instant case.”
(282 S.W.2d 550)

It is our opinion that the language of the prosecutor in the present case closely resembles the conception of a direct reference articulated by the Supreme Court in Lind-ner. In its context, the statement by the prosecutor that “[tjhere is not a single witness who took the stand who is on trial. Bryan Reed is on trial”, could have been reasonably construed as a pointed reference to the failure of the appellant to testify. The logical inference from this statement is that the appellant did not testify. We believe this prejudiced the appellant and prevented him from obtaining a fair trial. State v. Lindsey, 578 S.W.2d 903 (Mo. banc 1979).

In State v. Eilinger, 549 S.W.2d 136 (Mo.App.1977) a statement which contained summaries of the testimony of two of three possible witnesses to the crime was challenged. The defendant, the third possible “witness”, had not testified. The court, reviewing the issue under the plain error rule, held that although such a comment might not constitute a direct reference to the accused’s failure to take the stand, the cumulative effect of it and another improper comment resulted in prejudice to the defendant.

We have previously noted that the jury was advised to disregard the initial improper comment made by the prosecutor. Generally, such an instruction is deemed sufficient to cure the error. State v. Rothaus, 530 S.W.2d 235 (Mo.1975). This is not such a case. The cumulative effect of the two comments accentuated the fact that the appellant had not testified. As a result, a reasonable juror’s attention would have been attracted to this fact.

It was pointed out in State v. Barker, 399 S.W.2d 1 (Mo.1966) that the purpose of our statute (§ 546.270) and Rule 26.08 in prohibiting any reference to defendant’s failure to testify was to keep absolutely from the jury any reference to the constitutional right against self-incrimination. Missouri Constitution, Art. I, § 19, VAMS.

More recently, the Supreme Court of Missouri has held that language which focuses the jury’s attention on the accused’s failure to testify operates to deny the defendant of his right to a fair trial. State v. Lindsey, 578 S.W.2d 903 (Mo. en banc, 1979). The challenged statement which was uttered by the prosecutor during voir dire was:

“Mr. Lindsey doesn’t have to go forward with any evidence if he doesn’t wish to. He doesn’t have to take the stand if he doesn’t want to.”
(supra, at 903).

The Supreme Court reversed the appellant’s conviction stating:

“Article I, § 19 of the Missouri Constitution provides, in part, ‘That no person shall be compelled to testify against himself in a criminal cause, . . . ” This language prohibits not only comments on the failure of a defendant to testify . but also comments which have the effect of compelling a defendant to testify. The use of language which has either effect must be condemned [c]onduct which naturally and necessarily has the effect of denying an accused a fair trial can never be harmless.”

(At p. 904)

We are not unmindful of the obvious difficulty the jury had in reaching a verdict. It took 7 hours and 45 minutes of deliberation, plus a “hammer” instruction before the jury finally returned a guilty verdict. It cannot be said that the very pointed reference to appellant’s not testifying did not result in a manifest injustice to substantial rights of the appellant. The jury may well have considered this a close case. In a close case such an error warrants reversal State v. Degraffenreid, 477 S.W.2d 57 (Mo.1972).

Accordingly, we find that the appellant’s right against self-incrimination, as secured to him by Amendments V and XIV to the United States Constitution, Art. I, § 19 of the Missouri Constitution, § 546.270 (RSMo 1969) and Rule 26.08 was infringed upon.

As the judgment is reversed, and the cause remanded for a new trial, it is not necessary to address the remainder of appellant’s points relied on.

Reversed and remanded for a new trial.

CRIST, J., concurs.

STEWART, J., dissents in separate opinion.

STEWART, Judge,

dissenting.

I respectfully dissent. I would conclude that in the context of the argument, the State did not make a direct and certain reference to defendant’s failure to testify. The argument can readily be interpreted as retaliation for defendant’s attacks upon the character and veracity of the State’s witnesses. I believe this case to be controlled by State v. Rothaus, 530 S.W.2d 235 (Mo. 1975).

I am more disturbed by the fact that we are asked to rule the issue as plain error under the circumstances of this case. It is apparent that at the time the statement was made defendant’s counsel did not consider the argument to be a reference to defendant’s failure to testify. He made no objection. We cannot say that he did not object because counsel did not want to bring the matter to the attention of the jury, because if it had been such a direct and certain reference to defendant’s failure to testify it would not have been overlooked in the motion for new trial. That the argument violated defendant’s Fifth Amendment rights is not so blatantly obvious that I would convict the trial court of error in not declaring a mistrial sua sponte in this case.

      . Appellant review pursuant to the plain -error rule is not precluded by this finding because we do not regard the evidence which was introduced against the appellant to have been overwhelming.

      . The jury deliberated for one half hour before requesting to review certain exhibits. Approximately four and three quarter hours later the jury was returned to the courtroom and the judge gave the “hammer” instruction. Following two and one half hours of further deliberation, the jury returned a verdict finding Bryan Reed guilty of murder in the second degree. The jury thus deliberated 7 hours and 45 minutes before returning a guilty verdict.

      . Likewise, a reference by the prosecutor that the defendant failed to make an exculpatory statement following his arrest has been held to be plain error requiring a new trial. State v. Ward, 571 S.W.2d 773, 775 (Mo.App.1978); State v. Stuart, 456 S.W.2d 19 (Mo.banc 1970); State v. Benfield, 522 S.W.2d 830 (Mo.App.1975).


author: SMITH, Judge.

text:
    STATE of Missouri, Respondent, v. Tyrell WEBB, Appellant.
    No. 39126.
    Missouri Court of Appeals, Eastern District.
    May 1, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 15, 1979.
    Harris, Kirksey & Thomas, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Brenda Engel, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Clayton, for respondent.
   SMITH, Judge.

Defendant appeals from his conviction by a jury of second degree murder and resulting sentence of life imprisonment. We affirm.

The victim, Pierre Hawkins, and three other persons were in an automobile on Page Boulevard in St. Louis County at approximately 10 p. m. on July 13,1976. The victim was driving, Linda Byrth was in the front passenger seat, Gregory Rutherford was behind her in the back seat, Judy Simpson was behind the driver in the back seat. All the passengers were seated at an angle so they could see each other and converse. A turquoise station wagon pulled up on the left side of the automobile of the victim, two handguns were displayed, and numerous shots were fired from the overtaking vehicle. Pierre Hawkins was struck in the head and arm by bullets and died from the head wound. Both Judy and Linda saw the guns and immediately ducked down on the floor. Neither saw the people holding the guns. Gregory saw the guns, and saw the faces of the persons holding them as he “eased down” to the floor of the car. He recognized defendant and Darrell Jones as the persons holding the weapons, but at that time did not see the driver. Hawkins immediately slumped over the wheel and the automobile continued several hundred feet down the road, eventually going over an embankment, down a steep hill to a building where it ran into a moving company truck parked near the building and stopped. All three passengers remained on the floor of the car until it stopped. Gregory then immediately exited the car and stated that “Tyrell and Darrell” had done the shooting. Judy was wounded in the hip and upon exiting the car took cover under the truck. Gregory ran up the hill and across Page to a drive-in movie to obtain assistance. As he was crossing Page he saw the turquoise station wagon proceeding in the opposite direction on Page and at that time identified the driver as Ricky Beavers. Gregory had previously known who Tyrell Webb, Darrell Jones and Ricky Beavers were. Upon returning to the Hawkins’ vehicle after obtaining help Gregory stated that Tyrell Webb, Darrell Jones, and Ricky Beavers were the occupants of the car. When first questioned by the police, Gregory denied knowing the assailants because he testified he was “scared.” Within an hour or so, however, he told the police the names of the occupants of the station wagon.

Gregory lived in the same house with Hawkins. Both Pierre Hawkins and a brother, murdered two weeks before Pierre, were narcotics dealers. Gregory denied that he was involved in narcotics traffic, even though he lived with the Hawkins brothers. Considerable evidence was elicited concerning the lighting conditions at the place where the shooting took place, and there was considerable dispute about exactly where on Page the shooting occurred.

Defendant presented an expert witness, a doctor specializing in ophthalmology, who testified to the difficulty in seeing and identifying the occupants of an adjacent vehicle under the lighting, stress, and temporal conditions existing at the time of the shooting. Defendant denied having been at the scene of the shooting, having participated in the shooting, or knowing Hawkins or Rutherford. He did not testify to an alibi.

Defendant contends that the evidence was insufficient to support the conviction, because the participation of defendant in the shooting was established only by the testimony of Gregory Rutherford and the accuracy of that identification was challenged by the testimony of the medical expert. The weight to be given the evidence and the credibility of the witnesses are determinations for the jury. The testimony of a single witness is sufficient, if believed, to support a conviction. State v. Tucker, 451 S.W.2d 91 (Mo.1970)[5]. Here the witness, Rutherford, was unshakable in his identification of defendant and his companions. He had a prior knowledge of who defendant was and his accusation of defendant was made immediately after the shooting occurred. There was evidence that the light was adequate to make the identification. Even defendant’s medical expert did not testify that identification was impossible under the circumstances, only that it would be difficult. The doctor did admit that identification of someone previously known would be easier than identification of a total stranger. The evidence was sufficient to support the verdict.

Defendant also contends that the absence of any black persons on the jury panel denied him a fair trial. At a hearing on a motion for new trial he adduced evidence that blacks are on venire panels in criminal cases in St. Louis County although in lower numbers than defendant considers proper. No evidence was introduced challenging the method of juror selection or establishing that the number of black veniremen in St. Louis County was disproportionately low. Nor was the evidence sufficient to warrant a conclusion that prosecutors systematically strike blacks from jury panels for discriminatory reasons. We find no merit in this point. State v. Warters, 457 S.W.2d 808 (Mo.1970)[4, 5],

Defendant also contends that the method of jury selection provided for in Sec. 496.040 R.S.Mo.1969 was not followed in this case in St. Louis County. The matter was not raised until the motion for new trial and is not preserved for review. State v. Wrose, 463 S.W.2d 792, (Mo.1971)[2], Further, Sec. 494.225 R.S.Mo.1971 super-cedes Sec. 496.040 R.S.Mo.1969, and permits computerized lists of qualified jurors and allows random computer selection of jurors—the method used in this case.

Defendant’s final contention is that the court erred in permitting Linda and Judy and thereafter Gregory to testify about the statement made by Gregory after the shooting that Darrell and Tyrell were responsible for the shooting. Initially the defendant contends that the material was not revealed by the State upon request during discovery and for that reason should not have been admitted. No objection on that ground was made at the time the evidence was admitted. The matter has not been preserved for review. State v. Gadbury, 558 S.W.2d 426 (Mo.App.1977)[1, 2]. Additionally, the record does not reflect that these statements of the witnesses were reported or summarized in any memoranda, which was what defendant had requested in his discovery motion.

Defendant also contends that the statements were hearsay and therefor inadmissible. Defendant has not briefed this contention and it is deemed abandoned. No objection was made to the statements made upon Gregory’s return to the scene after seeking help. The only objection was to the testimony of Judy Simpson concerning Gregory’s statement as. he exited the wrecked car. The statement objected to was made immediately after the car crashed, while the declarant was still in a highly emotional state following the shooting and the accident, and before the declar-ant had an opportunity to deliberate and fabricate a false statement. The statement was a spontaneous utterance produced by the shooting itself. It was properly admitted under the res gestae exception. See State v. Hook, 432 S.W.2d 349 (Mo.1968); State v. Scott, 535 S.W.2d 281 (Mo.App. 1976)[1, 2]. We also observe that the same situation is true of the second statement of Gregory made when he returned to the scene. That utterance was made within minutes after the shooting, Gregory was still in an excited state and the statement concerned a matter which he had just observed. We find no error in the admission of this evidence.

Judgment affirmed.

WEIER, C. J., and SNYDER, P. J., concur.


author: CLEMENS, Senior Judge.

text:
    James JONES, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39,729.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 1, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 15, 1979.
    Application to Transfer Denied Oct. 10, 1979.
    Robert C. Babione, Public Defender, Thomas R. Motley and Andrew T. Kotschar, Asst. Public Defenders, St. Louis, for mov-ant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Michael G. Ravetta, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Senior Judge.

Movant James Jones, hereafter “defendant,” was convicted of first degree murder and felonious assault and sentenced to life imprisonment. The conviction was affirmed on appeal. State v. Jones, Mo.App., 532 S.W.2d 772. Defendant has now appealed the denial of his Rule 27.26 motion on the ground the trial court, after an evi-dentiary hearing, failed to “make findings of fact and conclusions of law on all issues presented” as required by Rule 27.26(i).

Defendant’s motion pleaded the sole ground that at trial he had been denied effective assistance of counsel. In support of that contention he pleaded his trial counsel failed to: 1) adequately make a pretrial investigation, 2) interview state witnesses, 3) depose state witnesses, 4) subpoena favorable defense witnesses and 5) utilize documents showing inconsistent statements by witnesses. At the evidentiary hearing the trial court heard defendant’s evidence in support of his alleged ground of inadequate counsel and also evidence by defendant’s trial counsel in support of the state’s denial thereof. Following submission of the motion, the trial court denied it, filing findings of fact and conclusions of law, specifically ruling that “Karl Lang, Attorney for the defendant in the jury trial, adequately and competently represented the movant.”

Defendant contends the trial court by this ruling did not make findings and conclusions on all issues presented, as required by Rule 27.26(i). He argues he was entitled to a specific ruling on each of his five factual allegations which supported his contention of inadequate assistance of counsel.

The “issue” in this case was whether defendant, as he contended, was deprived of adequate assistance of counsel. Defendant’s five pleaded factual allegations, enumerated above, were offered to support his pleaded contention that he had been denied adequate assistance of counsel. The trial court, by its specific order quoted above, held defendant had been adequately represented. That was the issue in the case, and we hold the trial court’s order ruled the “issue presented.”

Our conclusion is buttressed by Brown v. State, 495 S.W.2d 690 [11] (Mo.App.1973). There, as here, defendant claimed inadequate assistance of counsel and pleaded six factual grounds to support that contention. The trial court denied the motion, finding that on the issue of inadequate assistance of counsel the record “ ‘demonstrate [d] the lack of merit in this contention.’ ” On appeal defendant, as here, complained that the trial court had failed to consider his six points individually and had denied his motion without discussing the basis for having denied the motion. We dismissed that contention, holding: “The.rule [27.26] does not set forth any guidelines as to the extent of the findings, but requires only that findings of fact and conclusions of law be made on all issues presented.” We follow that opinion in denying this defendant’s contention.

We have considered defendant’s cited case of Garrett v. State, 528 S.W.2d 174 (Mo.App.1975), but find it distinguishable. There, defendant’s Rule 27.26 motion listed five grounds of inadequate assistance of counsel. At the evidentiary hearing defense counsel offered to amend the motion orally by asserting that the original defense counsel had failed to request a psychiatric examination. The offer was not granted by the trial court, but there was extensive evidence defendant should have been examined. The trial court denied the motion, without reference to a psychiatric examination. We held on appeal that the trial court should have considered defendant’s motion amended to include the contention of lack of a psychiatric examination. We ordered the case remanded for a finding on the amended ground, which the trial court had erroneously ignored.

The issues in Garrett are so different from those now before us that we hold Brown, rather than Garrett, is the proper controlling precedent.

Judgment affirmed.

REINHARD, P. J., and GUNN and CRIST, JJ., concur.

      . Counsel was appointed for movant May 23, 1977, and the evidentiary hearing was held September 9, 1977. The requirements of Fields v. State, 572 S.W.2d 477 (Mo.banc 1978), being prospective only to motions heard after November 6, 1978, do not apply in this case.


author: WELDON W. MOORE, Special Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Steve E. McMAHAN and Michael Roy McMahan, Defendants-Appellants.
    No. 10659.
    Missouri Court of Appeals, Southern District, Division One.
    May 3, 1979.
    Motion for Rehearing or to Transfer Denied June 15, 1979.

      Richard D. Bender, Springfield, for defendants-appellants.
    John D. Ashcroft, Atty. Gen., Carson W. Elliff, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   WELDON W. MOORE, Special Judge.

Defendants Steve E. McMahan and Michael Roy McMahan were convicted in a jury-waived trial of burglary and stealing. Each defendant was sentenced to five years on each charge, the sentences as to each defendant were to run concurrently. The only question raised on this appeal is the propriety of the ruling of the trial court denying defendants’ motion to suppress the use of certain evidence that was in an automobile and statements made by defendants.

During the evening of February 7, 1977, or the early morning of February 8, 1977, Herrman Lumber Company of Springfield, Missouri was burglarized. Among the items taken were a money bag, a black faced true temper sledge hammer and a pry bar.

In Conway, Arkansas, at about 11:30 p. m. on February 8, 1977, Sergeant Clark of the police department of that city was leaving the police parking lot by a narrow private drive. At that time he saw a 1966 GTO Pontiac begin a left turn into the private drive. The GTO swerved to the right to avoid a collision with his patrol car. The sergeant got behind the GTO, turned on the blue lights of the police car and stopped the GTO for erratic driving. The GTO was occupied by the two defendants, one of whom presented a drivers license at the request of the officer. No tickets were issued or charges made for erratic driving. The officer requested the defendants to step out of the car, which they did. At that time the officer saw a little jug of souvenir “corn whiskey” in the inside of the car. The whiskey did not contain an Arkansas liquor tax stamp. There is dispute as to whether the jug of whiskey was in “plain view” as claimed by the officer or in a sack containing other souvenirs from Silver Dollar City near Branson, Missouri, as claimed by defendants. The officer asked if there was any more whiskey in the car and was told there was not. The officer asked Steve McMahan if he could take a look and was told to “look anywhere you want to.”

Officer Clark was joined by fellow officer Bradley, who was in civilian clothes. Officer Clark asked Steve if he would mind opening the trunk and he said “no” and walked around and opened the trunk. Officer Clark observed exhibits numbers 1 and 2, which were a true temper sledge hammer and a pry bar. Officer Bradley obtained a money bag later marked exhibit number 3, from the glove compartment of the car. After he saw these “burglary tools” in the trunk, officer Clark arrested both defendants for possession of untaxed liquor.

Defendants were taken to the police station prior to 1:30 a. m.

Detective Helton of the Conway Police Department arrived at the police station about midnight or a little later. After he arrived the Miranda warning was given to each defendant and each defendant signed written Miranda waiver forms. Defendant Steve McMahan, after signing a written Miranda waiver form, signed a consent to search form. Detective Helton and Sergeant Clark searched the Pontiac GTO and removed a sledge hammer, a pry bar, a pair of leather gloves and a knife from it. The officers returned to the police station and arrested defendants on a charge of criminal attempt (apparently a charge similar to a charge of possession of burglary tools). It was learned that each defendant had multiple felony convictions and each had served prison sentences and each defendant had been convicted of burglary. An investigation was launched to determine if some crime had been committed that involved the defendants. This investigation included the search of a Little Rock motel room with consent of defendant Michael Roy McMa-han. A Morriltown, Arkansas robbery was investigated. The motel search was fruitless and defendants were not connected to the Morriltown robbery.

During the time the defendants were in custody they were questioned principally by detective Helton. Defendant Michael Roy McMahan said one of the officers said something to him that made him mad and “I told them to just take me back to my cell because I didn’t have nothing to say to them. I wasn’t going to tell them anything.” “Q:And did he take you back to your cell? A: Yes, sir, a short time later.”

Defendant Steve McMahan testified that one of the officers yelled at him and “I just told him I don’t have anything to say . and they took me and locked me back up.”

Defendant Steve McMahan advised the officer that he was in need of medical care and he was taken from the jail to the emergency room of the hospital where he saw a doctor, was examined or treated, and was given a prescription. He also requested and was granted permission to stop at a service station and buy cigarettes.

At approximately 3-4 p. m. on February 9, 1977, detective Helton returned to the Conway police station and learned of the burglary of Herrman Lumber Company at Springfield, Missouri. Detective Helton then confronted defendant Michael McMa-han with this fact and this defendant indicated he wanted to talk to his brother before discussing the matter. The defendants were permitted to confer between themselves. Thereafter, detective Helton took written statements from defendants Michael McMahan and Steven McMahan, state’s exhibits “7” and “9” respectively, which involved them in the Herrman Lumber Company burglary.

Defendants were returned to Greene County, Missouri, and charged with burglary and stealing. They waived the right to jury trial. A motion to suppress was heard and overruled and the court allowed both physical evidence of the crime seized from the car and the statements given to the officer by the defendants in evidence and both were found guilty of burglary and stealing.

The issue presented is whether the discovery of the items in the Pontiac GTO and the statements of the defendants constituted an unreasonable search and seizure within the ambit of the United States and Missouri Constitutions.

In this court-tried case, deference is given to the findings of the trial judge on credibility of witnesses and resolution of conflicts in testimony. State v. Rose, 535 S.W.2d 115 (Mo.App.1976). Rules 73.-01(3)(b) and 28.18.

Through the due process clause of the Fourteenth Amendment the prohibition of the Fourth Amendment against unreasonable searches and seizures applies to the states. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); State v. Witherspoon, 460 S.W.2d 281, 283-284 (Mo.1970). It is well established that a search conducted incidental to a lawful arrest or with consent of the person is constitutionally permissible. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) and State v. Virdure, 371 S.W.2d 196 (Mo.1963). Here the search was without a warrant and the burden is on the state to show that search comes within one of a few established exceptions to the Fourth Amendment requirement. Consent must be freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). Consent must be voluntary, unequivocal and free from coercion, either express or implied. State v. Witherspoon, 460 S.W.2d at 289.

The courts have not laid down a hard and fast rule by which it can be concluded there was or was not consent. Determination of consent involves many factors including but not limited to whether or not threats were made by the officers, the number of officers present, the degree to which the officers emphasized their authority, whether or not weapons were displayed, was there fraud or misleading on the part of the officers, what the person consenting said or did and the experience and education of the consentee. See discussion in 9 A.L.R.3d 858.

Sergeant Clark had a right to stop the GTO Pontiac because of erratic driving. Defendants consented to the search of the vehicle at that time. Reviewing the factors and the search here, we agree with the trial court that the consent to search was voluntary as orally given and as given in writing. At the scene where the car was stopped only two officers were present, one of whom was not in uniform, the officers displayed no weapons, the officers did not overemphasize their authority and defendants were not mislead nor was fraud practiced against them. Defendants told the officer, “look anywhere you want to,” and opened the trunk with keys he had in his possession. The written consent to search by defendant Steve McMahan was signed by him after he had been arrested and given the Miranda warning. There was no prolonged questioning or threats involved. After the written consent the officers took the keys and opened the car and trunk themselves and seized articles in the car. The items seized were properly admitted.

Next we consider the contention of the defendants that the court erred in overruling the motion to suppress and receiving in evidence the written statements of defendants which involved them in the Herr-man Lumber Company burglary. They maintain that the statements were not voluntary and were the fruit of an invalid arrest in violation of constitutional rights. They rely on the fruit of the poisonous tree doctrine of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Assuming arguendo that there was no valid arrest of defendants, that alone would not exclude their statements. Courts have been requested to invoke a “but for” test which might compel the exclusion of all statements following an illegal arrest but they have refused to do so in State v. Olds, 569 S.W.2d 745 (Mo.1978), Wong Sun v. United States, supra, and Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).

In Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961), the court considered the admissibility of confessions and at 81 S.Ct. 1879 the court stated:

“The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 [1961]. The line of distinction is that at which governing self-direction is lost and compulsion of whatever nature or however infused propels or helps to propel the confession.”

The Due Process Clause does not mandate that the police forego all questioning, nor that they be given carte blanche to extract what they can from a suspect. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In Wong Sun v. United States, 83 S.Ct. at 417 the court said:

“We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ”

In Brown v. Illinois the court stated that the question of whether the confession is a product of free will must be answered on the facts of the individual case and no single fact is dispositive.

Culombe, Schneckloth and Brown, all supra, considered such factors as the temporal proximity of the arrest and confession, whether or not Miranda warnings were given, purpose and flagrancy of official misconduct, whether the confession was obtained by incommunicado interrogation in an environment created for no purpose other than to subjugate the individual to the will of his examiner, the duration of the interrogation, whether or not the accused is allowed to communicate with the outside world, the attitude of the police toward him, his physical and mental state, the age of the accused, his education, his intelligence and physical punishment. Other cases have considered the number of officers present, whether or .not the officers displayed weapons, the degree that the officers emphasized their authority and the experience of the accused.

Where, as here, the statements were obtained while the defendants were in custody, the burden of proving voluntariness is upon the state. Our supreme court has held in State v. Olds, supra, that the state must prove such voluntariness by a preponderance of the evidence.

Considering the factors and under the record here we find that the state has established by a preponderance of the evidence that the statements of each of the defendants were voluntary. Miranda warnings had been given. There was no prolonged interrogation. When each defendant advised the officer that he had no more to say, each defendant was returned to his cell. One of the defendants was taken to the hospital and was allowed to stop at a service station to buy cigarettes. The defendants were allowed to talk with one another privately before making the statements. There was no showing of a large number of officers present. No weapons were drawn. Defendants were not prohibited from communicating with the outside world. Both defendants had multiple prior felony convictions and had served time in state prisons and had some experience in criminal matters.

We now consider whether the statements should be excluded, assuming the arrest to be invalid, because of the fruit of the poisonous tree doctrine of Wong Sun or whether they were obtained by means sufficiently distinguishable to be purged of the primary taint. We likewise consider whether the statements have “become so attenuated as to dissipate the taint.” Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939).

One of the means sufficiently distinguishable to obtain untainted evidence is through a statement “ ‘sufficiently an act of free will to purge the primary taint.’ ” State v. Olds, supra, quoting Wong Sun.

On the evidence that defendants had been given Miranda warnings, had not been subjected to prolonged interrogation, interrogation ceased at their request, one of the defendants requested medical care for ulcers and was taken to a hospital for such treatment, was permitted to purchase cigarettes and defendants were permitted to talk with one another prior to the giving of the statements, we hold that the connection between the arrest and the statements had become so attenuated as to dissipate the taint.

We affirm.

FLANIGAN, P. J., and TITUS and CAMPBELL, PYLE and KENNEDY, Special Judges, concur.


author: GUNN, Judge.

text:
    Paul J. WILSON and Frances C. Wilson, Respondents, v. Russel E. FARROW and Joyce M. Farrow, Appellants.
    No. 40404.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 9, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court June 15, 1979.
    A. M. Spradling III, Spradling & Spra-dling, Cape Girardeau, for appellants.
    William S. Rader, Cape Girardeau, for respondents.
   GUNN, Judge.

This appeal concerns the dispute over an alleged breach of a real estate sales contract by a real estate developer who failed to pave a certain residential street serving the purchasers’ lots. The developer’s defense was that the terms of agreement relating to street paving were too indefinite to be capable of enforcement. We believe the defense to be meritorious and reverse the judgment of the trial court finding breach of contract.

Plaintiff-respondents, as purchasers, entered into a real estate sales agreement with defendant-appellants, as sellers, for the purchase of two residential lots on Ki-dron Drive in Cape Girardeau County. At the plaintiffs’ behest the following clause was added to the sales agreement by defendants’ real estate sales agent: “Seller [defendants] agrees to provide for the paving of Kidron Drive.” Defendants constructed plaintiffs’ home on the lots. Approximately 3½ years after the purchase, plaintiffs were transferred to another state and sold the house and lots with Kidron Drive still unpaved. The area surrounding the lots was still largely undeveloped and only one or two other houses were located on Kidron Drive at the time. Plaintiffs sued the defendants alleging that their lots brought a lesser price because the access road was unpaved. Plaintiffs claimed that the language of the agreement relating to the paving required defendants to pave and pay for such work. Defendants have urged that the paving clause provides only that if and when Kidron Drive would be paved they would assume the costs. The trial court entered judgment for $2,700 in favor of plaintiffs. Defendants allege on appeal that the terms of the sales contract are too nubilous to be enforceable.

It is rather fundamental legal rubric “. . . that for an agreement to be binding, it must be sufficiently definite to enable the court to determine its exact meaning and to definitely measure the extent of the promissor’s liability.” McHenry v. Claspill, 545 S.W.2d 690, 693 (Mo.App.1976). Accord: Hoefel v. Hoefel, 533 S.W.2d 704 (Mo.App.1976). Further, we cannot make contracts for the parties nor add provisions by our interpretation of what might or should have been provided. Goodman v. Goodman, 576 S.W.2d 747 (Mo.App.1979).

Here, the only clause of the contract dealing with paving — “Seller to provide for the paving of Kidron Drive” —is so lacking in definiteness and specificity as to render it meaningless and impossible to enforce. There are no terms as to the time when the road was to be paved, the materials to be used, the width, depth or length of the road. Also, none of the witnesses’ testimony sheds any illumination on these critical factors which are essential to give the paving provision any meaning. There is no way to measure the extent of defendants’ liability regarding the road. Nor can we measure damages by the cost of construction of a “normal” road, for there is no evidence as to what a “normal” road would be — only that property values varied substantially with the type and construction of roads providing service. As to time of construction, plaintiffs urge that we apply a “reasonable time” precept, referred to in Artcraft Cabinet, Inc. v. Watajo, Inc., 540 S.W.2d 918 (Mo.App.1976). But “reasonable time” varies on the circumstances of the case. Weis v. Wanstrath, 149 S.W.2d 442 (Mo.App.1941). And plaintiffs offered no evidence as to what would be a reasonable time for construction — whether in the spring following the sale of the lots, after several homes were built in the subdivision or after its full development. We must find that the terms of the agreement upon which plaintiffs base their action are too vague to permit enforcement and for that reason the judgment must be reversed.

Judgment reversed.

REINHARD, P. J., and CRIST, J., concur.

      . For obvious reasons plaintiffs’ motion for damages against defendants for frivolous appeal is denied.


author: DOWD, Presiding Judge.

text:
    Larry COWDEN, Plaintiff-Appellant, v. SUN OIL COMPANY OF PENNSYLVANIA, a corporation, Defendant-Respondent.
    Nos. 39843, 39844.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 15, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 15, 1979.

      Gary H. Sokolik, Perry, for plaintiff-appellant.
    Michael P. Riley, Carson, Monaco, Coil & Riley, Jefferson City, John W. Briscoe, New London, for defendant-respondent.
   DOWD, Presiding Judge.

An action for alleged misrepresentation in the inducement of a lease and dealer’s agreement. Plaintiff sought actual and punitive damages. A jury in the Circuit Court of Ralls County awarded plaintiff $5,000 for actual damages. The trial judge refused to submit the issue of punitive damages to the jury. Both sides appeal. We affirm.

In the present case, plaintiff, Larry Cow-den, sought to purchase the inventory and assets of Mikes D-X Service Station, operated by Mr. Mike Berhager, and located at the juncture of Route C and Missouri Highway 19, in Center, Missouri. LeArCoe Corporation owned the station and leased it to defendant, Sun Oil Company of Pennsylvania. After Mr. Berhager expressed a desire to sell his interest in the station, plaintiff entered into negotiations with Park Gray, district manager for defendant.

At a meeting on March 1, 1975, Mr. Gray presented plaintiff with five or six documents, including a real estate lease, a dealer’s agreement, and a disclosure statement. The disclosure statement was delivered to plaintiff before the lease and dealer’s agreement were signed. All the documents were prepared by defendant. At this meeting, Mr. Gray, as agent for defendant, and Mr. Cowden, signed the lease and dealer’s agreement. Plaintiff began operating the station two days later.

The disclosure statement requested: “Any legally binding commitments for the sale or demolition or other disposition of the location”. Defendant’s typed answer to this request was: “Sun Oil Company holds subject station by lease. Lease expires 10/1/91.” Defendant actually had a lease for the subject property with LeArCoe Corporation from October 1, 1966 through October 1, 1976, with an option for three additional, separate, successive five year periods. Defendant’s lease with LeArCoe would expire October 1, 1991 if it had exercised its options.

Plaintiff’s lease with the defendant ran from March 1, 1975, through March 1, 1976, and from year to year thereafter unless either party gave 60 days notice to terminate. Either party could have terminated the lease as of August 31, 1975, with 60 days notice. The lease also contained a clause stating that if defendant’s right to title or possession of the subject property ceased, for any reason, the lease automatically terminated.

In a letter dated September 1, 1976, defendant notified LeArCoe Corporation that it was not going to exercise its option on their lease. Plaintiff testified that it was approximately September 28 or 29, 1976 before he learned defendant’s lease would expire on October 1,1976. Plaintiff obtained a 30 day extension to sell his inventory and ceased doing business as of October 31, 1976.

Plaintiff instituted this action seeking actual damages of $135,537.93, for lost profits on inventory, interest expenses, and future profits. He also sought punitive damages of $250,000. Plaintiff alleges that the defendant induced him into entering the real estate lease and dealer’s agreement by intentionally misrepresenting, in the disclosure statement, the length of its lease with LeArCoe Corporation.

During the trial, at the conclusion of plaintiff’s case, defendant presented the court with two motions; one for a directed verdict generally and one for a directed verdict on the issue of punitive damages. The court denied defendant’s directed verdict but granted the directed verdict on the issue of punitive damages.

The jury entered a verdict in favor of plaintiff in the sum of $5,000 actual damages and judgment was ordered in accordance.

After judgment was entered for plaintiff, defendant moved the court for a judgment notwithstanding the verdict and to order a verdict for the defendant. The trial court denied defendant’s motion.

Both plaintiff and defendant filed notices of appeal. On court’s own motion, the two appeals were consolidated under Cause No. 39843.

Defendant, Sun Oil Company, filed no brief in support of its appeal. Defendant only filed a respondent’s brief in answer to the appellant’s brief of plaintiff. Thus, defendant abandoned its appeal and its appeal is dismissed. Rule 84.04(j) VAMR. See, White v. Robertson-Drago Funeral Home, Inc., 552 S.W.2d 47[2] (Mo.App.1977).

At the trial, the court limited plaintiff to arguing future lost profits and interest expenses up to March 1, 1977, the day plaintiff’s second year to year term would have expired if defendant had exercised its option. On appeal, plaintiff claims this limitation as error and argues that he is entitled to interest expenses up until the time of trial (September 8, 1977) and future profits until 1991, the date defendant represented that its lease expired. We disagree.

In the present case, the trial court did not err in limiting plaintiff to arguing lost profits and interest expenses incurred prior to March 1,1977. Plaintiff had a year to year lease with defendant on the subject property. The lease which began March 1, 1975, would be renewed automatically for one year each March 1st, unless either plaintiff or defendant gave 60 days notice of termination. Thus on March 1, 1976, when neither plaintiff nor defendant had given prior notice of termination, plaintiff’s legal interest in the station extended until March 1, 1977. On September 28 or 29, 1976, when plaintiff received notice that defendant had not exercised its option with LeArCoe Corporation and that he had to vacate the premises, plaintiff had a valid contractual right to operate the station until March 1, 1977. However, plaintiff at this time, based on his lease and dealer’s agreement with defendant, had no legally enforceable right to operate the station past March 1, 1977. The court properly limited plaintiff’s profits and interest to March 1, 1977. 49 Am.Jur.2d § 69.

Plaintiff also raises as error the trial court’s order directing a verdict for defendant on the issue of punitive damages. Under the agreement between plaintiff and defendant, as evidenced by their lease and dealer’s agreement, plaintiff had no enforceable expectation of relief beyond an action based on a year to year lease. Even though defendant represented that its lease with the owner expired in 1991, it only gave plaintiff a year to year lease. Defendant did not represent that it would extend plaintiff’s lease until 1991. The court properly directed a verdict for defendant on the issue of punitive damages.

Plaintiff also raises as error the trial court’s admission into evidence of defendant’s exhibit 1, an inventory of merchandise from plaintiff’s station. The inventory was taken by representatives of defendant along with plaintiff. Defendant used this exhibit to impeach plaintiff’s testimony concerning the amount of actual damages he suffered.

On appeal, plaintiff claims this evidence is prejudicial hearsay and thus inadmissible. However, when defendant introduced the exhibit into evidence, plaintiff objected on the ground that, “this is plaintiff’s case”. The point is not preserved. Plaintiff may not alter or broaden the scope of his objection on appeal. State v. Gilbert, 544 S.W.2d 595[3], (Mo.App.1976); State v. Blankenship, 536 S.W.2d 520[5], (Mo.App.1976).

Plaintiff claims that even if the objection were improperly preserved, the admission of defendant’s exhibit 1 was so prejudicial that it should be considered as plain error. “The plain error rule ‘may not be invoked to excuse mere failure to timely and properly object.’ ” Brown v. Boyd, 422 S.W.2d 639, 643 (Mo.1968). The plain error rule may only be resorted to in the exceptional case where the reviewing court deems that a manifest injustice has occurred. Birmingham v. Coer, 320 S.W.2d 509 (Mo.1959). We find no basis for invoking the plain error rule.

Plaintiff claims that the trial court erred by abusing its discretion when it threatened to declare a mistrial if plaintiff did not introduce into evidence his 1976 Federal Income Tax Return. The defendant had subpoenaed the return, but the sheriff served the subpoena on plaintiff’s wife, instead of plaintiff, to whom it was directed. The trial court ordered the return, which was in the court room, to be submitted into evidence. Plaintiff objected to the admission of the tax return into evidence on the ground that “defendant can not enter evidence in the plaintiff’s case.” Plaintiff’s contention here is different than the objection made at trial and is therefore not preserved. State v. Gilbert, supra; State v. Blankenship, supra. However, we also find no abuse of discretion by the trial judge.

Judgment affirmed.

WEIER, C. J., and CRIST, J., concur.