source: Caselaw Access Project

author: STEWART, Judge. McMILLIAN, Judge,

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Gary Lee HAMELL, Appellant.
    No. 37816.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Oct. 18, 1977.
    Motion for Rehearing and/or Transfer Denied Jan. 18, 1978.
    Application to Transfer Denied March 13,1978.

      Timothy A. Braun, Public Defender, St. Charles, for appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Philip M. Koppe, Frank Murphy, Asst. Attys. Gen., Jefferson City, Ronald L. Boggs, Pros. Atty., G. Jeffrey Lockett, Asst. Pros. Atty., St. Charles, for respondent.
   STEWART, Judge.

Defendant was convicted of robbery in the first degree by means of a dangerous and deadly weapon, § 560.120 RSMo 1969. He was sentenced to twenty-five years imprisonment in accordance with the jury verdict.

Defendant urges for reversal that the court erred: (1) in admitting evidence of the commission of an offense by defendant which was not charged in the information; (2) in failing to suppress defendant’s confession because it was the product of police coercion; and (3) in giving a verdict directing instruction which was at variance with the charge of the information.

Defendant does not question the sufficiency of the evidence to sustain the verdict. A brief statement of the facts will suffice. On July 26, 1975, defendant and three other men entered the Burger Chef Restaurant in St. Charles. Defendant, who was wielding a sawed-off shotgun, vaulted the stainless steel serving counter. He shoved the shotgun against the side of the manager’s head and ordered the manager toward the rear area. The other employees were herded to the rear, and the manager was then ordered to collect all money and jewelry from the cash register and the persons in the restaurant and put it into paper bags. After the money was collected the victims were ordered to lie on the floor. Defendant and the other robbers bolted the restaurant, entered an automobile and fled.

A patron of the restaurant who was in his vehicle on the parking lot recorded the license number of the getaway car. The license had been issued to defendant. The restaurant manager positively identified defendant. A palm print lifted from the stainless steel counter at the point where the gunman vaulted the counter was identified as that of defendant.

Other facts essential to our discussion of the issues will be set out as the issues arise.

This case comes to the writer on reassignment. Much of the opinion previously written is adopted and quoted herein.

“Appellant’s first argument is that he was denied a fair and impartial trial when the trial court overruled his motion for a mistrial after the state presented, in the videotaped confession, evidence of another offense not charged. The part of the videotape at issue was:

“QUESTION: It looks like just one person driving the car? Just one person occupying the car I mean? ANSWER: Yes. QUESTION: Okay. Is this the first time you have ever done anything like this with Ben Davis? ANSWER: This is the second time. QUESTION: This is the second time? When was the first time? ANSWER: The first time was — .” (At this point the videotape was stopped.)”

The prosecutor then said that a brief recess was necessary to pass over some portions of the tape not relevant to this ease.

“Every error which might occur in the trial of a case does not necessarily require the granting of a mistrial. State v. Camper, 391 S.W.2d 926 (Mo.1965). The declaration of a mistrial has been described as a drastic remedy to be exercised ‘only in extraordinary circumstances,’ State v. James, 347 S.W.2d 211 (Mo.1961), or ‘only when the incident is so grievous that the prejudicial effect can be removed no other way,’ State v. Camper, 391 S.W.2d 926 (Mo.1965). Because the declaration of a mistrial necessarily rests largely in the discretion of the trial court who observed the incident giving rise to the request for a mistrial and is in a better position than the appellate court to evaluate any prejudicial effect and the possibility of its removal short of mistrial, State v. Pruitt, 479 S.W.2d 785 (Mo.1972) (En banc); State v. Smith, 431 S.W.2d 74, 83 (Mo.1968), the standard of review on appeal is whether as a matter of law the trial court abused its discretion in refusing to declare a mistrial. State v. Seals, 515 S.W.2d 481 (Mo.1974); State v. Franklin, 526 S.W.2d 86 (Mo.App.1975).

“Evidence of the commission of separate and distinct crimes is not admissible .unless it is within one of the exceptions to establish (1) motive, (2) intent, (3) absence of mistake or accident, (4) common plan or scheme embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others, or (5) identity of the person charged. State v. Reese [364 Mo. 1221], 274 S.W.2d 304, 307 (Mo.1954); State v. Diamond, 532 S.W.2d 873, 876 (Mo.App.1976); State v. Fox, 510 S.W.2d 832, 838 (Mo.App.1974). Such evidence must be subjected to rigid scrutiny because of its tendency ‘to raise a legally spurious presumption of guilt in the minds of jurors.’ State v. Reese, supra. Evidence of prior crimes is particularly prejudicial in that it ‘permitís] the jury improperly to infer that because there were [other crimes and offenses] appellant must have committed the [specific crime] charged.’ State v. Hancock, 451 S.W.2d 6, 9 (Mo.1970). The trial court must carefully balance ‘on the one hand the actual need for such evidence, and on the other the degree to which a jury may be prejudiced against the defendant by hearing such evidence.’ State v. Burr, 542 S.W.2d 527, 531 (Mo.App.1976).

“The challenged portion of the videotaped statement must be analyzed to determine if the prejudicial impact was sufficient to warrant the declaration of a mistrial. From the videotape excerpt in the record it is difficult to determine whether the question referred to another robbery, which would then clearly be inadmissible, or merely to the act itself (of driving so as to make it appear as if only one person was in the car). The context of this portion of the videotape is also impossible to determine from the record. The videotape itself had been identified as a confession. The trial court found the remarks in the videotape to be very generalized and offered to instruct the jury to disregard the remarks. Defense counsel refused the instruction, fearing that any further reference would only serve to accentuate its impact. The tape machine had been stopped as rapidly as possible by the operator and the prosecutor assured the trial court that there had been no deliberate attempt on the part of the state to refer to any unrelated offense.

“In view of the ambiguous context and character of the challenged reference, the decision of the trial court to refuse to declare a mistrial should be affirmed. The trial court was in. a superior position to evaluate the prejudicial impact of this reference and determine whether a mistrial was warranted. The cases cited by appellant to support his position are all cases in which the prejudicial evidence admitted was of other crimes or offenses. When compared with these cases the reference in this case does appear generalized. In State v. Lee, 486 S.W.2d 412 (Mo.1972), the Missouri Supreme Court held that denial of a mistrial was reversible error where the prosecutor implicated the defendant in bombings and other criminal activities not charged in the indictment for first degree murder. In State v. Mathis, 375 S.W.2d 196 (Mo.1964), the Missouri Supreme Court held the admission of evidence of a nearby burglary in the trial of defendant for another burglary was prejudicial error and reversed the conviction. In State v. Reese, 274 S.W.2d 304 (Mo.1954), the Missouri Supreme Court reversed defendant’s conviction for murder because evidence was admitted of a holdup not alleged in the information and which was not relevant on the issue of defendant’s guilt. In State v. Diamond, 532 S.W.2d 873 (Mo.App.1976), admission of evidence concerning an earlier car theft in a trial for tampering with a motor vehicle without the owner’s permission was held to be so prejudicial that a mistrial was required. In State v. Burr, 542 S.W.2d 527 (Mo.App.1976), evidence of a sale of speed was held to be prejudicial and reversible error in a conviction for sale of marijuana. Evidence of other crimes or offenses was also held to be erroneously admitted in State v. Tillman, 454 S.W.2d 923 (Mo.1970) (arrest for murder and robbery), State v. Hancock, 451 S.W.2d 6 (Mo.1970) (other thefts), State v. Holbert, 416 S.W.2d 129 (Mo.1967) (possession of other weapons than that charged), and State v. Griffin, 336 S.W.2d 364 (Mo.1960) (other crimes and offenses).

“Appellant also argued that the videotaped statement itself had a prejudicial effect on the jury in that the impact of appellant’s adverse statement was magnified by the medium of videotape. While there has been popular recognition of the more powerful emotional impact of television (videotape) as compared with writing, McLuhan, The Medium is the Message, 125-28 (1967) the courts have approved the use of videotaped evidence. Hendricks v. Swenson, 456 F.2d 503 (8th Cir. 1972); State v. Lindsey, 507 S.W.2d 1 (Mo.1974); State v. Hendricks, 456 S.W.2d 11 (Mo. 1970); State v. Lusk, 452 S.W.2d 219 (Mo.1970). In State v. Lusk, the Missouri Supreme Court held that the admission of a videotaped confession after proper foundation did not violate defendant’s Fifth Amendment privilege against self-incrimination. The court drew an analogy between the use of videotape and the use of tape recordings, State v. Perkins, 355 Mo. 851, 198 S.W.2d 704 (1946), and motion pictures, e. g., People v. Dabb, 32 Cal.2d 491, 197 P.2d 1 (1948); Commonwealth v. Roller, 100 Pa.Super. 125 (1930); Grant v. State, 171 So.2d 361 (Fla.1965), cert. den. 384 U.S. 1014 [,86 S.Ct. 1933, 16 L.Ed.2d 1035] (1966). In State v. Lindsey, the Missouri Supreme Court specifically addressed the issue of the emotional impact of a videotaped statement made by defendant. The court stated that emotional impact related to the weight to be given to the evidence, not its admissibility, and that the rules governing the admissibility of such evidence should not be tied to the technology of the past. 507 S.W.2d at 3.

“Appellant also argued that the prejudicial impact of the videotape reference to appellant’s criminal past was not mitigated by evidence of the availability of appellant’s photograph from police agencies. ‘Mugshots’ are in themselves neutral and do not constitute evidence of prior crimes and offenses. State v. Harris, 534 S.W.2d 516 (Mo.App.1976). It is unnecessary to determine what the mitigating effect, if any, of ‘mugshots’ would be in this case since the challenged portion of the videotape does not refer to other crimes and offenses and thus not inadmissible as such.”

The next point relied on by defendant reads:

“B. The trial court clearly abused its discretion by holding that defendant’s confession was not a product of police coercion. Although the defendant’s motion for a new trial neglects to raise this issue, the defendant suggests alternatively that the court review the trial court’s decision without the harsher burden required by the Plain Error Rule, Mo. Sup. Ct.R. 27.20(c), since said omission was the result of ineffective assistance of counsel, or review the trial court’s decision under the plain error rule, Mo.Sup.Ct.R. 27.-20(c).”

No reference was made to the admission of defendant’s confession in the motion for new trial. An issue which is not presented to the trial court in a motion for new trial is not preserved for appellate review. State v. Peterson, 518 S.W.2d 1, 2[2-4] (Mo.1974).

Defendant acknowledges that no issue respecting defendant’s video confession was preserved for our consideration in the motion for new trial. He asks that we review the ruling of the trial court respecting defendant’s confession “[W]ithout the harsher burden required by the plain error rule, Mo.Sup.Ct.R. 27.20(c), since said omission was the result of ineffective assistance of counsel . . . ” This issue as presented is novel. Ordinarily the question of ineffective assistance of counsel is not ripe for consideration on the appeal from the judgment of conviction. State v. Nolan, 499 S.W.2d 240 (Mo.App.1973).

In criminal cases, counsel have not, as yet, been deprived of the right to exercise their judgment in the representation of their clients. Counsel is not required to make an issue of every adverse ruling of the trial court. The transcript reveals that trial counsel vigorously and skillfully represented his client throughout the trial, especially with respect to the issue of defendant’s statements which his client gave to the police officers.

Counsel filed a motion to suppress. Defendant’s principal complaint was that he had been physically abused. Defendant was picked up at his home in St. Louis shortly after 1:00 P.M. on July 29, and was taken to St. Charles, Missouri, for questioning. Stops were made at the Sixth District police station in St. Louis and at the police station in Northwoods. He was read the “Miranda Rights” upon leaving the Sixth District. Defendant arrived at the St. Charles police department at about 4:00 P.M. and was questioned for about an hour and a half. During this interview defendant was advised of his “Miranda Rights” and signed a waiver. After this interview defendant was booked and taken to the holdover. Defendant was returned to the Detective Bureau about 10:30 or 11:00 P.M. while Davis, an accomplice of defendant, was being questioned. Defendant was asked only a few questions at this time; most of the questions were directed to Davis. Defendant remained there for about one-half hour and was then returned to the holdover for the night.

About 8:30 or 9:00 the following morning, defendant and Davis were taken to the sheriff’s office for a lineup. The lineup was concluded in approximately an hour and a half and defendant was returned to the holdover. At 1:00 P.M. defendant was arraigned. Defendant was returned to the Detective Bureau some time between 2:00 and 2:30 P.M. for more questioning and at approximately 4:15 P.M. he orally implicated himself in the robbery. After that he was further questioned about other matters by a police officer from Frontenac. A videotape confession was made at about 8:30 P.M.

At the hearing on the motion to suppress, defendant testified that he was not mistreated at the initial interview on July 29. On the occasion of the second interrogation defendant’s accomplice, Davis, was present. Defendant testified that when Det. Hughes asked if he knew Davis, Hughes threw him against the wall; that he also hit him in the chest. Defendant claimed that at the next interview he was beaten on the chest and beaten on the legs with “a little rubber hose with hooks on it” by an Officer Tulloek; that he was snatched by the shirt which was torn; that his handcuffs were tightened so as to cut his wrists. He also stated that he was thrown on the floor and kicked in the back resulting in an abrasion or bruise to the back. He testified that he was beaten for two and a half or three hours and at the end of that time he told the police that he would tell them what they wanted to know.

Defendant also testified that he had received no food or nourishment of any kind from the time he was' picked up until after the video taping.

Johnny Davis testified that he was being questioned in a room at the police station during the latter part of the evening of July 29, when defendant was brought in and hit in the chest by Officer Tulloek.

He also testified that in the afternoon of July 30, when he was brought into the Detective Bureau, defendant was already there, sitting on a chair and his shirt was torn. Some time later, Davis stated that he saw Officer Tulloek push defendant against the wall and hit him across the legs with a piece of rubber. Davis did not see anyone kick defendant. Davis testified that he saw the police give defendant a green shirt to replace the torn shirt defendant was wearing at that time. Davis, in subsequent testimony, stated that defendant was wearing the green shirt before noon.

Although the exhibit is not before us, it was stipulated that defendant could introduce evidence of a polygraph test obtained at defendant’s request on this issue.

The expert, an employee of a private security firm, testified on the motion to suppress with respect to some answers given by Hamell concerning “allegations that were presented to [the expert]” contained in an exhibit 3. This exhibit has not been filed with us. It was the opinion of the witness, considering the test as a whole, that Hamell was telling the truth when he stated he was beaten by members of the St. Charles Police Department.

Each of the eight St. Charles police officers who were present at any time while petitioner was being questioned testified that they did not strike, push or threaten defendant; they did not see any conduct of that nature on the part of any of the other officers of the department who were present. They knew nothing of defendant’s shirt being torn and replaced. They did know that on the afternoon of the 30th he was not wearing the shirt he wore at the time he was picked up and which he had also worn at the lineup in the morning.

Officer Daleen, who was summoned to operate the video equipment, ordered sandwiches for defendant and the police officers while they were waiting for the video equipment to be arranged. Defendant ate a sandwich before the statement was recorded. These officers had no first hand information with respect to whether defendant had been fed before that time. They knew that three meals per day were served in the holdover.

Defendant had adequate opportunity for rest. He was in the holdover from early evening on July 29, until 10:30 or 11:00 P.M. and was returned around 11:00 or 11:30. He was taken to the lineup the next morning at 8:30 or 9:00 and returned to a cell until about 1:00 P.M. He was in his cell during two meal periods.

Trial counsel, in his judgment, could well believe that the trial court had not erred when it found the statement to have been made voluntarily. When a statement is obtained from a suspect in custody, the burden is upon the State to prove by a preponderance of the evidence that the statement is voluntary. In meeting the burden, the State does not have to negate every possible circumstance which could present a fact issue. State v. Nolan, 423 S.W.2d 815, 818[5-9] (Mo.1968). We are also mindful that the court is the trier of the facts. It is the trial court’s prerogative to determine the credibility of the witnesses. State v. Alewine, 474 S.W.2d 848, 853[6-7] (Mo.1972).

Defendant testified that he was deprived of food from the time he was picked up until after the video statement was taken. There was no indication in the motion to suppress that this would be an issue. The officers who testified did not know whether defendant had been fed while he was in the holdover. They testified that prisoners were fed three times a day. Ordinarily they would not be given food during actual interrogation in the Detective Bureau. Defendant was in the holdover until 8:30 or 9:00 A.M. and during the lunch hour on the 30th of July. There was specific evidence that defendant was given food before he made the video statement. We also take note of the fact, from reading the testimony of the polygraph expert at the hearing on the motion at the trial, that this issue was not covered in the polygraph test. Under the circumstances the court was not required to believe defendant’s testimony of this issue. It is also apparent that this was not the basis of defendant’s objection to the admission of the statement. Defendant testified that the reasons he made the statement were because the police told him to and to stop the beating.

There was conflicting evidence with respect to the question of whether defendant was physically mistreated. Although the State stipulated that the private polygraph expert could testify and express his opinion as to the truth or falsity of defendant’s answers the trial court was not bound by the expert’s opinion. The weight of the evidence was for the trier of the facts. State v. Fields, 434 S.W.2d 507, 515 (Mo.1968). As stated before we have not been provided with the exhibit containing all of the questions asked by the expert and the answers of defendant.

There were discrepancies in the testimony of defendant in the pre-trial hearing and the polygraph test. Defendant’s testimony attributed his bruised back to his treatment of the police but stated on the test that he received that injury prior to his arrest.

The issue of the voluntariness of defendant’s confession was also presented to the jury in the trial of the case. Defendant did not testify at the trial. The issue was developed through cross-examination and by the use of the polygraph expert and the jury declined to accept the opinion of the expert, as did the trial court.

The court in the pre-trial hearing and the jury at the trial viewed the video showing of the confession. We have also seen this videotape recording. Defendant appeared to be a person in full control of his faculties. He was articulate and displayed a better than average intelligence. He betrayed no hint of apprehension.

It would appear that there was no abuse of discretion on the part of the trial court when it found, under the totality of the circumstances, that the confession was voluntary. We cannot fault the judgment of counsel in excluding this issue from the motion for new trial, under the circumstances in this case.

Defendant also asks that we undertake to rule this point as plain error under Rule 27.20(c). We again feel that it is well to review the rule which reads:

“(c) Plain errors affecting substantial rights may be considered on motion for new trial or on appeal, in the discretion of the court, though not raised in the trial court or preserved for review, or defectively raised or preserved, when the court deems that manifest injustice or miscarriage of justice has resulted therefrom.”

This rule permits our consideration of plain errors in our discretion, only when it appears that manifest injustice or miscarriage of justice has resulted. We take particular note of the phrasing “has resulted” rather than “could have resulted” or “may have resulted.” Before we are entitled to consider a contention of error which has not been preserved we must believe that manifest injustice has in fact occurred. Merely speculative injury has no place in the plain error doctrine. See State v. Gaffey, 457 S.W.2d 657[4-5] (Mo.1970). Such determination is made on a case by case basis after a review of all the facts and circumstances. State v. Howard, 540 S.W.2d 86, 87[1] (Mo.1976).

In this case, defendant’s guilt was established by overwhelming evidence. There was a positive identification, defendant’s palm print was found on the counter at the point where he had vaulted over the counter and the get away car bore a license plate which was issued to defendant. Considering all the facts and circumstances no injustice or miscarriage of justice will result from an affirmance of this case. State v. Caffey, supra.

This issue should not be considered for yet another reason. The claim of error in the point is that, “[T]he trial court clearly abused its discretion by holding that defendant’s confession was not a product of police coercion.” This point does not state “wherein and why” the defendant contends the court was in error in its finding. This point is in violation of Rule 84.04(d). State v. Flynn, 541 S.W.2d 344, 349[12, 13] (Mo.App.1976).

Defendant next contends that the verdict directing instruction was erroneous because defendant was charged with the crime of attempted robbery. The instruction, however, was on robbery in the first degree.

The information clearly charges defendant with the completed crime of robbery in the first degree, it also charged defendant with attempted robbery. The' most that can be said for defendant’s position is that the information is duplicitous a defect which is cured by verdict. State v. Phelps, 478 S.W.2d 304, 307[2-5] (Mo.1972). Finding no reversible error the judgment of conviction is affirmed.

Once more we wish to bring to the attention of the court reporters the provisions of § 485.090, which reads in part: “For all transcripts of testimony given ... in any circuit court . . . the court reporter shall receive the sum of seventy cents per twenty-five line page for the original of the transcript, and the sum of twenty cents per twenty-five line page for each carbon copy thereof;” The transcript in this case violates the legal page requirements at least 18 times. Each order entry and instruction begins on a new page and no other entry appears on the page no matter how short the initial entry. County of St. Charles v. Rolling, 537 S.W.2d 806 (Mo.App.1976). As said in Kirtz v. Grossman, 463 S.W.2d 541, 545 (Mo.App.1971), “Exacting excessive fees by a public officer is illegal (558, 140).” Osborne v. Goodman, 289 S.W.2d 68 (Mo.1956); see also, State v. Jennings, 555 S.W.2d 360 (Mo.App.1977). The reporter’s certificate of costs of preparing the transcript is $434.50. The cost of the transcript as taxed by this court will be in the amount of $414.50. If payment for the transcript has been made the court is directed to order the court reporter to refund the sum of $20.00.

We also note that there was no issue raised in the motion for new trial or on appeal respecting the voir dire, the opening statements or the argument of counsel. These items in their entirety appear in the transcript. In this case the trial counsel ordered “a complete transcript of the trial . . . ” Counsel are admonished to order only those portions of the transcript necessary to the determination of the issues presented on appeal. The counties should not be required to bear the additional burden of transcripts containing useless material.

The judgment is affirmed.

REINHARD, J., concurs.

McMILLIAN, P. J., dissents in separate opinion.

McMILLIAN, Judge,

dissenting.

I respectfully dissent to that portion of the majority opinion holding that appellant’s confession was not a product of police coercion. The trial court, after a lengthy pretrial hearing on appellant’s motion to suppress, found that the confession had been voluntarily made. Appellant continued his objection to the confession at trial, but did not include a challenge to the confession in his motion for a new trial. Although a claim of error not included in the motion for a new trial is not preserved for review, e. g., State v. Gomillia, 529 S.W.2d 892 (Mo.App.1975), the appellate court may invoke the plain error rule, Rule 27.20(c), V.A.M.R.,, “on a case to case basis . where substantial rights are affected whether or not the error is raised in the trial court or preserved for review, or defectively raised or preserved.” State v. Meiers, 412 S.W.2d 478, 480 (Mo.1967). There must, however, be “a sound, substantial manifestation, a strong, clear showing, that injustice or miscarriage of justice will result if the rule is not invoked.” Id. at 480-81. Mere allegation of constitutional error, even if proven, does not automatically satisfy this standard. State v. Murphy, 521 S.W.2d 22, 25 (Mo.App.1975); State v. Harms, 507 S.W.2d 29, 31 (Mo.App.1974). Allegations of manifest injustice or miscarriage of justice must be supported by some kind of factual showing. State v. Graham, 527 S.W.2d 936, 944 (Mo.App.1975).

Coerced confessions are inadmissible as evidence. Such confessions are inconsistent with the protections guaranteed by due process of law. U.S.Const. Amends. V, XIV; Ashcraft v. Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192 (1944); Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936). The Fifth Amendment privilege against self-incrimination and “our accusatory system of criminal justice [demand] that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth.” Miranda v. Arizona, 384 U.S. 436, 460, 86 S.Ct. 1602, 1620, 16 L.Ed.2d 694 (1966). The use of a defendant’s coerced confession in a state criminal trial is forbidden by the Due Process Clause of the Fourteenth Amendment. E. g., Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958). The ultimate test of the admissibility of a confession is one of voluntariness: “Is the confession the product of an essentially free and unconstrained choice by its maker?” Culombe v. Connecticut, 367 U.S. 568, 602, 80 S.Ct. 1604, 4 L.Ed.2d 1522 (1961); Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961). Although physical brutality and violence used to extort confessions of course violate due process of law, threats of violence and duress also constitute coercion. E. g, Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960); Watts v. Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801 (1950); Lee v. Mississippi, 332 U.S. 742, 68 S.Ct. 300, 92 L.Ed. 330 (1948); Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029 (1945); State v. Williams, 369 S.W.2d 408, 418 (Mo.1963); State v. Statler, 331 S.W.2d 526, 530 (Mo.1960); State v. Bradford, 262 S.W.2d 584, 586 (Mo.1953). All factors are relevant in reviewing a claim that a confession was coerced including individual characteristics of the defendant, State v. Bradford, supra, and the surrounding circumstances, including the duration and conditions of detention, the manifest attitude of the police toward the defendant, defendant’s physical and mental state, and any psychological pressures. Culombe v. Connecticut, 367 U.S. 568, 602, 80 S.Ct. 1604, 4 L.Ed.2d 1522 (1961).

Although the decision of the trial court should not lightly be overturned, the evidence presented by appellant, though admittedly not conclusive, cf. State v. Lyle, 511 S.W.2d 817, 818 (Mo.1974), does satisfy the standard of some kind of factual showing in support of an allegation of manifest injustice under the plain error rule, State v. Graham, 527 S.W.2d 936, 944 (Mo.App.1975), and requires reversal of appellant’s conviction. Rule 27.20(c), V.A.M.R.; e. g., State v. Butts, 349 Mo. 213, 159 S.W.2d 790 (1942); State v. Powell, 266 Mo. 100, 180 S.W. 851 (1915). Such a decision is particularly justifiable in light of the rule that the state has the burden of proving by a preponderance of the evidence that a confession was voluntary. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); State v. Nolan, 423 S.W.2d 815 (Mo. 1968); State v. Williams, 369 S.W.2d 408 (Mo.1963).

Here, appellant testified at the pretrial hearing that during interrogation periods he had been beaten, kicked, beaten with a rubber hose, and threatened with more beatings if he did not confess by several police officers. Appellant’s testimony was confirmed by a polygraphy examiner who testified that in his opinion appellant’s allegations of police brutality were truthful. This polygraph test had been stipulated to by both the defense and prosecution. An eyewitness testified in support of appellant’s account of the beatings by the police officers. Appellant had been physically injured and his shirt was ripped. In addition, appellant was not given anything to eat for approximately 31 hours (1:00 P.M. July 29 to 8:00 P.M., July 30).

On the other hand, the state called seven (7) police officers as witnesses, all of whom denied the allegations of coercion and were unable to explain appellant’s claimed injuries or torn shirt. It is unrealistic to expect police officers in most coercion cases to admit to any kind of brutality. Interrogation is not conducted and confessions are not made in the open air but inside police stations. The United States Supreme Court has given special attention to the problem of the secrecy of interrogation rooms, “the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself.” Miranda v. Arizona, 384 U.S. 436, 439, 86 S.Ct. 1602, 1609, 16 L.Ed.2d 694 (1966); Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). Confessions which are the result of coercion are fundamentally inconsistent with the individual’s privilege against self-incrimination and the due process of law and were recognized as such long before the procedural safeguards of Miranda were laid down, e. g., Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936). The continued use by the police of physical and mental coercion and the necessity for some limitation on custodial interrogation were of principal concern to the Supreme court in the landmark Miranda decision. Miranda v. Arizona, 384 U.S. 436, 447, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The present case emphasizes the task of the courts to closely examine the voluntariness of a confession and to reverse convictions where the state has failed to satisfy its burden of proof that the confession was in fact voluntarily made.

Although the court and the jury found, after considering conflicting testimony, that defendant’s admissions were voluntary, not in all instances are we required to defer to their findings. I accept, without question, the general rule that where either a conviction or a particular finding has been resolved by the court based on conflicting evidence neither will be disturbed on appeal, where there is sufficient evidence to sustain it. See State v. Woodard, 499 S.W.2d 553, 556 (Mo.App.1973); State v. Wheaton, 221 S.W. 26 (Mo.1920). Here, for reasons I shall develop, I reject the jury’s finding that the admissions herein were voluntary and find them to be the product of compulsion.

Indicative of the careful scrutiny appellate courts give to cases wherein a trial court has found a confession to have been freely given are the cases of Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936); Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940); and Ashcraft v. Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192 (1944).

In Brown, the trial court determined that the confessions of the defendants, who were charged with murder, were voluntary. Nonetheless, the court rejected the trial court’s findings and found upon its own review of the evidence that the confessions were the product of compulsion. This for the reason that the uncontradicted testimony supplied by the defendants and a deputy revealed that the defendants had been severely beaten. Consequently, while Brown cannot be cited to authorize an appellate court to disregard a trial court’s findings based upon conflicting testimony, yet it does illustrate that under certain circumstances an appellate court does have the independent power to conduct its own review of the evidence and to throw out the findings of a trial court jury on an issue of voluntariness.

In Chambers, several defendants, who were ignorant, tenant farmers, were charged and convicted of murder based upon confessions which the trial court had found to be voluntary. Unlike Brown, in Chambers there was a disagreement and a conflict in the testimony as to whether threats had been made and violence had been used on the defendants. Nonetheless, the court, as in Brown, found that uncon-tradicted evidence showed: (1) that defendants had been questioned steadily over a period of five days; (2) that the circumstances surrounding their confinement and their questioning without any formal charges having been brought, were such as to fill the defendants with terror and frightful misgivings — Chambers, 309 U.S. p. 239, 60 S.Ct. 472. Equally important, I note that the State of Florida challenged the court’s jurisdiction “to look behind the judgments below claiming that the issues of fact upon which petitioners base their claim that due process was denied them have been finally determined because passed upon by a jury. ...” Chambers, at p. 228, 60 S.Ct. at p. 473. In answer to this challenge, the court replied that it is not concluded by the findings of a jury that the confession by one convicted in a state court of murder was voluntary, but determines the question itself from the evidence. Chambers, at p. 229, 60 S.Ct. 472.

In Ashcraft v. Tennessee, supra, where the defendant was charged as an accomplice to the murder of his wife, the Supreme Court again reversed the conviction, after finding that the confession was coerced, rather than voluntary, as determined by the jury. Here, too, there was some contradictory evidence as to whether the defendant had been beaten, given food, allowed to use the lavatory during the 36 hours he was questioned, as well as the type of questioning he was subjected to, and what kind of physical condition he was in after his interrogation. In spite of these contradictions in the evidence, the court found the uncontradicted evidence that Ashcraft was held incommunicado for 36 hours without sleep or rest and was questioned continually by relays of officers and investigators, sufficient to prove that his confession was coerced.

In all of the above cases, the Supreme Court refused to accept the lower court’s findings of fact that the confessions were voluntary. In each case there was other evidence that was uncontradicted, undisputed evidence relied upon by the Supreme Court that the defendant had been beaten, or subjected to questioning in intimidating circumstances for prolonged periods of time. Here, in the instant case, the evidence is uncontradicted: (1) that defendant was held for 31 hours without food or nourishment; (2) was questioned for approximately 16 hours before a formal charge was made; (3) that defendant was without friends, family, or counsel during the time he was being held; and (4) that the police had no explanation as to why they had furnished him with a shirt different from the one he wore when arrested and defendant testified had been torn while he was being beaten. Granted, there are contradictions in the testimony as to whether violence was used on the defendant while in custody; however, the mere fact that some of the evidence is contradictory does not mean that the court is “bound” to accept the jury’s findings. Chambers v. Florida, supra, and Ashcraft v. Tenn., supra. Even assuming that this contradictory evidence is in favor of the state, and no violence was used on the defendant, I still find as a matter of law that because the defendant was held for 31 hours without food or nourishment and questioned for a period off and on for 16 hours that his resulting statement was the product of compulsion.

This case closely resembles Ashcraft. In Ashcraft, there was contradictory evidence as to whether violence had been used but uncontradicted evidence that Ashcraft was held and questioned for 36 hours. In this case we have contradictory evidence as to whether the defendant was beaten but un-contradicted evidence that he was held for 31 hours without food or nourishment and questioned for 16 hours before formal charges were made. In both cases, the “coercive force” of the situation is brought to bear against a lone suspect. Ashcraft v. Tennessee, supra.

Therefore, while I acknowledge the general rule that a conviction based on conflicting evidence will not be disturbed on appeal, I reject it in this case because from my own independent findings there are other circumstances which show as a matter of law that the purported statement resulted from compulsion. In no way in my decision do I consider the consensual, uncontrovert-ed results of the polygraph in my final conclusion, because I recognize that the court had the right to believe or disbelieve this evidence. Yet, on the other hand, the uncontradicted results of the polygraph testified to by a respected, qualified examiner, does give some validity to my conclusion that some mischief was afoot.

Finally, I call to the attention of my colleagues an admonition given by Simeone, C. J. Judge Simeone noted that the courts stand as the last buffer of protection between police tyranny and the individual rights of all of our citizens. Today more so than ever, our news media report countless charges of confrontation of police misconduct in their dealing with our citizenry. In a majority of the instances where charges are made, we, the court, because of the high regard we hold for our police department resolve these disputes in favor of the police. We do this not because the police are infallible, but because in most instances we have a one-against-one swearing contest between the police and the accused. Consequently, absent any evidence to the contrary, we presume our police to be acting in good faith and thus support their version. In this case, however, such is not the case. Here we have one of those rare instances wherein not only are there other witnesses to the dispute but also a substantiation of the charges by credible scientific testing as related to the court by a highly respected polygrapher.

For the reasons given herein, I find the purported admissions to be the product of police coercion; and, accordingly, I would reverse and remand the cause for a new trial.

      . “Q. Now, the statements that you gave whether they be verbal statements to the police officers or a written statement or a video tape statement, why did you make those statements?
      A. Because they was telling me to, and to stop from getting beat.”

      . Some of the questions were in evidence before the jury:

        “A. (Mr. Mathews) On test one, ‘Do you intend to lie to my questions about your treatment in the St. Charles Police Station?’
      Q. What was his answer?
      A. His answer was no.
      A. Number two, ‘Did you lie when you said you were beaten up at the St. Charles Police Station?’ His answer to that question was no.
      Q. What was your opinion as to the answer of that question?
      A. My opinion was the answer was truthful.
      A. Number three, ‘At the St. Charles Police Station were you actually struck with rubber hose by any police officer?’ The answer to that question was yes. My opinion was that that question was answered truthfully.
      A. Four, ‘Were you punched in the chest by any policeman at the St. Charles Police Station?’ The answer to that question was yes. The question was answered truthfully.
      A. Number five, ‘Did any police officer kick you in the back at the St. Charles Police Station?’ The answer to that question was yes. The question was answered truthfully.
      A. The next question was, ‘Have you now told me the truth about your treatment at the St. Charles Police Station?’ The answer to that question was yes, and the question was answered truthfully.
      A. ‘Prior to your arrest for that Burger Chef holdup did you have that bruise on your back?’
      Q. And the answer?
      A. ‘Yes.’
      Q. And your opinion?
      A. In my opinion the question was answered truthfully.”

      . See last question and answer set out in footnote 2.

      . “That GARY LEE HAMELL, in the County of St. Charles, State of Missouri, on the 26th day of July, 1975, did willfully, and unlawfully and feloniously, by means of a certain dangerous and deadly weapon, to-wit: Sawed-off shotgun, take, steal and carry away U.S. currency in the amount of $437.00 the personal property of Burger Chef, Inc., then and there in the lawful care and custody of Charles Stephen Shelton in fear of an immediate injury to his person and then and there did feloniously attempt to rob, take, steal and carry away the said money from the person of, in the presence of and against the will of the said Charles Stephen Shelton with the felonious intent to permanently deprive the owner of the use thereof and to convert the same to his own use, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State.”

      . Mr. Warren Pierre Mathews, the polygraph examiner, graduated from the University of Illinois School of Engineering. Afterward he was employed by the Central Intelligence Agency where he was first introduced to the field of polygraphy. Later he graduated from Zahn Institute of Polygraphy, a training institution for examiners of law enforcement and commercial agencies. Mr. Mathews had made court appearances for defendants as well as for the state. His present employment is with Wells Fargo, a security agency.


author: CLEMENS, Presiding Judge.

text:
    Lillian JOHNSON and Samuel Johnson, Appellants, v. STATE SECURITY INSURANCE COMPANY, Respondent.
    No. 38547.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 15, 1977.
    Motion for Rehearing and/or Transfer Denied Jan. 18, 1978.
    Application to Transfer Denied March 13,1978.

      Raymond Howard, Jr., St. Louis, for appellants.
    Hiram W. Watkins, Clayton, for respondent.
   CLEMENS, Presiding Judge.

Equitable garnishment arising out of a previous action for damages. Plaintiffs got a default judgment against George Smith, who then carried liability insurance with the present defendant. The trial court found against plaintiffs on the ground Smith had breached a policy condition by failing to deliver suit papers to his insurer, the present defendant, as required by his policy.

The narrow issue raised by plaintiffs on appeal is that there is no evidence the applicable 1973 policy required Smith to deliver suit papers to his insurer.

Plaintiffs pleaded they had been injured in a collision with Smith’s automobile on September 14, 1973, and that Smith was then covered by defendant’s liability policy. Defendant admitted the policy was in effect, subject to policy conditions, but pleaded Smith had breached the policy condition that he promptly deliver to defendant any process served on him. Plaintiffs had no evidence Smith had ever done so, and defendant’s evidence, including that of Smith, was that he had not.

Plaintiffs now contend trial testimony concerning the policy’s notice-to-insurer condition concerned Smith’s 1974 policy, not the 1973 policy in issue. We do not agree.

Defendant’s claims manager identified its file and policy without specific reference to date. Upon inquiry about the policy’s “condition # 3,” plaintiffs ’ counsel declared: “Let the record show that it’s under the heading of Conditions and it’s on page 4. It’s under Conditions, Paragraph 3, indicated as Notice in the Event of An Accident Occurrence or Loss. ... He shall immediately forward to the company every demand, notice, summons or other process received by him or his representative.” On cross examination the witness acknowledged he was testifying from Smith’s “cover sheet” dated 1974. He explained that Smith’s 1973 policy had been renewed for 1974 and the policy conditions were the same: “Question: This particular cover sheet that you call conditions pertains to his coverage then, for the year of '73 to ’74, isn’t that correct? Answer: Yes.”

We cannot accept plaintiffs’ contention that there was no evidence of a policy condition requiring Smith to notify defendant he had been sued. The fragile basis for plaintiffs’ contention is that evidence of the policy condition concerned Smith’s 1974 policy.

Viewing the record as a whole, we deny plaintiffs’ contention. The pleadings alleged a 1973 liability policy. Defendant’s claims manager testified from his file as to Smith’s coverage “concerning an accident . of 1973.” On cross examination plaintiffs’ counsel read into the record the policy condition requiring delivery of process. Later, the claims manager acknowledged that he had read from defendant’s renewal' 1974 cover sheet, but explained that was the same condition in Smith’s 1973 policy.

Defendant’s liability as garnishee depended upon the policy condition that the insured notify it of plaintiffs’ suit against insured, George Smith. There being no compliance with that condition, defendant was not liable. Greer v. Zurich Insurance Company, 441 S.W.2d 15, 20, 21 (Mo.1969).

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


author: SMITH, Judge.

text:
    The LITITZ MUTUAL INSURANCE CO., a corp., Respondent, v. Amy Lea BRANCH, Richard Leo Branch, and A. W. Kable and Maureen F. Kable, his wife, Appellants.
    No. 38830.
    Missouri Court of Appeals, St. Louis District, Division 1.
    Nov. 15, 1977.
    Motion for Rehearing and/or Transfer Denied Jan. 18, 1978.
    Application to Transfer Denied March 13,1978.

      Baer, Hines & Thomas, Richard C. Thomas, Columbia, Van Matre & Van Matre, Everett S. Van Matre, Mexico, for appellants.
    Edwards, Seigfreid, Runge & Leonatti, P/C Jerome W. Seigfreid, Louis J. Leonatti, Mexico, for respondent.
   SMITH, Judge.

Defendants appeal from a declaratory judgment entered by the trial court determining that a homeowner’s policy issued by plaintiff insurance company does not obligate plaintiff to defend the Kables in a lawsuit brought by defendants Branch for injuries sustained by Amy Lea Branch when she was bitten by a dog owned by the Kables.

The dog involved was an eight year old male Weimaraner named Baron. On June 16, 1974, Baron bit a neighbor boy, Virgil McCormack, while Baron was tethered near the Kable home. Baron was taken to a veterinary clinic where he remained under observation for ten days. Upon his release, Baron was taken by Mr. Kable to the premises of the Kable Dairy Company — a business owned by the Kables. The dog was tethered at that location where he remained until July 12, 1974, when he bit the Branch girl. Mr. Kable kept the dog on the dairy company premises because he believed the McCormack bite was the result of continuous harassment and teasing of Baron by the McCormack children and their friends. Following the Branch bite, Mr. Kable had the dog destroyed.

Following suit by the Branches against the Kables, plaintiff filed this declaratory judgment suit to have determined its liability under a homeowner’s policy issued to the Kables and covering the residence premises of the Kables. Plaintiff contended that three exclusions applied to preclude coverage. Those three exclusions are set forth in the margin. The trial court found that the presence of the dog on the dairy company premises was not for business purposes so that exclusion 1(d) did not apply. It also found that Mr. Kable did not intend or expect the Branch bite so that exclusion 1(f) did not apply. Plaintiff does not take issue with either of these findings and both are fully supported by the evidence. The court also found that none of the three exclusions applied to the medical payments coverage of the policy. It found, however, that exclusion 1(e) does apply to the liability coverage of the policy and that the bodily injury sustained arose out of premises, other than the insured premises, controlled by the insured. In determining that exclusion 1(e) did not apply to medical payments, the court found that the policy specifically provided for coverage when the injury was caused by “an animal owned by . . .” the insured elsewhere than on the insured premises. No such specific language is contained in the personal liability coverage. Plaintiff concedes that the court’s finding on the medical payment coverage is correct. There is no factual dispute that the dairy company premises are controlled by the insured, Mr. Kable; that the dog was located on those premises at the time of the Branch bite; that he had been so located for at least two weeks; and that the residence premises insured by the homeowner’s policy was the Kable residence not the dairy company premises.

We are therefore left with determining whether this bodily injury was one “arising out of . premises, other than an insured premises, . . . controlled by . insured. . . .We conclude it was not. The liability coverage provided was to the insured for damages he might become legally obligated to pay caused by an “occurrence.” An occurrence is defined as an accident. The personal liability coverage set out in the policy would, in the absence of an exclusion, apply to the dog bite, as the liability coverage itself contains no restrictions as to location of the injury. If the dog bite is not covered it is because it was an injury “arising out of” the dairy company premises.

We find no cases interpreting the words “arising out of” in a fact situation similar to this. In Toole v. Bechtel Corporation, 291 S.W.2d 874 (Mo.1956) “arising out of employment” was defined as follows:

“An injury arises ‘out of’ the employment when there is a direct causal connection between the injury and the employment; and, even though the precise injury need not have been anticipated, it must have been a rational consequence of some hazard connected with the employment.” [3].

In Schmidt v. Utilities Ins. Co., 853 Mo. 213, 182 S.W.2d 181 (1944) [3], the court was determining the meaning of the phrase “arising out of the . . . use of the automobile.” The term “arising out of” was held to mean originating from, or having its origin in, or growing out of, or flowing from.

Premises are defined to mean “a specified piece or tract of land with the structures on it . . .a building, buildings, or part of a building covered by or within the stated terms of a policy.” Webster’s Third New International Dictionary, p. 1789. The insurance policy here defines “residence premises” as “(1) a one or two family dwelling building, appurtenant structures, grounds and private approaches thereto; or (2) that portion of any other building occupied as a residence . . . .” It is apparent that “premises” in common parlance and in the policy itself contemplates the land and more or less permanently affixed structures contained thereon. It does not contemplate easily movable property which may be located on the property at a given time or even on a regular or permanent basis. A dog, whether permanently kenneled or tethered on the property, is not a part of the premises.

It cannot therefore be said that a dog bite arises out of — originates from, grows out of, or flows from — the premises. That it occurs upon the premises does not establish a causal connection between the bite and the premises. We find that the language used does not contemplate that the exclusion applies to liability arising from a dog bite occurring on the Kable business property. See Duggan v. Travelers Indemnity Co., 383 F.2d 871 (1 Cir. 1967).

This conclusion is also supported by the obvious purpose of the liability coverage and the exclusions provided from such coverage. The personal liability insured against is of two kinds: first, that liability which may be incurred because of the condition of the premises insured; secondly, that liability incurred by the insured personally because of his tortious personal conduct, not otherwise excluded, which may occur at any place on or off the insured premises. The insurance company may well limit (and has by exclusion 1(e)) its liability for condition of the premises to the property insured for which a premium has been paid. It is reasonable that the company may not provide for liability coverage on “conditions” which cause injury on other uninsured land. It would be a rare case where an insured was liable for the condition of premises which he did not own, rent or control. It is to be expected, therefore, that the company’s liability for condition of the premises would be restricted to accidents happening on or in close proximity to the insured premises, and that premiums would be charged with that in mind. It would be unreasonable to allow an insured to expand that coverage to additional land and structures owned, rented or controlled by him which are unknown and not contemplated by the company.

The company has not chosen to geographically limit the coverage provided for tortious personal conduct of the insured. If it had so intended, it could simply have provided that the exclusion ran to an accident “occurring on” other owned premises. There appears to be little reason to exclude personal tortious conduct occurring on owned but uninsured land, as little correlation exists between such conduct and the land itself. Liability for injuries caused by an animal owned by an insured arises from the insured’s personal tortious conduct in harboring a vicious animal, not from any condition of the premises upon which the animal may be located. The language used in exclusion 1(e) recognizes this distinction.

Judgment reversed with directions to enter judgment declaring that plaintiff’s policy provides both personal liability coverage and medical payment coverage to the Rabies for the alleged injury sustained by Amy Lea Branch as a result of the alleged attack by the Kable’s dog.

CLEMENS, P. J., and McMILLIAN, J., concur.

      . “This policy does not apply:
      1. Under Coverage E — Personal Liability and Coverage F — Medical Payments to Others:
      d. to bodily injury or property damage arising out of business pursuits of any Insured except activities therein which are ordinarily incident to non-business pursuits;
      e. to bodily injury or property damage arising out of any premises, other than an insured premises, owned, rented or controlled by any insured; but this exclusion does not apply to bodily injury to any residence employee arising out of and in the course of his employment by any Insured;
      f.to bodily injury or property damage which is either expected or intended from the standpoint of the Insured.”


author: McMILLIAN, Judge.

text:
    Albert William BROWN, Petitioner-Respondent, v. Donna Rae BROWN, Respondent-Appellant.
    No. 38975.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 15, 1977.
    Motion for Rehearing and/or Transfer Denied Jan. 18, 1978.
    Application to Transfer Denied March 13,1978.

      Devereaux & Stokes, Daniel R. Dever-eaux, St. Louis, for respondent-appellant.
    Shaw, Howlett & Schwartz, Charles M. Shaw, Clayton, for petitioner-respondent.
   McMILLIAN, Judge.

Appellant Donna Rae Brown appeals from the judgment and order of the circuit court of Franklin County, Missouri, overruling her motion to set aside an interlocutory order of dissolution of marriage and making final the interlocutory order. Appellant argues that the trial court abused its discretion in overruling her motion to set aside. Appellant contends that at the time the trial court entered the interlocutory order it had not been fully apprised of all the facts and circumstances of the parties’ marriage, specifically that a minor child had been born during the marriage. For the reasons discussed below, we reverse the judgment and remand for further proceedings.

The parties were married on March 20, 1976. A child, Bryan William Brown, was born on August 26, 1976. The parties subsequently separated on September 2, 1976. Respondent Albert William Brown, Jr., filed , a petition for dissolution of marriage on September 10, 1976, which stated the facts of his marriage to appellant, the separation, that the marriage was irretrievably broken, and that no minor children had been born of the marriage. (At this time both parties were eighteen years of age.)

At the trial on December 7,1976, respondent was present and represented by counsel. Appellant was neither present nor represented by counsel. Appellant was personally served on September 14, 1976, but nevertheless made no response. The trial court entered a default against her and then proceeded. Respondent testified briefly as to the facts of his marriage and separation and that there were no minor children born of the marriage. The trial court made a preliminary finding that the marriage was irretrievably broken with no reasonable likelihood that it could be preserved and entered an interlocutory order of dissolution of marriage. The trial court also found there were no minor unemancipated children and made no orders concerning the assets and liabilities of the parties or maintenance.

Statutory notice was sent to appellant that the interlocutory order would become final within ten days (on December 20, 1976) unless she filed a written objection thereto. § 452.320(1), RSMo 1977. Counsel for appellant then filed a “Motion to Set Aside the Interlocutory Order” asserting the trial court had not been fully apprised of the facts and circumstances of the parties’ marriage, specifically that a minor child had been bom during the marriage. Appellant also filed an answer stating that a child had been born of the marriage and denying the marriage was irretrievably broken.

Both parties were present and represented by counsel at the hearing on the motion to set aside the interlocutory order on February 15, 1977. The trial court noted that the purpose of the hearing was to address the question whether appellant should be allowed to raise the issue of the child after such a delay rather than to determine paternity. Nevertheless, much of the testimony at the hearing was directed at the question of paternity. Briefly, appellant testified that respondent was the father of her child and the child was bom after the marriage. Respondent testified that although at the time of the marriage he knew appellant was pregnant and the child was born after the marriage, he did not believe the child was his. He believed that appellant’s former boyfriend was the father.

As noted above, the trial court was primarily interested in the reasons for appellant’s delay and approached the motion to set aside the interlocutory order as a motion to set aside a default judgment. Appellant testified that the delay was the product of confusion and misunderstanding on her part. Appellant erroneously assumed that her husband’s attorney would contact her again, that she required the appointment of a guardian, and that her husband’s attorney would correct, at her request, the statement in the petition that there were no children born of the marriage. When appellant received notice of the interlocutory order she immediately contacted her present counsel and filed the motion to set aside.

The trial court noted that appellant’s confusion and age had probably contributed to the default, but nonetheless found that appellant’s inaction had precluded her from further relief and overruled the motion to set aside the interlocutory order. The trial court also noted that appellant had been aware of the proceedings and properly served with process and that no actual fraud had been perpetrated upon her. The interlocutory order of dissolution was made final and entered on February 15, 1977. This appeal followed.

Our standard of review in this court-tried case is defined by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The judgment of the trial court is to be sustained 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. Id. at 32; Brueggemann v. Brueggemann, 551 S.W.2d 853, 856 (Mo. App. 1977); In re Marriage of Carmack, 550 S.W.2d 815, 817 (Mo.App. 1977). Under this standard, we reverse because the trial court has erroneously applied the law and remand for further proceedings. Under our analysis, § 452.320 of the new dissolution of marriage law requires the trial court to hold a hearing on whether the marriage is irretrievably broken when the absent party, after receiving notice of the interlocutory finding, does file an objection within ten days, even though that party did not before deny that the marriage was irretrievably broken. Id. § 452.320(1), (2). At the hearing the petitioning party must then satisfy the trial court of one of the five factors listed in the dissolution law. In re Marriage of Capstick, 547 S.W.2d 522, 524 (Mo.App. 1977).

From the record and the briefs it is clear that the trial court and the attorneys for both parties approached the motion to set aside the interlocutory order as a motion to set aside a default judgment. The trial court was most concerned with why appellant had delayed, because in order to justify setting aside a default judgment, the defaulting party must show a good reason or excuse for default and a meritorious defense. E.g., Clinton v. Clinton, 444 S.W.2d 677, 681 (Mo.App. 1969), citing Whitledge v. Anderson Air Activities, 276 S.W.2d 114, 116 (Mo.1955). We believe, however, that the trial court erred in treating the interlocutory order as a default judgment and in holding the hearing on the motion to set aside. When one of the parties is absent, the preliminary finding of the trial court that the marriage is irretrievably broken is an interlocutory or temporary finding, as provided in § 452.320(1), RSMo 1977. The interlocutory order merely establishes that unless some event occurs, in this case the filing of a written objection, the interlocutory order will become final at the expiration of a certain period, in this case ten days. E.g., State ex rel. Great American Ins. Co. v. Jones, 396 S.W.2d 601, 603 (Mo. banc 1965).

In this case appellant filed an objection within ten days of receipt of notice of the interlocutory order, in the form of a motion to set aside and an answer. Therefore, in this posture of the case, the trial court should have held a hearing on the question whether the marriage is irretrievably broken, § 452.320(2) RSMo 1977. Where no objection is filed within the statutory ten-day period, the interlocutory order of dissolution of marriage may then be entered of record. At this point the final decree of dissolution is a true default judgment inasmuch as there has been no answer filed nor any objections to the interlocutory decree. A motion to set aside the default judgment would then be appropriate, e.g., In re Marriage of Hanners, 549 S.W.2d 941 (Mo.App. 1977). Then the trial court would have been perfectly correct in the exercise of its discretion as to whether appellant had shown a meritorious defense and good reason or cause for defaulting, Id. at 942. But this is not the instant case.

In our opinion the statutory ten-day period serves as a check on the dissolution of marriages in cases where one party is absent by giving that defaulting party a last chance to object. We hold that the legislature by its enactment of § 452.320(1) because of its deep concern for the maintenance of the family unit, has declared the following to be the public policy of our state: Where a spouse is in default by failing to file an answer to the original petition that sought a dissolution of the marriage, the trial court is authorized to enter an interlocutory decree provided it finds the marriage to be irretrievably broken. Next, it becomes the duty of the trial court to notify the spouse in default as provided in § 452.320(1). If, on the other hand, the spouse in default files an objection to the interlocutory decree alleging that the marriage is not irretrievably broken, the trial court then must hold a hearing and make findings as provided in § 452.320(2).

Judgment reversed and remanded for further proceedings consistent with this decision.

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

      . Section 452.320 has been repealed and re-enacted omitting the 10 day notice requirement. H.B.No. 470, approved June 8, 1977, effective 6 September 1977.

      . 452.320 Finding that marriage is irretrievably broken, when — notice—denial by a party, effect of — alternate findings
      “1. If both of the parties by petition or otherwise have stated under oath or affirmation that the marriage is irretrievably broken, or one of the parties has so stated and the other has not denied it, the court, after considering the aforesaid petition or statement, and after a hearing thereon shall make a finding whether or not the marriage is irretrievably broken, and where one of the parties has not denied it the court shall cause to be deposited in the United States mail an envelope, certified or registered, deliver to addressee only, return receipt requested, and with postage prepaid, enclosing a notice to the party not denying that absent objection from said party being filed within ten days after date of mailing that a finding the marriage is irretrievably broken and an order of dissolution of the marriage may be entered of record. The failure of such party to receive such notice shall not impair the power of the court to enter an order dissolving the marriage or the validity of such an order; but
      “2. If one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that gave rise to the filing of the petition and the prospect of reconciliation, and after hearing the evidence shall
      “(1) Make a finding whether or not the marriage is irretrievably broken, and in order for the court to find that the marriage is irretrievably broken, the petitioner shall satisfy the court of one or more of the following facts:
      “(a) That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
      “(b) That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
      “(c) That the respondent has abandoned the petitioner for a continuous period of at least six months preceding the presentation of the petition;
      “(d) That the parties to the marriage have lived separate and apart by mutual consent for a continuous period of twelve months immediately preceding the filing of the petition;
      “(e) That the parties to the marriage have lived separate and apart for a continuous period of at least twenty-four months preceding the filing of the petition; or
      “(2) Continue the matter for further hearing not less than thirty days or more than six months later, or as soon thereafter as the matter may be reached on the court’s calendar, and may suggest to the parties that they seek counseling. No court shall require counseling as a condition precedent to a decree, nor shall any employee of any court, or of the state or any political subdivision of the state, be utilized as a marriage counselor. At the adjourned hearing, the court shall make a finding whether the marriage is irretrievably broken as set forth in subdivision (1) above and shall enter an order of dissolution or dismissal accordingly.”

      . In the present case appellant’s answer specifically denied that the parties’ marriage was irretrievably broken. Therefore our holding is restricted to cases in which the defaulting spouse denies the marriage is irretrievably broken. We distinguish those cases in which the defaulting spouse’s objection is to some other provision of the interlocutory decree, such as child custody, maintenance or property division.


text:
    STATE of Missouri, Respondent, v. Daniel SPENCER, Appellant.
    No. 38514.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 22, 1977.
    Motion for Rehearing and/or Transfer Denied Jan. 18, 1978.
    Application to Transfer Denied March 13,1978.
    Goldstein, Tessler, Brown & Geigerman, Michael S. Geigerman, Clayton, for appellant.
    Paul Robert Otto, Chief Counsel, Crim. Div., Asst. Atty. Gen., Jefferson City, for respondent.
   CLEMENS, Presiding Judge.

The only issue in this armed-robbery case concerns the state’s rebuttal evidence of a prior inconsistent statement made by a defense witness to police.

Defendant does not challenge the sufficiency of the state’s evidence. It was that defendant Daniel Spencer, acting with Augustus Tabor, robbed five employees of Busch’s Grove Restaurant. Defendant did not testify, but his witness Tabor testified that he, not defendant, committed the robbery. On cross examination, Tabor was asked about having made a prior inconsistent statement to police accusing defendant and exonerating himself. Defendant contends and the state denies that witness Tabor then admitted he had made the prior inconsistent statement.

The state and defendant are in agreement on the pertinent principles of law. Both cite State v. Covington, 432 S.W.2d 267[1] (Mo.1968), a robbery case where a defense witness testified that he and not defendant was the robber. On cross examination the Covington witness denied that when arrested he had told police that he did not, but that defendant did commit the robbery. In rebuttal, two officers testified over defense objection that when arrested the defense witness had told police, contrary to his trial testimony, that it was defendant who committed the robbery, and that he, the witness, did not.

Here, the state emphasizes that part of Covington upholding the admission of such rebuttal testimony: “Prior inconsistent statements of a witness are admissible for impeachment as affecting his credibility.” Defendant agrees, but relies on the Coving-ton qualification that “If the witness admits unequivocally that he has made an inconsistent or contradictory statement, evidence thereof is generally held unnecessary and inadmissible.” (Our emphasis.)

This brings us to the critical point— whether on cross examination defense witness Tabor did, or did not, unequivocally admit he had made the prior inconsistent statement attributed to him. If he did so admit, the matter was closed and rebuttal testimony was unnecessary and inadmissible. Conversely, if Tabor did not admit having made the prior inconsistent statement, then the statement could properly be admitted in rebuttal to impeach him.

Defendant contends that on cross examination Tabor admitted having made the prior inconsistent statement denying his own participation and incriminating defendant. Tabor testified on cross examination:

“Q: And do you remember answering, T don’t know anything about Busch’s Grove’?
A: Yes, sir, I remember saying that.”

By this answer Tabor admitted having made that part of the inconsistent statement concerning his own non-participation in the robbery. Later, however, Tabor denied that part of his inconsistent statement about defendant Spencer’s participation:

“Q: Did you give them the statement that you believed Daniel Spencer was involved in this robbery and that Daniel Spencer showed you money from the robbery?
A: No, sir.”

Since the record refutes defendant’s contention that Tabor unequivocally admitted having made the prior inconsistent statement, the door was not closed, and the trial court properly admitted Officer Carson’s rebuttal testimony:

“A: Mr. Tabor related to Detective Sergeant Weber and to- myself that he personally had not been involved in the holdup at Busch’s Grove; however, he did indicate to us that Mr. Spencer and Mr. Greenwood had been involved in the armed robbery.”

This was proper impeachment, and we deny defendant’s primary point.

In a related point relied on defendant contends Tabor’s prior inconsistent statement was admissible only for the purpose of impeaching him, and could not be considered by the jury as substantive evidence of defendant’s guilt. True, but defendant’s point is that the trial court erred in failing to so instruct the jury. MAI—CR 3.52 would have been proper for that purpose but it need be given only when requested. Here, there was no such request, and hence no error. State v. Lamaster, 534 S.W.2d 574[3, 4] (Mo.App.1976).

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


text:
    Bruce Ray WILBORN, Movant-Appellant, v. STATE of Missouri, Respondent (two cases).
    Nos. 38748 and 39071.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 29, 1977.
    Motion for Rehearing and/or Transfer Denied Jan. 18, 1978.
    Application to Transfer Denied March 13,1978.
    Thomas L. Kelly, Ballwin, for movant-ap-pellant in No. 38748. Robert C. Babione, Public Defender, Edward J. Bippen, Jr., Asst. Public Defender, St. Louis, for appellant in No. 39071.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, and Philip M. Koppe, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Pros. Atty., James R. Hartenbach, Clayton, for respondent in Nos. 38748 and 39071.
   SMITH, Judge.

Bruce Ray Wilborn has appealed from adverse rulings on post-conviction motions by two different circuit courts. Since the two cases involve the same legal questions, we have consolidated them for disposition in this opinion.

In the City of St. Louis Wilborn filed a writ of coram nobis attacking convictions against him entered in 1954, 1957, and 1960. This attack was on the basis that he was not represented by counsel when he entered his pleas of guilty to the charges. These convictions, Wilborn contends, were used to enhance his punishment and to attack his credibility in a trial in 1973, in which he was convicted of robbery and sentenced by the court under the second offender act to 30 years imprisonment. The trial court, after evidentiary hearing, found that the court records of the guilty pleas clearly showed that Wilborn had counsel on each occasion. This finding is fully supported by the record.

In the County of St. Louis, Wilborn filed a motion pursuant to Rule 27.26 seeking to set aside the 1978 conviction because of the alleged use of the 1954, 1957 and 1960 convictions to attack his credibility and to enhance his punishment. This motion was denied without evidentiary hearing.

We affirm the actions of both courts.

In addition to the factual determination by the City Circuit Court which is supported by the record, both motions fail for an additional reason. The record of mov-ant’s 1973 trial reflects that the convictions used to invoke the second offender act were three convictions occurring in 1965 and 1967. The convictions in 1954, 1957 and 1960 were not used to invoke the second offender act and during sentencing the trial court made very clear it was enhancing the sentence solely upon the 1965 and 1967 convictions. There was no “enhancement” because of the earlier convictions challenged here. Defendant testified to the 1954, 1957 and 1960 convictions during his direct examination in the 1973 trial. They were not, therefore, brought into the case for impeachment purposes. That they were again referred to on cross-examination is of no consequence since the matter was first called to the jury’s attention by movant.

A writ of coram nobis requires proof that movant is currently suffering from adverse circumstances as a result of the prior convictions. Powell v. State, 495 S.W.2d 633 (Mo. banc 1973). There is no such proof here. The record of movant’s 1973 conviction refutes conclusively that he is entitled to Rule 27.26 relief on the basis set forth in his motion.

Both judgments are affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.