author: ROBERT R. WELBORN, Special Judge.

text:
    STATE of Missouri, Respondent, v. Willis R. CLARK, Appellant.
    No. KCD 28318.
    Missouri Court of Appeals, Kansas City District.
    May 2, 1977.
    Motion for Rehearing and/or Transfer Denied June 1, 1977.
    Application to Transfer Denied July 11, 1977.

      Robert G. Duncan, Robert E. Hart, Duncan & Russell, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., David L. Baylard, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal from judgment of conviction and sentence to life imprisonment entered on jury verdict of guilty on a charge of murder in the first degree.

Charles Davis was employed in April, 1974 by the Unity School of Christianity as superintendent of maintenance for its institutional property, located between Kansas City and Lee’s Summit in Jackson County. After dinner on the evening of December 6, 1974, Davis received a telephone call at his home, purporting to be from a state boiler inspector. He left his home shortly before 8:00 P.M. after making a notation: “Boiler Inspector, State of Missouri, 12-6-74, 8:30 p. m., Spaulding.”

At around 11:00 P.M., Davis was found on the floor of his office in the shop building at Unity, dead from gunshot wounds in the head and chest. Upon an autopsy two projectiles were recovered from Davis’s body and turned over to police. The medical examiner’s opinion was that death occurred between 9:00 and 10:00 P.M., December 6, 1974.

At about 8:30 P.M., December 6, 1974, John Fines, a security officer at Unity, noticed a vehicle parked on a gravel road leading into the farm property from Col-born Road. He stopped the vehicle he was driving and got out and examined the parked auto, a 1966 Ford. He saw no one there. He noted the license number and radioed a call to the Unity operator, asking her to have a check made of the number. The Unity operator’s radio log showed that at 8:30 she made inquiry of the State Highway Patrol about the license number and found that it had been issued to Willis Clark, Lee’s Summit, and that the vehicle had not been reported stolen.

Fines drove to the Colborn Road entrance to Unity Village where he could watch the parked Ford. After ten or fifteen minutes, he saw the backup lights of the Ford go on and the car was backed out and started east on Colborn Road at a high rate of speed. Fines pursued the Ford for IV2 to two miles with his flashing red lights on, but he was out-distanced and temporarily lost sight of the Ford. He next saw it stopped on the shoulder at the southeast corner of Independence and Colborn Roads. Willis Clark was standing beside the Ford, taking off a pair of jeans or coveralls. Fines stopped his car and radioed Lee’s Summit police for assistance. He spoke to Clark who accused Fines of forcing him off the road. Clark denied that he had been at Unity Village, although the license number on the Ford was the same as that observed by Fines while the vehicle was parked. Lee’s Summit police came to the scene and after discussion of the incident Clark was allowed to proceed.

Shortly after 11:00 P.M. Fines received a call about an emergency at the maintenance shop. He went there and found another Unity employee over Davis’s body lying on the floor. The two first thought Davis had suffered a heart attack, but they discovered the bullet wounds and called the Jackson County Sheriff’s Patrol. Fines told the officers about his encounter with Clark earlier in the evening.

At around 1:00 A.M., December 7, Jackson County sheriff officers went to Clark’s residence at Lee’s Summit. Clark was there and at the request of the officers he went to the Jackson County sheriff’s office for an interview. That interview is the subject of one of the claims of error here and will be dealt with more fully in that connection.

At around 7:00 A.M., December 7, an officer was directed to search the area in the vicinity of Independence and Colborn Roads. The officer found several pieces of torn paper in a grassy field at the southeast corner of the intersection. The pieces were put together and found to make a page from a desk calendar for October 24, with the number 297 in the lower left-hand corner. When the bits of paper were pieced together, the following written message appeared:

“Hello. I’m Lazier Spaulding of the State Department of Boiler Inspection. The Unity operator gave me your number. I meant to get in touch with you earlier relative to inspection of two new boilers in the shop area but I had car trouble and my car has been being worked on all afternoon. I would like to head home this evening if I could make the inspection, it takes just forty-five.”

A warrant was obtained for the search of Clark’s residence. Officers were admitted to the house by Mrs. Clark. Items of clothing and weapons described in the warrant were seized. Officers saw and seized a desk calendar with pages similar to that which had been found.

Officers continued to search along Col-born Road. An old “owl head” .32 caliber revolver and a box, partially filled with .22 caliber shells, were found. Later in the afternoon officers searching along Colborn Road near the Unity entrance found a .22 caliber revolver on the north side of Col-born Road, about .4 mile east of Unity Village. There were six empty shell casings and two live rounds in the weapon when found. Subsequent ballistics tests showed that the projectiles taken from Davis’s body had been fired from this weapon.

Clark has been employed at Unity from 1955 to 1968 in the maintenance section. His employment was terminated because he did not get along with the maintenance director and he was suspected of pilfering materials. In January, 1974, the president of Unity had received a letter from Clark, expressing an interest in returning to work at Unity. The maintenance supervisor with whom Clark had difficulty was preparing to retire and Davis was employed as his successor in April, 1974. In June, Clark had an interview with the Unity president who told Clark that Davis had been hired for the job.

Inasmuch as there is no contention here that the evidence was insufficient to support the conviction, there is no need to detail all of the evidence adduced by the state in support of the charge of murder in the first degree against Clark.

Testifying in his own behalf, Clark denied that he killed Davis. He denied that he had parked his auto in the place where Fines testified he saw it. According to Clark, he had received an anonymous call at his house around 8:00 P.M. on the night in question that a tenant appeared to be moving out of a residence leased from Clark and he was driving to investigate that possibility when he saw a car behind him, approaching at high speed. He saw no red lights on the vehicle. He pulled off the road at Colborn and Independence to allow the vehicle to pass. The car stopped and then the red lights came on. According to Clark, Fines accused him of stealing apples at Unity. Clark accused Fines of driving like a maniac and told him he had not been at Unity farm.

The jury returned a verdict of guilty of murder in the first degree and fixed the punishment at life imprisonment. After his motion for new trial was overruled, defendant appealed.

Appellant’s first point relates to the overruling of his motion to quash the search warrant and to suppress the use in evidence of the desk calendar discovered in the search at appellant’s residence. Appellant’s first ground of complaint is that the search warrant was invalid because it was not issued pursuant to a written application, required by § 542.276, RSMo 1975 Cum. Supp.

At the hearing on the motion to quash the search warrant, the defendant offered in evidence three documents pertaining to the search warrant. They were an “Affidavit for Search Warrant,” executed by John Fines, a “Search Warrant,” issued by a Judge of the Jackson County Magistrate Court, and a “Receipt for Search Warrant,” executed by Sergeant Jack Morton of the Jackson County Sheriff’s Patrol.

Section 542.276, supra, does refer to a written application for a search warrant and also states that the application shall be supplemented by written affidavits, to be considered in determining whether there is probable cause for a search warrant. These requirements do not preclude the situation in which a single document, properly verified, whether it be denominated an “Application” or “Affidavit,” fulfills the requirements of an application and states adequate grounds for a finding of probable cause for issuance of the warrant. “The initial application [for a search warrant] is generally in the form of an affidavit, the purpose of which is to present to the issuing authority a factual basis for the determination whether probable cause exists for making the desired search or seizure.” 68 Am. Jur.2d, Searches and Seizures, § 63, p. 715 (1973).

In the trial court, the sufficiency of the affidavit to support a finding of probable cause was objected to, but that complaint has not been renewed here. The objection here solely to the absence of an application for a search warrant is without merit and appellant has advanced no other reason in support of his contention that the search warrant was invalid.

Appellant contends further that, without regard for the validity of the search warrant, the seizure of the calendar was invalid because it fell within the class of items, the seizure of which may not be authorized under a search warrant. Appellant relies upon § 542.271, RSMo Cum.Supp.1975, which enumerates items which may be seized pursuant to warrant and excepts “private papers or business records.”

Appellant’s contention that the desk calendar fell within this exception is limited to the statement that appellant was engaged in the real estate business in addition to his employment at the Kansas City Skills Center and that “a calendar such as the type that was seized is very commonly used by businessmen in keeping track of their engagements and also in making memoranda of calls. Few calendars in the business world are used exclusively for telling the date alone.” However, he makes no attempt to demonstrate that the protection against self-incrimination which extends to private papers of a testimonial or communicative nature (United States v. Vickers, 387 F.2d 703, 707[7 — 9] (4th Cir. 1967)), (cert. denied, 392 U.S. 912, 88 S.Ct. 2069, 20 L.Ed.2d 1369 (1968)), applies to the calendar in this case.

Finally, appellant contends that, even if the search warrant was valid and a warrant might have authorized seizure of the calendar, the warrant in this case failed to enumerate the calendar among the articles authorized to be seized.

Although both federal (Amendment IV) and state (§ 15, Art. I, Const, of Mo.1975) constitutions require a search warrant to describe the “thing[s] to be seized,” it is recognized that, in the execution of a search warrant, officers may seize items not specified in an otherwise valid warrant, when the item is reasonably related to the purpose of the search and its seizure is within a recognized exception to the requirement for a search warrant. Taylor v. State of Minnesota, 466 F.2d 1119, 1121[1-3] (8th Cir. 1972); cert. den. 410 U.S. 956, 93 S.Ct. 1425, 35 L.Ed.2d 689 (1973); United States v. Golay, 502 F.2d 182, 184-186[1, 2] (8th Cir. 1974); United States v. Canestri, 518 F.2d 269, 274[8-10] (2d Cir. 1975). In this case, the warrant issued for the search of appellant’s residence and the seizure of weapons and articles of clothing linking appellant to the death of Davis. The search was conducted by Sergeant Morton, to whom Deputy Starr had delivered the torn up calendar pages found by him. Sergeant Morton saw the calendar on a telephone stand when he was in the house pursuant to the warrant. The object was in plain view. It was reasonably related to the items specified in the warrant.

Appellant contends that the plain view doctrine cannot apply because the pages of the calendar had to be turned in order to discover that page 297 was missing from it. “The third prong of the plain view doctrine requires that the objects observed must be immediately recognizable as evidence incriminating the accused. It is not necessary that recognition of the objects as evidence be made beyond a reasonable doubt, but only that the recognition satisfy a probable cause requirement.” United States v. Williams, 385 F.Supp. 1400, 1405[6] (D.C., E.D.Mich.S.D., 1974). The sight of the calendar in plain view with pages such as those upon which the incriminating message appeared was sufficient to give the officer probable cause to believe that the page came from the calendar and that the calendar would, therefore, be of evidentiary value. In the Williams case, the officer saw a white powder which he thought, based on his experience, was heroin. The fact that a test was required to make certain that it was did not preclude a plain view seizure.

The cases relied upon by appellant on this issue are not helpful. United States v. Sanchez, 509 F.2d 886 (6th Cir. 1975), involved a seizure by a federal officer who had accompanied a state officer in execution of a state search warrant. The federal officer participated in the search with a preconceived idea of searching for objects not included in the search warrant. In Haefeli v. Chernoff, 394 F.Supp. 1079, 1082-1083[4-7] (U.S.D.C., Mass., 1975), the court did hold that the plain view doctrine did not permit seizure of checks which barely protruded from an envelope where their removal from the envelope was required to establish their incriminating effect. The situation is factually different, but, more significantly here, the District Court judgment was reversed on appeal. 526 F.2d 1314 (1st Cir. 1975).

Appellant also argues that the sighting of the desk calendar was not inadvertent. He argues that the officers, aware of the sheet from the calendar found as above described, must have realized that the sheet would have come from a calendar in the house of appellant which they sought to search. This proposition is sheer speculation. The warrant was sought to search for and seize clothing and weapons which appellant had told the officers were at the residence. The questioning of appellant had ceased before the calendar sheet was found and he had not been questioned about that item.

Appellant finally objects that at the close of the pre-trial hearing on the motion to quash the search warrant and to suppress evidence, the prosecutor had stated to the court that he did not propose to use the calendar in evidence. The record is not entirely clear whether the statement of the prosecutor related to the desk calendar or to another item, referred to as “a calendar with notes.” In any event, when the desk calendar was offered in evidence, the objection was a renewal of the pre-trial motion to suppress, coupled with a further objection that the object was irrelevant and immaterial. No reliance was placed on the prosecutor’s pre-trial statement. Nor does the motion for new trial assign error on such basis. Therefore, objection on this ground may not be raised for the first time on appeal.

Appellant has demonstrated no error on the part of the trial court based upon its action on his motion to quash the search warrant and to suppress the use in evidence of the desk calendar.

Appellant’s second assignment of error is that the trial court erred in permitting testimony to his in custody incriminating statements. A motion to suppress evidence of defendant’s statements was filed and a hearing held on the motion. The only testimony at the hearing came from two officers who participated in the interrogation. According to the officers, they went to Mr. Clark’s residence in Lee’s Summit at around 1:00 A.M. following the discovery of Davis’s body. They advised appellant of his rights and asked him to accompany them to the sheriff’s office in connection with their investigation. Mr. Clark called Mr. William Collet, an attorney who had previously handled legal matters for him. The two had a rather lengthy conversation and Mr. Collet also talked with two of the officers. After these conversations, Clark agreed to go to the sheriff’s office and did so, travelling in his own automobile.

When Clark arrived at the sheriff’s office at Lake Jacomo at around 2:15 A.M., he was again advised of his rights and asked to sign a “Waiver,” acknowledging that he had read the statement of his rights and his willingness to answer questions without the presence of an attorney. Clark declined to sign the waiver because he had been advised by Collet not to sign anything.

The interrogation proceeded. At 3:00 A.M., Clark was placed under arrest, again advised of his rights and the interrogation continued until 4:00 A.M. The hearing on the motion to suppress did not go into the content of the statements made during the interview. The officers stated that Clark repeated the same thing many times. According to them, he at no time requested that the interrogation cease and he spoke freely and voluntarily.

The trial court overruled the motion to suppress the statement of the defendant. At the trial, the objections stated in the motion were renewed.

At the trial, the officers testified that appellant told them that he was checking on the report that his tenant was moving when he was stopped by Fines. He denied that he had been in the vicinity of Unity Village and told the officers that, if his car had been seen there, it must have been stolen. One of the officers described appellant as “highly nervous and upset and crying a lot.” Another officer stated that once or twice Clark lay down on the floor during the interrogation.

Testifying in his own behalf at the trial, the appellant stated that, when the officers came to his house around 1:00 A.M. and told him that they wanted to interview him about a homicide, he called Mr. Collet because he was “scared.” He said that the officers told him that he could come with them for an “interview” that night or come out in the morning. “I said that I would come out tonight.” According to the appellant the interrogation continued “off and on” until 1:15 P.M. the next day. He acknowledged that he cried during the interrogation and that he lay on the floor when they left him alone a little bit because he “was just all wore out * *

Appellant contends that, in view of his refusal to sign the “waiver” tendered to him, the state failed to bear its burden of proving that the custodial .interrogation which resulted in statements damaging to his defense was a voluntary and intelligent waiver of his privilege against self-incrimination and right to the assistance of counsel.

Appellant’s position is that his refusal to sign a waiver should have caused the officers to expand upon their advice as to his rights to make certain that he understood that any oral statement which he might make could be used against him, whether or not it was reduced to writing. Appellant’s argument assumes that he was under a misapprehension on this score. Appellant made no such complaint at either the pre-trial hearing or in his trial testimony. Unquestionably, the state had the burden of proving that the statements used in evidence were the product of an interrogation in which appellant engaged voluntarily and knowingly. Evidence that he refused to sign the waiver is a matter for consideration in the determination of the legal volun-tariness of the statement in the light of all of the surrounding circumstances. “ * * [I]t becomes necessary to look at all the circumstances surrounding the interrogation to ascertain whether defendant’s refusal to sign a waiver demonstrated that he was unwilling to forego his constitutional right to remain silent.” State v. Sterling, 536 S.W.2d 843, 848 (Mo.App.1976). See also Sterling v. Wyrick, 419 F.Supp. 80, 83[4, 5] (D.C., W.D.Mo., 1976); State v. Auger, 434 S.W.2d 1, 5—6[9] (Mo.1968).

In this ease, appellant first spoke with an attorney before accompanying the officers to the sheriff’s headquarters. By appellant’s own testimony, he was given the choice of going to the sheriff’s office at around 1:00 A.M. or waiting until the next day. Appellant chose to go in the early morning hours. The officers testified that the interrogation proceeded without complaint from appellant and that he spoke freely and voluntarily.

Appellant extracts one reply made by one of the officers to a question asked on cross-examination by defense counsel at the trial. The officer was asked: “Did he (the defendant) tell you that his attorney advised him not to talk to you?” The officer replied affirmatively. On direct examination the officer had testified that, when they went to appellant’s residence, the appellant called attorney Collet by telephone and spoke to him at length, that he and another officer also spoke to Collet and explained the reason they wanted to interview appellant “ * * * and the attorney advised him to voluntarily go to our headquarters for an interview at Lake Jacomo.” The other officer who spoke with Mr. Collet testified that Mr. Collet told him that if appellant “wanted to he could go on to headquarters with us to interview.” In view of this evidence, the answer to the question on cross-examination cannot be held to have shown that the interrogation proceeded in the face of a claim by appellant of his right to remain silent.

Appellant argues that the situation in this case calls for the rule applied in United States v. Nielsen, 392 F.2d 849 (7th Cir. 1968). In that case, the court held that when a suspect who has an attorney refuses to sign a waiver of rights and then expresses an apparent willingness to allow further questioning the situation “should have alerted the agents that he was assuming seemingly contradictory positions with respect to his submission to interrogation.” The court held that the agents should have inquired further “to determine whether his apparent change of position was the product of intelligence and understanding or of ignorance and confusion.” The court con-eluded that in the absence of further inquiry the response to further interrogation was not made “after a knowing and intelligent waiver of his rights.” 392 F.2d at p. 853.

There is certainly no unanimity among the federal courts on the question of the meaning and effect to be given to a refusal to sign a waiver of rights by a suspect who thereafter assents to police interrogation. See cases cited in United States v. Kallevig, 534 F.2d 411, 414-415 (1st Cir. 1976). This court follows the rule previously announced in State v. Sterling, supra, and applied federal authority. See cases cited at 536 S.W.2d 849. In any event, Nielsen is distinguishable in that the attorney there involved had been retained by the defendant to represent him, whereas here appellant had not retained counsel but merely called upon an attorney of his acquaintance.

Appellant has not demonstrated error in the trial court’s ruling on his motion to suppress the results of his custodial interrogation or in the admission of such evidence at his trial.

Appellant next contends that the trial court erred in admitting without proper foundation expert testimony comparing purported exemplars of appellant’s handwriting for the purpose of establishing his authorship of the incriminating note on the calendar sheet.

In his examination of the note (State Exhibit 50), the handwriting expert compared the writing there with three documents. One was a letter purportedly written by appellant to the President of Unity, requesting an opportunity to discuss employment of appellant by Unity. The letter was dated January 26, 1974. The second document used for comparison was an application by Clark, dated August 17, 1955, for employment at Unity. The third document was a page from a personal information form which had been sent to all Unity personnel in 1966. These two documents were taken from Clark’s personnel file in the office of personnel director at Unity.

When the state’s witness began to testify to his comparison of the writing on Exhibit 50 with the writing on these three documents, defense counsel objected on the grounds that the state had not shown that the handwriting on the three documents used as exemplars was the handwriting “of any particular person.” The objection was overruled and the witness demonstrated similarities in the handwriting on those documents with that on Exhibit 50. He then expressed the opinion, over similar objection, that all were in the same handwriting. At the conclusion of the case, defense counsel moved to strike the expert’s testimony. The motion was overruled.

The issue presented by this claim of error must be viewed in the light of § 490.640, RSMo 1969, which provides:

“Comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses, and such writings and the evidence of witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute.”

Appellant has ignored that statute and its import in this case. He has relied on McLendon v. Leighty, 320 S.W.2d 735 (Mo.App.1959), and Cummins v. Dixon, 265 S.W.2d 386, 394-395[7-10] (Mo.1954), as prescribing the nature of the proof required for the authentication of the documents relied upon by the state as handwriting exemplars. Those cases did not involve the authentication of documents for such purpose.

As the statute provides, the authenticity of a document to be employed as an exemplar must be established “to the satisfaction of the judge to be genuine * * In this case there was no direct evidence that the documents employed by the state for such purpose were in appellant’s handwriting. However, the authenticity of such documents may be shown circumstantially. 29 Am.Jur.2d, Evidence, § 807, pp. 897-898 (1967). “There is no precise method by which a specimen must be proved to be genuine and the proof may be either direct or circumstantial. Dean v. United States, 246 F. 568, 576 (5th Cir. 1917). The courts have not restricted the manner in which specimens may be proved genuine and each case must be viewed on its own facts.” United States v. White, 444 F.2d 1274, 1280[12] (5th Cir. 1971). See United States v. Wagner, 475 F.2d 121, 123[1—3] (10th Cir. 1973).

“The action of the court in admitting or rejecting a specimen as a standard, is a matter of discretion. Its action is final and conclusive unless based on an error of law, or on evidence which is, as a matter of law, insufficient to justify its finding, * * 32 C.J.S. Evidence § 617, p. 781 (1964); State v. Boyington, 544 S.W.2d 300, 305-306[12, 13] (Mo.App.1976).

In this ease, there was substantial circumstantial evidence of the genuineness of the letter used as a specimen. Obviously, this was not a reply letter. However, it did form the basis for activity by appellant in accordance with the terms of the letter. He was, as he requested, granted an interview with the addressee of the letter. Testifying in his own behalf, appellant admitted that he had written such a letter and that the content of the letter in evidence was “familiar” to him. In these circumstances, his denial that the letter was in his handwriting was not conclusive. Wilson v. Scroggs, 85 Colo. 537, 277 P. 784 (1929).

Furthermore, when the letter was offered in evidence, the objection to it was based upon lack of relevance, not insufficient authentication. On cross-examination of the Unity president, who had produced the January 26,1974 letter, defense counsel asked “Now, in response to Mr. Clark’s letter of * * * January 26, 1974, you wrote him a letter, did you not?” The witness replied affirmatively and identified his reply which was put in evidence as a defendant’s exhibit.

Insofar as the letter is concerned, there was substantial circumstantial evidence of its genuineness and the trial court’s ruling with respect to its use should not be disturbed.

The other two documents present a more difficult problem. The state suggests that, if one document was properly admitted, all these were, because the expert testified that they were, in his opinion, all in the same handwriting. This position is contrary to the “ * * * general agreement that genuineness cannot be established by comparison (by experts or otherwise) of the proposed standard itself with another writing * * *'” Annotation: “Mode and degree of proof required to establish genuineness of handwriting offered as standard or exemplar for comparison with a disputed handwriting or signature.” 41 A.L.R.2d 575, § 5, p. 583 (1955).

It was, therefore, necessary for the state to establish the genuineness of the other two documents other than by the experts’ opinion that they were in the same handwriting as the letter.

One document was an application for employment at Unity, dated August 17, 1955. The second was described as a personal information form, obtained from Unity employees in 1966. The personnel director who presented them was not at Unity when Clark was first employed there and he offered no testimony as to the manner of preparation of the documents. The state apparently relied upon the “Uniform Business Records of Evidence Mo., § 490.680, RSMo 1969, in offering the documents. The Business Records Law is designed to obviate hearsay objection, and does not render all business records competent evidence for whatever purpose they may be offered. Tile-Craft Products Co., Inc. v. Colonial Properties, Inc., 498 S.W.2d 547, 549[3] (Mo.1973).

In supporting the trial court’s action, the state relies upon United States v. Liguori, 373 F.2d 304 (2nd Cir. 1967). In that case the handwriting of the defendant was in issue with respect to a note which accompanied narcotics. The government handwriting expert used as exemplars a lease application, a key application, an automobile application, all in defendant’s name and purportedly signed by him. The court summarily rejected appellant’s contention that the exemplars had not been authenticated, stating:

“Only baseless speculation could assign these documents to any hand other than that of appellant.” 373 F.2d at 306.

A more reasoned approach to the question is to be found in United States v. Swan, 396 F.2d 883 (2nd Cir. 1968). In that case, the government handwriting expert used as exemplars application and registration forms submitted by the defendant as a university student. The defendant admitted that his signature appeared on the forms but objected to the use of the writing on the record as exemplars for comparison with the defendant’s alleged handwriting in issue in the case. In ruling on the issue on appeal, the court stated:

“We find that Judge Mishler did not err in denying defendant’s motions to strike the Columbia University records and the testimony of the government’s handwriting expert. ‘The admitted or proved handwriting of any person shall be admissible for purposes of comparison, to determine genuineness of other handwriting attributed to such person.’ 28 U.S.C. § 1731. The government proved the genuineness of the exemplars to the satisfaction of the court. In order to secure reversal on appeal of the trial court’s ruling defendant must show that the ruling was not fairly supported by the evidence. Citizens' Bank & Trust Co. of Middlesboro, Ky. v. Allen, 43 F.2d 549, 550-551 (4th Cir. 1930); Annotation: Genuineness of Exemplar-Proof, 41 A.L.R.2d 575, 582 (1955); 2 Wharton’s Criminal Evidence § 582 (R. A. Anderson 12th ed. 1955); 7 Wigmore on Evidence § 2020 (3rd ed. 1950). The defendant has failed to meet this burden.

“Co-defendant Portoghese testified that the printing on the Columbia University records is ‘similar to Donald Swan’s,’ and that the printing looked the same as the printing on some checks that Portoghese received from Swan. While Portoghese was not absolutely certain that the printing was Swan’s, the combination of his testimony and the inference which the trial judge could draw from the nature of the papers themselves and the testimony of the Assistant Registrar was a sufficient foundation for their admission for use as an exemplar of Swan’s handwriting and printing. Butler v. State, 38 Ala.App. 527, 93 So.2d 441, cert. denied, 265 Ala. 694, 93 So.2d 445 (1956).

“The trial judge was entitled to rely in part upon the circumstantial evidence before him. Dean v. United States, 246 F. 568 (5th Cir. 1917). As in the Dean case, this court has examined the documents used as exemplars. We find that they are of such a character that there is a strong inference that they were filled out by the signer. Each of the registration cards has a space marked ‘STUDENT’S SIGNATURE’ in which appellant admittedly wrote ‘Donald A. Swan.’ At the top of each card are instructions: ‘Print your name exactly as it should appear on all official records.’ On each card the name ‘Donald Arthur Swan’ is printed in the same color ink as Swan’s admitted signature. The body of the cards and other documents are filled out in a mixture of block printing and script. In each case the writing is all in the same color ink and appears similar to the printed and written names. An Assistant Registrar of Columbia University testified at the trial that it is customary for students to fill out their own registration cards. This clearly is sufficient evidence from which the trial judge could infer that Swan, who admittedly signed the cards, also filled them out. See United States v. Liquori, 373 F.2d 304 (2d Cir. 1967).” 396 F.2d at p. 885[2].

In United States v. Greiser, 502 F.2d 1295, 1298[3] (9th Cir. 1974), an application for employment was found sufficiently authenticated to permit its use as an exemplar. In that case, a fellow employee, familiar with the defendant’s handwriting, testified that he recognized the writing and printing on the application as that of the defendant. See Estate of Fedina v. Fedina, 491 S.W.2d 552, 558[3,4] (Mo.1973).

In Scharfenberger v. Wingo, 542 F.2d 328, 336—337[8—11] (6th Cir. 1976), a job application, signed by the person whose writing was in issue, and taken from the official files of the state where he was employed, was held to have been sufficiently shown by circumstantial evidence to have been genuine. In that case the court noted that “the exemplars were taken from documents from the state’s official files, which were prepared long before the litigation began. Moreover, the documents were taken from the files of the Commonwealth of Kentucky, which had been the employer of all of the defendants here. There was no evidence tending to show that the documents were not written by Dr. Salb. In these circumstances, the record adequately supports the trial court’s implicit ruling that the exemplars were genuine samples of Dr. Salb’s handwriting.” 542 F.2d at p. 337.

The last three cited federal cases were decided without the benefit of Federal Rule 901, designed to facilitate the authentication of documents for use in evidence. Rule 901(a) provides: “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” The state urges acceptance of this standard of authentication as more consistent with commonly accepted public experience than the more rigorous standards employed by the law for proof of the genuineness of writings.

Without the necessity of going this far, it can be concluded that the trial court’s conclusion that these documents were genuine was based upon substantial evidence. The documents have been submitted here for examination. United States v. Swan, supra. The application for employment does not purport to bear appellant’s signature. However, the application clearly refers to appellant and at least one question is answered in the first person, singular (“Why did you leave?” “Because my employer is getting ready to sell business.”) The appearance of the document is consistent with its date, August 17, 1955, negativing any suggestion of fabrication for use in this case.

The page from the personal information sheet requests “a paragraph (in your own handwriting please) explaining why you choose to work in Unity * * *.” The handwritten portion, bearing the signature “Willis R. Clark” bears information consistent with the evidence as to Clark’s employment there and it is also consistent with the application for employment. “I chose to work at Unity School in 1955 because my wife worked there * * *.” The application shows that Clark’s wife was employed at Unity at the time of the application.

Admittedly these documents did not have the benefit of direct proof of their authenticity. However, the circumstances were sufficient to allow the trial court to be satisfied of their genuineness as he presumably was when he allowed their use as exemplars. State v. Pace, 269 Mo. 681, 192 S.W. 428, 431[7] (1970). Appellant has not shown that his conclusion was in error.

For his final point, appellant asserts that the trial court erred in rulings on several of his objections to the admission of evidence and that the cumulative effect of such errors calls for a reversal of the judgment of conviction. As the state points out, the adequacy of the point as stated in appellant’s brief is highly doubtful, inasmuch as the point is stated abstractly and does not refer specifically to the rulings objected to. Rules 28.18, 84.04(d). Furthermore, appellant has not briefed the claimed error with respect to the rulings questioned. He merely asserts that the trial court’s ruling in each instance was erroneous, but offers no authority in support of his position. The only authority cited is in support of the proposition that error is not harmless if there was a reasonable possibility that the error complained of contributed to the finding of guilt. Obviously, some error must have been demonstrated before that proposition may become applicable. Something more than a mere assertion of error is required before an appellate court will consider the claim. Claims of error “without citation of authority and little or no argument * * * are not reviewable.” State v. Warters, 457 S.W.2d 808, 811[1-5] (Mo.1970); State v. Schulten, 529 S.W.2d 432, 434 (Mo.App.1975). What appellant describes as the “more minor errors” have not been adequately presented for appellate review.

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: SOMERVILLE, Judge.

license: Public Domain

text:
    Jack Lee NOBLE, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 28325.
    Missouri Court of Appeals, Kansas City District.
    May 2, 1977.
    Motion for Rehearing and/or Transfer Denied June 1, 1977.
    Application to Transfer Denied July 11, 1977.

      Thomas A. Vetter, Cook, Vetter <& Doer-hoff, Jefferson City, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   SOMERVILLE, Judge.

As mirrored by this appeal from an adverse ruling on a Rule 27.26 motion, the aftermath of the 1954 prison riot at the Missouri State Penitentiary, Jefferson City, Missouri, still stalks the courts of this state. During the course of the riot an inmate was murdered. Shortly after the riot was quelled Jack L. Noble, appellant herein, and six fellow inmates were jointly indicted by a Cole County Grand Jury for first degree murder. Severances were subsequently obtained and each accused was separately tried.

Noble stood trial in the Circuit Court of Cole County where a jury on March 29, 1955, found him guilty of first degree murder and assessed his punishment at life imprisonment. Although a timely motion for new trial was filed, Noble, in writing, subsequently withdrew it, waived his right to appeal, and requested the trial court to enter judgment and pronounce sentence in accordance with the verdict returned by the jury. The trial court on July 18, 1955, acting thereon, entered judgment and pronounced that Noble be sentenced to life imprisonment. Whether Noble voluntarily waived his right to appeal courses throughout this and a series of prior post-conviction proceedings which he initiated. The earlier attempts to obtain relief warrant being mentioned in some detail at this time, in conjunction with certain basic and undisputed facts, in order to put the present appeal in proper perspective.

Immediately after the indictment was returned (November 23, 1954), Noble and his six co-indictees were transferred from the general prison population and separately placed in “segregated confinement”. More particularly, Noble was placed in “B basement” where he was held in “segregated confinement”, except for intervals of temporary transfer attendant to his trial, until September 11, 1955, at which time he was returned to the general prison population.

On July 1, 1960, Noble, acting pro se, filed a Rule 27.26 motion in the Circuit Court of Cole County seeking to vacate his life sentence. Therein, Noble alleged that he was “induced” to waive his right to appeal because his counsel told him “that an agreement had been reached between counsel for defendant and counsel for the state, whereby he would be ‘immediately5 released from solitary confinement if he would agree to waive his right of appeal.” For some unexplained reason this motion was “dismissed without an evidentiary hearing”, and on January 1, 1961, Noble began serving the life sentence.

On February 4,1964, Noble, acting pro se, filed a petition for writ of habeas corpus in the Circuit Court of Cole County which, by mutual agreement of the parties, was treated as a motion for relief under Rule 27.26. The thrust thereof centered around Noble’s contention that he involuntarily waived his right to appeal because defense counsel, the prosecuting attorney, and prison authorities “entered into a conspiracy and agreement to act in concert and togather [sic] to intimidate, induce, and coerce petitioner to withdraw his motion for a new trial and waive his right to appeal . . . ” in exchange for a promise to release him from “segregated confinement”. Following an eviden-tiary hearing, the trial court “found the issues” against Noble and entered judgment denying him any post-conviction relief. On appeal, the Supreme Court, after reviewing the matter de novo (per former Rule 28.05 which was repealed by order adopted January 9, 1967, effective September 1, 1967), held that Noble had “failed to sustain the burden of establishing the allegations of his petition” and affirmed the judgment entered by the trial court. State v. Noble, 387 S.W.2d 522, 527 (Mo.1965). A fair reading of State v. Noble, supra, discloses that the Supreme Court found, after an extensive review and discussion of all of the evidence (set forth at length in the opinion), that no “conspiracy” or “agreement” existed, as alleged by Noble, to induce him to trade off his right to appeal for his release from “segregated confinement”. This conclusion is buttressed by the following statement in State v. Noble, supra, at 527: “Although the prospect of continued solitary confinément might have been a factor in Noble’s mind, it was not shown to have been the basis of any bargain between his attorney and the state officials in order to defeat Noble’s right of appeal.”

Having failed to obtain post-conviction relief in the state courts, Noble next filed a petition for writ of habeas corpus in the United States District Court, Western District of Missouri, Central Division. Once again Noble’s principal contention, albeit cast in slightly different language, was that “his court appointed counsel, the Prosecuting Attorney and the warden of the prison conspired to and did unconstitutionally deprive him of his right of appeal by coercing him into withdrawing his motion for new trial and waiving his right to appeal in exchange for his release from solitary confinement.” Noble v. Swenson, 285 F.Supp. 385, 386 (W.D.Mo., 1968). In denying the relief sought by Noble by way of his petition for writ of habeas corpus, the federal district court, at 387, held: “We find that the Supreme Court of Missouri exercised its power of de novo review and that it reliably found the facts as stated in its opinion in State v. Noble, supra [State v. Noble, 387 S.W.2d 522 (Mo.1965)]. We make this finding as a result of our independent study of the transcript of the hearing before Judge Blair, the exhibits attached thereto and the opinion of the Supreme Court of Missouri in petitioner’s 27.26 proceeding. We further find that petitioner was afforded a full and fair evidentiary hearing on the contention presented in his Rule 27.26 motion. Deferring to the Missouri Supreme Court’s findings of fact and applying the federal law independently, we find and determine that petitioner was not unconstitutionally denied his right of appeal by a conspiracy between the court-appointed attorney, the Prosecuting Attorney, and the officials of the Missouri State Prison.” The federal district court however took cognizance, Noble v. Swenson, supra, at 387, that Noble (in his brief) attempted to raise an additional issue, to-wit, “it is possible that the State of Missouri in the operation of Missouri State Prison, has coerced petitioner into giving up his right to appeal”, never before presented to the state courts of Missouri, and, perforce, with respect to which Noble had not exhausted-his state court remedies.

Not easily rebuffed, Noble seized upon the decision handed down by the federal district court in Noble v. Swenson, supra, and on July 2, 1968, filed another Rule 27.26 motion in the Circuit Court of Cole County seeking to vacate the life sentence pronounced on July 18, 1955. Twelve of thirteen grounds alleged therein related to matters which occurred prior to withdrawal of his motion for new trial and waiver of his right to appeal. The remaining one, 8(k), sweepingly alleged that he “was pressured and coerced into abandoning his right to appeal by means that violated his constitutional rights.” The trial court, without affording Noble an evidentiary hearing, and after making what was designated “findings of fact” and “conclusions of law”, denied the relief sought. Suffice it to say, the trial court held in its “conclusions of law” that all the asserted grounds for relief were not cognizable under Rule 27.26 save 8(k) which had previously been adjudicated adversely to Noble in State v. Noble, supra. Noble’s appeal therefrom is reported in Noble v. State, 477 S.W.2d 417 (Mo.1972). Noble’s principal contention on this appeal was that the trial court erred in denying him an evidentiary hearing on ground 8(k) on the premise that it had been adjudicated adversely to him in State v. Noble, supra. The Supreme Court in Noble v. State, supra, at 420, noted that State v. Noble, supra, merely determined that Noble had failed to sustain his burden of proving an “arrangement” between defense counsel, the prosecuting attorney, and prison authorities to coerce him into waiving his right to appeal by detaining him in solitary confinement until he did so. The court went on however, and heeding Noble v. Swenson, supra, found that ground 8(k), “although made and paraphrased inartfully”, was an attempted assertion of the ground for relief recognized in Noble v. Swenson, supra, i. e., that “it is possible that the State of Missouri in the operation of Missouri State Prison, has coerced petitioner into giving up his right to appeal” and, viewed in that context, constituted a ground for relief undetermined by State v. Noble, supra. The Supreme Court reversed the judgment entered by the trial court and remanded the case for an evidentiary hearing with leave given to Noble, State v. Noble, supra, at 420 “to amend the present motion to vacate in order to clarify or expand any allegations therein or to include any and all other known grounds for relief as required by Criminal Rule 27.26(c), V.A. M.R.” After the case was remanded to the trial court, Noble’s Rule 27.26 motion was extensively amended, an evidentiary hearing was held, findings of fact and conclusions of law were made and judgment was entered denying the relief prayed for. The quintessence of the findings of fact, conclusions of law, and judgment denying relief being that Noble failed to sustain his burden of proving that waiver of his right to appeal was involuntary and coerced, and that his overriding motive for doing so was to escape the possibility of imposition of the death penalty upon retrial. The appeal pending before this court is one taken by Noble from the judgment just mentioned.

By way of amending his Rule 27.26 motion, Noble set forth eight grounds which he claims entitled him to relief. The first three grounds, designated 8(a), 8(b) and 8(c), may be paraphrased as follows: 8(a), that the state’s “manner of operating the State Penitentiary” coerced him into waiving his right to appeal because until he did so he would not be released from “segregated confinement” and transferred to the general prison population; 8(b), that waiver of his right to appeal was “involuntary” and “coerced” because induced by an agreement between defense counsel, the prosecuting attorney, and prison authorities that in exchange for doing so he would be released from “segregated confinement” and returned to the general prison population; and 8(c), that waiver of his right to appeal was “involuntary” and “coerced” because his counsel failed to secure his release from “segregated confinement” when counsel knew that said confinement was unjustified and that Noble would forfeit his right to appeal, if necessary, to abate said confinement. Compositely, Noble contends that for reasons set forth in grounds 8(a), 8(b) and 8(c) he was deprived of his constitutional rights (federal and state) of due process and equal protection and, further, for reasons set forth in grounds 8(b) and 8(c) he was deprived of his constitutional right (federal and state) of assistance of counsel. The remaining five grounds (and subparts) relate to matters associated with the jury trial which culminated in the sentence presently sought to be vacated. For reasons which hereinafter appear self-evident, it is unnecessary to distinguish between those which are “mere trial errors ... to be corrected on appeal”, and not cognizable in a Rule 27.26 proceeding, and those which are “trial errors affecting constitutional rights” and cognizable in a Rule 27.26 proceeding. Rule 27.26(b)(3).

Prior to the evidentiary hearing in the trial court, Noble filed a motion for preparation of a transcript of all proceedings in the underlying homicide trial. This motion was denied in part and sustained in part as the trial court ordered and directed the court reporter to prepare and file a transcript covering only those proceedings which occurred after March 29, 1955, the date the jury returned its verdict finding Noble guilty of murder in the first degree and assessing his punishment at life imprisonment. The evidentiary hearing held by the trial court was limited to the three grounds (8(a), 8(b) and 8(c)) which form the basis for Noble’s assertion that waiver of his right to appeal was “involuntary” and “coerced”.

The points on appeal raised and relied upon by Noble, substantially condensed, are: (1) the findings, conclusions and judgment of the trial court that he failed to sustain his burden of proving that waiver of his right to appeal was “involuntary” or “coerced”, and that the saturating motive for doing so was to escape possible infliction of the death penalty upon retrial, are clearly erroneous; (2) the trial court erred in limiting his motion for preparation of a transcript of the underlying trial to matters occurring subsequent to March 29,1955 (the date the jury returned its verdict); (3) the trial court erred in failing to afford him an evidentiary hearing on the grounds appertaining to matters associated with and occurring at the underlying trial up to the time the jury returned its verdict; and (4) the trial court erred in failing to make any findings of fact and conclusions of law with respect to the latter mentioned grounds.

Clearly, the burden of proof with respect to grounds 8(a), 8(b) and 8(c) rested upon Noble. Rule 27.26(f). Appellate review of Noble’s Rule 27.26 proceeding is circumscribed to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.26(j). Guided by these rules, the three component grounds relied upon by Noble, purportedly evincing that waiver of his right to appeal was “involuntary” or “coerced”, will be separately addressed.

The findings, conclusions and judgment of the trial court are not clearly erroneous as to ground 8(a) of Noble’s Rule 27.26 motion — that the state’s “manner of operating the State Penitentiary” coerced him into waiving his right to appeal because until he did so he would not be released from “segregated confinement” and transferred to the general prison population. The evidence discloses that as a matter of administrative prison policy every inmate charged with commission of a criminal offense occurring within the confines of the prison was held in “segregated confinement” until completion of his trial. Moreover, with respect to Noble and his fellow co-indictees, a temporary policy was apparently adopted to keep all seven in “segregated confinement” until all of their trials were completed. The record does not give any hint as to what prompted the adoption of these policies. Parenthetically, they would appear to be justified for several reasons — to protect such inmates from being exposed to the possibility of retaliatory harm at the hands of fellow inmates in the general prison population, to preclude the potentiality of danger to other prisoners in the general prison population, and generally to maintain some semblance of “law” and “order” within the confines of the prison.

After being indicted (November 23, 1954) Noble was placed in “segregated confinement” and held there until September 11, 1955, a date which coincided with the completion of the trial of the last of the seven co-indictees. He was the first of the co-indictees to be released from “segregated confinement”. Noble described the conditions of his “segregated confinement” as follows: he was confined in one of sixteen cells in “B” basement of the prison; his individual cell was approximately 7½ feet by 6 feet in size; “[m]ost of the time” he didn’t “have clothes”; he had a “tick bag filled with straw” to sleep on; he was fed twice a day; once a week he was taken from his cell, in handcuffs, for a shower; he had no reading material; the only windows were ten feet from the cell fronts and they were “painted over” and “kept closed”; and he was taken from his cell to the “central center” on various occasions to talk to his lawyer. These conditions, concededly, were not designed to afford inmates placed in “segregated confinement” the amenities, limited though they might be, enjoyed by inmates in the general prison population. In conjunction with ground 8(a), Noble testified that he withdrew his motion for new trial and waived his right to appeal “[t]o get out of solitary confinement”. He continued to hammer this theme by way of similar statements throughout the entire hearing. Assessment of Noble’s credibility was within the province of the trial court. Campbell v. State, 515 S.W.2d 453, 456 (Mo.1974); and Powell v. State, 528 S.W.2d 767, 767 (Mo.App.1975). Moreover, in view of Noble’s highly personal and decidedly partisan interest in the outcome of the Rule 27.26 proceeding, the trial court could and obviously did reject Noble’s testimony in the respect just mentioned. Thurman v. State, 523 S.W.2d 521, 528 (Mo.App.1975); and Cooper v. State, 520 S.W.2d 666, 668 (Mo.App.1975). The fact that Noble was placed in “segregated confinement” prior to trial refutes any notion that it was done for the purpose of coercing him into waiving his right to appeal. Noble does not contend otherwise. Also deemed pertinent is the fact that Noble had been in “segregated confinement” approximately five months when he filed his motion for new trial. At that point of time it appears that the conditions of “segregated confinement” were not considered so offensive or intolerable by Noble as to dissuade him from seeking a new trial. This, at least circumstantially, tends to vitiate Noble’s contention that conditions attendant to his “segregated confinement” were, per se, the significant contributing factor for waiving his right to appeal. The tack taken by Noble in ground 8(a) to avoid the consequences of his own voluntary act is far from novel. It has frequently been taken to no avail in connection with attempts to brand pleas of guilty as involuntary or coerced. As pungently stated in Verdon v. United States, 296 F.2d 549, 552 (8th Cir.1961), “[dissatisfaction with a penal condition, brought about by one’s own conduct, and a hope that by a guilty plea a different kind of incarceration might be achieved are scarcely factors of involuntariness in a plea. . . . [t]hey smack instead only of a desire to achieve as soon as possible a new condition of servitude.” In accord, see: Swain v. State, 492 S.W.2d 778, 780 (Mo.1973); Coleman v. State, 473 S.W.2d 692, 694 (Mo.1971); and Collins v. State, 450 S.W.2d 186, 190 (Mo.1970).

The findings, conclusions and judgment of the trial court are not clearly erroneous as to ground 8(b) of Noble’s Rule 27.26 motion — that waiver of his right to appeal was “involuntary” and “coerced” because induced by an agreement between defense counsel, the prosecuting attorney, and prison authorities that in exchange for doing so he would be released from “segregated confinement” and returned to the general prison population. By stipulation of the parties, a copy of the transcript on appeal in State v. Noble, supra, was, in its entirety, admitted as an exhibit at the evi-dentiary hearing which precipitated the present appeal. Although not all of the witnesses whose testimony appears in the referred to transcript were called at the evidentiary hearing now under review, it can fairly be said that the testimony of those who were called and who testified, so far as pertinent to ground 8(b), was, for all practical purposes, repetitious of that contained in the referred to transcript. All of the exhibits contained in the referred to transcript were separately reintroduced at the evidentiary hearing from which this appeal stems. An additional exhibit, Noble’s “Committment Record Card”, was also introduced, as well as testimony with reference to the transfer of the co-indictees from “segregated confinement” to the general prison population. Said testimony, along with testimony with reference to the additional exhibit, can only be described as hazy, confusing and inconclusive. It posed, but failed to definitely resolve, whether Noble’s transfer from “segregated confinement” to the general prison population on September 11, 1955, was effected by action of the prison Classification Committee as was the case with respect to the co-indict-ees.

The trial judge who heard and denied Noble’s present Rule 27.26 motion had before him all the evidence which was before the Supreme Court in State v. Noble, supra, the thrust of ground 8(b) was identical to that litigated and ruled adversely to Noble therein, and no additional or contradictory evidence of substance or of a persuasive nature was presented. It is patently obvious that the trial judge, in ruling and disposing of ground 8(b), did not deem State v. Noble, supra, as controlling under the doctrine of res judicata. Instead, the trial judge, perhaps because Noble had not been represented by counsel at the evidentiary hearing which occasioned the appeal in State v. Noble, supra, wisely chose to consider and rule ground 8(b) on its merits on the basis of all the evidence before him. In doing so, he concluded that Noble had failed to prove that defense counsel, the prosecuting attorney, and prison authorities had conspired or agreed to induce him to trade off his right to appeal for his transfer from “segregated confinement” to the general prison population. The most telling and persuasive testimony in this and the prior hearings was that of James T. Riley, Prosecuting Attorney of Cole County at the time in question, who unequivocally stated under oath on repeated occasions that no conspiracy or agreement ever existed to induce or coerce Noble into waiving his right to appeal. Ergo, the findings, conclusions, and judgment of the trial court apposite ground 8(b) are not clearly erroneous. To hold otherwise would be tantamount to rebuffing the well reasoned decision of the Supreme Court of Missouri in State v. Noble, supra, and the well reasoned decision of the United States District Court, Western District of Missouri, in Noble v. Swenson, supra.

The findings, conclusions and judgment of the trial court are not clearly erroneous as to ground 8(c) of Noble’s Rule 27.26 motion — that waiver of his right to appeal was “involuntary” and “coerced” because his counsel failed to secure his release from “segregated confinement” when counsel knew that said confinement was unjustified and that Noble would forfeit his right to appeal, if necessary, to abate said confinement. The thrust of this ground was not dwelled upon at any length or clearly explicated in Noble’s brief. As garnered from the transcript, Noble appears to have espoused to counsel a dissatisfaction with “segregated confinement” and a desire to be transferred therefrom following his trial and prior to waiving his right to appeal. The evidence conclusively demonstrates that S. W. James, Jr., now deceased, one of two attorneys who represented Noble at the homicide trial, made a concerted effort to effect Noble’s transfer from “segregated confinement” to the general prison population and that Noble was, in fact, the first of the indictees to be so transferred. Pragmatically viewed, ground 8(e) rattles the same theme inherent in grounds 8(a) and 8(b) asserted by Noble, namely, according to Noble, the overriding compulsion for waiving his right to appeal was to escape the rigors of “segregated confinement”. The totality of the evidence which precludes the findings, conclusions and judgment of the trial court appertaining to grounds 8(a) and 8(b) from being stamped as clearly erroneous impels the same conclusion with respect to ground 8(c).

It is highly appropriate at this point to shift the focal point of this opinion to certain signal facts supporting the trial court’s conclusion that the prime and overriding motive which prompted Noble’s waiver of his right to appeal was to avoid running the gauntlet of the death penalty at a new trial. When Noble waived his right to appeal (July 18, 1955), the death penalty was still viable and a statutorily prescribed punishment for first degree murder. A letter dated September 2,1955, from S. W. James, Jr. to Noble, admitted into evidence by stipulation of the parties, contains a perspicuous statement of undeniable significance: “At the time of the hearing on your motion for new trial, if you will recall, this matter was discussed with you by the writer and Mr. Daly in detail, and at that time you admitted very readily that, under the law of the evidence, it would be impossible for you to obtain a judgment of acquittal, and that should you obtain a new trial, either by the circuit court or on appeal to the Supreme Court, you would, of course, face the prospects of getting a more severe sentence than the life sentence imposed upon you. Under that theory, of course, and which I believe is the correct one, it would be a useless proposition to go through the proceeding to obtain a new trial when, as a matter of fact, you might be seriously jeopardized thereby.” Noble was confronted with this at the evidentiary hearing and admitted that he recalled the discussion and that it was “very true”, the substance of what was related was “considered” by him, and that James’ account of the discussion as having been “readily” admitted by him [Noble] at the time it occurred “was the case, yes”. Suffice it to say, this alone was far more than a paucity of evidence to support the trial court’s finding that Noble waived his right to appeal because of an insatiable desire to avoid exposing himself to infliction of the death penalty, a rampant possibility, indeed a clear and present danger, at the time.

By way of summation regarding grounds 8(a), 8(b) and 8(c), the crux of Noble’s argument is that his after-the-fact self-serving statements as to his prior subjective state of mind were beyond the pale of disbelief and thereby destroyed the hard evidence which contradicted them. The trial court thought otherwise and this court holds that it was entirely justified, factually and legally, in doing so. Consequently, its findings, conclusions and judgment are not erroneous, much less clearly erroneous.

Noble’s remaining three points, i. e., that the trial court erred in not ordering a complete transcript of the first degree murder trial, in not affording him an evidentiary hearing on the other five grounds set forth in his Rule 27.26 motion, and in not entering findings of fact and conclusions of law with respect thereto, lend themselves to being addressed and disposed of jointly. The rationale employed by the trial judge in denying Noble a complete transcript of the homicide trial, and in limiting the evi-dentiary hearing on his Rule 27.26 motion to grounds 8(a), 8(b) and 8(c), first surfaced when Noble’s motion for production of the trial transcript was ruled on. At that time the trial judge, in essence, advised the parties that whether Noble knowingly and voluntarily waived his right to appeal appeared to be the pivotal question around which all other grounds revolved. As perceived by this court, the trial judge apparently reasoned that if Noble did so knowingly and voluntarily, all purported grounds associated with the underlying trial were waived, or, if he did so involuntarily, his right to appeal would be reinstated and all such grounds could be raised on direct appeal. Nickens v. State, 506 S.W.2d 381, 386 (Mo.1974), authoritatively supports the first aspect of the bifurcated reasoning attributed to the trial judge. In Nickens, the movant in a Rule 27.26 proceeding expressly refrained from introducing any evidence with regard to whether he had knowingly and voluntarily waived his right to appeal the principal or underlying criminal action. In his Rule 27.26 proceeding, however, he adamantly insisted that he was entitled to raise, present and be heard on alleged trial errors affecting his constitutional rights notwithstanding the fact that they antedated the voluntary waiver of his right to appeal. Regarding Rule 27.26 and the related issue at hand, the court in Nickens, at 386, held: “It was not intended to and does not give a right to collaterally attack alleged constitutional deficiencies which the defendant [movant] has voluntarily and knowingly waived as a basis for final disposition of his case.” In so holding, the court equated knowingly and voluntarily waiving the right to appeal with knowingly and voluntarily entering a plea of guilty. See also Williams v. State, 530 S.W.2d 740, 742 (Mo.App.1975).

On February 15,1974, during the interim between the ruling on Noble’s motion for production of a complete trial transcript and the evidentiary hearing conducted on his Rule 27.26 motion, a “pre-trial conference” was held. According to the record, Noble, in person and accompanied by counsel, and the Assistant Prosecuting Attorney of Cole County on behalf of the state, appeared and participated in the “pre-trial conference”, at which time the following order was entered: “Trial is set for hearing by agreement of parties as to Paragraphs 8(a), 8(b) and 8(c) for April 19,1974, at 9:00 A.M.” At the beginning of the evidentiary hearing, i. e., “trial”, on April 19, 1974, the •trial judge pointedly inquired, “Gentlemen, as I recall the Court’s earlier order, which was entered on February 15, the hearing today is for the purpose of hearing evidence on Paragraphs 8(b), 8(a) and 8(c); is that correct?” In response to this inquiry, Noble’s counsel replied, “Correct”. This court finds that such constituted an affirmative concurrence on Noble’s part with the trial court’s reasoning that findings, conclusions and a judgment as to grounds 8(a), 8(b) and 8(c), would obviate the necessity of an evi-dentiary hearing as to the remaining grounds asserted by Noble in his Rule 27.26 motion and that Noble, in fact, waived an evidentiary hearing with respect thereto for that reason. Having done so, a complete trial transcript would have been superfluous.

The findings, conclusions and judgment of the trial court regarding grounds 8(a), 8(b) and 8(c) herald an inescapable ultimate fact, namely, Noble knowingly and voluntarily waived his right to appeal. In addition to the array of evidence heretofore set forth, Noble testified that during the present evidentiary hearing, the following colloquy occurred between himself and the trial judge who conducted the homicide trial and who pronounced sentence after he waived his right to appeal: “He asked me if I knew what I was doing. I told him, yes, I did. He told me he thought — did I realize that he had not ruled on the new trial motion, and he may order a new trial. I told him I did. And he told me that I was waiving my right to an appeal, was I aware of that. I told him yes, I was.”

When the entire record is syllogis-tically viewed, this court concludes that Noble twice precluded any legitimate right to complain about an incomplete transcript or failure to afford an evidentiary hearing on the remaining grounds asserted in his Rule 27.26 motion — first, when he knowingly and voluntarily withdrew his right to appeal, and second, when he consented to limiting the evidentiary hearing to the issues tendered by grounds 8(a), 8(b) and 8(c). Moreover, the judgment rendered by the trial court denying Noble any and all post-conviction relief, although summary in nature as to all grounds save 8(a), 8(b) and 8(c), may be said to be equivalent to findings and conclusions that all other grounds were not subject to being collaterally attacked under a theory which comports with that advanced and relied upon in Smith v. State, 513 S.W.2d 407, 412 (Mo. banc 1974) and Hogshooter v. State, 514 S.W.2d 109, 113 (Mo.App.1974). For reasons stated, Noble’s three remaining points are ruled adversely to him.

This court feels constrained to observe that Rule 27.26 was never intended to create an interminable right to seek vacation of a criminal sentence.

Judgment affirmed.

All concur.

      . Noble was serving a fifteen year sentence for armed robbery at the time the riot occurred.

      . “Comes now the defendant in the above entitled cause and hereby withdraws his Motion for a New Trial heretofore filed in this cause, and hereby waives his right to appeal, and requests the Court to enter judgment imposing sentence upon him upon the verdict of the jury. Dated this 18th day of July, 1955.
      [s / dl Jackie Lee Noble Defendant.
      is /dl S. W. James. Jr.
      S. W. JAMES, JR.
      [s / dl Richard L. Dalv
      RICHARD L. DALY
      Attorneys for Defendant.”

      . The term “segregated confinement” is sometimes denoted in this and other opinions herein referred to as “solitary confinement”.

      . The sixth purported ground contains eight subparts.

      . Except for temporary transfers incident to his trial.

      . Same was filed on April 29, 1955.

      . S. W. James, Jr. died on October 31, 1961.

      . Co-counsel with S. W. James, Jr. during Noble’s first degree murder trial.


text:
    Frederick W. LEOPOLD et al., Plaintiffs-Appellants, v. Harold R. LEOPOLD, Defendant, and M.F.A. Mutual Insurance Company, Defendant-Respondent.
    No. KCD 28080.
    Missouri Court of Appeals, Kansas City District.
    May 2, 1977.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 8, 1977.

      Robert B. Langworthy, J. Michael Vaughan, Kansas City, for plaintiffs-appellants.
    Thomas A. Sweeny, Popham, Popham, Conway, Sweeny & Fremont, P. C., Kansas City, for defendant-respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Action on fire insurance policy. Trial court found for insurer. Plaintiffs appeal.

On January 28, 1964, Eva I. Look died. She was the owner of a residence located at 4063 Warwick Boulevard, Kansas City, Missouri. Her will was admitted to probate. Harold R. Leopold, the sole legatee under the will, was appointed Executor of the Estate of Eva I. Look on February 6, 1964.

On February 6, 1964, M.F.A. Mutual Insurance Company issued its fire and extended coverage policy applicable to 4063 Warwick for a period of one year from 2:00 P.M. February 6, 1964 through February 6, 1965. The named insured was “Harold R. Leopold, Executor of the Estate of Eva I. Look.” The policy insured “the insured named in the declarations and legal representatives.” The policy was renewed for a one-year period beginning February 6,1965.

On February 19, 1964, William Norman-die, Frederick W. Leopold and Alice Smith instituted a will contest, contesting the purported will of Eva I. Look. Ms. Smith subsequently died. The first two named contestants and the executors of the estate of Ms. Smith are plaintiffs in this suit.

On March 6, 1964, the Jackson County Probate Court, pursuant to the will contest, suspended Harold R. Leopold as Executor of the Estate of Eva I. Look and appointed Traders National Bank, also a plaintiff in this action, as Administrator Pendente Lite of the Look estate.

On December 28, 1965, a settlement of the will contest was reached by which Harold R. Leopold and his wife agreed that Frederick W. Leopold, William Normandie and Alice Marie Smith were to receive title to the Warwick Boulevard residence.

On February 5, 1966, the property suffered fire damage in the amount of $5,125.00. Notice of loss was given M.F.A., but it refused to pay the loss.

A quitclaim deed to the property was executed by Harold R. Leopold and wife to Frederick Leopold, William Normandie and Alice Marie Smith.

Frederick Leopold, Normandie, the Executors of the Estate of Ms. Smith, and Traders National Bank, Administrator Pendente Lite of the Estate of Eva I. Look, filed suit against M.F.A and Harold R. Leopold. Harold R. Leopold subsequently died without filing an answer to the petition.

The claim against M.F.A. was submitted on stipulated facts and the trial court found for defendants. Plaintiffs appeal.

The issue on the appeal is whether or not the appellants are entitled to the benefit of the policy issued to Harold R. Leopold, Executor, and “legal representatives,” and, alternatively, whether Harold R. Leopold, Executor, had an insurable interest in its property at the time of the loss. Appellants assert that they do because the “legal representatives” included the Administrator Pendente Lite. Respondent M.F.A. asserts that plaintiffs had no insurable interest in the property at the time of the issuance of the policy and they were not parties to the contract of insurance and that Harold R. Leopold, Executor, had no insurable interest at the time of the loss.

Appellants first contend that the policy covering Leopold, Executor, “and legal representatives” continued to cover the Administrator Pendente Lite after the removal of Leopold as Executor.

M.F.A. does not question that Leopold as Executor of the Estate of Eva I. Look had an insurable interest in the property involved. See Estes v. Great American Ins. Co. of New York, 112 S.W.2d 153, 156-157[7, 8[9] (Mo.App.1938). The question in this case is what, if any, meaning is to be given to the phrase “legal representatives” in the construction of the policy provision extending coverage to the named insured and “legal representatives.”

“The term ‘legal representative’ has no fixed meaning in the law and does not have the same signification in every case, since its import varies according to the circumstances of its use.” Sterns v. M.F.A. Mutual Insurance Company, 401 S.W.2d 510, 517[3] (Mo.App.1966). The primary meaning of the term in an insurance policy is executor or administrator (Dyer v. Standard Fire Ins. Co. of New Jersey, 227 S.W.2d 520, 521[1][2] (Mo.App.1950)), but the term as there found may also have a secondary meaning “which includes anyone who succeeds to the rights of another * * 44 Am.Jur.2d Insurance, § 1754, p. 665 (1969); Sterns v. M.F.A. Mutual Insurance Company, supra. See Schonwald v. Sun Insurance Office, Limited, 276 F.Supp. 775 (W.D.Okl.1967); Commercial Standard Insurance Company v. Herrin, 515 S.W.2d 163 (Tex.Civ.App.1974); Loomis v. Vernon Mutual Fire Ins. Co., 14 Wisc.2d 470, 111 N.W.2d 443, 444-445[3] (1961).

When, as in this ease, the named insured is described in his representative capacity, the term “legal representatives” has no effective meaning if it is to be limited to the primary definition of executor or administrator, as respondent suggests it should be. The personal representative of the named executor would not have succeeded to the decedent’s representative capacity. Had Harold Leopold died while he was still executor of the estate of Ms. Look, Leopold’s personal representative would not thereby have become executor of Ms. Look’s estate. In re Parker’s Trust Estate, 228 Mo.App. 400, 67 S.W.2d 114, 119-120[6, 7] (1934). In a case such as this, if the term is to be given any effect, its secondary meaning should be applied, the representative who succeeds to the representative capacity of the named insured. Imperial Assur. Co. v. Livingston, 49 F.2d 745 (8th Cir. 1931).

Respondent argues that the case of Estes v. Great American Ins. Co. of New York, 112 S.W.2d 153 (Mo.App.1938), is “squarely in point” in support of its position in this case. In that case, insurance covering property owned by a decedent had been issued to “Ollie Estes, Administratrix for the Estate of C. Dennis, deceased.” This policy was for a term of three years from January 30, 1934. In June, 1934, Ms. Estes’s final settlement was approved and she was discharged as administratrix. On October 25, 1934, the insured premises were destroyed by fire. The insurer rejected her claim for loss, signed “Ollie Estes, Administratrix of the Estate of C. Dennis.” Upon suit by Ms. Estes, joined by the heirs of Dennis, the court held that Ms. Estes as administratrix had no insurable interest at the time of the loss because she had been previously discharged in that capacity. 112 S.W.2d 157[9].

The court also held that recovery could not be had on the theory that Ms. Estes bought the policy as trustee or agent for the heirs. The court held that there was no evidence that the insurer was advised that the policy was taken on behalf of the heirs and by the clear and unambiguous terms of the policy Ms. Estes as Administratrix was the only party to the insurance contract.

The Estes case is distinguishable from the present case in at least two particulars. First, the administration of the estate had terminated so there was no question of the interest of a successor representative. Second, no reliance was placed on an extension of coverage to “legal representatives” of the named insured.

The cases of Farmers’ Mut. Fire & Lightning Ins. Co. v. Crowley et al., 354 Mo. 649, 190 S.W.2d 250 (1945); Grider v. Twin City Fire Insurance Company, et al., 426 S.W.2d 698 (Mo.App.1968), and Michigan Fire & Marine Ins. Co. v. Magee, 240 Mo.App. 767, 218 S.W.2d 151 (1949), relied upon by respondent, likewise did not involve reliance upon the “legal representatives” provision of a policy.

In the facts of this case, the policy issued to Leopold as executor of the estate of Ms. Look and covering the named insured “and legal representatives,” by virtue of the quoted phrase covered and was applicable to Traders National Bank as successor to Leopold as Ms. Look’s personal representative. Therefore, the trial court erred in entering judgment in favor of respondent.

As Administrator Pendente Lite, Traders National Bank “would hold the proceeds of this policy as a trustee for the benefit of the [sole legatee] * * Estes v. Great American Ins. Co., supra, 112 S.W.2d at 158-159[13]. As between the sole legatee, Harold R. Leopold, and the grantees in the quitclaim deed, the individual appellants here, the latter are entitled to receive the proceeds of the policy. Skelly Oil Co. v. Ashmore, 365 S.W.2d 582 (Mo. banc 1963); 46 C.J.S. Insurance § 1145, p. 23 (1946).

Judgment reversed and cause remanded for entry of judgment in accordance with the views herein expressed.

All concur.


author: McMILLIAN, Presiding Judge.

text:
    D_ E_ W_, Appellant, v. M_ W_, Respondent.
    No. 37597.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 3, 1977.
    Motion for Rehearing or Transfer Denied June 9, 1977.

      Hullverson, Hullverson & Frank, Inc., James S. Collins, II, St. Louis, for appellant.
    Richard A. Ong, St. Louis, for respondent.
   McMILLIAN, Presiding Judge.

Appellant D_E_W_ap-peals from a decree of dissolution of marriage entered by the St. Louis Circuit Court of St. Louis County, awarding the respondent $10,000 as gross maintenance and $1,000 attorney’s fees. For reversal, appellant argues that the trial court abused its discretion in making the above awards because he was financially unable to pay such amounts and because the respondent had sufficient resources for her own support and attorney’s fees.

The trial court’s judgment must be sustained by this court “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. . . . ” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.1976). Because the awards in the challenged decree are supported by the evidence and based upon proper application of §§ 452.335 and 452.080 of the new Dissolution of Marriage statute, § 452.300-452.415, RSMo 1973 Supp., the decree is affirmed insofar as it orders a lump sum award of $10,000 maintenance and $1,000 attorney’s fees, but modified to allow the appellant to pay the gross award in monthly installments.

Appellant and respondent were married on December 12, 1973, and separated on December 31,1974. It was the fourth marriage for the appellant and second for the respondent. During the marriage they lived in the respondent’s home with her four children, ages 14,15,17 and 19, from a previous marriage.

Respondent worked at the main campus of Washington University for twelve (12) years until November 11, 1974, when she lost her job because she improperly ordered $1,453.29 worth of film for the appellant’s studio on the university’s accounts. She was rehired by the Washington University Medical School as a typist on June 12,1975, and presently works there earning a net salary of $385 per month. This is about $200 a month less net income than she received at her former job. In addition, respondent receives about $200 a month as child support from her first husband for her four children. Her monthly expenses total $874 a month: $633 as regular monthly expenses, $123 of personal monthly expenses and $118 as expenses for her children which are not covered by the child support payments. She also owes $15,000 on her home (equity-$18,000), $808.44 for her car (value-$1475) and $650 to her chil-drens’ orthodontist. The respondent was 38 years of age at the time of the trial and suffered from anemia and low blood sugar.

Appellant is employed as a switchman for Frisco Railroad where he had earned a net salary of $9,000 for the year 1972, $10,000 for 1973 and $4,000 for 1974. In the year 1974 appellant was on sick leave because of hypertension but worked at his photography studio whenever he was not at the railroad. Although his photography studio showed a net loss in 1974, appellant testified that he had a better idea of what he needed . . to do now to earn more money” as a photographer. He also testified that if his photography business failed he could return to the railroad full-time. Appellant indicated that his monthly expenses totaled $948 a month and that he owed at least $1161.84 per month as installment payments on debts. He is also obligated on a $15,000 Small Business Administration loan.

When respondent met the appellant he was heavily in debt. After they were married respondent helped appellant in his business by handling the books and correspondence. She also made substantial loans to him and is presently still in debt to the following sources for loans she took out on behalf of the appellant:

Source Amount
Credit Union-respondent borrowed a total of $5,000 and $2,000 has been repaid. $3,000.00
American Express 717.00
Laclede Gas - respondent paid this bill to cover a bad check appellant had written. 280.00
Children’s Trust Accounts - borrowed before the marriage. 3,690.00
Children’s Trust Accounts - borrowed in 1974, after the marriage. 3,100.00
Children’s Trust Accounts - borrowed in 1975. 1,765.00
Famous Barr Company-to pay for appellant’s photo equipment. 105.00
TOTAL .. $12,657.00

In addition to the above, respondent is the co-signer on the Small Business Association loan of $15,000 that the appellant took out.

We find no abuse of discretion on the part of the trial court in ordering appellant to pay respondent maintenance, for the record indicates that respondent meets the threshold requirements for such an award; that is, she “lacks sufficient property . to provide for [her] needs” and she “is unable to support [herself] through appropriate employment . . . .” § 452.335 subd. 1, RSMo 1973 Supp. After one year of marriage, respondent owes $12,657.00 because of loans to or for the appellant and is potentially liable for the Small Business Association loan of $15,000. She is unable to meet her own needs while paying these debts because her net income is only $385.00 a month.

An award of maintenance would allow respondent to pay off the debts she incurred on behalf of appellant and thereafter she could meet her needs with her own resources. Furthermore, the order is supported by § 452.335 subd. 2, RSMo 1973 Supp. Respondent does not have, independently, sufficient financial resources to meet her needs, especially when her debts are considered, § 452.335 subd. 2(1). While the marriage was of extremely short duration, id. subd. 2(4), respondent’s conduct during the marriage, while perhaps not wise was magnanimous and the appellant profited considerably from her extreme generosity. Id. subd. 2(7). In Page v. Page, 516 S.W.2d 537, 540 (Mo.App.1975), the court acknowledged that the sacrifices made by the wife are relevant in determining whether the award of maintenance was appropriate, indicating that good as well as bad conduct should be considered. Lastly, based on the appellant’s own testimony that his income will increase, the court could find that he was capable of paying maintenance while meeting his own needs. Id. subd. 2(6).

In Richardson v. Richardson, 524 S.W.2d 149, 153 (Mo.App.1975), this court acknowledged that the appellant husband’s anticipated income was to be considered in awarding alimony. Cf. Rutlader v. Rutlader, 411 S.W.2d 826, 829 (Mo.App.1967), Myers v. Myers, 356 S.W.2d 522, 525 (Mo.App.1962). Having determined that the trial court did not abuse its discretion by ordering a maintenance award, the question remains whether awarding maintenance in a gross amount is permissible under the new statute. We hold that a trial court does have the power to award a gross amount under the new Dissolution of Marriage law, § 452.335, RSMo 1973 Supp.

Section 452.080, RSMo 1969, of the previous divorce act, which specifically authorized alimony in gross was not repealed by the Missouri legislature when the dissolution statute was passed. In addition, the words of § 452.335, RSMo 1973 Supp., the maintenance provision, do not preclude an interpretation authorizing a gross award. The statute specifies “The maintenance order shall be . for such periods of time as the court deems just . . . (Emphasis added.) By such language the statute allows, but does not require, that awards be extended over several periods of time. Section 308 of the Uniform Marriage and Divorce Act, §§ 101-506 (1970), which is identical to § 452.335, RSMo 1973 Supp., of the Missouri statute, has been interpreted as allowing gross awards. In re Marriage of Genevieve Icke & Lewis Icke, 35 Colo.App. 60, 530 P.2d 1001 (1974) and Moss v. Moss, 35 Colo.App. 53, 531 P.2d 635 (1974).

Moreover a gross award is especially consistent with the purposes and intent of the new Dissolution of Marriage Statute. It allows the parties to completely sever their ties while a periodic award requires a continual dependence of one spouse on another. Lemp v. Lemp, 249 Mo. 295, 155 S.W. 1057, 1061 (1913). The presumption behind an award of periodic payments is often that a woman is unable to earn an income and should be supported indefinitely or until she remarries, cf. Moss v. Moss, supra. A lump sum award more appropriately recognizes that in many cases once an initial payment has been made allowing the needy spouse to get a new start, he or she will no longer be dependent. Cf. § 452.335 subd. 2.

Although there have not been any Missouri cases which directly address the issue of whether gross awards are appropriate under the new dissolution of marriage statute, this court recently reversed a gross award which was granted under the new statute. LoPiccolo v. LoPiccoio, Mo.App., 547 S.W.2d 501, 1977. There we held that a gross award which was scheduled to terminate after four years was improper, not because such awards were unauthorized under the new statute, but because there was no evidence indicating the wife’s circumstances would change in four years and that she would be less needy. Therefore, this opinion implicitly supports the view that gross awards are appropriate under the dissolution statute.

In summary, the retention of § 452.080, RSMo 1969, authorizing gross awards, the interpretation given the language of § 452.-335, RSMo 1973 Supp., by states which have adopted the Uniform Marriage and Divorce Act, the opportunity a gross award provides for completely severing the ties between the parties, and the consistency of a gross award with the underlying view of maintenance in the new dissolution statute, indicates that the Missouri legislature purposefully and appropriately retained gross awards in the dissolution of marriage statute.

Recognizing that a gross award is permissible under the statute, we further note that a gross award was especially appropriate in this case. Unlike periodic payments, a gross award is a lien on the payor’s property, § 452.080, RSMo 1969, and survives the payee-wife’s death or remarriage. Swanson v. Swanson, 464 S.W.2d 225, 228 (Mo.1971). Certainly here, where the appellant is continually in debt and has a history of not being able to meet his financial obligations, the trial court could have reasonably believed that the respondent needed the additional security of collecting her maintenance that a gross award would provide.

Because a gross award is not modifiable by a court, it should only be awarded when it is not likely the conditions of the parties will change. Laney v. Laney, 535 S.W.2d 510, 512 (Mo.App.1976). It was not, however, an abuse of discretion for the trial court to forsake the possibility of altering this award. Since respondent’s debts are a fixed amount which will not be altered, it is not likely the maintenance award will need to be modified to make it possible for the respondent to meet her needs.

For the above reasons a gross award was appropriate in this case. As mentioned, an award of $10,000 would allow respondent to pay off the debts she incurred on appellant’s behalf and thereafter meet her own needs with her present income. Under the circumstances of this case, however, the trial court abused its discretion in ordering appellant to pay the award in a gross amount rather than in installments. When payable in installments a gross award does not lose its distinguishing characteristics and thus its special propriety in this case. Hill v. Hill, 443 S.W.2d 192, 193 (Mo.1969) and Laney v. Laney, supra. The appellant’s testimony clearly demonstrated that he had virtually no assets at the time of the dissolution of marriage and he could not possibly afford to pay a lump sum of $10,000. To order him to do so would be contrary to the mandate of the statute that the spouse from whom maintenance is sought be able to meet his needs while paying maintenance, § 452.335 subd. 2(6), RSMo 1973 Supp. However, the appellant’s testimony also indicated that his income would increase and thus it is likely he can meet his own needs while paying this gross award in installments. Therefore, the trial court’s order is modified to allow appellant to pay the $10,000 gross award in installments of $100.00 per month.

The appellant has also appealed the trial court’s order that he pay $1,000 in attorney’s fees to the respondent’s attorney. Section 452.355 RSMo 1973 Supp., provides that a court “after considering all relevant factors including the financial resources of both parties” may order one party to pay reasonable attorney’s fees for the other. A court is vested with broad discretion in making this order. Larison v. Larison, 524 S.W.2d 159 (Mo.App.1975). The trial court’s order to pay attorney’s fees is supported by its finding that respondent was unable to meet her needs and that appellant, while presently in debt, realistically had the potential to better his financial condition.

Accordingly, judgment is affirmed as modified.

STEWART, J. and REINHARD, J., concur.

      . The only difference in these sections is that the Uniform Act explicitly excludes fault as a relevant factor while the Missouri statute in-eludes this. The difference is not significant here.


author: DOWD, Judge.

text:
    James Clarence HAYNES, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 38670.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 3, 1977.
    Motion for Rehearing or Transfer Denied June 9, 1977.

      Robert C. Babione, Public Defender, Joseph W. Warzycki, Asst. Public Defender, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   DOWD, Judge.

Movant appeals from the trial court’s action denying, without evidentiary hearing, his second motion for post-conviction relief pursuant to Rule 27.26 V.A.M.R. We affirm.

Movant was convicted of murder in the first degree in October, 1970 and sentenced to life imprisonment. His conviction was affirmed on appeal. State v. Haynes, 482 S.W.2d 444 (Mo.1972).

In December, 1973, movant filed his first motion for postconviction relief pursuant to Rule 27.26. Counsel for movant was appointed, and after an evidentiary hearing, the motion was denied.

On the appeal of the first motion, movant raised two Points Relied On: (1) ineffective assistance of counsel due to a failure to investigate and (2) ineffective assistance of counsel in failing to lay a proper foundation in order to introduce impeaching testimony. Both points were considered on appeal, and ruled against movant. The denial of the first motion was affirmed on appeal. Haynes v. State, 534 S.W.2d 552 (Mo.App.1976).

On September 10, 1976, movant filed a second motion under Rule 27.26 again contending he was denied effective assistance of counsel. The trial court denied movant’s second 27.26 motion without an evidentiary hearing. The trial court found that the issues presented by the second motion “were presented to the court on the prior motion and ruled adversely to movant.”

We have examined movant’s brief filed in the first appeal and the brief filed in the case at bar. Except for two paragraphs in the statement of facts, the brief in the case at bar is an exact, word for word duplication of the brief filed on appeal in the first 27.26 motion. The Points Relied On in this appeal are identical with the Points Relied On in the first appeal and decided adversely to movant.

The trial court properly denied movant’s second motion without a hearing.

Rule 27.26(d) expressly prohibits the entertainment of successive motions “where the ground presented in the subsequent application was raised and determined adversely to the applicant on the prior application.” A Rule 27.26 motion is limited to testing the validity of a sentence and is not to be used as a procedure to attack the results of a prior post-conviction proceeding. Duncan v. State, 524 S.W.2d 140, 142 (Mo.App.1975); Ivy v. State, 509 S.W.2d 148, 153 (Mo.App.1974).

The rule remains applicable even if the litigation has an additional citation to offer or a different theory to suggest. Sweazea v. State, 515 S.W.2d 499, 501 (Mo. Banc 1974). However, in the case at bar the movant has not even offered an “additional citation” or suggested “a different theory.”

The judgment is affirmed.

CLEMENS, P. J., and SMITH, J., concur.


author: CLEMENS, Presiding Judge.

text:
    Thaddeus S. CZAPLA, Appellant, v. Edna CZAPLA, Respondent.
    No. 38077.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 24, 1977.
    Irl B. Baris, Kenneth H. Graeber, St. Louis, for appellant.
    Allan Goodloe, Jr., Shaw, Howlett & Schwartz, Clayton, for respondent.
   CLEMENS, Presiding Judge.

Dissolution of marriage. Plaintiff-husband appeals from the trial court’s decree, contending there was no competent and substantial evidence to support the decree divesting him of his undivided interest in the family home and furnishings, and awarding defendant-wife $20 a week for maintenance and $300 for attorney’s fee.

Applying the standards of review declared in Murphy v. Carrón, 536 S.W.2d 30[l-3] (Mo.1976), and finding an extended opinion would have no precedential value, we affirm the judgment. Rule 84.16(b).

DOWD and SMITH, JJ, concur.