author: CLEMENS, Presiding Judge. KELLY, Judge

text:
    STATE of Missouri, Respondent, v. James H. JONES, Appellant.
    No. 36278.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Nov. 18, 1975.
    Rehearing Denied En Banc Jan. 23, 1976.
    Application to Transfer Denied March 8, 1976.
    John C. Danforth, Atty. Gen., Preston Dean, Robert H. House, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Cir. Atty., Arthur Friedman, Asst. Cir. Atty., St. Louis, for respondent.
    Huck, Kasten & LaBeaume, Graham W. LaBeaume, St. Louis, for appellant.
   CLEMENS, Presiding Judge.

The State charged defendant James H. Jones with first-degree murder by shooting Unes Johnson, and with felonious assault by pistol-whipping Wardell Johnson, Unes Johnson’s father. The jury found defendant guilty of both charges, assessing punishment at life imprisonment for murdering Unes Johnson and five years’ imprisonment for feloniously assaulting Warded Johnson. Judgment and this appeal followed.

Defendant now raises two points: Error in admitting a police technician’s testimony that the size of powder marks on Unes Johnson’s clothing indicated the distance from which defendant fired the fatal shots, and cross examining defendant about not having told the arresting police officers about self-defense, to which defendant had testified on direct examination. A summary of the evidence follows.

The State produced seven eye witnesses to the shooting. Twenty-some fellow employees were having a barbecue at a public park; Unes Johnson and his father Wardell Johnson were serving the food. Defendant Jones joined the group and both Johnsons finally denied his repeated, profane demands for more food. The three men argued violently and defendant cursed and threatened to kill both Unes and Wardell Johnson, but the men were separated by others. Later, as the picnic was breaking up, defendant put a case of someone else’s beer into his car. When he returned to the picnic group he had a pistol sticking out of his pants pocket. He “challenged” Unes Johnson, pulled out the pistol, and when two or three feet away, fired one shot into him; as Unes backed away defendant shot him three more times. Defendant then pointed the pistol at Wardell Johnson; they struggled and defendant struck Wardell with the pistol.

Defendant then drove away but police soon stopped his car, arrested him and seized a pistol from the car trunk. At trial a police technician testified bullets taken from Unes Johnson’s body had been fired from the seized pistol.

Defendant testified he was not carrying a gun that day but Unes Johnson was; that they quarreled and defendant tried to disarm Unes Johnson. As they struggled for the gun four shots were fired, each striking Unes Johnson. (Not one witness supported any part of defendant’s version of the shooting.) After defendant shot Unes Johnson, Wardell Johnson interceded, hitting defendant with a radio; defendant retaliated by striking Wardell Johnson with the pistol he said he had taken from Unes Johnson. As defendant left the picnic he hid the pistol in the trunk of his car, from which the police took it after they arrested him.

We will mention other testimony as it relates to the points raised on appeal.

Defendant’s first contention of error concerns testimony of Officer Paul Reeder, a firearms technician with the St. Louis Police Department. Reeder had testified on direct examination he examined the bullets removed from the victim’s body and the pistol seized from defendant’s car, that the bullets had been fired from that pistol. On cross examination defense counsel referred to previous testimony that there were bullet holes in Unes Johnson’s clothing, each surrounded by an area of lead residue, one being half an inch in diameter and another three quarters of an inch. Defense counsel continued to cross examine Reeder to show his opinion that these lead residue marks indicated the pistol had been fired when close to Unes Johnson’s body. On redirect examination Reeder testified the three-quarter inch residue mark on the victim’s clothing indicated that shot was fired from a distance of two-and-a-half to three feet. The court overruled defendant’s objection that there was “no foundation laid for that; he hasn’t tested it.”

We note that on direct examination of Officer Reeder the State did not seek his opinion about distance between the defendant’s gun and Unes Johnson when shots were fired. That subject was broached by defense counsel to show the pistol was close to the victim when fired. The State’s redirect examination, to which defendant objected for lack of foundation, merely pursued the subject to show how close.

We deny defendant’s contention of error in permitting the State’s redirect examination of Officer Reeder. It is barred “by the rule which precludes a defendant from asserting error on the basis of the state’s presentation of evidence to clarify or explain matter brought into the case by the defendant’s own questions.” State v. Holmes, 419 S.W.2d 15[1, 2] (Mo.1967); and see State v. Matha, 446 S.W.2d 829[3] (Mo.1969).

Defendant’s main emphasis is that the State erroneously cross examined him about not having told the police when arrested that he had shot Unes Johnson in self defense, contending this violated his right to avoid self incrimination.

After defendant had testified to his self-defense version of the shooting, counsel for the _State cross examined him:

“Q. Did you tell this story to the police?
A. No, I did not .
MR. LANG: I move for a mistrial. He has commented on his [defendant’s] right to refuse to make any statement to the police ... I ask that his answer be stricken and the jury be instructed to disregard and a mistrial be declared
THE COURT: You got the police in there. The objection is sustained. The motion for a mistrial is overruled. I am going to order the matter stricken and the jury to disregard it. . Members of the Jury, the question whether or not he made a statement to the policeman and his answer are ordered stricken from the record. You are instructed to disregard that question and answer in your deliberations in this case.”

The State neither pursued the testimony of defendant’s silence in cross examination nor referred to it in closing argument.

Defendant now challenges the quoted question about his silence, contending that mentioning his failure to make an exculpatory statement to police violated his right against self incrimination. We agree.

Defendant cites a long list of cases to support his contention. The oldest of defendant’s first three cited cases is State v. Bowdry, 346 Mo. 1090, 145 S.W.2d 127[3-7] (1940). It lays down the settled rule that “. . . the silence of an accused while under arrest is not admissible in evidence against him as he is then under no duty to make any statement.” Next is defendant’s cited case of State v. Dowling, 348 Mo. 589, 154 S.W.2d 749[4-8] (1941). There the state repeatedly asked a police officer about what defendant had said when arrested and answered that defendant refused to say anything. Defendant unsuccessfully objected and moved for a mistrial. The supreme court reversed, relying on Bowdry, supra. The third cited case is State v. Vainikos, 366 S.W.2d 423[4, 5] (Mo.1963), a concealed weapons case. In that case a police officer testified to a series of questions to, and answers by, the defendant showing that defendant refused to say why he was carrying the gun. As in Dowling, supra, defendant’s objection was overruled and his motion to strike was denied. In reversing the supreme court followed the exclusionary rule in Bowdry, supra, holding the trial court erred in denying defendant’s motion to strike, and pointing out that evidence the defendant had refused to answer the police officer’s question while under arrest could have been considered by the jury in its determination of defendant’s guilt.

We have also considered other cases cited by defendant and those annotated in Mo. Dig., Criminal Law @=407(1, 2). Those cases do not categorically hold the mention of a defendant’s silence ipso facto requires a mistrial. The cases do uphold the general principle it is error to introduce evidence of a defendant’s silence while under arrest, but there are many variables — whether it was defendant or another witness who mentioned his silence, whether defendant refused or merely failed to make a statement, the degree of emphasis placed on that evidence, its repetition, defense objections thereto and relief requested and the extent of relief granted by the trial court.

We now consider the trial court’s remedial action, noting that although it denied defendant’s motion for a mistrial it promptly and positively ordered the State’s question stricken and instructed the jury to disregard it.

The critical issue before us is whether the erroneous reference to defendant’s silence was curable only by granting defendant’s motion for a mistrial, or whether it was adequately cured by granting defendant’s motion to strike and instructing the jury to disregard. Several comparable cases guide us in this determination. In State v. Heather, 498 S.W.2d 300[l-3] (Mo.App.1973), in the State’s opening statement the prosecutor erroneously referred to what the defendant had said while under arrest. As here, the trial court granted defendant’s motion to disregard the remark but denied his motion for a mistrial. In affirming, the court said “the declaration of a mistrial is a drastic remedy and should be exercised only in extraordinary circumstances where the prejudicial effect can be removed in no other way, State v. Raspberry, 452 S.W.2d 169, 173 (Mo.1970), or where the incident is so grievous that the prejudicial effect can be removed in no other way, State v. Camper, 391 S.W.2d 926, 928 (Mo.1965). For these reasons, whether the remarks of counsel require a mistrial and the discharge of the jury rest largely in the discretion of the trial court which has observed the incident giving rise to the request for mistrial and is in a better position than an appellate court to evaluate the prejudicial effect and possibility of its removal by action short of a mistrial. State v. Camper, supra at 928; State v. Tate, 468 S.W.2d 646, 650 (Mo.1971). Our function is to determine whether, as a matter of law, the trial court abused its discretion to the prejudice of the appellant in refusing to declare a mistrial. State v. Chester, 445 S.W.2d 393, 399 (Mo.App.1969). When an improper incident occurs during trial and the jury is instructed to disregard it, ‘. the reviewing court, in order to hold that the failure to grant a mistrial was reversible error, must determine and conclude as a matter of law from the entire record that the error was prejudicial and so impressive that its effect was not removed by the action of the trial court.’ State v. Dennison, 428 S.W.2d 573, 577 (Mo.1968).” To the same effect see State v. Franklin, 526 S.W.2d 86[7, 8] (Mo.App.1975).

The issues in State v. Humphrey, 462 S.W.2d 804[1] (Mo.1971), also parallel those here. In questioning an arresting officer the state showed that when questioned the defendant refused to give a statement and failed to offer an explanation. The trial court denied defendant’s motion for a mistrial, but sua sponte ordered the objectionable testimony stricken and instructed the jury to disregard it. In affirming, the court ruled the trial court had not abused its discretion in denying a mistrial.

In assessing the sufficiency of the trial court’s corrective action, we also consider that the trial court was aware of the overwhelming weight of the evidence refuting defendant’s self-serving testimony he had acted in self defense. Bee State v. Degraffenreid, 477 S.W.2d 57[15] (Mo.1972).

We conclude the trial court did not err in denying defendant’s motion for a mistrial.

The judgment is affirmed.

STEWART, J., concurs.

KELLY, J., dissents.

KELLY, Judge

(dissenting).

I respectfully dissent because I not only believe we cannot gauge the prejudicial effect of this type of trial tactic engaged in by the prosecutor in this case by asking an obviously objectionable question of the defendant and thereby requiring defense counsel to interpose an objection. By holding, as the majority does, this court condones this tactic of the prosecutor who thereby puts before the jury an inference which he knows, or should certainly know, is not permissible, by the mere asking of the question, in direct violation of the defendant’s right, once in custody, to remain silent. The prosecutor thus erodes that right of the defendant.

In United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), the Supreme Court recognized the invidious nature of a question of this kind and settled a conflict among the courts of appeals of the federal system whether a defendant can be cross-examined about his silence during police interrogation. As the Court said in Hale, l.c. 180, 95 S.Ct. l.c. 2138, 45 L.Ed.2d l.c. 107, “Not only is evidence of silence at the time of arrest generally not very probative of a defendant’s credibility, but it also has a significant potential for prejudice. The danger is that the jury is likely to assign much more weight to the defendant’s previous silence than is warranted.” Hale was not decided on constitutional grounds but rather in the exercise of the Supreme Court’s supervisory authority over the lower federal courts. It is significant that in Hale the trial court there also instructed the jury to disregard the colloquy but refused to declare a mistrial. It is my humble opinion that the only way appellate courts are going to be able to put a stop to this infringement by prosecutors upon the right of a defendant while in custody to remain silent is to take the route taken by the Supreme Court of the United States by way of supervisory control over the trial courts and reverse and remand in each instance when an incident of this kind occurs. It is unfortunate that the trial court will be the one reversed because of prejudicial material introduced into the trial by the prosecutor. However, perhaps by this means prosecutors will be informed, if they will but read the law, that questions of this ilk will interfere with the administration of justice and cause retrial in cases where they, by improper questioning, bring the matter before the jury.

      . Rule 84.04(d) provides “. . . If more than three authorities are cited in support of a point made, the three authorities principally relied on shall be cited first . . . ”


source: Caselaw Access Project

author: SIMEONE, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Roosevelt JORDAN, Defendant-Appellant.
    No. 35655.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 25, 1975.
    Motion for Rehearing or Transfer Denied Jan. 23, 1976.
    Application to Transfer Denied March 8, 1976.

      Charles D. Kitchin, Public Defender, James C. Jones, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Gary W. Brandt, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   SIMEONE, Presiding Judge.

This is an appeal by defendant-appellant, Roosevelt Jordan, from a judgment entered by the circuit court of the City of St. Louis on August 10, 1973, sentencing him to the department of corrections for a period of five years on each of two counts of robbery in the fiist degree, to run consecutively.

Appellant was charged by information with two counts of robbery in the first degree by means of a dangerous and deadly weapon. Count I charged a robbery of John Elrod, Jr. and count II charged that appellant robbed Keith Robert Love. The jury found the appellant guilty of both counts and assessed punishment at five years on each count. In accordance with the jury verdict, the defendant was, after overruling a motion for new trial and granting allocution, sentenced. For reasons hereinafter stated, we affirm.

Since the appellant does not question the sufficiency of the evidence to make a sub-missible case, only those facts necessary for the disposition of the points raised on appeal need be stated.

The jury could reasonably find the following. On January 30, 1973, between the hours of 8:00 and 9:00 p. m., two young men, John Elrod and Keith Love, were driving north on Sarah Street in the City of St. Louis, in John’s automobile. John was driving. They were on their way to Keith’s girlfriend’s house.

While stopped for a stop sign at the intersection of North Sarah and Ashland, a group of young men, possibly five, surrounded the automobile, and “one of them tapped on the left window on my [Elrod’s] side with a pistol and told me to raise — to open the door and let him in, and then another one jumped around on the other side of the car with a sawed-off shotgun, and another one had a pistol.” Keith, who had been sitting in the front, passenger side, was forced into the back seat and sat between the intruders. The one with the shotgun, identified by both John and Keith as the defendant, was on the right side of Keith, and another man was on the left directly behind John. John Elrod continued to drive. A third man sat in the front seat next to Elrod. At trial, both John and Keith identified the defendant as the man who had the shotgun when he got into the back seat. Keith had gone to grade school with the defendant and knew him for a number of years. When the defendant got into the car he stated, “Man, you know how this is. This ain’t nothing but a game.” “You know how it is.” He also gave the gun to the person in the front seat and that person held it to John. As stated, John was ordered to drive. Before traveling very far, he was ordered to pull over to the side and leave the car running but to turn the lights off and then get out. John and Keith were ordered out of the car. The man took a watch and some money from John and a suede jacket from Keith. Two of the men walked John and Keith to a nearby alley and told them to start “walking up the alley, and . . . not to turn around.” The two men then ran back to the car and the three then drove away in John Elrod’s car.

John and Keith ran to Keith’s house and the police were called. Detectives William Monroe and Cairl [sic] Vaughn came to the Love house and picked up John and Keith and began to patrol the area. Meanwhile, Officers Chester Kell and his partner, Gerald McFadden, received a radio dispatch reporting the robbery at Sarah and Ash-land. While proceeding to the scene, they observed an automobile on Clay Avenue which fit the description of the one taken from John Elrod. They advised the dispatcher, and waited for the detectives to bring John and Keith, the victims, to the scene. John stayed with Officers Kell and McFadden, and Keith drove around with Monroe and Vaughn to see if they could locate the men who took the ear. The Evidence Technician Unit was called to check fingerprints on the automobile. After a few minutes of driving around, Keith “became very excited” because he “spotted” the defendant, Roosevelt Jordan. Keith knew him as “Buster.” The officers arrested the defendant, advised him of his rights and brought him to the police station. At the station, after being again advised of his rights, he made a statement to the effect that he and others were “responsible” for the robbery of Mr. Elrod and Mr. Love.

After learning that Officers Monroe and Vaughn had one of the suspects in custody, Officers Kell and McFadden took John back to his car. They told him to drive it to the district station so that it could be processed. When John got into the car he noticed a pair of sunglasses on the floor on the passenger’s side. When he arrived at the police station, he told the officers about the glasses and they were turned over to the police. The glasses were identified at trial by the victims as being similar to the ones that the defendant wore on the night of the robbery, and were introduced into evidence.

The defendant presented essentially an alibi defense. Testifying on his own behalf, he denied participating in any robbery and stated: (1) that he had been at home until about 8:50 on the night of the robbery, (2) that he walked to a Youth Center, a block from Ashland and Sarah, (3) that he only stayed a short while and from there he walked to his grandmother’s house on North Sarah where his mother was, and (4) from his grandmother’s house he started to walk to a confectionery and while on his way was arrested at Sarah and Labadie. Reverend Robert Rehbein, who works at the Youth Center, and defendant’s mother substantially corroborated the defendant’s testimony.

The trial of the cause began on June 18, 1973, in the circuit court of the City of St. Louis. The court conducted the principal aspects of the voir dire examination. All the members of the panel indicated that they would follow the court’s instructions. Thereafter, counsel asked further questions. Defense counsel asked the veniremen if any of the members “would harbor any feeling one way or the other ... if [defendant] would not take the stand.” One of the veniremen, Mr. Richts, replied, “I think he should have something to say. I don’t think he should sit back and say nothing. . I think there would be some hanky-panky somewhere.” At the close of the voir dire, defense counsel moved to strike this venireman for cause. The trial court denied the motion.

On the second day of trial, June 19, before the evidence was presented, the state endorsed Officer Dennis Steffen of the Evidence Technician Unit as a witness. Counsel objected to this endorsement, but the objection was overruled. Officer Steffen testified that he had lifted certain fingerprints from the window of the passenger side of John’s automobile. These prints were later identified by Officer Edward Scholl of the Identification Division as being the print of the defendant, Jordan. No objection was made as to this witness.

After all the evidence was presented, the jury was instructed and they retired to deliberate. After almost two hours of deliberation, the jury sent a note requesting the exhibits to be sent to the jury room. The court forwarded certain photographs of John’s automobile, but did not forward the glasses or the fingerprints. The trial court answered the jury’s request and on the same note replied to the jury. Defense counsel objected to the reply, but was overruled.

The jury found the defendant guilty as charged on both counts. The trial court entered judgment in accordance with the verdict and ordered the sentences to run consecutively. Defendant duly appealed.

On this appeal, appellant raises three points. He contends: (1) that it was reversible error for the trial court to refuse “to dismiss a venireman for cause, upon defense counsel’s motion, when the venireman said the defendant must talk (i. e., take the stand),” (2) that it was prejudicial error to allow Officer Steffen to be endorsed as a witness “on the day of the trial after the jury had been sworn,” and (3) that it was error for the trial court to submit the “instruction” to the jury regarding the exhibits admitted into evidence because such was “an improper comment on the evidence and an erroneous statement of the law regarding the validity and effect of the expert testimony concerning fingerprints.”

Appellant’s first point is easily disposed of. Appellant contends that the trial court’s refusal to dismiss a venireman who had indicated that he would draw an adverse inference from the defendant’s failure to testify was reversible error. While the trial court initially denied defense counsel’s motion to strike this venireman for cause, it appears from a supplemental transcript and a stipulation signed by counsel for both parties that the court subsequently reversed its ruling and struck this particular venireman from the jury panel. This event is not reflected in the original transcript, but the supplemental transcript, properly filed with this court after appellant’s brief and thus a part of the record on appeal, indicates that the court did reverse its ruling so that the challenged venireman was not among the “qualified panel . . . from which the jury was selected.” Since the challenged venireman was not on the panel from which the jury was selected, the prejudice that defendant complains of in his brief is factually unfounded, and we need go no further than the fact of the record to dispose of this point. Although this point was briefed, the stipulation shows that it is no longer an issue.

The appellant’s second point is that “[t]he trial court committed prejudicial error when it allowed witness Dennis Steffen of the Evidence Technical [sic] Unit to be endorsed as a witness on the day of the trial after the jury had been sworn.” He argues that the witness was endorsed on the morning of the second day of the trial, and that his objection to the witness should have been sustained.

On the second day of trial, the state filed a memorandum endorsing Officer Dennis Steffen as a witness. Officer Steffen was a member of the Evidence Technician Unit and was to testify as to the lifting of fingerprints from the Elrod car. Appellant objected to the endorsement, claiming surprise, and the trial court overruled the objection. During trial, Officer Steffen was called to testify and counsel again objected. The trial court inquired as to the evidence appellant would offer had he known of the witness earlier. Counsel responded that he would inquire as to the circumstances surrounding the lifting of the prints and “would have an expert check them over with regard to what any fingerprints are.” The prosecutor stated that appellant’s counsel had previously been informed that this witness would be endorsed and had also been informed what his testimony would be. The court again overruled the objection.

Rule 24.17 provides that when an indictment or information is filed the names of all material witnesses for the prosecution shall be endorsed thereon. The names of other witnesses may be added at any time upon order of court and after notice to the defendant or his attorney. This principle is not applicable to a witness who appears at the trial for the production or identification of public records.

Our supreme court has discouraged delay in endorsing the names of additional witnesses, State v. Cobb, 444 S.W.2d 408, 415 (banc 1969), but “recognizes that late endorsements must sometimes be permitted if they can be made without prejudice to the defendant’s rights.” State v. Cobb, supra, 444 S.W.2d at 415. Rule 24.17 and the complementary statutes, §§ 545.070 and 545.240, RSMo, provide that witnesses may be subpoenaed and sworn by the state. Whether witnesses may be later endorsed is, in the final analysis, a matter of sound judicial discretion. There is no doubt that the trial court has a broad discretion in permitting the endorsement of the names of additional witnesses, State v. Thost, 328 S.W.2d 36, 38 (Mo.1959), “and a judgment of conviction will not be reversed because the name of a witness was endorsed on the information during trial unless it is shown that defendant was thereby prejudiced.” State v. Strawther, 476 S.W.2d 576, 579 (Mo.1972); State v. Cobb, supra, 444 S.W.2d at 415. In the exercise of the court’s discretion many factors may be taken into consideration. State v. Strawther, supra, 476 S.W.2d at 579.

We find no substantial prejudice or an abuse of discretion in permitting the name of Dennis Steffen to be endorsed as a witness on the second day of the trial. The defendant was positively identified by his grade school classmate, Keith Love, and was identified by John Elrod. The prosecutor informed defense counsel that he was going to endorse Steffen as a witness the day before trial began and what his testimony would be. In answer to a question by the trial court as to what evidence would be offered in opposition to the testimony of Steffen, counsel replied that he would have had an expert check the fingerprints. Counsel cross-examined the witness. Under the circumstances, we find no abuse of discretion in permitting the endorsement of Officer Steffen.

Lastly, appellant contends that the trial court “committed error in presenting and submitting to the jury an ‘additional instruction’ regarding the exhibits admitted into evidence. The ‘instruction’ was an improper comment on the evidence and an erroneous statement of the law regarding the validity and effect of the expert testimony concerning fingerprints.”

After the jury deliberated for an hour and fifty minutes, the jury requested “all material evidence presented in Court.” After some colloquy between court and counsel, the court, on the same slip of paper on which the question was asked, stated:

“Enclosed are photographs Exhibit 1 and 2 of the automobile that had been formally introduced into evidence. The eyeglasses marked as an exhibit were held up for your view. You have had the opportunity to see them. Fingerprint evidence such as the ink prints and the lifts are capable only of professional interpretation. You have heard the direct evidence of the interpretation and you have heard the cross-examination of the expert witness and you have heard the argument of counsel regarding fingerprints. Enclosed is the identification tag also offered in evidence.”

Counsel for appellant objected to this phraseology because he contended “it infringes upon the jury’s right as triers of fact to draw whatever inferences they can from the case . . . .”

The thrust of the appellant’s contention on this point, as we understand it, is that that part of the note (appellant refers to this as an “additional instruction”) which states “. . . Fingerprint evidence such as the ink prints and the lifts are capable only of professional interpretation” (1) violates the principle that the testimony of experts is to be considered like any other testimony and is to receive as much weight as the jury may deem it entitled to when viewed in connection with all the other circumstances, and (2) is an improper comment on the evidence in violation of Rule 26.09 and § 546.380, RSMo 1969.

Appellant relies on (1) Scanlon v. Kansas City, 325 Mo. 125, 28 S.W.2d 84 (banc 1930), and its progeny in support of his contention that the court singled out for comment the opinion testimony of the fingerprint expert, and (2) State v. Martin, 364 Mo. 258, 260 S.W.2d 536 (banc 1953), for authority that the court may not comment on the evidence.

In Scanlon, supra, the trial court, in a personal injury action, gave an “instruction” which included the statement, “It is your duty to weigh and consider such expert testimony [regarding the cause of paralysis].” 28 S.W.2d at 94.

The Supreme Court held this instruction erroneous because

“. . . the testimony of experts is to be considered like any other testimony, is to be tried by the same tests, and receive just so much weight and credit as the jury may deem it entitled to when viewed in connection with all the circumstances and the further corollary, an instruction of the court which disparages or singles out for comment the opinion testimony of expert witnesses is a plain usurpation of the functions of the jury: the jury are the sole and exclusive judges of the credit and weight to be given such testimony . . . Scanlon v. Kansas City, supra, 28 S.W.2d at 95.

See Annot., 86 A.L.R.2d 1038 (1962).

We do not believe that the answer of the trial court to the note sent by the jury violates this principle. The court did not single out for comment the opinion testimony of Officer Scholl and did not inform the jury that such testimony was to be given more weight than other witnesses. The note was merely a reply to the request of the jury. Permission to take exhibits into the jury room is a matter of justiciable discretion. State v. Arrington, 375 S.W.2d 186, 193 (Mo.1964); State v. Smith, 357 S.W.2d 120, 123 (Mo.1962). The trial court had the discretion to send the photographs, exhibits 1 and 2, and to withhold from the jury the sunglasses and ink prints.

We hold that the court in its reply to the request for exhibits did not violate the principle set forth in Scanlon, supra, and other authorities relied upon by the appellant. State v. Quilling, 363 Mo. 1016, 256 S.W.2d 751, 752 (banc 1953); Listerman v. Day and Night Plumbing & Heating Serv., 384 S.W.2d 111, 121 (Mo.App.1964), and Stahlheber v. American Cyanamid Company, 451 S.W.2d 48, 56 (Mo.1970).

Neither do we believe that the reply to the jury’s request was a comment on the evidence prohibited by § 546.380. The appellant relies on State v. Martin, supra. In Martin, the supreme court en banc dealt with an instruction which informed the jury that if a person . . ‘uses upon another a deadly weapon at a vital part of the body, he is presumed to intend death or great bodily harm to the person against whom such weapon is used.’ ” 260 S.W.2d at 538. The court held that súch an instruction where the facts are fully developed by eyewitnesses should not be given.

But the reply here was not a comment on the testimony nor a comment on the weight to be given to the testimony of the expert. The reply in effect merely informed the jury that it heard the testimony of the officer and that the “ink prints” themselves would serve no useful purpose. The expert’s testimony is the evidence, not the prints, “for the prints [can] not be understood of themselves by the jury.” 2 Wig-more, Evidence, § 414a(c), p. 393 (3rd Ed. 1940).

The reply to the jury’s request was merely an explanation to the jury why the court had decided to withhold from their view the tangible ink prints which had been requested. The court, in this instance, did not usurp the function of the jury by commenting on the weight which should be given to the testimony, nor did it single out for comment the testimony so as to emphasize its importance in the minds of the jurors. Cf. Scanlon v. Kansas City, supra.

The statement “fingerprint evidence . are [sic] capable only of professional interpretation” was not a comment on the weight to be given the testimony, but merely an explanation of why the ink prints were withheld. The court did not, as in Scanlon, proceed further. The court did not express its opinion in such a manner so as to take away the judgment of the jury. See comments in 75 Am.Jur.2d, Trial, § 663 (1974). The court went on to explain to the jury that it had heard the direct evidence of the interpretation of the fingerprint evidence and the cross-examination of witness Scholl and the argument of counsel. This in effect informed the members of the jury that the weight was for them to determine and in our opinion did not constitute a comment on the testimony.

We have read the entire transcript, the briefs and authorities relied upon by the appellant and find no prejudicial error.

However, we take cognizance of the fact that this case was tried prior to State v. Baker, 524 S.W.2d 122 (Mo.Banc 1975). We cannot determine from the record whether the consecutive sentence was based upon the exercise of the court’s discretion or whether it was imposed under the compulsion of § 546.480. We thus set aside the consecutive sentences and remand the cause for the sole purpose of resentencing within the court’s discretion, in accordance with the guidelines of State v. Baker, supra. See also State v. McCollum, 527 S.W.2d 710 (Mo.App.1975). In all other respects, the judgment is affirmed.

McMILLIAN and GUNN, JJ., concur.

      . Elrod testified that he was the only one who could drive the car because the gears are backwards on it, “so they couldn’t get the car any further ¿han just around the block and then they left it there.”

      . § 546.380: “The court shall not, on the trial of the issue in any criminal case, sum up or comment upon the evidence, or charge the jury as to matter of fact, unless requested to so do by the prosecuting attorney and the defendant or his counsel; but the court may instruct the jury in writing on any point of law arising in the cause.”


author: NORWIN D. HOUSER, Special Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Tommy Sam GAYE, Defendant-Appellant.
    No. 36418.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Nov. 25, 1975.
    Motion for Rehearing or Transfer Denied Jan. 23, 1976.
    Application to Transfer Denied March 8, 1976.

      Latney Barnes, Mexico, James E. Cafer, Vandalia, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
   NORWIN D. HOUSER, Special Judge.

Tommy Sam Gaye appeals from a conviction and sentence by a jury to 50 years’ confinement on a charge of armed robbery by means of a dangerous and deadly weapon.

Appellant’s main contention is that he was not afforded his Sixth Amendment right to counsel; that he did not waive his right to counsel; that he was totally incapable of representing himself and the court erred in compelling him to do so, and that no evidentiary hearing was conducted to determine his capacity to represent himself.

The State introduced evidence that on August 28, 1973, appellant held up Cruzan’s Liquor Store in Mexico at gunpoint, robbed the operator of $942, fled in the automobile of a female accomplice named Mae Louise Bruner; that the automobile was stopped by police and both were apprehended a few minutes after the robbery; that the $942 was found hidden in the underclothes of the accomplice.

Arraigned in magistrate court on August 31 and advised of his rights,’ appellant requested and was granted a continuance to September 14 to enable him to obtain and consult with counsel. Bond was fixed at $15,000. On September 14 appellant appeared in magistrate court with Attorney Granville Collins. At appellant’s request a preliminary examination was set for October 5, on which date appellant appeared with Attorney Collins. At the conclusion of the preliminary examination the magistrate found probable cause and bound appellant over for trial in circuit court. An information was filed on October 10. On November 6 appellant was brought before the circuit court, without counsel. Attorney Collins had been employed to represent appellant only at the preliminary hearing. The circuit judge informed appellant that the punishment for the crime charged, if found guilty by a jury or on a plea of guilty, was imprisonment of not less than five years “on up to life imprisonment.” Appellant wanted time to consult with an attorney and asked for a reduction of bail so he could “get out and hire a lawyer.” The court conducted an informal inquiry into appellant’s past record and ability to make bond, reduced the bond to $7,500, and offered to appoint counsel to represent appellant. At appellant’s request the court delayed appointment of counsel for a month to give appellant a chance to make bond and to employ a lawyer. On November 23 the court, at appellant’s request, set the case over to December 3 to give appellant a further opportunity to make bond and employ counsel. The judge informed appellant at that time that if he failed to make these arrangements by that time the court would appoint counsel. Appellant failed to employ counsel, so on December 3 the court appointed Attorney G. Andy Runge to represent appellant. On the same day, after consulting with counsel, appellant was arraigned, plead not guilty, and the cause was set for trial January 17, 1974. On January 11 on motion Mr. Runge was permitted to withdraw as appellant’s counsel. On the same day Attorney Melvin D. Benitz, employed by appellant’s aunt, entered his appearance as attorney of record for appellant. The cause was continued to February 4 for a March trial setting, and was eventually reset for trial March 28. By letter postmarked March 23 appellant informed Mr. Benitz that he did no care to “go any farther” with him and that Mr. Benitz need not come to the March 28 hearing. Upon receipt of the letter Mr. Benitz telephoned Circuit Judge George Adams, informed him that he had received the letter of discharge and requested leave to withdraw as counsel. Judge Adams refused to permit Mr. Benitz to withdraw, stating that since the case was set for trial it would be tried; that if appellant did not want Mr. Benitz to represent him appellant would try his own case. Judge Adams asked Mr. Benitz to sit at the table so that if appellant wanted the advice of an experienced attorney it would be available to him.

Prior to trial on the morning of March 28 Judge Adams conferred with appellant, Mr. Benitz and the prosecuting attorney. Judge Adams reviewed the history of the case in circuit court; informed appellant that he was going to have to try his case “some day”; recited that the case had been set twice, and postponed since the previous November at appellant’s request. Appellant remarked that the bond was too high, and that he would like to hire his own lawyer. The judge told appellant he was going to try the case himself “this morning,” and asked appellant if he thought he would be better off trying it himself without a lawyer. Appellant responded, “Like I don’t have no other opportunity, you know. Like this is a must, you know. I must go to court but I’m not going to try my own case.” The court warned appellant: “Well, you’re going to sit there and the jury’s going to hear the evidence and they’re going to probably convict you if you don’t attempt to do something. Do you think I’m going to let you just sit around and never be tried?” Appellant complained about the size of the bond. The judge responded that he had cut the bond from $15,000 to $7,500; that it is a serious charge which can carry life imprisonment; that the bond has to be substantial. Asked why he had waited until five days before trial to discharge his attorney appellant indicated that he came to the conclusion after talking to Mr. Benitz in January, at which time he was informed that the prosecutor would recommend 12 years upon a plea of guilty; that he was “not good for no robbery” and was not going “to no penitentiary.” Conceding that he could not make $7,500 bond, and being informed that the judge was not going to reduce it further, and asked by the judge, “How are we ever going to try your case?,” appellant said, “O, well, then, we might as well go on this morning and get the trial on * * * because I ain’t going to keep going around in no circles, you know.” The judge agreed that they had been going around in circles; stated that he had given appellant every opportunity to procure counsel; reminded appellant that he had appointed a “good lawyer” for appellant and that his folks had hired a “good lawyer” for him, and concluded, “There’s just no use granting you a continuance if the next time you come up for trial you’re going to do the same thing. You don’t have a lawyer and you don’t want to go to trial.” He reminded appellant that he had had four months, and asked, “What if you don’t go to trial today? Are you ever going to go to trial?” Appellant answered, “Well, I’m ready to go to trial today.” The judge asked if he had any witnesses he wanted subpoenaed. Appellant said no. Asked if he wanted to act as his own lawyer appellant answered, “I don’t want to be my — I’ll go in there.” The judge informed appellant that if he went into court and started talking when he was not supposed to the judge would put him back in jail and try him in his absence; that appellant was not going to “make a monkey out of everybody else” because he wanted to talk; and pointed out that the prosecuting attorney was skilled and knew what he was doing, but that appellant was going to be “at a tremendous disadvantage” in asking questions because he was not a lawyer. Appellant repeated willingness to try the case that day since the judge was not going to lower his bond. The judge said, “I just feel like that I should go on and proceed with the trial because its obvious here we’ll never try it.” Appellant said he was aware that he could dismiss Mr. Benitz or any other lawyer at any time; that he had the “say-so” whether he should have him or not; that he did not see why the court should force Mr. Benitz upon him; that he had dismissed Mr. Ben-itz. The court observed, “And every time your case is set you dismiss the next lawyer so you’ll never be tried for robbery.” The prosecuting attorney suggested asking Mr. Benitz to sit at the counsel table, to be available if appellant wanted to talk to an attorney during the trial, so he would not have to rely upon the prosecuting attorney or judge as to what the legal consequences of certain matters might be. The court had told Mr. Benitz by telephone that he would not permit him to withdraw nor permit appellant to “fire him to the extent that he wouldn’t be in the courtroom,” available to consult with appellant and answer any questions appellant might ask. Appellant objected to Mr. Benitz sitting next to him at the counsel table but “did not mind” Mr. Benitz remaining in the courtroom. The judge suggested Mr. Benitz remain inside the bar at the bench, in case appellant wanted to turn to him. The judge then advised appellant for the second time that he would be at a tremendous disadvantage; that he could try his own case if he wanted to but he did not know how; did not know what questions to ask to bring out matters in his own favor, or what questions to object to. The prosecuting attorney then advised appellant in detail what evidence the State intended to introduce, including the fact that Mrs. Bruner had turned State’s evidence and would implicate him as the robber. Appellant commented, “0 man, o man.” The prosecutor stated appellant’s guilt was clear; that the punishment should be severe and that he would ask the jury for a 50-year sentence, to punish appellant and deter others like-minded. Mr. Benitz asked if he was to be in the courtroom “under judicial compulsion.” The judge answered in the affirmative; that he was not permitting him to withdraw; that Mr. Ben-itz’ client had indicated he did not want him at the table; that the judge did not share the wisdom of appellant’s action “but that’s something I cannot make him do”; that the trial would proceed; that appellant had ample time to prepare his case for trial, and had the services of an appointed attorney and a hired attorney; that if a continuance was granted there would be no assurance that appellant “will ever be ready for trial”; that not only was appellant entitled to a speedy trial but the State “has some rights and the State’s entitled to a speedy trial before witnesses are lost and the time has elapsed where adequate justice cannot be accomplished or done for both sides.” The court cautioned appellant against outbursts in the courtroom, and advised appellant that he would have to decide whether the State makes a case for the jury, whether he wanted to take the stand or not; that if he took the stand appellant’s previous conviction could be shown in evidence. The judge asked appellant what he wanted to do — “[d]o you want to continue the case and try — and reset it at a later date or what?” Appellant said, “No, go on and try it this morning. * * * I can’t ever make no bond so therefore as you say, it would just gradually keep going and keep going; so might as well get it over this morning.”

Before the jury was empanelled the judge cautioned the prosecuting attorney that since the defendant “is not represented that you should be very, very careful in your opening statement, and of course throughout the entire procedure, to limit your statements and your questions to matters clearly relevant and competent because he does not have * * * an attorney who would recognize irrelevant or incompetent questions; so be very, very careful to be sure that you lean over backwards if necessary in avoiding controversial statements or questions. Okay?” Among other questions asked the panel on voir dire, the prosecuting attorney asked whether anybody would be prejudiced for or against the defendant, either way, because of his race; whether anybody would be prejudiced against defendant for acting as his own lawyer “as he has the privilege of doing,” and whether anybody would attach special significance to the testimony of policemen or law enforcement officers, and be prejudiced in favor of them, just because they were officers. The panel was quizzed as to their own personal experiences with robbery, burglary and theft. Three of them recited such experiences. All indicated that these considerations would not affect their deliberations. Out of the hearing of the jury and at the end of the State’s examination on voir dire the court asked appellant three times whether he wanted to ask any questions to find out whether they would be impartial, to which appellant three times answered “No.” The judge explained that three jurors had had experience with burglaries; that generally such people do not “feel too kindly” toward someone charged; that if appellant desired the court would strike their names off the list. Appellant said to leave them on. The judge explained to appellant that after the State made its challenges the list would be returned to him and he would have the chance to discuss challenges with Mr. Benitz. When the list was returned the judge told appellant he had the right to strike eight names off the list, any eight, and that if he did not strike off eight the top twelve would try his case. Appellant said “Yeah, well, them’s the ones. I mean I’m not going to sign nothing. I’ll just take the twelve.” The judge repeated his explanation of appellant’s right to strike, and asked whether appellant would like to talk to Mr. Benitz about whether he should strike off any of them. Appellant said, “No, sir.” The judge then suggested leaving appellant by himself to think it over, and asked if he wanted a little time to do so. Appellant said, “No, sir. I don’t want to strike none off.” The judge made sure appellant understood that if he did not strike any the jury would be composed of the first twelve. He named the twelve to appellant one by one. He suggested that Mr. Benitz sit at a place on the bench within 3 feet of the chair, so he would be “immediately accessible” to appellant. The judge explained to appellant that the jury would be put in the box and the prosecuting attorney would make a statement of what he thought the evidence would be; that appellant should not shake his head in agreement or disagreement; that when the prosecutor finished appellant, if he wanted to, could get up before the jury and tell them what evidence he was going to offer; that although appellant had the right to testify he did not have to testify; that at the end of the State’s case, if the State “made enough case to go to the jury” he would have a recess and talk to appellant about his rights and what could happen if he testified, — “do the best I can to explain that to you.” The record is punctuated with affirmative answers on the part of appellant, indicating he understood the judge’s explanations. At the conclusion of the State’s opening statement, out of the hearing of the jury, the judge informed appellant that he had the right to make an opening statement but did not have to; that he could wait until the end of the State’s evidence; that in an opening statement he could tell the jury what evidence he intended to offer. The judge again warned appellant that he did not have to testify; that he could make his statement now or wait. Appellant indicated that he wanted to make his statement at that time. Appellant told the jury that he just got out of the penitentiary March 8; that the night he was picked up (August 28) he came from Illinois; that he had some money; that he was a dope fiend; that he was sleepy-like, nodding, more like in a daze; that he and Mrs. Bruner were in the car with the policeman behind, so they pulled off the road and he stuck the money in her pants because he had just gotten out of “the joint”; that he tried to explain at the police station where he got the money but they refused to listen and accused him of robbery; that Mrs. Bruner “automatically tried to free herself” by placing the blame on him; that she refused to tell the truth and was making a false statement implicating him in the robbery; that he robbed nothing; that he merely gambled and played people for money as a eon man; that he would not have a pistol on him “for nothing” and people who knew him were aware that he did not use a pistol “whatsoever”; that he had been trying to get a “good-enough lawyer” because he was not qualified to speak in his own behalf, because he was an ex-convict, with no rights whatsoever in a courtroom; that here he was facing robbery, with no witnesses, nothing but himself, and that all his rights had been denied from the start. After the first witness was examined on direct the court, out of the hearing of the jury, explained what cross-examination is and that after each witness testified for the State appellant would be offered an opportunity to ask questions to try to bring out testimony favorable to appellant. Appellant declined to cross-examine the first witness. After each subsequent witness’ testimony for the State was concluded the court offered, and appellant declined, the opportunity to cross-examine. When they adjourned for the noon recess, following the direct examination of Mrs. Bruner, the judge suggested to appellant that he think about what she had testified to and write down matters he might want to cover. When the court reconvened the judge asked appellant if he had thought about it and whether he wanted to ask Mrs. Bruner any questions. Appellant had thought about it but he declined to question her. Appellant declined to object to any of the exhibits offered in evidence, although given an opportunity to do so.' At the conclusion of the State’s case the judge, outside the hearing of the jury, spent five pages of the transcript explaining to appellant his right to testify and the State’s right to cross-examine him and bring out prior convictions. The judge reminded appellant that Mr. Benitz was there, available to be asked questions about what he thought appellant should do. The judge asked whether appellant had any questions; advised appellant that if he had any witnesses he was entitled to call them; that if he did not testify the judge would go over the instructions to the jury with Mr. Benitz and the prosecuting attorney present, and urged appellant to “think and be sure [he] made a good sound judgment” on whether he wanted to take the stand and testify. The judge said that he would not attempt to advise him whether to take the stand or not; that his discussion was not to try to “sell” appellant on the idea of taking or not taking the stand. Indicating that he understood, appellant declined to take the stand or present any evidence. At the conference on instructions the judge explained to appellant that not having taken the stand he was entitled to an instruction that he had a right not to testify and that no inference of guilt or other inference could be drawn from the fact that he did not testify. He told appellant how to argue that point to the jury if this instruction was given. He also pointed out the drawback to giving the instruction: that it might emphasize the fact that he did not take the stand. Appellant stated that he was aware of what the judge was saying but he did not want to offer an instruction of that nature. When the instructions were ready the judge asked if he objected to all of the instructions, and appellant said “Yes.” The judge then spent some time explaining the procedure and appellant’s rights with respect to arguments. At the suggestion of the judge appellant and Mr. Benitz were left alone in the room to give appellant an opportunity to discuss the matter of argument. Appellant wanted to talk to Mr. Benitz a few minutes and ask a few questions. Following their conference, in which appellant did not indicate that he desired Mr. Benitz to participate in the arguments, the prosecuting attorney made his argument. Appellant then made a closing argument. He argued that he had not been properly identified; that the money had not been properly identified by serial numbers; that the money was his and he had earned it; that Mrs. Bruner, offered a small sentence, testified against him to save herself. He pointed out that the liquor store operator did not properly identify him by facial characteristics, etc.; that he was not guilty of the robbery and that no “trace” led to him; that the money was found on Mrs. Bruner; that the car was Mrs. Bruner’s; that there were no fingerprints on the pistol, the money or on the counter; and implied that he was the victim of a situation in which a black man was found in the getaway car and was pointed out by all as the robber when in fact he was innocent of the robbery.

While the jury was out Mr. Benitz informed the court, in answer to questions, that appellant had conferred with him in the courtroom about five times during the trial, but the things about which he talked did not concern the trial or matters of procedure. When the jury returned its verdict the judge on his own initiative polled the jury, received the verdict, and su a sponte granted appellant an additional 30 days to file a motion for new trial, pointing out the advantages of having counsel and the absolute necessity of having an attorney to file a motion for new trial and take an appeal.

Under federal standards, controlling in this determination, Morris v. State, 456 S.W.2d 289, 292[1] (Mo.1970), appellant’s Sixth Amendment right to counsel was not violated by the trial court, and no error was committed in allowing and requiring appellant to go to trial under the circumstances, for he is held to have waived the right to counsel.

Initially the court appointed counsel to represent appellant (Mr. Runge). Apparently appellant was not satisfied, for shortly thereafter a second lawyer (Mr. Benitz) entered his appearance for appellant. He was employed by appellant’s aunt, and court-appointed counsel was allowed to withdraw (all with appellant’s concurrence). Appellant caused several months’ delay in bringing the case to trial by assertions that he could get out on a reduced bond and hire a lawyer he had in mind. Appellant waited until just a few days before the second setting of the case for trial to attempt discharge of his employed counsel, and on March 28 was still bent on getting out on bond; still talking about employing a third lawyer — one of his own choice (which he had not accomplished in seven months and which was unlikely, since he was penniless). In now claiming his Sixth Amendment right to counsel appellant is not asserting an original right to counsel. He is asserting a right to a third choice, as was the case in Cleveland v. United States, 116 U.S.App. D.C. 188, 322 F.2d 401, 402-403 (1963), cert, den. 375 U.S. 884, 84 S.Ct. 157, 11 L.Ed.2d 114, wherein the court made this apropos statement: “The problem here is not right to counsel or the right to counsel of the defendant’s choice. It is whether another continuance was required to allow the defendant to exercise the right to a third choice. We think that, under the circumstances of this case, the assignment judge could reasonably have concluded that it was not.”

A waiver of the right to counsel must be an “intelligent and competent waiver.” Johnson v. Zerbst, 304 U.S. 458, 465 (1938). It is preferred practice for the trial court to conduct an inquiry sufficient for an appellate court to determine whether the defendant “knows what he is doing and his choice is made with eyes open.” Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 286, 242, 87 L.Ed. 268 (1942). In this connection see United States ex rel. Torry v. Rockefeller, 361 F.Supp. 422 (W.D.N.Y.1973), and cases cited 1. c. 426[10]. Appellant appeared before the circuit judge on November 6, November 23, December 3 and March 28. The proceedings on those four occasions occupy 67 pages of transcript. While these proceedings were not specifically designated for the purpose of making that determination, the exchange between court, appellant and counsel gave the trial court and this court an opportunity to determine appellant’s intellectual capacity to understand and appreciate his position, situation and problems, the difficulties confronting him and his need for counsel in the trial of the case. At these four sessions appellant was questioned and examined. Statements were elicited from him. He was advised of the minimum and maximum penalties for conviction of armed robbery. Appellant, a 22-year-old black with a seventh grade education, previously employed as a dishwasher and car washer, although uneducated and unlettered, demonstrated that he is intelligent. His answers were responsive to questions asked. He knew what he wanted and was able to articulate his thoughts, albeit ungrammatically. The transcript demonstrates that appellant “was well aware of his right to (and need for) counsel and of the advantage of representation by counsel.” (Our parentheses.) United States v. Rosenthal, 470 F.2d 837, 845 (2d Cir. 1972), cert. den. 412 U.S. 909, 93 S.Ct. 2298, 36 L.Ed.2d 975. He was advised against self-representation and warned of the risks, pitfalls, possibilities, and serious consequences of conviction, as suggested in United States v. Duty, 447 F.2d 449, 451 (2d Cir. 1971), and referred to in United States v. Calabro, 467 F.2d 973, 985[19] (2d Cir. 1972), cert, den. 410 U.S. 926, 93 S.Ct. 1357, 35 L.Ed.2d 587. A factual background was provided “ ‘sufficient to establish to our satisfaction that the defendant’ knowingly and willfully waived his right to counsel.” United States v. Rosenthal, supra, 470 F.2d l. c. 845. Given the choice of going to trial with employed counsel Benitz acting in his behalf, or of trying the case pro se, he would have neither. Protected against himself by court order requiring Mr. Benitz to remain at his side, available to explain and assist, appellant spurned the offered opportunity to profit by the attorney’s advice and suggestions. As a result of his stubborn and intransigent attitude appellant was convicted and given a severe sentence, an eventuality predicted by judge and prosecutor if appellant did not avail himself of the assistance of counsel. If appellant may be said to have been denied the benefit of counsel, it is a case of self-denial; if wounded by not having counsel actively defending him, it was a self-inflicted wound.

A circumstance of importance is that on the morning of March 28 appellant failed to give the trial judge any good reason for dissatisfaction with and his desire to discharge Mr. Benitz. He inferred that he reached that conclusion because Mr. Benitz informed him (back in January) that the prosecuting attorney would recommend 12 years if he plead guilty and that he was not guilty, but it was counsel’s duty to transmit that information to his client, and he would have been derelict if he had failed to so inform appellant. Appellant did not tell the judge that he had lost confidence in Mr. Benitz, or give any reason for his attitude on the matter of representation.

Under these circumstances appellant’s adamant refusal of assistance by his employed counsel, an able member of the bar, constituted a waiver of representation.

There was reason for the trial judge to suspect that appellant’s last-minute discharge of his counsel was a delaying tactic. Trial at the January 17 setting had been delayed when appellant changed lawyers from Mr. Runge to Mr. Benitz. At the March 28 setting appellant wished to change lawyers again. The court was reasonably of the opinion that the case would be postponed indefinitely if appellant’s wish for further delay for new counsel should be routinely indulged.

Appellant’s motion for new trial alleged that he had been “led to believe that he would receive a lesser sentence if he tried the case against him without counsel rather than with an attorney, although the opposite was true; but because of defendant’s ignorance and lack of experience he believed he would be better off without counsel to assist him.” Although appellant repudiated this at the hearing of the motion, we have considered this as a possible explanation for appellant’s refusal to continue with Mr. Benitz. It would not lie in the mouth of a defendant confronted with a strong case against him to engage in such a maneuver and then complain that he did not have the assistance of counsel at his trial. That was plainly the situation in Arellanes v. United States, 353 F.2d 270 (9th Cir. 1965), cert. den. 385 U.S. 870, 87 S.Ct. 139, 17 L.Ed.2d 97, in which both trial and appellate court held “that the appellant knowingly and purposefully maneuvered himself into the situation in which he would be defending himself, without counsel, he thinking that since he had no defense a lawyer could not help him and that his being without counsel might be an advantage to him. He thereby waived any right to complain that he did not have the assistance of counsel at his trial.” 353 F.2d 1. c. 275[5].

In United States ex rel. Davis v. McMann, 386 F.2d 611, 618-619 (1967), cert, den. 390 U.S. 958, 88 S.Ct. 1049, 19 L.Ed.2d 1153, the Second Circuit, recognizing the right of a defendant to proceed without counsel and refuse representation of assigned counsel, made the following statement, which fits this case: “ * * * [H]e may not use this right to play a ‘cat and mouse’ game with the court * * * or by ruse or stratagem fraudulently seek to have the trial judge placed in a position where, in moving along the business of the court, the judge appears to be arbitrarily depriving the defendant of counsel. * * * ”

Appellant’s situation is closely akin to that of the defendant in United States ex rel. Testamark v. Vincent, 496 F.2d 641 (2nd Cir. 1974), in which the court held that defendant’s actions at trial constituted a waiver of his right to counsel. The court said, 496 F.2d 1. c. 643 — 644[3]: “He was given the choice between proceeding with appointed counsel, or proceeding pro se. He chose to do neither. After each witness testified for the State, Testamark was given the opportunity to cross-examine or have Lipton step back into the case. He spurned these repeated opportunities to represent himself or to be represented by counsel. Thus, on June 22, 1970, Testamark told the court, ‘I would like an Appellate Division lawyer.’ (referring thereby to counsel assigned from a list available to the Appellate Division). Since he already had counsel, the court denied this request. At the opening of the trial and even on the second day, Testamark renewed his motion for other counsel and informed the court that he had dismissed Lipton. Testamark insisted that Lipton not represent him and that he not sit next to him or even be in court. Lipton nevertheless remained in the courtroom to assist if called upon.

“Testamark’s refusal to participate in the trial or confer with counsel were of his own choosing. The court gave him the opportunity to proceed with counsel or to represent himself. Actually the court gave him both because Lipton was available at all times.”

Other federal cases supporting our conclusions include: Kates v. Nelson, 435 F.2d 1085 (9th Cir. 1970); United States v. Calabro, supra; United States v. Rosenthal, supra; United States ex rel. Torry v. Rockefeller, supra; Leino v. United States, 338 F.2d 154 (10th Cir. 1964), and the dissenting opinion in United States v. McMann, supra, 386 F.2d 621.

Appellant asserts error in failing and refusing to grant appellant a continuance; that he did not know until ten minutes before the trial commenced that he would be acting as his own attorney, and this did not give him time to consider the merits of his case, discover the identity and probable testimony of the State’s witnesses, prepare opening and closing statements, consider what defense to present, consider whether to call witnesses, etc. The question is whether the exercise by the trial court of his discretion in this connection was reasonable. United States v. Hall, 448 F.2d 114 (2d Cir. 1971), cert. den. 405 U.S. 935, 92 S.Ct. 971, 30 L.Ed.2d 810. “The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 850, 11 L.Ed.2d 921 (1964). In this case there was no motion or request for a continuance. Appellant twice indicated that he wanted to try the case on the day it was set, and announced ready for trial. The point is obviously an afterthought. Even so, appellant has made no showing that he had any defense to present, or any witnesses he could have subpoenaed if granted a continuance. Appellant had seven months to “consider the merits of his ease.” He was informed at the pretrial conference as to the probable testimony of the State’s witnesses. The trial date had been set approximately six weeks in advance, after the court had granted appellant several previous postponements. There has been no showing of prejudice from the failure of the court sua sponte to continue the ease, and no abuse of discretion is manifest. United States v. Rosenthal, supra, 470 F.2d l. c. 844[13, 14]. In United States v. Llanes, 374 F.2d 712, 717 (2d Cir. 1967), cert. den. 388 U.S. 917, 87 S.Ct. 2132, 18 L.Ed.2d 1358 the panel said: “We and other courts of appeals have repeatedly made clear that the right to counsel ‘cannot be * * * manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice.’ [citing numerous cases]. Judges must be vigilant that requests for appointment of a new attorney on the eve of trial should not become a vehicle for achieving delay.”

Appellant claims that Judge Adams should have disqualified himself because he was not impartial but was hostile towards appellant. Our extended recital of the conduct of the trial judge is sufficient to dispel this charge, and to show that instead of manifesting hostility he leaned over backwards (as he admonished the prosecuting attorney to do) to see to it that appellant had a fair trial. Throughout the proceedings, from beginning to end, the judge carefully and patiently explained to appellant the procedural situation and the choices to be made, as they developed; advised him as to various possibilities; offered the opportunity to cross-examine each witness, and led him by the hand through the course of the proceeding. On his own motion the judge granted appellant thirty additional days within which to file a motion for new trial, instead of the usual ten days, and urged upon him the absolute necessity of having counsel to prepare for and conduct an appeal. At first appellant stated that he did not want to appeal, and asked the court to sentence him. Thereafter appellant changed his mind and decided to accept appointment of counsel and take an appeal, whereupon the judge set aside the sentence and appointed highly qualified and competent counsel to file a motion for new trial. When that was overruled the judge resen-tenced appellant, granted an appeal, appointed the same lawyers to conduct the appeal, allowed jail time, and authorized appellant to appeal as a poor person. Appellant has no room for complaint on this score.

Appellant claims error in not instructing the jury panel at the first recess in the form specified by MAI-CR No. 1.08(a). Instead the trial judge admonished the jurors not to discuss the case among themselves, or speculate as to what the evidence was going to be, “ * * * and you must not permit any person to talk about any fact or circumstance connected with the case in your presence or your hearing. If someone should do so, tell them you’re on the jury panel, and if they were to persist in wanting to talk about the case after you have told them you’re on the panel, it is your solemn duty to report that fact to the deputy sheriff or to the Court. ⅝ ⅜ * ” As stated in State v. Vernor, 522 S.W.2d 312, 316 (Mo.App.1975), “Absolute and literal compliance with MAI-CR is ordered and expected by the Supreme Court. Any deviation from the printed page now constitutes error, the prejudicial effect of which is to be judicially determined. Rule 20.02(e).” To any reasonable juror the admonishment given by the court adequately covered the substance of the matters required by MAI-CR No. 108(a), and in the absence of any showing of misconduct on the part of the members of the jury panel we find the error harmless in this case. State v. Vernor, supra.

There is no merit in appellant’s point that the trial was unfair and not impartial, and that the judge and jury were partial to the prejudice of appellant. The trial judge’s careful consideration for and protection of appellant’s rights have been demonstrated. The prosecuting attorney’s conduct and approach throughout the trial was highly professional. He demonstrated a proper regard for the rights of the accused and the position in which appellant placed himself. He observed the court’s admonition to be careful not to ask improper questions or make controversial statements. At no time did the prosecuting attorney seek to take advantage of appellant. The jury deliberated a reasonable length of time, taking an hour and four minutes to announce that they had reached a verdict.

Appellant asserts error in failing to advise appellant of his right to challenge jurors for cause, or the manner in which to do so. There is no merit in this point. The trial judge gave appellant every opportunity to quiz the members of the panel, but he declined to ask a single question. Nothing was elicited indicating that there was ground for challenging any juror for cause. Furthermore, a jury trial is not a forum for teaching trial practice, and there was no duty on the judge to lecture appellant on the intricacies of challenge for cause. In’ United States v. Redfield, 197 F.Supp. 559 (D.Nev.1961), aff. 295 F.2d 249, it was held that a defendant who competently and intelligently waived his right to counsel was not entitled to have the court give him a course 'in the art of trying a lawsuit or coach him every step of the way.

Appellant claims the court should have advised appellant of his right to challenge the array on the ground that black jurors are systematically excluded from jury service in Audrain County; that appellant desired to make such a challenge but did not know how to proceed. Appellant did not make this desire known at the trial. The burden is on the defendant to establish discrimination in the selection of jurors. State v. Aikens, 507 S.W.2d 386 (Mo.1974). Although belatedly raised in the motion for new trial, appellant made no effort at the hearing of that motion to substantiate these allegations by evidence that systematic exclusion was practiced in the composition of the trial panel. Furthermore, the circuit court cannot be faulted for not anticipating this unstated desire or for not reviewing this branch of criminal law for the edification of appellant.

There was no error in not instructing on the lesser offense of stealing without the consent of the owner because there was no evidence from which the jury could infer that the operator of the liquor store was not put in fear of bodily harm. The evidence was that the robber had a nylon stocking over part of his head, and a gun in his hand, which was pointed at the victim’s head. The victim testified that he was in a state or condition of mind of being “pretty well shook up” because the gun was pulled on him. No infereñce other than fear of immediate injury could be drawn from this testimony. “It is contrary to the universal experience of all mankind to say that a person would experience no fear when confronted with a gun in the hands of a robber.” State v. Ray, 354 S.W.2d 840, 843 (Mo.l962). And see State v. Tidwell, 500 S.W.2d 329 (Mo.App.1973); State v. Parker, 324 S.W.2d 717 (Mo.1959); State v. Underwood, 470 S.W.2d 485, 486 (Mo.1971), cert, den. 405 U.S. 928, 92 S.Ct. 980, 30 L.Ed.2d 802; State v. Harris, 452 S.W.2d 577 (Mo.1970).

Finally, appellant claims that 50 years’ imprisonment is so excessive as to constitute cruel and unusual punishment; that there were no aggravating circumstances, and the usual range of punishment upon these facts is between 10 and 20 years. The Supreme Court ruled that a 99-year term for robbery in the first degree is not excessive because within the limits prescribed by § 560.135, RSMo 1969, in Garrett v. State, 486 S.W.2d 272 (Mo.1972), and that 50 years for robbery in the first degree is not excessive because “within the limits prescribed by the statute.” State v. Herron, 349 S.W.2d 936 (Mo.1961). The Supreme Court of this State has never required or enforced uniformity of sentencing in criminal cases, and we have no power to do so as long as highest court in the State adheres to the rule reannounced in Garrett and Herron, supra.

Affirmed.

SMITH, C. J., and ALDEN A. STOCK-ARD, Special Judge, concur.


author: STEWART, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Carl MULLEN, Defendant-Appellant.
    No. 35657.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Nov. 25, 1975.
    Motion for Rehearing or Transfer Denied Jan. 23, 1976.
    Application to Transfer Denied March 8, 1976.

      Kevin M. O’Keefe, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Clarence Thomas, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Neis C. Moss, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   STEWART, Judge.

A jury found defendant guilty of murder in the first degree and assessed his punishment at life imprisonment. It also found him guilty of robbery in the first degree by means of a dangerous and deadly weapon, but was unable to agree upon the punishment. The court assessed the punishment at 25 years imprisonment on the latter count, the sentences to run consecutively.

Defendant assigns error in the giving of an instruction with respect to felony murder; in the failure to have the psychiatric examination performed by a licensed psychiatrist; and in the failure of the court to grant a second psychiatric examination. We affirm the judgment.

Artie Hall operated a small dice game over weekends in the basement of a building at 2105 Salisbury in the City of St. Louis. The basement was divided into two rooms separated by a partition in which a door had been hung. The dice game was set up in the room under the front portion of the building. Entrance was gained to the game by going through the basement door at the rear of the building, through the rear room and then through the door in the partition to the gaming room. Artie was employed in the neighborhood of the game and the players were primarily fellow employees or acquaintances. On Friday, June 30, 1972, the game commenced at about 4:00 p. m. At about 11:00 p. m. a person referred to as Roy, who was known to Artie Hall, came through the door to the dice game followed by defendant and his brother Larry. Roy was “drunk like he always does (sic).” Defendant and his brother were strangers to the game. Defendant made two bets which he lost. He and his brother then left. Artie Hall was suspicious of the two strangers and after they were gone a few moments he went outside and looked for them but did not see them. He remained outside the basement. About twenty minutes later a car, containing defendant and his brother and two other men, pulled into the alley behind 2105 Salisbury. All four men got out of the car and came toward the building. Defendant asked Hall if the game was still on. Hall told him that everyone had left. Defendant struck Artie alongside of the head with a pistol and told him “to get down and get the dough because he [defendant] knowed they was still down there . . .’’As Hall was getting to his feet he was struck again and told to get in and get the door to the game open. When Hall arrived at the door to the dice game, defendant took ninety dollars from Hall’s back pocket.

Artie Hall knocked on the door and as it opened he was pushed in, followed by defendant and his brother. Defendant announced a holdup and told everyone to put their money on the table. As defendant went around the table he struck several of the players with the gun, knocking them from their chairs. He walked up to Gregory Smith who was standing against the wall and shot him in the mouth. Smith was dead upon arrival at the hospital as a result of the gunshot wound.

I

The defendant contends that the court erred in giving instruction No. 4, an instruction on felony murder, reading as follows:

“The court further instructs the jury that under the law of this state every homicide which shall be committed in the perpetration of a robbery, is deemed Murder in the First Degree. And in this case, if the jury find and believe from the evidence, beyond a reasonable doubt, that a homicide occurred while the defendant was in the act of attempting to commit a robbery as set out in Instruction No. 3, then such perpetration stands in lieu of deliberation and premeditation as herein-before defined, and the jury will be warranted in finding the defendant guilty of Murder in the First Degree and should so say in their verdict.”

He contends it was not supported by the evidence “since the homicide was not committed in the perpetration of the robbery of Artie Hall.” From his argument it appears that the basis for this contention is that the robbery referred to in the instruction, that of Artie Hall, was completed before the shooting of Gregory Smith.

For the purposes of this opinion we will assume, as defendant contends, that the instruction requires a finding that the killing of Gregory Smith occurred in the perpetration of the robbery of Artie Hall. The court also gave No. 2, an instruction on first degree murder in the traditional form, and instruction No. 3, on robbery in the first degree.

It has long been held in this State that “when the homicide is within the res gestae of the initial crime and is an emanation therefrom,, it is committed in the perpetration of that crime in the statutory sense.” State v. Adams, 339 Mo. 926, 98 S.W.2d 632, 637 (1936); State v. Messino, 325 Mo. 743, 30 S.W.2d 750 (1930).

In this case the robbery of Artie Hall was but one step in the announced enterprise to rob the persons who were connected with the dice game. Defendant ordered Artie Hall to get “down [to the dice game] and get the dough.” The jury could reasonably find that Artie Hall was intended to be used as an instrument of the enterprise, as well as one of the victims of the scheme to rob all of the persons at the game. He was kept under the domination of the defendant and his accomplices pending the completion of the robbery. There was sufficient evidence to warrant the finding that the killing occurred in the perpetration of the robbery of Artie Hall as part of the common scheme to rob the participants in the dice game.

Having reached this conclusion it was proper, contrary to defendant’s contention, to instruct on alternative theories of guilt, because “alternate theories supporting conviction may be submitted if each theory is supported by evidence.” State v. Green, 511 S.W.2d 867, 874[13] (Mo.1974).

II

Defendant filed a motion for the appointment of a psychiatrist which was granted. Defendant was committed by the court to State Hospital # 1 at Fulton, Missouri, for mental examination or evaluation. On April 9,1973, the report of the examination was filed with the Clerk of the Circuit Court for Criminal Causes. It was signed by a staff physician of State Hospital # 1, who was a doctor of osteopathy. Defendant filed a “Motion to Set Aside Certificate of Examination” on the ground that there was no indication that defendant was examined by a licensed psychiatrist. The motion was heard and overruled.

Defendant contends that the court erred in overruling his Motion to Set Aside Certificate of Examination because it was not prepared by a “qualified psychiatrist”, nor was there any indication that it was based upon an examination by a “qualified psychiatrist”.

At the hearing on the motion the court, without objection, read into the record portions of a letter from the Superintendent of State Hospital # 1 with respect to the experience and qualifications of the doctor who certified the report. Defendant does not even now question the admissibility of that letter. However, it is unnecessary for us to consider that letter because the contention raised by defendant was recently considered and ruled adversely to defendant. Norwood v. State, 529 S.W.2d 465 (Mo.App., St.L.Dist.1975) holds that a doctor of osteopathy is a physician within the meaning § 552.020(2). Defendant’s only objection to the qualifications of the certifying physician was that he was not a licensed psychiatrist. He did not question the professional qualifications of the individual physician as such. The issue as presented was one of statutory interpretation; a legal issue, not a factual issue. Nevertheless if the defendant wished to question the qualifications of the physician individually he should have exercised his “right to summon and to cross-examine the physicians . . . ” § 552.020(6). Contrary to defendant’s argument he would not have had to call the examining physician as his own witness, but could have called him as an adverse witness subject to cross-examination.

Defendant was examined as provided by statute, and the trial court properly overruled defendant’s Motion to Set Aside the Certificate of Examination.

Ill

In addition to the Motion to Set Aside the Certificate of Examination, defendant filed what he denominated as “Objection to Report of Examination.” The report of the examination which was made of defendant at State Hospital # 1 was received by counsel on April 11, 1973. The report had been filed in the office of the clerk on April 9. The motion of defendant was filed 7 days later, on April 16. The motion states that the defendant was objecting to the findings included in the report of examination in accordance with the provisions of § 552.020(4). Defendant also alleged that he was indigent and without funds to employ the services of a'psychiatrist. Defendant prayed that the court order an examination by a psychiatrist at Malcolm Bliss Mental Health Center.

The court conducted a hearing with respect to the motion which was overruled. The reason given by the court was that the motion was untimely because it was not filed within 5 days after the date upon which the report had been filed with the clerk of the court, as provided by § 552.-020(4).

Two sections of Chapter 552 make provision for a second mental examination. Under § 552.020(4) the court is required to grant either party a second examination as to defendant’s competency to stand trial, if the written request is made within five days after the filing of the report. Under § 552.030(4) the court must grant either party a second examination respecting defendant’s mental condition as it affects his responsibility to commit a crime, if a written request is made within 5 days after the report of examination is received by the party making the request. Under each section of the statute the examination is to be made by a physician, chosen and paid by the party making the request.

It is clear from the transcript that both the court and counsel considered this motion to be only a request for a second examination. The only relief requested was a second examination. By its express terms the motion can only be read as requesting relief under § 552.020(4). As such it was untimely filed. State v. Terry, 472 S.W.2d 426, 430 (Mo. banc 1971).

Even if we could read the motion as a request for an examination under § 552.-030(4), as well as § 552.020(4), the court did not err in overruling the motion. Both sections require that the examination be made at the expense of the party making the request. The defendant’s motion alleged that he was indigent and unable to pay for an examination. That defendant cannot obtain a second examination without cost has been definitely settled in this State and requires no further discussion. State v. Sturdivan, 497 S.W.2d 139, 144[17] (Mo.1973).

Defendant ingeniously suggests that his request that he be examined at a State institution renders the issue of expense “irrelevant.” This approach is without merit because State institutions are required to charge for the expenses and fees of examinations, which are to be promptly paid. § 552.080. § 191.130. Whether the motion of defendant is considered as a request for a second examination under § 552.020(4) or under § 552.030(4), the ruling of the court was correct and will not be disturbed irrespective of the reason given for the ruling. State v. Garton, 371 S.W.2d 283, 290[7] (Mo.1963).

Based upon the report from State Hospital # 1 the trial court made a finding that defendant had mental fitness to proceed. The report revealed that defendant on January 13, 1972, had gone to Barnes Hospital but was immediately transferred to Malcolm Bliss Mental Hospital. He was admitted under the name of Charles Morris. At that time he behaved somewhat bizarrely for a time but this cleared up. Defendant stated that he had gone to the hospital because he was trying to stop his heroin habit. His first week in State Hospital # 1 presented no problems. Shortly after that he was belligerent and hostile toward employees. From February 15 on he was cooperative and well behaved. It was thought that his hostility was staged. The examination in late March indicated that he was well oriented and aware of his situation. There was no indication that he was suffering any mental disease or defect at the time of the crime or during his hospitalization. Although defendant had expressed some abnormal manifestations while in the hospital, the staff considered him to be malingering. The report also indicated he had gone to Malcolm Bliss Hospital shortly after his arrest. The comment of the examining physician there was, “I feel this man is trying to get out of staying in jail.”

The report’s findings were:

“1) That the accused has no mental disease or defect within the meaning of Section 552.010.
2) That the accused has the capacity to understand the proceedings against him and can assist in his own defense.
3) That the accused did know and appreciate the nature, quality and wrongfulness of his alleged conduct and was capable of conforming his conduct to the requirements of the law.
4) That the accused does not require hospitalization pending further proceedings.”

On 5/7/73, 6/4/73, and 6/18/73, defendant obtained continuances and in each request he stated he was denied the opportunity to proceed because his request for a second examination was denied. However, he did not renew his request for a second examination. With the additional time available industrious counsel must have explored other means of determining defendant’s mental condition. Defendant did not change his plea or state that it was his intention to do so.

In this case there is no indication that defendant could not or did not cooperate with counsel in the preparation of the case. There was no contention at trial that defendant was not competent to proceed. Counsel in fact announced that he was fully prepared to try the case on the merits. Nothing occurred during the trial to indicate to the court that defendant was suffering from a mental disease of any kind. Defendant does not now contend that he was not competent to stand trial or that he was suffering from a mental disease or defect which would exclude responsibility for his acts.

On July 11, almost a month before the trial on August 6, the prosecutor wrote a letter to defendant’s counsel advising him that the State would consent to a second psychiatric examination if defendant would refile his request. Defendant replied that the court had ruled and he would not make a motion for a second examination. Able counsel made a conscious strategic decision to preserve what he then perceived might be error for his client. When assigned to the trial division, defendant did not request a continuance for the purpose of obtaining an additional examination. We also take note of the fact that the court offered to permit defendapt to present any evidence which he might have as to any mental condition that would exclude responsibility. Defendant announced that he had no evidence to present because he was denied the second examination. Therefore, under the circumstances of this ease there was no reason for the court to act sua sponte. Newbold v. State, 492 S.W.2d 809, 819 (Mo.1973); State v. McIntosh, 492 S.W.2d 843, 845[2] (Mo.1973).

As stated earlier the court committed no error in denying the request for the second examination.

We take cognizance of the fact that this case was tried and argued before this court prior to State v. Baker, 524 S.W.2d 122 (Mo.1975). We cannot determine from the record whether the consecutive sentence was based upon the exercise of the court’s discretion or whether it- was imposed under the compulsion of § 546.480. We thus set aside the consecutive sentences and remand the cause for the sole purpose of resentenc-ing within the court’s discretion, in accordance with State v. Baker, supra. See also State v. McCollum, 527 S.W.2d 710, 714 (Mo.App.1975). In all other respects the judgment is affirmed.

CLEMENS, P. J„ and KELLY, J„ concur.

      . We are not aware of any licensing procedure for psychiatrists. For the purpose of this opinion we will assume that this is a reference to Board Certified Psychiatrists.

      . The letter informed the court that after one year of internship Dr. Bratkowski served a three year residency in psychiatry followed by eight years of duty in that specialty at State Hospital # 1. The doctor had successfully completed the first part of the Board Examination in Psychiatry.

      . All Statutory References are to RSMo 1969, V.A.M.S.

      . The court memorandum reads: “Objection to report of examination heard, argued and overruled.”

      . Counsel states “. . .a timely filed objection results in a right to a re-examination.”