author: DIXON, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jerome B. WRIGHT, Defendant-Appellant.
    No. KCD28988.
    Missouri Court of Appeals, Kansas City District.
    Aug. 28, 1978.
    Motion for Rehearing and/or Transfer Denied Oct. 10, 1978.
    Application to Transfer Denied Nov. 6, 1978.
    Kevin Locke, Lee M. Nation, Asst. Public Defenders, Kansas City, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., John M. Morris, III, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Defendant appeals from a jury verdict and jury-imposed sentence of ten years for first degree robbery. This is the second of a trilogy of cases arising from the same robbery. The trial, conviction, and appeal of the first defendant is reported in State v. Nimrod, 559 S.W.2d 592 (Mo.App. 1977). The evidence in this case is like the evidence in the Nimrod case. No question of sufficiency is raised, and it suffices to say that this defendant, Nimrod, and this defendant’s brother, Andre Wright, beat and robbed the victim, taking his wallet. A private security officer came upon the crime and, although unable to prevent the robbery, stopped the beating. This defendant, together with the two others charged, was apprehended in the company of one Dorothy Wright McKelvy, a black female, in an automobile close to the scene of the crime.

On this appeal, the defendant raises a claim of error because the State called McKelvy over defendant’s objection and error in permitting a police officer to testify to the security officer’s identification at the scene of the arrest.

When McKelvy was called to the witness stand, the State was aware that she might invoke her Fifth Amendment right not to testify. Before she took the stand, defendant objected to calling her and, after extensive colloquy, the court overruled the objection. McKelvy, who was apprehended driving the vehicle in which the three individuals charged with the robbery were apprehended, did, in fact, claim her Fifth Amendment privilege and refused to testify. The defendant cites Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963), and other federal cases of similar import. Namet deals only with federal trial error and does not establish a constitutional standard. The rule in Missouri is to the contrary. It is not improper under our trial practice for the court to require a witness to claim the privilege against incrimination in the presence of the jury. State v. Phillips, 511 S.W.2d 841.(Mo. 1974); State v. Yager, 416 S.W.2d 170 (Mo. 1967). In the argument portion of his brief, the defendant further urges that it was error for the prosecutor to argue the fact of McKelvy’s appearance and claim of privilege. The total of the State’s argument on this issue is, “I brought in Dorothy McKelvy here — or Dorothy Wright, whatever her name is — and you saw how much help she was.” It is true, as defendant argues, that under the general rule, the refusal of a witness to testify on the basis of the Fifth Amendment does not permit any inference favorable or unfavorable to either of the parties in the ease and should not be so argued. 24 A.L.R.2d 895. Examination of the argument made here shows that the prosecutor did not solicit the jury to draw any inference, but simply stated the fact concerning the witness which the jury well knew, that she had been called and did not furnish any information. This is within the general rule of permitting argument on what the evidence in the case was. State v. Barnes, 517 S.W.2d 155 (Mo.App. 1974), and no prejudice to the defendant is shown by the argument.

Under the second point, defendant claims that the prosecutor should not have put in evidence the identification by the security officer of the suspects which occurred some three or four blocks from the scene of the robbery and at the time of the arrest. It should be noted that the question of this identification came into the case by an unresponsive answer from a police officer. Defendant objected and asked that the jury be instructed to disregard the answer and asked for a mistrial. The trial court promptly sustained the objection, instructed the jury to disregard the answer, but overruled the motion for a mistrial.

Defendant relies upon State v. Degraffenreid, 477 S.W.2d 57 (Mo. banc 1972), and State v. Fleming, 354 Mo. 31, 188 S.W.2d 12 (1945). These cases are authority, as the defendant indicates, for the proposition that prior consistent statements are not admissible where there has been no impeachment or contradiction of the witness. The security officer had already testified to his extrajudicial identification of the defendant and that was proper under the authority of State v. Starkey, 536 S.W.2d 858 (Mo.App. 1976). The admission of corroborative evidence, absent impeachment or contradiction, may or may not be harmless error but does not automatically mandate a reversal, even where it has been admitted. State v. Collett, 526 S.W.2d 920 (Mo.App. 1975). In this case, where it is a question of whether the trial court erred in refusing to declare a mistrial, after excluding the evidence and instructing the jury to disregard it, the question must be whether or not sufficient prejudice inhered in the unresponsive statement of the officer to make the trial court’s refusal of the mistrial an abuse of his discretion. In Degraffen-reid, supra, which found error on this basis, there was but a single identification witness. Here, two witnesses each identified the defendant several times — the victim at a lineup and in court, and a security officer at the scene of the arrest, at a photographic “show up,” and in court. There was other incriminating evidence, the possession of the victim’s wallet a short distance from and a short time after the robbery. In the light of this substantial evidence of guilt, refusal of the trial court to declare a mistrial because of the officer’s volunteered statement of another identification cannot be considered to be an abuse of the trial court’s discretion in overruling the motion for a mistrial. A mistrial is to be granted only when the matter is so prejudicial that it cannot be removed in any other way. State v. Camper, 391 S.W.2d 926 (Mo. 1965). This inadvertent statement was only cumulative to two direct positive identifications, and the trial court promptly took action on the objection; a mistrial was not warranted.

The judgment and conviction are affirmed.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Leon NEVELS, Defendant-Appellant.
    No. KCD29569.
    Missouri Court of Appeals, Kansas City District.
    Aug. 28, 1978.
    Motion for Rehearing and/or Transfer Denied Oct. 10, 1978.
    Application to Transfer Denied Nov. 6, 1978.

      Clifford A. Cohen, Public Defender, Kevin R. Locke, Asst. Public Defender, Galen Mussman, Certified Law Intern, Kansas City, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Jeff W. Schaeperkoetter, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.
   DIXON, Judge.

Defendant appeals from a conviction for second degree murder and for assault with malice. The offenses were charged as separate counts in a single indictment. Both were tried to a single jury which agreed on guilt as to Count II involving the assault but were unable to agree on punishment. That jury could not agree on guilt as to Count I. Count I was retried almost immediately to another jury which found defendant guilty and assessed punishment at thirty years. The trial court assessed punishment at twenty years on Count II to be served consecutively to the sentence on Count I. Timely motions for new trial were ruled adversely to defendant, and timely notice of appeal was filed as to both convictions.

Thus, under this unusual procedural setting, the evidence from two separate trials is involved in the appeal. The parties agree that the evidence was very similar in both trials and, since sufficiency is not in issue, the following synopsis will suffice to present the factual background.

Count I for second degree murder was directed to the beating death of Rodney Epperson, the 5-year-old stepson of defendant, and Count II was directed to beating injuries received by an 8-year-old stepdaughter of defendant. The children had lived with the maternal grandmother until a few weeks before the events complained of.

The charges arose when the defendant appeared at a hospital carrying the 5-year-old. Upon examination, the child was bruised and cut and apparently dead. Attempts at resuscitation were futile. Postmortem exam revealed the child died of beatings to the body and a severe head injury. Some of the injuries were inflicted by a linear instrument such as a belt or strap. Defendant made admissions to attending doctors that he had been whipping the child. Pursuant to a consent, a police officer obtained a red vinyl strap, apparently a seat belt. Another officer, sent to the home based on information that another child was involved, brought to the hospital the stepdaughter who was also badly bruised. Defendant’s wife testified to the defendant’s beating of the boy. She also related that defendant put the boy’s head under water, following which defendant threw the child to the floor, causing the child’s head to strike the floor “real hard.” She denied defendant had beaten the children on other occasions, but other evidence presented indicated the beatings of both children had been continuing for some weeks.

Defendant makes contentions of error with respect to both trials. One point of error is directed to both trials, and it will be considered first. Those relating to the first trial will be considered next and then those contentions with respect to the second trial. Without further reference, the evidence considered in connection with the points raised will be that of the relevant trial or trials.

The claim of error common to both trials is defendant’s claim that the trial court erred in overruling defendant’s motion to quash the jury panels on the basis that the Jackson County procedures for selection denied defendant a jury composed of a representative cross section because of the automatic exemption of women jurors.

The proof on this issue is based on a stipulation. The stipulation presents figures on the jurors drawn for jury service from the jury wheel prepared for use during 1976. The statute, § 497.140 RSMo 1969, requires that the jury wheel be replaced annually on or before October 1. The trials were both held in early spring, 1977, and, thus, involved jurors from a jury wheel which the stipulation does not cover. There is no evidence that the makeup of the jury wheel from which these juries were drawn was of the same composition statistically as the 1976 jury wheel. Thus, the defendant has failed to provide a proper factual predicate for his challenge to the jury. In any event, even if the jury is assumed to be in the proportions the stipulations offered would indicate, the issue is controlled by State v. Duren, 556 S.W.2d 11 (Mo. banc 1977). The figures here are almost identical to the figures in Duren, and it is controlling.

The defendant raises three points of error with respect to the first trial where the conviction on Count II for the beating of his stepdaughter resulted. First, defendant claims error because the State was permitted to endorse the name of his wife as a witness on the day of trial. Defendant concedes that late endorsement will not result in a reversal unless there is a showing of prejudice. State v. Strawther, 476 S.W.2d 576 (Mo.1972).

To attempt to show such prejudice, the defendant asserts that he was unable to properly prepare to meet the testimony of this witness. This claim of prejudice is both factually and legally flawed. Factually, defendant was, of course, aware that his wife was a witness to the beating. Four months before trial, the defendant had been furnished with his wife’s police statement. The defendant was permitted to interview his wife on two occasions prior to her testimony, and a written statement was obtained by the defendant the morning before her testimony occurred. Except for a general claim that had she been endorsed earlier, the defendant might have deposed her, the defendant makes no assertion of prejudice on these facts, nor does he specify any specific inquiry that was prevented by the late endorsement. In any event, the defendant never requested any relief by way of continuance or additional time by reason of the endorsement and, absent substantial prejudice, reversible error does not arise without an affidavit of surprise or application for continuance. State v. Thost, 328 S.W.2d 36 (Mo.1959).

Defendant also claims that the trial court erred in instructing the jury with respect to the word “maim” as used in the verdict director on Count II, because the defendant asserts the word is one of common usage and understanding and the giving of any further definition was unnecessary. The jury requested the definition by a communication to the court after several hours of deliberation. The written communication is illuminating. It was as follows:

“Your Honor: In Instruction No. 9 we are needing the definition of ‘maim’.
Would it be permissible to have Your Honor supply this information or could we have a dictionary to arrive at a mutual understanding of the word?”

The court, after extensive discussion and relying upon State v. Gillespie, 336 S.W.2d 677 (Mo.1960), and State v. Hardy, 359 Mo. 1169, 225 S.W.2d 693 (Mo.1950), defined the word, “maim,” as being “the equivalent to great bodily harm or personal injury.” The defendant cites State v. Abram, 537 S.W.2d 408 (Mo. banc 1976) as support for his claim of error. In that case, the trial court, pursuant to a jury request, defined the word, “intended,” and that instruction was held to be error. The rationale of Abram was that the words, “intends,” or “intentionally,” are ordinary terms and admit of no confusion with respect to their meaning and that the use of definitional instructions with respect to such terms would result in confusion rather than clarity because of the various definitional instructions that might be offered. Defendant’s argument concludes that the word, “maim,” is a very ordinary term in the same vein as the word, “intended.” The inquiry of the jury clearly demonstrates that the jury had no such common understanding with respect to the word and were in doubt as to its meaning. If the court had acceded to their request for a dictionary, the definition might well have depended upon which particular dictionary was available to the court. The Oxford English Dictionary (Vol. VI, 1933), defines maim as follows:

“An injury to the body which causes the loss of a limb, or of the use of it; a mutilation, or mutilating wound. In early use more widely, any lasting wound or bodily injury . . . . In generalized sense: Loss or permanent disablement of a limb. In early use, any serious bodily injury . . . Mutilation or loss of some essential part; a grave defect, blemish or disablement; an injury or hurt of any kind ... To mutilate, cripple, render powerless or essentially incomplete; to deprive of.”

Even with this definition, the jury might have been confused as to what was required under the verdict director with respect to the word, “maim.” The trial court properly relied upon the ease law definitions contained in the cases cited above which clearly give to the word, “maim,” in a charge of assault with intent to maim as being great bodily harm. Clearly, the situation in this case with the word “maim” being questioned by the jury, the trial court properly provided them with an accurate definition to permit them to understand the verdict directing instruction. However, in Abram, though the use of the instruction was found to be error, the defendant was not prejudiced by the definition, and it, therefore, did not result in a reversal. Likewise, in the instant case, the defendant does not make any attempt to demonstrate prejudice by reason of an inaccurate definition, nor for that matter, by the giving of the instruction itself. The point is without merit.

The final issue with respect to the first trial is an issue concerning some photographs. During the direct examination of one of the examining doctors, several photographs of the victim were identified. The defendant objected to the admission of the photographs, but they were formally admitted into evidence over the defendant’s objection; however, they were not shown to the jury. After the photographs had been marked, the doctor testified without objection as to what the photographs showed. Although the testimony was related to the photograph by the form of the question, the doctor, in fact, was the examining doctor on the night the child was brought to the hospital, and the matters depicted in the photograph were matters within his personal knowledge. The critical fact depicted by the photograph in question was the existence on the wrist of the child of an initial which was apparently carved into her flesh. After the testimony concerning that detail which was not objected to, the State asked permission to pass the photos to the jury. At that time, the defendant again objected on the ground that the matters contained in the photograph had already been explained and the photograph was prejudicial because of its nature. No motion to strike the doctor’s testimony was ever made. Upon the second objection to the photograph, the trial court refused to permit the jury to view the photograph. Thus, a claim of error based on the admission into evidence of the photograph lacks any substantive effect, for the photograph itself was never viewed by the jury. The testimony of the doctor was not questioned except inferentially, nor could it be since no objection was made. Defendant argues that the testimony of the doctor would never have been given had the photograph not been admitted into evidence. That is a highly speculative argument since, as noted, the doctor was the examining physician and could have testified without any claim of error as to what he observed with respect to the condition of the child. The defendant obtained all the relief which he requested with respect to the photograph and cannot now complain. State v. Woolford, 545 S.W.2d 367 (Mo.App.1976); State v. Cheek, 413 S.W.2d 231 (Mo.1967).

The defendant raises a single point of error with respect to his second trial which resulted in his conviction for the second degree murder of his stepson. In substance, the defendant’s claim is that the trial court erred in permitting evidence at the second trial of the assaults made upon the stepdaughter. Defendant argues that the error results from the general rule that proof of separate crimes is not admissible. State v. Lee, 486 S.W.2d 412 (Mo.1972), and State v. Thomas, 526 S.W.2d 893 (Mo.App. 1975), present the exceptions with respect to the rule, two of which are relevant with respect to the particular facts of this case. The first of these is the exception to the general rule regarding evidence of other criminal acts when the evidence indicates a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other. Defendant argues that on the authority of State v. Atkinson, 293 S.W.2d 941 (Mo.1956), the admission of evidence in this case was error under that exception. In Atkinson, the court held it was error to admit evidence of criminal acts committed upon other victims. In the late case of State v. Griffin, 497 S.W.2d 133 (Mo.1973), Atkinson was distinguished, and evidence was admitted as to attacks upon other individuals, the reasoning being that the crimes were perpetrated concurrently. The evidence in this case supports a strong inference that the attacks upon these children were committed concurrently and were of a common design to abuse the children..

The second exception to the general rule is the exception which has permitted evidence of this nature when it tends to negate accident as a defense. Accident was clearly an issue in the case at the second trial. The defendant’s testimony was that the injuries inflicted upon his stepson were an accident. In fact, the trial court based its ruling as to the admissibility of this evidence upon the premise that it was being offered to prove the absence of accident. Defendant argues that the defense of accident was offered only as to the death and not the beating of his stepson. Defendant thus claims that he admitted intentionally striking his stepson, but claimed the death was an accidental result of the blows. This is a misstatement of the law of accident in a homicide case; for, if the defendant intended the beating, the natural and probable consequences of that beating are intentional acts. Committee Comments on MAI-CR, Excusable Homicide, page 2, in relevant part, states:

“. ., [T]he act which caused the death must have been an unintended, unexpected event. If the defendant intended the act, the consequences are no “accident” so far as he is concerned. The natural and probable consequences of his acts are imputed to the defendant whether he actually intended or foresaw those consequences or not.” (Citations omitted).

The defendant in the first trial had requested an instruction on excusable homicide based on accident. The defendant testified in the second trial that the death was “an accident,” and the same instruction was given. The evidence of the contemporaneous injuries to the stepdaughter was properly admitted with respect to the issue of “accident” because it tended to counter the defendant’s claim by his testimony of an “accident.” Such prior beatings of the same individual had been expressly determined to be within the exception noted, State v. Hudson, 521 S.W.2d 43 (Mo.App. 1975), on the theory that they tended to show that the acts which resulted in the death of the child were done with the intent to kill him or cause him serious bodily injury-

The fact that the acts shown which tended to negate accident were directed against another individual does not deprive them of probative value because they were nearly contemporaneous. By analogy, the holding of Griffin is applicable. No rational basis exists for a distinction between acts which negate “accident” and those which demonstrate intent. Based upon the applicability of the two exceptions noted, the evidence of the assaults on the stepdaughter was properly admitted.

The judgment and conviction are affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    STATE of Missouri, Respondent, v. Lavance JONES, Appellant.
    No. KCD29581.
    Missouri Court of Appeals, Kansas City District.
    Aug. 28, 1978.
    Motion for Rehearing and/or Transfer Denied Oct. 10, 1978.
    Application to Transfer Denied Nov. 6, 1978.

      Joe F. Willerth, C. William Kramer, Independence, for appellant.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

Defendant appeals his conviction of murder in the second degree on which he was sentenced to life imprisonment and robbery on which he was sentenced to 25 years imprisonment. The evidence viewed favorably to the prosecution showed the following skeletal facts.

On the evening of October 25, 1976, defendant, his brother Aaron, and Marvin Williams joined in a project to rob the Eastwood Hills Animal Hospital. James E. Burkholder, the employee on duty, was forced to hand over his billfold from which the robbers took $30. Then Burkholder was shot several times and killed. All three of the robbers were apprehended. Williams pleaded guilty and testified for the prosecution against defendant. Defendant testified on his own behalf, offering an alibi defense.

Defendant assigns seven points of error, each of which will be discussed in turn.

I.

The police investigation discovered a credit card case at the scene of the crime which was apparently taken from Burk-holder’s billfold, and that plastic card case was found to contain fingerprints. The police had applied previously to the juvenile court in 1974 for an order to take defendant’s fingerprints in connection with a burglary case, the order had been issued, and comparison fingerprints had been taken. Those prints were found to match the fingerprints on the card case. Defendant argues that his fingerprints should have been excluded from evidence for the reasons: (a) such admission violated the provisions of Section 211.271(3);(b) the fingerprints in question were inadequately identified as those of defendant.

Section 211.271(3), to which defendant makes reference, provides that statements given to juvenile court personnel “as well as * * * records of the juvenile court” shall not be used for any purpose in criminal proceedings. Defendant claims that his fingerprints were part of the “records of the juvenile court” because they were taken while he was still in custody of the juvenile court and the approval of the juvenile judge had been required under the provisions of Section 211.151(2).

Defendant’s conclusion does not follow. The permission to take the prints was given by the juvenile judge to the Kansas City Police Department, the prints were taken by the Police Department, and those prints then became part of the Police Department file. These prints accordingly became part of the Police Department records, and were not a “record of the juvenile court.”

Moreover, this statute is to be construed in light of its purpose, which was to permit and encourage discussion and consultation between the juvenile and the juvenile officer in a relaxed, nonadversary and confidential setting. State v. Ross, 516 S.W.2d 311 (Mo.App.1974). This purpose has meaning when applied to statements made by a juvenile, but it has no relevance to the present situation involving the taking of fingerprints. Rather, the present situation is like the “line-up” cases in which it has been held that there is no call for the protection of Section 211.271. State v. Richardson, 495 S.W.2d 435 (Mo. banc 1973); State v. Thompson, 502 S.W.2d 359 (Mo. 1973); State v. Holland, 534 S.W.2d 258 (Mo.App.1975).

Still further, defendant admits that the exclusion of the fingerprints already taken from defendant would not in the end bar the use of his fingerprints for matching purposes. All that would be required, even according to defendant, would be the taking of new fingerprints subsequent to the waiver of jurisdiction by the juvenile court in favor of adult criminal proceedings. As pointed out aptly by the trial court, “it would be rather ludicrous to assume that the Court could not require, and the defendant should not be required, to submit to a new fingerprint examination, and I think to go through that process in order to avoid what appears to be the proper description [sic] of the statute in presenting this record would just be delaying the trial, and I don’t see that it accomplishes anything. * * * I think it should be received in evidence without having to go through the process of another fingerprint examination and test.”

The second branch of defendant’s attack upon use of the fingerprints is that those prints were not adequately identified as being his. With respect to this point, an employee of the Police Department testified as to the procedure of taking the prints and identified Exhibit 23 as the fingerprint card of “Lavance Cerrell Jones” and noted that the address listed on the card was “3821 Elmwood.” Defendant testified at trial that his full name was “Lavance Cerrell Jones” and that he lived at 3821 Elmwood. Under this testimony showing the identity of names, identification of the person may be presumed. State v. Stevenson, 550 S.W.2d 598 (Mo.App.1977); State v. Amos, 490 S.W.2d 328 (Mo.App.1972); State v. Jenkins, 516 S.W.2d 522 (Mo.App.1975). It can be added that the evidence here showed not only identity as to name, but also identity as to address and also as to age.

II.

Defendant next objects to the exclusion of medical records of Western Missouri Mental Health Center which were offered by defendant for the purpose of impeaching Marvin Williams. Williams had been asked on cross-examination whether he had ever been a patient at Western Missouri Mental Health Center, to which he answered in the affirmative. As to whether the Hospital had told him whether he had any problem, Williams answered “they said I was normal.” Defendant thereafter unsuccessfully offered the Hospital records “as representing both possible impeaching of Marvin Williams’ testimony, and that the contents thereof may directly affect his credibility or testimony in any matter, as may affect his mental condition.” The purpose and nature of this offer was elaborated in defendant’s argument in support of his motion for new trial when defendant’s counsel pointed out that the Hospital records “included a reference to Mr. Williams being in part responsible for the death of a cousin in Arkansas.” Defendant attempts to add still a third element to this point by arguing in his brief in this court that the Hospital records would tend to show interest and bias by Williams against defendant.

With respect to the question of Williams’ mental condition, the Hospital records contain nothing to contradict Williams’ testimony on the stand that the Hospital did not say anything adverse to him by way of mental disease or defect. The Hospital records in question have been included in the transcript on appeal and have been carefully examined. They show that Williams was admitted on three separate occasions. The first admission occurred on November 18, 1970, for family therapy, when Marvin was 10 years old. The final diagnosis was deferred at the time when those therapy sessions terminated. The next admission was February 18, 1975, on referral from the Juvenile Court for psychiatric evaluation. The conclusion of the Hospital staff at that time was, “no mental disorder.” The final admission was on July 11, 1976, following a disturbance in the home. The Hospital diagnosis on this occasion was “adjustment reaction of adolescent.” None of this constituted a contradiction of Williams’ testimony, nor did these psychiatric evaluations tend to show any mental incapacity tending to deprive Williams’ testimony of credence. To the extent that he had been a mental hospital patient, that fact was already in evidence and before the jury by Williams’ own testimony; nothing in the Hospital records had any value for the jury beyond that bare fact.

The records pertaining to the 1970 admission do, however, contain considerable reference to the traumatic consequences to the whole family flowing from an episode where Marvin and his younger brother “allegedly beat two year old female cousin, who later died.” The most that can be said with respect to this episode is that the Hospital notes seem to accept the cousin’s death as a fact and assume that the death resulted from a beating in which Marvin Williams participated. Nevertheless, assuming those facts to be true, proof thereof does not constitute admissible impeachment evidence. First of all, no question was asked of Williams with respect to the episode in question, and therefore no proper foundation was laid for impeachment. Martinez v. Avila, 76 N.M. 372, 415 P.2d 59 (1966). Secondly, if a foundation question had been asked, defendant would have been bound by the answer thereto; he would be barred from impeaching by extrinsic evidence of specific acts of misconduct, collateral to the issues on trial, other than proof of an actual conviction for that collateral misconduct. Martinez v. Avila, supra; State v. Messley, 366 S.W.2d 390 (Mo.1963); State v. Hayes, 356 Mo. 1033, 204 S.W.2d 723 (1947); State v. Perkins, 342 Mo. 560, 116 S.W.2d 80 (1938); State v. Bagby, 338 Mo. 951, 93 S.W.2d 241 (1936); State v. Lynch, 528 S.W.2d 454 (Mo.App.1975).

With regard to defendant’s contention that the Hospital records would tend to show bias and prejudice by Williams against defendant, a careful reading of those records discloses nothing therein tending to so show. Defendant did say in the course of his testimony that Williams “always used to ask me why he do something that he did when he was in Little Rock, Arkansas.” That apparently was a reference by Williams in conversation with the defendant about the death of Williams’ cousin and seems to reflect a continuing preoccupation by Williams with that episode. However, that does not constitute a basis of charging bias and prejudice by Williams against defendant. Nothing in the Hospital records mentions defendant or tends to show any bias or prejudice by Williams against defendant.

Exclusion of the Hospital records in no way prejudiced defendant’s rights.

III.

The indictment on which this case went to trial alleged that defendant committed robbery of certain property including $30 in U.S. currency which was “the personal property of Eastwood Hills Small Animal Hospital, a corporation, in the care and custody of James Burkholder.” The evL dence, on the other hand, showed that the $30 in question belonged to Burkholder personally, not to the Hospital. Defendant attacked this discrepancy by motion for judgment of acquittal, in response to which the prosecution requested permission to substitute an amended information in place of the indictment to correct the error and to show the money to have been that of Burk-holder. Defendant for this third point on appeal challenges the propriety of the trial court permitting that substitution.

Rule 24.02 provides that an information can be substituted for an indictment if there is no difference in the offense charged and if substantial rights of the defendant are not prejudiced. The present situation falls within that rule. An allegation as to just who owned the stolen property (so long as it was not owned by the defendant himself) is immaterial, because the allegation of ownership is not an essential element of robbery. State v. Wright, 476 S.W.2d 581 (Mo.1972); State v. Scott, 534 S.W.2d 537 (Mo.App.1976).

IV.

During the course of direct examination of Williams, the State offered a statement which Williams had given to the police after his arrest. On defendant’s objection, the trial court excluded the statement as being a prior consistent statement before any impeachment had been attempted. Cross-examination of this witness probed into the plea bargaining and “deal” made between the witness and the prosecuting attorney. Then on redirect examination the prosecutor asked whether Williams had testified to anything on the stand that he had not said at the time of his written statement to the police. Objection to this question was sustained. Then the prosecutor asked, without objection, and received a negative response to the following question: “Did you say anything when you testified today, against Lavance Jones, did you say anything today that you hadn’t previously told the police before the deal was made with the prosecutor?”

In final jury argument, the prosecutor included the following: “He gave a statement to the police as to the same details he testified before you at about 6:30 on the following Wednesday. * * * The most significant thing about Marvin Williams’ testimony is this. He gave the same story to the police on Wednesday at 6:30 that he gave from the witness stand last week when he plead guilty. He gave the same story from the witness stand again Tuesday morning while testifying in this lawsuit in this criminal proceeding.” Defendant for his fourth point on appeal contends that the prosecutor was attempting to argue the contents of the prior consistent statement which had been ruled inadmissible and that the argument was prejudicially unfair.

No objection was made to the portion of the argument now in question, and this point therefore has not been preserved for appellate review. Defendant recognizes this difficulty and asks that the question be considered as plain error under Rule 27.-20(c). However, closing argument will rarely affect substantial rights so as to result in plain error. State v. Mayfield, 562 S.W.2d 404 (Mo.App.1978); State v. Wendell, 547 S.W.2d 807 (Mo.App.1977). The facts of the present case present no exception to that general rule.

V.

In support of defendant’s alibi, defense witness Roy Bausby testified that on October 25, 1976, he was watching television at 10:00 p. m. when appellant came to his home and the two of them watched television together from 10:00 p. m. until approximately 10:45 p. m. On cross-examination, Bausby was asked what channel they were watching and he answered Channel 9. The prosecuting attorney asked whether he was sure of that, to which Bausby answered “I’m very sure.” Then the prosecutor asked the following questions to which the following answers were given:

“Q If Channel 9 were showing the football game between the Washington Redskins and the St. Louis Cardinals on the very evening that you say you were watching the news at 10:00 o’clock, you’d probably be mistaken, wouldn’t you, that that was the night that Lavance was with you?
A No.
Q Sir?
A No, sir.
Q So according to your testimony there could not have been a football game on Channel 9 that night at 10:00 o’clock, because you were watching the news that night at 10:00 o’clock on Channel 9, isn’t that right?
A Right. Yes, sir.”

The prosecution then called as a rebuttal witness the program director of Channel 9 who testified that the master program schedule of Channel 9 showed that at 10:00 p. m. on October 25, 1976, the Washington Redskin-St. Louis Cardinal football game was being shown and lasted until 11:03 p. m. The defendant objected to this rebuttal evidence on the grounds of materiality and relevancy and presently argues that said objection was improperly overruled.

The trial court owns a wide discretion respecting the scope of cross-examination, including how far collateral issues may be pursued by way of rebuttal in order to attack credibility of a witness. State v. Williams, 442 S.W.2d 61 (Mo. banc 1969); State v. Harvey, 449 S.W.2d 649 (Mo.1970); State v. Holland, 530 S.W.2d 730 (Mo.App. 1975); State v. Hoyel, 534 S.W.2d 266 (Mo. App.1976). That discretion was not abused here.

VI.

Defendant next argues that the method of selecting the jury systematically excluded women and denied defendant his right to be tried by a jury representative of a cross section of society. He concedes that this point was ruled contrary to his contention in State v. Duren, 556 S.W.2d 11 (Mo. banc 1977), but he argues in his brief “[t]hat opinion is poorly reasoned and inconsistent and should be re-considered.” This argument is misdirected, inasmuch as this court obviously has no authority to overrule a decision of the Missouri Supreme Court.

VII.

For his final point, defendant objects to the admission into evidence of a color photograph of Burkholder’s dead body at the scene of the crime. A picture, even though gruesome, may be admitted for the purpose of showing location of wounds and in order to corroborate the testimony of a State’s witness. The trial court has a wide discretion in this regard. State v. Frazier, 550 S.W.2d 590 (Mo.App.1977); State v. Dodson, 556 S.W.2d 938 (Mo.App.1977); State v. Snow, 558 S.W.2d 414 (Mo.App. 1977).

In the present case Williams testified that defendant shot Burkholder in the leg, which was in addition to other shots inflicted by defendant’s brother. The photograph in question disclosed the wounds so described, and corroborated the testimony of Williams. Under the established rules, the photograph was properly admissible.

There being no merit in any of defendant’s Points on Appeal, the judgment and conviction is affirmed.

All concur.

      . All statutory references are to RSMo 1969.


author: McMillian, Judge.

text:
    Bobby Ray SPEEDY, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39192.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 29, 1978.
    Motion for Rehearing and/or Transfer Denied Oct. 13, 1978.
    Application to Transfer Denied Nov. 6, 1978.

      David A. Horwitz, Asst. Public Defender, Clayton, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Jefferson City, for respondent.
   McMillian, Judge.

Appellant, Bobby Ray Speedy, appeals from the order of the trial court denying his 27.26 motion for post conviction relief, Rule 27.26, V.A.M.R.1969. He claims that the trial court erred: (1) by failing to make findings of fact and conclusions of law when it dismissed appellant’s motion, as required by 27.26(i), (2) in dismissing appellant’s motion without giving reasonable notice and an opportunity to be heard, and (3) in failing to appoint counsel to assist the defendant in preparing his post conviction motion. We reverse and remand for appointment of counsel and direct the trial judge to state his findings of fact and conclusions of law, as required by Rule 27.26(i).

Appellant was convicted of one count of first degree murder and one count of second degree murder on November 8,1973. On March 14, 1974 he was sentenced to concurrent terms of life imprisonment on the former count and 30 years on the latter. His conviction was affirmed on appeal to this court. State v. Speedy, 543 S.W.2d 251 (Mo.App.1976). Appellant filed the present Rule 27.26 motion to vacate his judgment and sentence. In response thereto the trial judge issued the following order on April 13, 1977: “The Court hereby dismisses cause for failure to state cause of action.”

To ensure that the appellate court has a sufficient record before it Rule 27.-26(i) requires that the hearing court make findings of fact and conclusions of law on all issues presented. Larson v. State, 437 S.W.2d 67, 69 (Mo.1969). The brief recital by the trial court that appellant’s motion failed to state a cause of action does not provide any indication as to what points raised by appellant were deficient or why they were deficient. While appellate courts have been lenient with the requirement in 27.26(i) when the basis for the trial court’s holding is apparent from the record, Smith v. State, 513 S.W.2d 407 (Mo. banc 1974) cert. den. 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841, the record presently before us does not provide this assistance. After appointment of counsel the trial court should take care to set out its findings of fact and conclusions of law as required in Rule 27.-26(i).

The second point raised by the defendant, that he was entitled to notice and hearing before his post conviction motion was dismissed, is without merit. Rule 27.26 does not provide for such procedures and the case relied upon by appellant, Wheatley v. State, 559 S.W.2d 526 (Mo. banc 1977), is readily distinguishable from the present case. In Wheatley, the Missouri Supreme Court held that a 27.26 movant’s counsel must be given notice and opportunity to be heard before dismissing the movant’s pro se petition. Wheatley does not require notice and hearing before all 27.26 petitions are dismissed — just those where counsel has been appointed. This is for two reasons: (1) because of the structure of Rule 27.26, “[o]nce counsel has been appointed, counsel and movant were entitled to assume petitioner’s pro se motion had survived the initial hurdle of stating a claim upon which relief could be granted,” supra, at 527, and (2) an attorney representing a 27.26 movant is entitled to the same courtesy of notice before dismissal as is the counsel of any other litigant. Id. Because neither of these reasons applies to the situation where no counsel is appointed, it is obvious that Wheatley is limited to its facts, and does not require notice and an opportunity for a hearing in the present case.

The last point raised by appellant that he should have been accorded counsel to assist in the preparation of his motion, is meritorious and therefore, we reverse and remand on this basis. Rule 27.26(h) states that “[i]f a motion presents questions of law or issues of fact, the court shall appoint counsel.” In his 27.26 motion the appellant alleged ineffective assistance of counsel, listing, e. g., the following grounds: (1) his counsel failed to request a competency hearing, (2) his counsel failed to request oral instructions to the jury that the testimony of the psychiatrists (testimony was introduced on the issue of defense because of mental incompetence) not be considered as to whether the accused committed the act charged against him, and (3) counsel failed to object to the testimony of Dr. Schuman on the grounds that the state did not file the report written by Dr. Schuman, as required by § 552.030(4).

In the direct appeal of defendant’s conviction, 543 S.W.2d 251, supra, this court considered the above omissions by counsel in reaching its conclusion that no prejudice resulted to the defendant from the errors alleged on appeal. One issue we confronted was whether a competency hearing should have been ordered sua sponte. We held that no such hearing was necessary, relying, e. g., on the fact that counsel did not request a hearing and, on the fact that counsel did not challenge either of the psychiatrists’ reports, including Dr. Schuman’s.

Another issue we addressed was whether the trial court’s failure to orally instruct the jury as to the proper weight to be given to the psychiatrists’ testimony was reversible error. We held that the error was not prejudicial, relying in part on the fact that counsel had not requested such instruction. The above decision affirming defendant’s conviction, 543 S.W.2d 251, supra, shows that counsel in fact failed to do the things movant alleges in his 27.26 motion and that these omissions by counsel were relevant to the outcome of the case (at the very least, these omissions were relevant in the appeal). The question remaining, which must be determined in this motion, is whether these omissions by counsel were based upon reasonable tactical considerations or were the result of inadequate representation by counsel. This is a question of law which requires appointment of counsel under 27.-26(h).

It is important to note that while we considered the above omissions by counsel in dealing with the issues presented on appeal, we did not pass upon the issue of ineffective assistance of counsel raised in movant’s 27.26 motion. The omissions by counsel were only considered in resolving other issues raised by the defendant and not in the context of a claim of ineffective assistance of counsel.

For the foregoing reasons, we reverse and remand for appointment of counsel and direct the trial court to make findings of fact and conclusions of law.

Judgment reversed and remanded with directions.

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

      . Section 552.030(6), RSMo, V.A.M.S. (Supp. 1978) provides that such instructions must be given.


author: CLEMENS, Presiding Judge.

text:
    Steven SCOTT, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39632.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 29, 1978.
    Motion for Rehearing and/or Transfer Denied Oct. 13, 1978.
    Application to Transfer Denied Nov. 6, 1978.
    Robert C. Babione, Public Defender, Christelle Adelman-Adler, Charles H. Mos-tov, Asst. Public Defenders, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Movant Steven Scott (hereafter “defendant”) was convicted of second-degree burglary, § 560.070, RSMo 1969, and sentenced under the Second Offender Act to ten years’ imprisonment. Affirmed in State v. Scott, 540 S.W.2d 219 (Mo.App.1976). Mov-ant appeals denial of his Rule 27.26 motion.

In his motion to vacate, defendant makes the nakedly conclusory statement that “the trial court lacked jurisdiction.” By an attached memorandum he adds this was because the state failed to allege compliance with the Second Offender Act (§ 556.280, RSMo 1969).

Movant’s first Point Relied On states: “The trial court erred in denying movant’s motion to vacate, pursuant to Supreme Court Rule 27.26, without a hearing. The movant alleged sufficient facts to challenge the trial court’s jurisdiction, thus entitling him to a hearing.”

Movant’s motion and point relied on merely recite conclusions. Compare Plant v. State, 547 S.W.2d 835[4] (Mo.App.1976). No such point was raised either in the trial court nor on direct appeal, and so it may not be raised now. Coney v. State, 491 S.W.2d 501[3] (Mo.1973).

Finally, movant contends the court erred in denying an evidentiary hearing and counsel. He challenges the procedural treatment of motions to vacate under Rule 27.26 by arguing that counsel is required before the merits of a prisoner’s claim are considered. Not so. Counsel is not required in every Rule 27.26 motion. This issue was presented and resolved in Winston v. State, 533 S.W.2d 709[6-8] (Mo. App.1976). No evidentiary hearing is required — and hence counsel need not be appointed — where the motion does not plead facts which, if true, would entitle movant to relief.

Our review of the record shows that mov-ant’s attack on the trial court’s jurisdiction is without merit.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


text:
    James Anthony MURRAY, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39739.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 29, 1978.
    Motion for Rehearing and/or Transfer Denied Oct. 13, 1978.
    Application to Transfer Denied Nov. 6, 1978.

      Lee, O’Hanlon & Brady, Robert J. O’Han-lon, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto and Kathryn Marie Krause, Asst. At-tys. Gen., Jefferson City, George A. Peach, Circuit Atty., Ralph A. Dobberstein, Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Movant James A. Murray (hereafter defendant) has appealed denial of his Rule 27.26 motion, held after an evidentiary hearing. The 17-year-old defendant and a co-defendant, Jeffrey Skaggs, were originally indicted for felony-murder arising from a tavern robbery. The state later filed a substitute information charging second-degree murder and defendant pled guilty and was sentenced to 20 years’ imprisonment.

The underlying murder charge arose from these facts: The unarmed defendant and Skaggs entered a tavern intending to rob; during the robbery Skaggs shot and killed a customer. Defendant knew Skaggs was armed and intended to use his pistol, and observed the fatal shot.

By his Rule 27.26 motion defendant challenges his conviction, contending the trial court failed to find that when he pled guilty he (1) did not understand the reduced charge and its elements nor (2) the constitutional protections he was waiving, and (3) the guilty plea was procured by improper promises of leniency or threats of harsh sentences.

As said, defendant’s first point is that the pre-plea examination failed to show defendant understood the basic elements of second-degree murder. The state contends and the evidence was that defendant’s attorney had explained to him the elements of felony-murder and his guilt by virtue of the acts of accomplice Skaggs. When defendant pled guilty he admitted he had entered the tavern with Skaggs for the purpose of robbery, knowing Skaggs was armed.

The trial court did not err in finding that contrary to defendant’s contention, “there is no requirement that the court explain each technical element of an offense.” Abrams v. State, 521 S.W.2d 177, 179 [1-3] (Mo.App.1975). When defendant admitted facts sufficient to constitute second-degree murder, his admissions barred him from later contending his plea was entered without understanding the technical nature of the charge. Hayes v. State, 501 S.W.2d 508[9-10] (Mo.App.1975).

We hold the trial court did not violate Rule 25.04 which permits acceptance of a guilty plea only by first determining that “the plea is made voluntarily with understanding of the nature of the charge.” The trial court so found and defendant’s first point is denied.

Defendant’s second point is that when he pleaded guilty the trial court did not establish that defendant understood he was entitled to a trial by jury, his right against self-incrimination, presumption of innocence, and proof beyond a reasonable doubt.

The record shows that at the guilty-plea hearing, the trial judge informed defendant there was a jury ready to try him and a jury could sentence him to from a minimum of ten years to an unlimited number of years; if there was a trial witnesses would testify against him; he would have the right to confront these witnesses and his lawyer to cross examine them; and defendant could call any witnesses he wanted to assist in his defense. Defendant said he understood all that. At his hearing, defendant did not testify to the significant fact he was unaware of the other rights on which his motion relies. (Carter v. State, 472 S.W.2.2d 370[1] (Mo.1971)). To the contrary, the trial judge found: “An experienced trial attorney [who] represented the defendant at his plea and testified that though he didn’t remember specifically going over with defendant questions regarding the defendant’s rights to presumption of innocence, trial by jury and unanimous verdict there, confrontation of witnesses, as well as questions regarding the effect of a guilty plea, it was customary for him to do this with his clients.”

As held in Tyler v. State, 476 S.W.2d 611[2] (Mo.1972), the ultimate issue before us is whether defendant voluntarily and understanding^ entered the guilty plea “notwithstanding that the record may not show a full compliance with Rule 25.04.” We find he did and deny defendant’s second point because he has failed to meet his burden of showing the trial court’s ruling on this point was clearly erroneous. Rule 27.26(f) and (j).

By defendant’s third point he challenges the voluntariness of his guilty plea, contending it was coerced and deprived him of a rational choice. While he was under indictment for first-degree murder the state sought to use defendant as a witness against co-defendant Skaggs, offering, in exchange for his testimony, to reduce the charge to second-degree murder, and to thereafter recommend 20 years if defendant did testify against Skaggs, but to life imprisonment if he did not. The state acknowledges such a plea bargain, of which defendant had full knowledge.

At defendant’s arraignment the court meticulously questioned him about his plea, covering nineteen pages of the transcript. Defendant had appeared with his counsel and his mother. From their responses to some of the court’s questions the following appeared: Defendant acknowledged the truth of the prosecutor’s recitation of the facts of the murder. He and his mother were satisfied with defense counsel’s advice. The court was not a party to the plea bargain and not obligated to accept the state’s recommendation as to punishment. Defendant knew he would be committed to the penitentiary, with no parole.

Although the state never called on defendant to testify against Skaggs, in accordance with the previous plea bargain, the trial court thereafter sentenced defendant to imprisonment for 20 years.

The essence of defendant’s challenge is that by having to make a choice between 20 years and life imprisonment, in order to get the lesser punishment he was forced to waive his privilege against self-incrimination by testifying he and Skaggs wore accomplices in the robbery-murder. On any voluntary plea of guilty, a defendant waives the same right — that of self-incrimination.

We do not believe the threat of possibly greater punishment here differs in principle from the ordinary guilty plea based on the give-and-take of plea bargaining. Any such defendant knows his choice lies between what sentence the court will probably impose if he pleads guilty and what sentence a jury may impose if he pleads not guilty. As held in Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663-668, 54 L.Ed.2d 604 (1978): “Plea bargaining flows from ‘the mutuality of advantage’ to defendants and prosecutors, each with his own reasons for wanting to avoid trial. . . Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice . . . . Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial. . . . While confronting a defendant with the risk of more severe punishment clearly may have a ‘discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices [is] an inevitable’— and permissible — ‘ attribute of any legitimate system which tolerates and encourages the negotiation of pleas.’ ”

We deny defendant’s final point, and conclude he has failed to sustain his burden of showing he is entitled to post-conviction relief. The trial court’s judgment was not clearly erroneous.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.

      . Simultaneously, on the other robbery charges, the court sentenced defendant to two concurrent five-year terms, not challenged here.


text:
    Paul Edward KENTON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39884.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 29, 1978.
    Motion for Rehearing and/or Transfer Denied Oct. 13, 1978.
    Application to Transfer Denied Nov. 6, 1978.

      Melvin G. Franke, Public Defender, Gary L. Gardner, Asst. Public Defender, Union, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., James McHenry, Pros. Atty., Thomas J. Brown, III, Asst. Pros. Atty., Jefferson City, for respondent.
   CLEMENS, Presiding Judge.

Movant (hereafter defendant) Paul Edward Kenton has appealed the denial of his third Rule 27.26 motion without an eviden-tiary hearing. In 1955 defendant was convicted of first degree murder and sentenced to life imprisonment. The conviction was affirmed in State v. Kenton, 298 S.W.2d 433 (Mo. 1957). Post-conviction motions were denied in 1960 and 1968. We affirm.

In 1977 defendant again moved for post-conviction relief. He first alleged his trial counsel had failed to timely file a motion for new trial and therefore had rendered ineffective assistance of counsel. He also alleged he was not guilty because the results of a 1975 polygraph test proved his innocence. The state moved to dismiss because defendant had filed prior Rule 27.26 motions. The trial court found the first allegation was “new” but could have been raised in the prior motions and the second allegation was not cognizable under Rule 27.26. Defendant’s motion was summarily denied.

Defendant argues his allegation regarding ineffective assistance of counsel was “new” and that it could not have been raised earlier because trial counsel’s failure to timely file a motion for new trial was not available in 1967 when defendant filed his prior motion. Defendant contends this ground for relief was not available until 1969 when it was established in Holbert v. State, 439 S.W.2d 507 (Mo. 1969). We reject that contention.

Defendant’s reliance on Holbert is misplaced, because it was not the first case to consider the ineffectiveness of counsel who failed to timely file a motion for new trial. See State v. Hooper, 399 S.W.2d 115 (Mo. 1966) wherein this issue was directly raised and ruled adversely to movant there. Hooper was available to defendant in 1967 when he filed his prior Rule 27.26 motion, and the ground now sought to be raised by defendant was available then.

Furthermore, the record on appeal reveals defendant knew his counsel had jeopardized his rights on appeal when he filed the Rule 27.26 motion in 1967. This motion recited that defendant had filed a petition for habeas corpus, which was “considered by the Supreme Court of Missouri as a Motion to Set Aside and Vacate Sentence under Supreme Court Rule 27.26.” (Our emphasis). The 1967 motion further set forth the allegations enumerated in the petition for habeas corpus and stated: “The failure of defense counsel to diligently comply with the requisites of an appeal was no fault of petitioners [sic] and should not be held against him.” The Supreme Court granted defendant an evidentiary hearing on the allegations raised in his petition for habeas corpus, considered as a Rule 27.26 motion, but the result of the hearing does not appear in the record. Since defendant was not then released nor given a new trial, we assume his petition for writ of habeas corpus treated as a Rule 27.26 motion, was denied. In any event, the quoted allegation reveals defendant’s knowledge of faulty conduct by his trial counsel. Further, defendant alleged ineffective assistance of counsel in regard to other issues in the 1967 motion, so it cannot be said he was then unaware of his constitutional right to effective assistance of counsel. Defendant cannot sustain his claim that he lacked knowledge of this ground when he filed his 1967 motion.

We commend the trial court here for its astute analysis in its order denying defendant’s current motion. We agree with the court’s conclusion that the allegation regarding ineffective assistance of counsel for failure to timely file a motion for new trial was “new,” but that it could have been raised in the 1967 motion.

Defendant’s second contention is that the trial court should have construed his ground for relief — that he is not guilty — as an allegation there was newly discovered evidence; and, under such a construction, the court was required to hold an evidentiary hearing on the probative value of the evidence.

Defendant’s motion alleged that he “is not guilty of the crime he was convicted of, had absolutely no guilty knowledge of same and has always maintained that fact . . .” In support of this allegation, the motion lists as evidence a polygraph report and a newspaper article relating to the defendant and the report; as witnesses, the motion names the polygraph examiner, a newspaperman and defendant. Defendant argues that the polygraph report proves he is not guilty.

The trial court was correct in stating that a bare allegation that defendant is not guilty does not entitle him to relief. Bradley v. State, 494 S.W.2d 45 [3] (Mo. 1973). Furthermore, even if we accept defendant’s contention that his ground for relief alleges newly discovered evidence, he is still not entitled to relief. The courts have held that newly discovered evidence does not provide a basis for relief. See Hatfield v. State, 529 S.W.2d 180 [1] (Mo. App. 1975) and Beishir v. State, 480 S.W.2d 883 [1] (Mo. 1972). We note further that defendant should not have been afforded an evidentiary hearing on the strength of the polygraph report since the results of a lie detector test would not be admissible absent a stipulation between state and defendant. State v. Faught, 546 S.W.2d 515 [1] (Mo.App. 1977). It is neither the trial court’s function nor ours to speculate whether such a stipulation would be made. Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.