text:
    STATE of Missouri, Respondent, v. Eugene HEDRICK, Jr., Appellant.
    No. KCD 27474.
    Missouri Court of Appeals, Kansas City District.
    March 1, 1976.

      James J. Wheeler, Keytesville, for appellant.
    John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

A jury in the Sullivan County Circuit Court found Eugene Hedrick, Jr., guilty of possession of lysergic acid diethylamide, commonly known as LSD, a Schedule I controlled substance under the drug control law. § 195.017 2(4)(i), RSMo 1973 Supp. The jury fixed the punishment at two years’ imprisonment. § 195.200 1(1). This appeal followed.

At approximately 1:00 A. M., Officer Jerry Dale, a member of the Police Department of the City of Brookfield, observed appellant, Eugene Hedrick, Jr., sleeping in a city park in that city. He approached Hedrick and awakened him. The officer saw beer cans that had been under appellant and noted the odor of alcohol. Hedrick responded violently to being awakened and kicked the officer. The officer got the assistance of other persons in the park and subdued Hedrick. Hedrick was handcuffed and told by the officer that he was under arrest for public drunkenness.

Hedrick was taken to the police station. There he was directed to remove his belongings from his pockets and place them on a table. After he had removed some items, Officer Dale conducted a “frisk” search and discovered an Anacin tin in his jacket pocket. The officer opened the tin and saw two Anacin tablets and two purple tablets. Police officers at Brookfield ran a field test on the purple tablets, but the test did not reveal the nature of the substance. The tablets were then turned over to the State Highway Patrol and a test of them by a patrol chemist showed that they were lyser-gic acid diethylamide or LSD. Hedrick was then charged with illegal possession of a controlled substance.

A motion was filed on behalf of the defendant to suppress all evidence obtained as a result of his arrest, alleging that his arrest was illegal and that the subsequent search of his person violated state and federal constitutional protections.

A hearing was held on the motion. Officer Dale was the only witness. He testified to the circumstances of the arrest and search and the trial court .overruled the motion to suppress. The trial court’s ruling is assigned as error on this appeal.

Appellant first contends that his arrest without a warrant was illegal. Appellant argues that by § 85.561(3), RSMo 1969, a member of the police department of a city of the third class, into which Brookfield falls, has “power to make arrests, without process in all eases in which any offense against the laws of the city shall be committed in his presence.” He argues that for his arrest for public drunkenness to have been valid, the arresting officer must have known that he was committing the offense and the offense must actually have been committed. He contends that his acquittal of the charge of violation of the ordinance is conclusive of the fact that he did not commit the offense, and, therefore, his arrest was illegal.

The state’s brief simply ignores this argument of appellant. The state has assumed that the legality of the arrest is to be governed by the probable cause test, and it cites cases involving arrest for felony, without a warrant, in support of the position that such test is here applicable and that the facts known to the officer did constitute probable cause.

With some exceptions applicable to police in metropolitan areas (§§ 84.440 and 84.090, RSMo 1969), the law in this state distinguishes between felonies and misdemeanors insofar as arrests without a warrant are concerned. In the case of the former, probable cause to believe that the person arrested has committed a felony is required. In the case of a misdemeanor, the right to arrest without a warrant is limited to misdemeanors committed in the presence of the arresting officer. State v. Gartland, 304 Mo. 87, 263 S.W. 165, 168—170[4—7] (1924); State v. Parker, 378 S.W.2d 274, 281[5, 6] (Mo.App.1964). Section 85.561(3) has adopted the presence requirement for an arrest without a warrant for city ordinance violations. State v. Evans, 161 Mo. 95, 61 S.W. 590, 593 (1901).

The difficulty here arises from language in cases dealing with the “presence” requirement which use language to the effect that “information, or reasonable grounds to suspect, that a misdemeanor is being committed” (State v. Gartland, supra, 263 S.W. at 169) is not sufficient basis for an arrest without a warrant for a misdemeanor. Gartland involved a charge of murder against a member of the St. Joseph Police Department who had shot a citizen while pursuing his automobile which they suspected contained illegal liquor. The court held that defendants were not entitled to an instruction that they were in the performance of their duty if they “had reasonable ground to believe that the persons in the car they were pursuing had committed a misdemeanor * * *263 S.W. at 168-169. See also State v. Davidson, 44 Mo. App. 513, 517-518 (1891); State v. Dunivan, 217 Mo.App. 548, 269 S.W. 415, 417[4, 5] (1925); State v. Parker, 378 S.W.2d 274, 281[5, 6] (Mo.App.1964); City of Independence v. Stewart, 397 S.W .2d 765, 768[3, 4] (Mo.App.1965).

The above-quoted language is relied upon by appellant to support his contention that his acquittal of the drunkenness charge conclusively showed that he did not commit the offense and, therefore, his arrest was illegal, and that probable cause may not be relied upon to support the arrest. Appellant has cited no case in this state which has directly upheld his contention.

There are some cases in other jurisdictions which would tend to support appellant. See Edgin v. Talley, 169 Ark. 662, 276 S.W. 591 (1925); Price v. Tehan, 84 Conn. 164, 79 A. 68 (1911); Muniz v. Mehlman, 327 Mass. 353, 99 N.E.2d 37 (1951); Colling v. Hjelle, 125 N.W.2d 453 (N.D.1963).

A series of eases in Kentucky directly support appellant’s position. There the court held that the validity of a search incident to an arrest must depend upon the legality of the arrest. When the arrest was for a misdemeanor and resulted in the discovery of evidence of another offense, the evidence so discovered was held to be admissible only if the defendant had, in fact, committed the misdemeanor upon which his arrest was based. Billings v. Commonwealth, 223 Ky. 381, 3 S.W.2d 770, 773 (1928); Parrott v. Commonwealth, 287 S.W.2d 440 (Ky.1956). In the latter case, the defendant was arrested for drunkenness in violation of a city ordinance. A search of his person following the arrest produced a pistol and he was accused of carrying a concealed weapon. He was found not guilty of the drunkenness charge and the court held that this finding was conclusive of the illegality of his arrest and precluded the use in evidence of the result of the search of his person.

However, this line of cases was overruled in Pennington v. Commonwealth, 429 S.W.2d 364 (Ky.1967). In that case the court stated (429 S.W.2d 365-366):

“The law of this jurisdiction as it relates to the search of an automobile upon arrest for a traffic violation was reviewed by this court in Commonwealth of Kentucky v. Robey, Ky., 337 S.W.2d 34. There we held under section one of the Kentucky Constitution a police officer may not without proper justification stop a motorist and that if he does stop a motorist without a bona fide cause any evidence obtained as a result of the stopping should be considered as having been illegally obtained and inadmissible. We have further held that if no criminal charge of the alleged offense for which the stopping was made has been filed against the accused then the trial court should determine as a preliminary fact in the prosecution in which the evidence is sought to be introduced whether or not there existed at the time probable cause for which an arrest could be made. Parrott v. Commonwealth of Kentucky, Ky., 287 S.W.2d 440; Thomason v. Commonwealth of Kentucky, 322 S.W.2d 104. In the Robey case, we pointed out that if there had been an acquittal on the original arresting charge or if it was still pending then the arrest could not be deemed lawful for the purpose of introducing evidence obtained thereunder.

“We now believe that this was in error. The crucial question to be determined by the trial court upon evidence out of the hearing of the jury is whether or not probable cause existed for the initial stopping. This should be done without regard to the pendency or the disposition of the initial offense. It is entirely possible that a defendant may be convicted on a charge when there was not probable cause for the initial arrest or may be acquitted on a charge where there was probable cause. Therefore, the outcome of the trial on the major offense should not be determined by the disposition of the arresting charge. Parrott v. Commonwealth of Kentucky, supra, Thomason v. Commonwealth, supra, and Commonwealth of Kentucky v. Robey, supra, are hereby overruled to the extent they conflict with the rule herein expressed.”

See also Smith v. Hubbard, 253 Minn. 215, 91 N.W.2d 756 (1958); Garske v. United States, 1 F.2d 620 (8th Cir. 1924).

Insofar as the validity of the arrest in the circumstances of this case is concerned, the requirement that the offense had been committed in the presence of the arresting officer should not be held to mean that the validity of the arrest depends upon whether or not the offense was, in fact, committed. If the facts and circumstances which the officer perceives are sufficient to give rise to a reasonable belief that the person arrested is violating a city ordinance, the fact that the defendant is subsequently acquitted of the charge does not render the arrest invalid nor affect the validity of a search properly incident to the arrest.

Here, the officer observed appellant sleeping in a public place at around 1:00 A.M.; upon awakening appellant the officer observed that he was lying on beer cans and smelled the odor of alcohol. When he was awakened, appellant responded violently by kicking at the officer. These circumstances were sufficient to warrant the officer in concluding that appellant was intoxicated and in arresting him for violation of the ordinance prohibiting persons who are intoxicated from appearing in public. The officer himself perceived the matters which formed the basis for his conclusion that appellant was violating the ordinance. Therefore, the arrest was for an offense committed in the presence of the officer and was a valid arrest.

Appellant next contends that, even if the arrest was valid, the motion to suppress should have been sustained because the “search and seizure was intolerable in intensity and was unrelated to the offense for which appellant was placed under arrest * * In connection with appellant’s arrest and incarceration the police had the right to conduct a search of his person. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). The officer had.the right to seize contraband. To paraphrase United States v. Robinson, “Having in the course of a lawful search come upon the [Anacin tin], he was entitled to inspect it; and when his inspection revealed the [LSD tablets], he was entitled to seize them as ‘fruits, instrumentalities, or contraband’ probative of criminal conduct.” 414 U.S. at 236, 94 S.Ct. at 477, 38 L.Ed.2d at 441. That the matters so seized were unrelated to the cause for the original arrest is no grounds for objection. United States v. Robinson, supra; State v. Venezia, 515 S.W.2d 492 (Mo. banc 1974); State v. Darabcsek, 412 S.W.2d 97, 102[1] (Mo.1967); United States v. Simpson, 453 F.2d 1028, 1031[6—9] (10th Cir. 1972).

Appellant finally attacks the search and seizure as unreasonable because at the time he seized the pills, the officer did not know that they were LSD and, in fact, tests by him were negative, so that he had no reason to assume that they were a prohibited substance.

The officer had the right to act on reasonable appearance in seizing the tablets. He had the right to consider their appearance, the appellant’s effort to conceal them and his interest subsequently in regaining the tin. The test at the police department did not show that the pills were not a controlled substance. Such tests as were run were merely negative.

In United States v. Robinson, supra, the heroin there involved was found in a search by an officer who discovered capsules of powder “which he thought to be, and which later analysis proved to be, heroin.” Here the officer reasonably thought the tablets were a controlled substance and later analysis proved he was correct.

Appellant has cited no authority for the proposition that the substance seized must be identified as contraband when it is discovered. Here the officer acted on reasonable appearances and the seizure was not illegal.

Appellant next contends that the tablets and the report of their analysis were improperly admitted in evidence because no proper chain of custody was shown in the handling of the items, and, therefore, the state did not prove that the items offered in evidence were those taken from appellant.

Officer Dale testified that he placed the two tablets in a vial and put it in an envelope at police headquarters. On August 18, 1972, he removed the envelope and the vial and took it to Sergeant Burnett of the Missouri State Highway Patrol at Macon. Sergeant Burnett took the package to the patrol laboratory in Jefferson City where the tablets were analyzed. Officer Dale testified that eight other persons had access to the evidence lockers at the police station, but that the envelope and pills were in the same condition when he removed them as they had been when he put them in the locker.

Appellant’s objection to the chain of custody is based upon the evidence that others had access to the evidence locker at the Brookfield police station.

The state was required to prove a chain of possession adequate “to vouchsafe assurance that the exhibit has not been altered or tampered with and that there has been no substitution.” State v. Lemon, 504 S.W.2d 676, 684[15, 16] (Mo.App.1973). Here the objection is based upon the fact that others had access to the exhibit while it was in the police evidence locker. All who had such opportunity were not called to deny that they had tampered with the exhibit, but that is not required. The officer testified that the envelope and its contents were in the same condition when he removed them as when he placed them in the locker. He relied, in part, upon the fact that, in the local testing, a part of one of the tablets had been broken off, and the exhibit showed that fact' when the items were removed. The fact that others had access to the lockers does not, in these circumstances, render the proof of the chain of custody insufficient. State v. McCrary, 478 S.W.2d 349, 351 (Mo.1972); State v. Winters, 525 S.W.2d 417, 426[20-22] (Mo.App. 1975).

The case of State v. Ilgenfritz, 263 Mo. 615, 173 S.W. 1041 (1915), relied upon by appellant on this point, is distinguishable. There, evidence that clothing involved was bloodstained at the time that law enforcement officers took custody of it was lacking, so there was no showing that the condition of the clothing sought to be shown at the trial existed when it was worn by the defendant. Here, the evidence showed adequately that the tablets introduced in evidence were those taken from appellant’s pocket.

An objection to the report of the chemical analysis of the tablets by the highway patrol chemist was also based on the chain of custody evidence that others had access to the locker. Trial counsel for defendant acknowledged: “After the Highway Patrolman received it, I do think that they do have a continuous chain.” The previously reached conclusion, therefore, answers the separate objection to the chemist’s testimony.

Appellant next complains that the trial court erred in permitting Officer Dale, “over appellant’s objection, to testify that he placed appellant under arrest for being drunk in public, * *

The transcript shows the following on this issue:

“Q Had you placed Mr. Hedrick under arrest for any crime?
“A Yes, sir.
“MR. WHEELER (counsel for defendant): Object to this as immaterial and irrelevant.
“THE COURT: Overruled.”

As the transcript shows, the objection was not made until the question had been answered and no motion was made to strike the answer. In these circumstances, there has been no proper objection which preserves any question for appellate review. State v. Privett, 347 Mo. 1144, 152 S.W.2d 73, 75[5, 6] (1941). It may be noted, also, that defense counsel, on cross-examination, brought out the reason for the arrest, and such evidence was not adduced on the direct examination of the witness.

Appellant next contends that the trial court erred in permitting Officer Dale to testify on rebuttal that when he took appellant to the jail, appellant asked to take the Anacin tin with him. Numerous objections have been raised to this testimony, among them that there was no preliminary hearing held on the voluntariness of the statement and that the state had represented that no oral statements of appellant would be used at the trial. Neither of these objections was raised when the evidence was offered. At the trial the objection to the testimony was on the grounds that it was repetitious and improper rebuttal. That objection cannot be expanded on appeal to include the objections now raised. Appellant is limited to the grounds of objection presented at the trial level. State v. Jones, 515 S.W .2d 504, 506[3, 4] (Mo.1974); State v. Fields, 434 S.W.2d 507, 513[1-3] (Mo.1968).

As for the propriety of the testimony as rebuttal testimony, appellant testified that after he was arrested he told Officer Dale that he had a headache and asked him for an Anacin. On cross-examination, appellant was asked whether or not he asked for the Anacin tin and he replied that he asked only for an Anacin. In rebuttal, Officer Dale testified that appellant asked him twice for the Anacin tin.

This testimony was proper rebuttal. It contradicted appellant’s own testimony. The testimony sought to be contradicted was relevant on the issue of appellant’s knowledge of the contents of the Anacin tin. Therefore, the admission of the evidence was not error. State v. Woods, 346 Mo. 538, 142 S.W.2d 87, 90[7] (1940).

Appellant’s next assignment of error relates to questions asked by the prosecuting attorney on cross-examination of appellant’s character witnesses. Numerous grounds of error are asserted, but the only one raised at the trial and preserved in the motion for new trial is that error was committed when the trial court overruled an objection to the prosecutor’s question, directed to one of such witnesses, whether he had drunk with appellant. Objection that the question was “improper” was overruled and the witness replied, “Sociably yes.” The question was designed to inquire of the nature of the witness’s acquaintance with the appellant, his interest, and the extent of the witness’s knowledge. State v. Butler, 309 S.W.2d 155, 158[2] (Mo.App.1958). The trial court is not to be held to have erred in overruling the general objection. State v. Wagner, 311 Mo. 391, 279 S.W. 23, 28[7, 8] (1925).

Appellant next contends that the state failed to prove beyond a reasonable doubt that he intentionally and knowingly possessed a controlled substance. State v. Berry, 488 S.W.2d 667, 668-669[1-4] (Mo.App. 1972).

The appellant’s defense was that he had found the Anacin tin in a night club and had picked it up and put it in his pocket without being aware of its contents. The jury obviously disbelieved this testimony. Although such disbelief of itself could not satisfy the state’s burden to show that appellant intentionally had the tablets in his possession and that he was aware of the character of the drug, such conclusion may be inferred from the circumstances of appellant’s attempt to conceal the package upon being directed to empty his pockets at the police station and his efforts, according to the state’s evidence, to regain possession of the tin. State v. Darabcsek, 412 S.W.2d 97, 103 (Mo.1967); State v. Scarlett, 486 S.W.2d 409, 410[1] (Mo.1972). This assignment of error is without merit.

Appellant’s final assignment of error is that the trial court erred in permitting the prosecuting attorney in his closing argument to state that, if the jury did not wish to fix the defendant’s punishment, the court would do so. The transcript filed here does not include the arguments on which this contention is based.

The transcript does contain a colloquy between the court and the foreman of the jury which occurred after the jury had retired and dealt with the punishment. At the conclusion of the colloquy and outside the hearing of the jury, the defense counsel moved for a mistrial, citing to the court the now complained of argument of the prosecutor. Counsel noted that the court had sustained his objection.

In these circumstances, there is nothing before this court for review, the argument of the prosecutor not having been included in the transcript. State v. Carroll, 333 Mo. 558, 62 S.W .2d 863, (1933). In any event, the claim that the argument “prejudiced” appellant’s right to have his punishment determined by the jury is without merit. The jury did fix the punishment. Therefore, anything that might have been said about what would occur should the jury not agree on punishment was immaterial and obviously nonprejudicial.

Judgment affirmed.

All concur.


source: Caselaw Access Project

author: DIXON, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Arnold L. YOUNG, Defendant-Appellant.
    No. KCD 27521.
    Missouri Court of Appeals, Kansas City District.
    March 1, 1976.

      See also, Mo.App., 534 S.W.2d 590.
    Austin P. Shute, Ronald J. Stites, Kansas City, for defendant-appellant.
    John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   DIXON, Presiding Judge.

Defendant was convicted by a jury of assault by means of a deadly weapon with intent to rob as proscribed by Section 559.-180 RSMo 1969. The charge was brought under the Second Offender Act, and the trial court sentenced the defendant to ten years imprisonment. This direct appeal is from that conviction and judgment.

Defendant raises issues as to identification procedures and testimony, the instructions given, and a claim that black jurors were systematically excluded. The conviction and judgment are affirmed.

The conviction was based on a December 29, 1973, occurrence at the Sears, Roebuck and Company store located on the Country Club Plaza in Kansas City, Missouri. Three men wearing stocking masks, one of them carrying a revolver and two of them carrying shotguns, went to the store’s third floor. The man with the revolver demanded money from store employees while the other two men stood by with their shotguns. After a clerk told them no money was available, the man with the revolver left the third floor. Proceeding down the stairs, he met and passed Jack Corbitt, store security manager, as Corbitt was coming up the stairs. Corbitt was instructed to proceed on up the stairs, and one of the robbers with a shotgun forced him to the third floor. However, Corbitt watched as the man with the revolver proceeded down to the second floor and saw the man remove his mask just before going through a door.

Corbitt testified that he had “about a three-quarters view of his face” for about three seconds. At a lineup five days later and at defendant’s trial, Corbitt identified the man he saw as the defendant. No other witness was able to identify defendant as the masked man with the revolver.

Defendant’s principal assignment of error is the trial court’s overruling of his “motion to suppress, objections to identification testimony, and after-trial motion.” The claim is that pre-trial identification procedures were unnecessarily suggestive and conducive to irreparable mistaken identification. The State denies the lineup was improper. It also argues that defendant’s claim is not preserved for review because he failed to obtain an adverse ruling on the motion to suppress, failed to allege with particularity the assigned error in his motion and failed to object to in-court identification of defendant at trial.

The procedures followed in the trial of this case, if countenanced by this court, would create staggering problems in the review of criminal cases. Because of the possibility that anything other than a direct discussion of these procedures might lead to an implication that they are permissible, the procedural background of this appeal will be fully developed.

A jury was selected and pre-trial matters were disposed of on May 14, 1974. Before commencement of trial the next morning, defendant’s attorney offered his motion to suppress identification of defendant by Jack Corbitt, which in pertinent part reads:

“In support thereof it is asserted:
Said witness viewed Defendant under' circumstances which suggested to him that defendant was the assailant, in violation of those principles announced by the United States Courts .
The suggestion involved so tain[t]ed the identification as to cause any in court identification of Defendant to be in violation of his rights as protected by the Fourth, Fifth, Sixth and the due process clause of the Fourteenth Amendments.
WHEREFORE, it is prayed that the in court identification of Defendant by said witness be suppressed, as well as evidence of any identification made prior to trial.”

The trial judge made no ruling, and the State and defense proceeded to trial without objection or comment. The motion simply appears in the transcript as filed.

When, in its opening statement, the State said defendant was identified by Mr. Cor-bitt at a lineup, the following exchange took place between the defense attorney and the judge.

“MR. SHUTE: Excuse me just a minute, Counsel.
(Counsel approached the bench and the following proceedings were had:)
MR. SHUTE: Your Honor, I would like just for the record to make an objection to any reference to a lineup, and would like that to be a continuing objection in line with my motion to suppress, and the understanding between counsel and the Court that the motion will be considered with the case itself.
THE COURT: Very well, so understood.”

When Corbitt testified and identified defendant as one of the assailants, defendant’s counsel did not object to or comment in any manner about this in-court identification. Later, the following exchange occurred as the prosecutor questioned witness Corbitt:

“Q (By Mr. Bressel) Have you ever had occasion to attend a line-up?
A Yes, sir, I have.
MR. SHUTE: Your Honor, I am still preserving my objection.
THE COURT: Yes.”

The witness went on to tell about the lineup at which he identified defendant. There was no ruling on the objection. Then, when a photograph of the lineup was admitted into evidence:

“MR. BRESSEL: At this time, your Honor, I would like to offer into evidence State’s Exhibit No. 6.
MR. SHUTE: Subject to the previous objection, your Honor.
THE COURT: Yes, subject to your general objection?
MR. SHUTE: Yes, your Honor.”

Finally, after defendant’s motion for judgment of acquittal at the close of the State’s evidence was offered and overruled, defendant’s counsel orally “renewed” his “motion to suppress the in-court identification by Mr. Corbitt” on the grounds that the lineup was unfair. The court responded, “I will overrule that. I think that is for the jury to decide.” The objection was again raised at the close of all the evidence on the additional ground “that Mr. Corbitt said he was basing his in-court identification on the line-up identification.” (This allegation as to what Mr. Corbitt said is incorrect.)

In the motion for a new trial, the sustaining of the in-eourt identification, alleged to have been based on the lineup, was assigned as error. There is no claim that admission of evidence of pre-trial identification was error.

Procedurally, the status of defendant’s two objections to identification is as follows. Objection to evidence that defendant was identified at a lineup was raised in the motion to suppress and during trial. There was no ruling on the trial objections. Overruling the objection was not assigned as error in the new trial motion.

Objection to in-court identification was raised in the motion to suppress and in after-trial motions for judgment of acquittal and in the motion for a new trial. But at the time the testimony was offered, no objection was made to the in-court identification evidence.

On this view of the record, defendant failed to obtain an adverse ruling on that part of his motion to suppress which related to admission of evidence that defendant was identified at the lineup. This factual situation is analogous to that in State v. Chapman, 365 S.W.2d 551 (Mo. 1963), where the court said that failure to seek a ruling on a request for an eye examination and announcing ready to go to trial “could properly be considered as an abandonment of the motion.” Similarly, when the trial court did not rule on a request to discharge a jury, and defendant saved no objection to the failure to rule the point is lost. Godsy v. Thompson, 352 Mo. 681, 179 S.W.2d 44, cert, denied, 323 U.S. 719, 65 S.Ct. 48, 89 L.Ed. 578 (1944). Defendant’s failure to obtain any ruling from the trial court on this part of his motion leaves no final determination for an appellate court to review, and the point must be considered abandoned. Moreover, the point is not preserved for review because it was not raised in the motion for new trial. State v. Phelps, 478 S.W.2d 304 (Mo. 1972); State v. Grey, 525 S.W.2d 367 (Mo.App.1975); State v. Alderman, 498 S.W.2d 69 (Mo.App.1973).

That part of the motion to suppress which challenged the in-eourt identification finally was adversely ruled on when defendant raised the matter orally after his motions for judgment of acquittal. However, the objection was not preserved because when the in-court identification was made, defendant failed to object. State v. Phelps, supra; State v. Caffey, 457 S.W.2d 657 (Mo. 1970).

Although in the peculiar procedural setting of this case, the points raised on this appeal with respect to the identification issues may be resolved under settled procedural rules, the tactics here involved should be condemned for other reasons. If counsel had objected to the in-court identification testimony at the time it was offered, and if the motion for new trial had raised the issue of the admission of the evidence of pre-trial identification, this court would have been placed in the position of determining those issues upon the entire transcript of the trial. Such a practice could not be tolerated in view of the present workload upon appellate courts. In any event, the salutary purpose of requiring the trial court to focus upon issues relating to the request for suppression of evidence before trial to expedite trials would be totally thwarted if such procedures were followed. When a motion to suppress is filed, it should be ruled upon such evidence as the parties see fit to produce. In the instant case, if the trial court had sustained a motion to suppress at the close of the State’s case, there would have been no alternative but a mistrial, thereby wasting the time and effort of selecting the jury and trying the case. The practice of taking such motions with the case should not be followed. Rule 33.03(a)(5).

Clearly, the identification at the lineup was not constitutionally flawed. There was substantial independent basis for Mr. Corbitt’s identification. He saw defendant for three seconds from thirty feet under good light and within five day's identified him at the lineup. Nor was the lineup suggestive. Even though defendant was older than the other three participants, all four of them were of similar height and weight. Three of them, including defendant, clearly had mustaches. The exhibit is before this court, and the defendant’s great emphasis on age differential of the participants is not reflected in the photograph. The photo shows four black males with varying hair styles. As noted, the heights and weights are about the same, and there is nothing in the overall general appearance of the lineup to make it suggestive. The identifying witness had over eight years of experience as a law enforcement officer. He was security manager of the Sears store at the time he saw defendant. One would expect him to give attention to details in the circumstances under which he viewed defendant. His testimony at trial was detailed and unequivocal. Under these facts, the lineup was not improper. State v. Britt, 504 S.W.2d 38 (Mo.1973); State v. Murphy, 508 S.W.2d 269 (Mo.App.1974); State v. Carson, 501 S.W.2d 503 (Mo.App. 1973).

The next assignment of error challenges language used in Instruction No. 6. Defendant never brought the claimed error to the attention of the trial court. All that appears is a statement that he objected to all of the instructions and an allegation in the new trial motion “that the Court erred in giving Instructions 1 through 9, for the reason that they do not correctly state the law of the case.” Thus, defendant’s objection to the language of Instruction No. 6 is not preserved for review for failure to specify at trial or in the new trial motion the grounds of the alleged error. State v. Rennert, 514 S.W.2d 579 (Mo.1974); State v. Parks, 331 S.W.2d 547 (Mo.1960); and Supreme Court Rules 20.03 and 27.20(a).

Defendant argues a mistrial should have been granted because black jurors were systematically excluded from the jury panel. The record shows some objections and statements of counsel, but it contains no evidence of facts sufficient to establish a prima facie case of systematic exclusion of black jurors. The point is ruled against defendant. State v. Baker, 524 S.W.2d 122 (Mo. banc 1975); State v. Brown, 527 S.W.2d 15 (Mo.App.1975); State v. Kelly, 506 S.W.2d 61 (Mo.App.1974).

Finally, defendant’s counsel asks that points not briefed be considered. It is incredulous that defendant’s counsel would make such a request after State v. Brown, supra, a case in which the same point was raised and ruled against a defendant who was represented by the same counsel representing the defendant in this case. The invitation to search for error on the basis of unbriefed allegations of the motion for new trial is declined.

Judgment affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    STATE of Missouri, Respondent, v. Clifford N. HOLLAND, Appellant.
    No. KCD 27776.
    Missouri Court of Appeals, Kansas City District.
    March 1, 1976.

      J. Arnot Hill, James L. McMullin, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

The indictment charged defendant in two counts, the first being for forcible rape and the second being robbery in the first degree. The jury found defendant guilty on both counts and assessed his punishment at 70 years imprisonment on Count I and 5 years on Count II. The trial judge reduced the sentence to 25 years on Count I and 5 years on Count II, those sentences to run concurrently.

Defendant appeals on the sole ground that “[t]he trial court erred in failing to suppress the out of court identification made by the victim at a suggestive and fundamentally unfair lineup held by the Kansas City Police Department at police headquarters.” In view of the limited issue so raised, only those facts will be summarized as are necessary to bring the legal question into focus.

About 7:30 a.m. on June 14, 1974, the prosecutrix was seized and dragged into an abandoned house. There she was assaulted, raped and robbed. Later that day at the hospital she described her assailant to the police as being a “Negro male in his twenties, six foot, two hundred pounds, large build, short black hair, brown eyes, dark complexion, wearing a white T-shirt and black slacks.”

On July 1, 1974, when the prosecutrix was in an automobile with her father, she saw a man on the street whom she identified as the one who had assaulted her on June the 14th. The next day, July 2nd, she went with police detectives through the same area and again identified her assailant, whom the detectives then arrested. The one so arrested was the defendant. After the arrest, the prosecutrix was called to the police station later that day to witness a lineup, in which she again identified the defendant as her assailant.

At the trial the prosecutrix positively identified defendant as the one who raped and robbed her on June 14th. She also testified to having made an identification of defendant at the police station lineup on July 2, 1974.

Defendant does not challenge the in-court identification, but rather he confines his attack exclusively to the pretrial identification at the lineup. This attack is based on the ground that the lineup was unnecessarily suggestive and therefore fundamentally unfair because of the following factors: 1) of the five men in the lineup, defendant was much the heavier, he weighing 200 pounds while none of the others was over 150; 2) defendant was the only one of the five who was clean shaven; and 3) defendant was the only one of the five who was dressed in jail clothing.

Defendant’s attack fails for a double reason. In the first place, although he did raise this issue by pretrial motion to suppress which was overruled, he omitted to make any objection at the trial itself when testimony on this point was introduced. Moreover, defendant’s counsel engaged in extensive cross-examination with respect to the matter of the lineup and the prosecu-trix’s identification at that time. Because of this omission of any objection and the conducting of that cross-examination, any error with respect to this identification testimony has not been preserved for appellate review. State v. Brownridge, 459 S.W.2d 317 (Mo.1970); State v. Franklin, 448 S.W.2d 583 (Mo.1970); State v. Ward, 518 S.W.2d 333 (Mo.App.1975). See also State v. Young, Mo.App., 534 S.W.2d 585, being decided concurrently herewith.

In the second place, even if the lineup be regarded as so unbalanced as to be suggestive of defendant as the one to be selected, nevertheless that factor alone does not render the identification inadmissible. A factual situation very closely akin to the instant ease was presented to the United States Supreme Court in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In that case a rape victim testified to an out of court identification which had been made by her at a police station. That identification testimony was challenged on the ground that the police had used a “showup” by means of which the victim had been asked to identify the defendant when confronted with him alone. Even though it was conceded that a lineup consisting of several men would have been much preferable to the showup of the defendant all by himself, still the Supreme .Court held that there were present other indicia of trustworthiness which overcame the suggestiveness of the one-on-one confrontation. In this connection, the court outlined the factors to be considered in making this evaluation, saying that “the likelihood of misiden-tification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.”

Whether the question arises with respect to pretrial identification at a challenged lineup (as was the case in Neil and is true here) or with respect to an in-trial identification by a witness who had previously identified a defendant at a challenged lineup, the legal issue is the same. State v. Davis, 529 S.W.2d 10, l.c. 14 (Mo.App.1975). In each of those situations, whether the identification procedure was prejudicially unfair must be determined by a consideration of the totality of the circumstances. In judging the application of this rule, the Missouri courts have adopted a three-part test somewhat differently phrased but similar in intention and scope to that stated in Neil. The Missouri formulation requires that “ ‘ . . . consideration be given to (1) the presence of an independent basis of identification, (2) the absence of any suggestive influence by others, and (3) positive courtroom identification. . . . ’” State v. Parker, 458 S.W.2d 241 (Mo.1970); State v. Tidwell, 500 S.W.2d 329 (Mo.App. 1973); State v. Cole, 519 S.W.2d 370 (Mo. App.1975); State v. Rutledge, 524 S.W.2d 449 (Mo.App.1975); State v. Arnold, 528 S.W.2d 164 (Mo.App.1975); State v. Davis, supra. Even if it can be said that the manner and composition of the lineup be suggestive, nevertheless the identification testimony may be admissible if parts one and three of the Missouri three-part test be met. State v. Davis, supra, and cases cited therein; State v. Young, supra.

Applying the foregoing rules to the present situation, the out of court identification testimony was admissible. The pros-ecutrix had an exceptional opportunity to observe her attacker at the time of the rape and of course her attention was focused upon him to a high degree. What was said by the United States Supreme Court in Neil is equally applicable here: “[t]he victim here * * * had an unusual opportunity to observe and identify her assailant." Similarly appropos is the statement in Grant v. State, 446 S.W.2d 620, 622 (Mo. 1969): “ ‘[virtually no other crime offers the opportunity for observation of the perpetrator as the crime of rape.’ ”

The degree of attention and precision of observation by the prosecutrix at .the time of the rape is directly evidenced by her detailed and accurate description which she gave to the police later the same day at the hospital. Moreover, she spontaneously identified the defendant on the street on July 1st and again on July 2nd. These facts demonstrate that the prosecutrix did have a very substantial “independent basis of identification” wholly apart from the lineup. Still further, the prosecutrix made a positive unequivocal in-court identification, thus complying with the third point of the Missouri three-part test. In the totality of the circumstances, her out of court identification was sufficiently reliable and was properly admitted for consideration by the jury.

Affirmed.

All concur.


text:
    Louis Leroy WARD, Respondent, v. Mary V. WARD, Appellant.
    No. KCD 27587.
    Missouri Court of Appeals, Kansas City District.
    March 1, 1976.
    Kenneth H. Taylor, Arthur B. Taylor, Independence, for appellant.
    A. J. Falcone, Martin M. Gorin, Kansas City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

This is a domestic relations action in which the trial court modified the original decree of divorce so that Louis Ward would pay only $30 per week in alimony instead of $50 per week. Mary Ward appeals, urging as her sole point that there was insufficient evidence to sustain that reduction.

The parties were previously husband and wife. On December 18, 1973, Mary was granted a divorce and awarded custody of the two minor children of the marriage, $30 per week child support and $50 per week alimony. On July 26, 1974, Louis filed the present motion to modify the divorce decree, on the grounds of a decrease in net pay which he alleged caused him great hardship to the point where he could no longer support himself.

A judgment for alimony is res judi-cata as to facts and conditions existing at the time of the award and bearing thereon. Shilkett v. Shilkett, 285 S.W.2d 67 (Mo.App. 1955). Accordingly, proof of a subsequent change of conditions is a condition precedent to authority for modification, and the burden of showing such change rests upon the movant. Clisham v. Clisham, 485 S.W.2d 660 (Mo.App.1972); Shilkett, supra, at 68. Section 452.370(1), RSMo Supp.1975, provides that the movant will be allowed modification “ . . . only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable.” Thus, the key question here for decision is whether Louis has proved a sufficient change of circumstances in the seven-month period following the divorce to support the order of modification.

The record shows that Louis did experience some reduction in income in the year 1974. In 1973, the year of the divorce, Louis averaged according to his testimony a six day work week with a net pay of $228.00. In early 1974, his employer was on strike for a period of six weeks during which he received no pay. Upon settlement of the strike, Louis received a pay increase of 41$ an hour. However, another part of the strike settlement eliminated double time payment for work on Sundays, and therefore Louis’ net weekly pay in 1974 for a five day week was $163.00, and for a six day week, $210.00. The record is silent as to whether Louis worked a five or six day week up to the time of the trial in 1974. He testified that his employer was working a six day week, but he also testified that he had certain physical problems, to-wit: a kidney infection and a “mouth full of rotten teeth,” because of which he could not “continue to work six or seven days a week at this job.” With respect to the dental problem, Louis admitted that, “I was told several years ago to get them out,” which demonstrates that this physical difficulty existed at the time of the divorce and for a considerable period prior thereto. Louis also testified that there has been a garnishment on his pay check since July 18, 1974.

Although not a ground for modification alleged in his motion, Louis attempts on this appeal to rely in part on a contention that Mary is now able to work part-time but is not doing so. Aside from being outside the scope of his motion, this ground has not been developed by evidence of any change of condition since the divorce. The evidence shows that Mary has been trying to find part-time work which would be within her physical limitations, but has not been successful in that endeavor.

The facts summarized above fail to show a change of circumstances so substantial as to require modification of the original decree; or if so, what the extent of the modification should be. The record leaves to sheer speculation whether Louis is currently earning $163 or $210 weekly. If the latter, his reduction in pay is less than 8%; whereas the reduction ordered in his payments to his divorced wife and children came to 18%. Moreover, even if Louis at the time of the hearing was actually working only a five day week, there is no evidence to the effect that this change was anything more than temporary or that he could not resume a six day week after medical and dental treatment. Still further, so far as concerns loss of six weeks earnings during the strike, the record fails to disclose the amount of strike benefits or savings, if any, which Louis may have had available to offset that temporary emergency-

A more ample exploration of the facts may show that Louis indeed has need for some financial relief, based on his loss of earnings during the strike, the cost of medical and dental care which has become necessary since the date of the divorce, and loss of income attributable to those physical conditions. However, no judicial determination of that need can properly be made without evidence of Louis’ actual economic loss during the strike, how much the doctor and dentist charges will be, and the length of the expected period of partial disability. Furthermore, unless medical testimony is offered to show permanent loss of earning power, the judicial relief to be granted would more properly be only a temporary, not a permanent, reduction in alimony. 24 Am.Jur.2d, Divorce and Separation, § 677, p. 796; 18 A.L.R.2d 10, l.c. 48. A number of cases in other jurisdictions have deemed a temporary reduction the more appropriate remedy in the situation of temporary physical disability: Peters v. Peters, 238 Ark. 361, 381 S.W.2d 748 (1964); Slagle v. Slagle, 205 La. 691,17 So.2d 923 (1944); Warner v. Warner, 145 Or. 541, 28 P.2d 625 (1934); Davis v. Davis, 78 App.Div. 500, 79 N.Y.S. 621 (1903). Analogously, other cases have allowed a temporary reduction in alimony where the ex-husband’s income has been adversely affected either by strikes, or by a change in business or occupation. Kelly v. Kelly, 194 Mich. 94, 160 N.W. 397 (1916) (husband began a new business); Dillon v. Dillon, 21 Wash.2d 311, 150 P.2d 594 (1944) (husband in Army during World War II); Agrue v. Agrue, 233 Or. 456, 378 P.2d 965 (1963) (husband moving dental practice to another state); Lockwood v. Lockwood, 175 So.2d 313 (La.App.1965) (husband unemployed).

Reversed and remanded.

All concur.


author: TURNAGE, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Henry ANDRADE, Appellant.
    No. KCD 27602.
    Missouri Court of Appeals, Kansas City District.
    March 1, 1976.

      Max W. Foust, H. Edward Skinner, Morris, Foust, Beckett & Ponick, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Defendant appeals his conviction of selling Lysergic Acid Diethylamide, LSD, and sentence to five years imprisonment. Section 195.020, RSMo 1969.

On this appeal defendant urges (1) the court erred in admitting opinion evidence based on a p-DMAB Spot Test, Ultraviolet Spectroscopy, and Thin-Layer Chromato-grams; (2) error in admitting the opinion of the State’s chemist which was based on accepting as true the printed contents label on a container used in the tests he performed; and (3) the State failed to prove defendant was the person who made the drug sale. No merit is found in any of these contentions and the judgment is affirmed.

The jury could have reasonably found, as it must have, that defendant made a sale of ten “hits” of LSD, or Acid, as it is commonly termed, to Detective O’Donnell of the Kansas City Police Department acting under cover. O’Donnell stated he met defendant, who was riding in the rear seat of an automobile with O’Donnell’s informant, in a shopping center parking lot. O’Donnell approached the automobile and spoke with defendant at which time defendant delivered the drugs to O’Donnell who in turn paid the defendant $30.00 in cash.

The meeting had been arranged through an informant, Merlin Stice. Stice also testified she was present in the automobile at the time O’Donnell met the defendant in the parking lot and made the purchase.

The State also produced John Wilson, a chemist, who testified that he tested the substance O’Donnell purchased from the defendant. Wilson stated he ran four thin-layer chromatograms in two separate solvent systems (9:1 chloroform methanol, and 4:1 chloroform acetone) after irradiating half of the four plates. Wilson stated one test might be susceptible' to error in determining whether the substance tested was in fact LSD, but stated unequivocally there was no way all four tests could be wrong.

Wilson stated as a result of these four tests the substance tested was LSD.

Defendant’s counsel at trial conceded the qualifications of Wilson. There was no evidence proffered concerning any inadequacy or deficiency in the tests performed by Wilson nor calling into question in any fashion the conclusion reached by Wilson that the substance tested contained LSD.

Defendant is represented on this appeal by different counsel than appeared at trial. On this appeal counsel now raises questions concerning the adequacy and the validity of the p-DMAB Spot Test, Ultraviolet Spectroscopy and Thin-Layer Chro-matograms. Defendant supports such contention by a wide variety of scientific writings garnered from a number of scientific publications. However, this court need not resolve any argument which may exist in the scientific community concerning the validity or reliability of the tests used by Wilson because none of this evidence was presented to the trial court. This court must decide this case solely on the basis of the record made in the trial court. State v. Johnson, 286 S.W.2d 787, 796 (Mo.1956). For that reason defendant’s contentions concerning the tests are not open to question in this court.

Defendant urges such tests are open to attack in this court on the basis of State v. Stout, 478 S.W.2d 368 (Mo.1972). However, in that case the court made it clear it was determining the admissibility of the Neutron Activation Analysis Test on the basis of the record made in the trial court.

Defendant further attempts to avoid the consequences of the absence of any evidence questioning the tests in the trial court by declaring the tests to be unreliable and, therefore, there was no substantial evidence on which to base defendant’s conviction because there was no other evidence showing the substance sold to be a controlled drug. This argument overlooks the well settled rule that the admission of expert testimony rests within the sound discretion of the trial court. State v. Jones, 518 S.W.2d 304, 311[8-9] (Mo.App.1975). There was no abuse of discretion here and could not be when the qualifications of the expert were admitted and there was no evidence whatever to call .in question the tests used by Wilson. This being true, there was no error in admitting this uncon-troverted evidence. Furthermore, such evidence constituted substantial evidence of defendant’s guilt which supports his conviction.

Defendant further argues the admission of Wilson’s conclusion constituted plain error under Rule 27.20(c). A careful review of the record with this rule in mind reveals no error which constituted any manifest injustice to the defendant.

Defendant next contends the conclusion of Wilson was improperly received because in detailing the tests run, Wilson stated he used a standard reference substance obtained from the Federal Drug Enforcement Administration. Defendant contends Wilson relied on the label on this substance on which was printed its contents. Defendant contends this is an impermissible use of hearsay evidence. Defendant overlooks the testimony of Wilson that he had personally tested the standard reference substance and in his opinion the substance tested to be what it purported to be, and that was LSD. Moreover, Wilson would have been entitled to rely upon the printed label under the holding in State v. Newstead, 280 S.W.2d 6, 9 (Mo.1955). See also State v. Harris, 12 Wash.App. 481, 530 P.2d 646, 655 (1975).

For the above reasons, all of the defendant’s attacks on the testimony of Wilson are rejected.

Defendant contends there was insufficient evidence to show the identity of the person making the sale to be that of defendant. O’Donnell testified the sale took place at 8:00 P.M. on a parking lot lighted by vapor street lights. O’Donnell positively identified defendant as the individual from whom he made the purchase at that time. Stice testified also as to the identity of the defendant. Defendant points to some weakness in the testimony of Stice in that she could not recall the description of another person in the automobile and her description of the driver differed from the description the driver made of himself in his testimony. However, it is well settled that the credibility of a witness is a question for the jury. State v. Morris, 518 S.W.2d 79, 81[3—5] (Mo.App.1974). Here there was nothing inherently incredible or self destructive about the testimony of either O’Donnell or Stice as to deprive such testimony of probative value. In that circumstance their credibility was for the jury and their evidence was substantial evidence which supports the jury’s verdict.

Judgment affirmed.

All concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Joseph Lawrence SPENCER, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 27654.
    Missouri Court of Appeals, Kansas City District.
    March 1, 1976.
    J. Arnot Hill, James L. McMullin, Hill, McMullin & Wilson, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Timothy J. Verhagen, Asst. Atty. Gen., Jefferson City, for respondent.

      Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from denial, after evidentiary hearing, of motion under Rule 27.26, Y.A. M.R., to vacate and set aside judgments of conviction and consecutive sentences of 15 years’ imprisonment following guilty pleas on three charges of robbery, first degree. The question is whether defendant was under the mistaken belief that he would receive concurrent sentences. Affirmed.

As grounds for relief in the trial court, movant asserted: (1) His guilty pleas were coerced in that he pleaded guilty with the understanding he would receive three concurrent fifteen-year sentences; (2) His guilty pleas were improper because there was no determination that they were made voluntarily with the understanding of the nature of the charge; (3) He was not afforded effective assistance of counsel with respect to consultation, advice, investigation, and protection.

Appellant’s only attack on the voluntariness of his guilty pleas at this time is his contention that the findings, conclusions, and judgment of the trial court in denial of relief on his motion were clearly erroneous, asserting for the first time “that appellant was not apprised by court or counsel that sentences would be run consecutively and that pleas of guilty to a second or third offense would cause additional punishment and therefore was not fully advised of the possible range of punishment.” He argues that “ ‘concurrent’ and ‘consecutive’ as applied to penal sentences” were not explained to defendant, and “it was not explained * * * that it would be mandatory for the court to make his sentences run consecutively.”

Contrast of this contention with the grounds for relief presented to the trial court, and a review of the transcript, show that this contention and argument were not presented to the trial court. As a consequence, appellant s point is not for review. State v. Eaton, 394 S.W.2d 402 (Mo.1965).

The only evidence with respect to concurrent sentences was movant’s own testimony that Jon Waller, one of his attorneys, told him he would be given concurrent sentences if he pleaded guilty. Mr. Waller contradicted this assertion with a denial that he had made any such promise and by a statement that no one else to his knowledge had made any such promise. The court, in its province, resolved the conflict. Shoemake v. State, 462 S.W.2d 772 (Mo. banc 1971).

The record also shows extensive examination of defendant by court and counsel which demonstrates that defendant was fully advised of and understood the range of punishment for robbery; that the amount of punishment and the sentence would be for the court to say irrespective of any recommendations from the State and defense counsel; that he was not coerced in any way; and that he was not laboring under any misapprehensions, illness, or other disability which might affect entry of a voluntary guilty plea. The examination and precautions against receipt of involuntary guilty pleas comported favorably with the subsequently established guidelines of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

In these circumstances, movant has failed to meet his burden of proving his grounds for relief and that manifest injustice resulted from acceptance of his guilty pleas. Rule 27.26, supra; Bolden v. State, 530 S.W.2d 505 (Mo.App.1975).

Appellant contends also that the cause should be remanded for resentencing in an exercise of discretion whether to impose the sentences in question consecutively or concurrently. See State v. Baker, 524 S.W.2d 122 (Mo. banc 1975).

There is nothing in this record to show that the trial court assessed consecutive punishments as though it had no alternative to bring the procedures of State v. Baker, supra, into play. To the contrary, the court specified the sentences “are to run consecutively.” Cf. State v. Brown, 525 S.W.2d 565, 568[6] (Mo.App.1975).

Judgment affirmed.

All concur.


author: SWOFFORD, Judge.

text:
    STATE of Missouri, Respondent, v. Julian R. GREEN, Appellant.
    No. KCD 27696.
    Missouri Court of Appeals, Kansas City District.
    March 1, 1976.

      Thomas M. Larson, Public Defender, R. William Bloemker, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

Appellant Green was charged by information with Robbery First Degree under Section 560.120 RSMo 1969. His jury trial resulted in conviction and a sentence of ten (10) years in the custody of the Department of Corrections. After an unavailing motion for a new trial, he appeals from such judgment.

He raises two points in support of his request for reversal. The first of these is that the court erred in failing to sustain an objection to a part of the state’s closing argument wherein the assistant prosecuting attorney told the jury that if appellant were released by their verdict, he (the appellant) would return to his “business of forgery”. The second point raised by appellant is that the court erred in refusing to grant a recess during the course of the trial so as to allow appellant time to secure the attendance of certain witnesses who could offer testimony in support of his defense.

A short summary of the underlying facts is sufficient for the resolution of these points. At about 1:00 o’clock a. m., June 9, 1973, two men entered the Quick-Trip Store located at 3 W. 49th Street, Kansas City, Missouri, and advised the assistant manager, Steve J. Thompson, the person then in charge of the store, that “This is a holdup”. The taller of the two men, later identified as the appellant, was carrying a chrome-plated revolver. At the direction of the robbers, Thompson opened up the cash drawer and then was forced to lie face down, on the floor of a back room. While in this position, the shorter of the two robbers struck Thompson on the back of the head with a pistol, causing a laceration and rendering him unconscious.

As the robbers left the store, one Ronald Jones, a customer who lived in the neighborhood, was entering the store and observed the appellant carrying two money bags and a chrome revolver and followed by another man, leaving the store. Jones found Thompson in the back room unconscious; the police were called, and it was found that the robbers had taken at least $45.00 from the cash drawer, bank bags, two books of Republic money orders, $120.00 in cash which was Thompson’s, and Thompson’s wristwatch.

Both Thompson and Jones identified the appellant from police photographs and later in a police lineup. Both made positive in-court identification of him.

The appellant testified in his own behalf; admitted that he had prior convictions for forgery and burglary; denied that he had participated in the robbery here involved; and, presented the alibi that at the time of the robbery he was sitting in a car with his girl friend, Connie Raynor, in front of the house of Connie’s mother at 1202 East 45th Street, at least a mile from the scene of the robbery. He stated that Connie, her mother and possibly her brothers and sisters, could establish this fact. None of these supportive witnesses were produced or testified (which fact will be discussed hereafter in relation to appellant’s second point.)

The appellant further testified on direct examination that on June 11th or June 12th, two men, Phillip Harvey and Fred Martin, came to his apartment and they had in their possession a number of Republic money orders, which he understood had been “sneaked thieved”. The following appears as part of the direct examination by appellant’s counsel:

“Q. Now, Julian, did you have in your possession a machine which is used for the forging of signatures on money orders, checks, things of that nature?
A. I did.
Q. You did?
A. Yes.
Q. All right. Did you cooperate with these individuals that came to see you?
A. You see, we made a deal, we made a deal, I let them use my machine in return for some of the money orders.
Q. Were you acquainted with these two persons prior to this time?
A. Yes, I was.
Q. How did you come to know them?
A. I done time with them in the penitentiary and the county jail, and they knew forging was my specialty—
Q. Had you made them aware of the fact—
THE WITNESS: They knew forgery —that’s what I’m known for, you see, and they knew it. Everybody knew it, the police.” (Emphasis supplied)

On cross-examination, he testified that he intended “to try to cash” the money orders he had received for the use of his machine. When asked if he remembered that these were Republic money orders, he stated:

“I definitely did. They were Republic Money Orders. That was my business at the time. (Emphasis supplied)

The following then appears as part of the cross-examination:

“Q. Your business is forgery, isn’t it? A. That’s true.
Q. And when you received these money orders you knew what they were for?
A. I sure did.” (Emphasis supplied)

In the state’s closing argument, the assistant prosecuting attorney, Mr. Stigall, following a statement as to the credibility of Thompson and Jones, the identification witnesses, stated:

“ * * * if you think they came in here and made this whole thing up; if that’s what you believe that’s the evidence, and if you think they are mistaken, turn him loose. Put him back on the streets. Put him back out in his business; and you know what his business is. He told you what it is.
MR. BLOEMKER (defense counsel): Objection. That statement is prejudicial and clearly improper.
THE COURT: Overruled.
MR. STIGALL: He told you. ' He told you what his business is. * * ” (Emphasis supplied)

It is gleaned from appellant’s brief that his basic complaint as to the foregoing trial incidents is that the prosecuting attorney was permitted to “speculate” as to future possible criminal acts or conduct of the appellant; that such comment or speculation was apparent and damaging error, prejudicial to the appellant; and, that it resulted in the jury imposing a greater sentence than the statutory minimum for Robbery First Degree. These contentions are wholly without merit, for several reasons.

In the first place, the appellant clearly and unequivocally testified that forgery was his “specialty” and his “business” in a rather proud and boastful fashion, it would seem, and without any expression of remorse or protestations of reform. Such words have a plain and common meaning. A man’s “business” is his occupation, trade, profession, work, serious pursuits, employment, interest, concern. A “specialist” is one devoted to one line of work. Thus, a fair inference is that the appellant was, in fact, devotedly engaged in the occupation of forgery and it was invited and fair comment for the prosecutor to remark to the jury on such volunteered characterization of his habitual life-style, as affecting his credibility. The record discloses that the prosecutor confined such remarks to the very substance of appellant’s testimony, couched in mild and not inflammatory language and did not predict or speculate as to the possibility of any specific future criminal activity of appellant. The cases cited by appellant on this point are clearly distinguishable.

Secondly, this point of error was not preserved in the motion for a new trial and thus, in fact, presents nothing for review.

Lastly, this point is not properly one for review, as plain error, under Rule 27.20(c), as asserted by appellant, even though such claimed error might have occurred (which was not the case). The statement of this court in the case of State v. Watts, 515 S.W.2d 854, 856[2] (Mo.App.1974) is applicable here. In Watts, this court said:

“ * * * That finding of error is not enough; under the mandate of Rule 27.-20, the error must be such that a manifest injustice has resulted or that a miscarriage of justice has occurred. * * ”

The evidence of appellant’s guilt in this case was strong and the court did not err in overruling his objection to the prosecutor’s argument and accordingly his first point on this appeal is rejected and ruled against him.

As bearing on appellant’s second point, the record shows that on the second day of the trial at the close of the state’s evidence, defense counsel made an oral application for a recess of the trial upon the ground that on the day before, at the commencement of the trial, the appellant for the first time asked him to subpoena several witnesses and stated that he (counsel) had “not been able to locate one of those witnesses”. This request was denied.

At the conclusion of the appellant’s testimony his counsel again made an oral request for a recess and in a conference outside the presence and hearing of the jury the appellant and counsel stated that they wished to obtain the testimony of Connie Raynor, his girl friend, and Mattie Reed, her mother, (apparently on the issue of alibi defense). Counsel stated that a subpoena had been issued for Connie Raynor but that an investigator from his office had been unable to locate her. Also, the testimony of Fred Martin, who was in the county jail, was sought (apparently to corroborate the appellant on his account of the Republic money orders and the loan of the “forgery machine” or, perhaps, in the desperate hope that he would confess to the robbery and exonerate the appellant). Martin had been subpoenaed and the court below had ordered him brought from the jail to court. The defense also sought the testimony of Merle Hoffman, a police officer. The record is unclear as to the nature of the testimony expected from him.

The record shows that the appellant was arraigned on this charge on July 25, 1973. His trial did not begin until July 15, 1974. During this period of almost a year, he was in the county jail (except for a total of eighty-five days when he was hospitalized for psychiatric evaluation at Springfield and Fulton, Missouri). His counsel stated to the court that he had conferred with the appellant on about six occasions at the jail and had advised him of the trial setting several weeks before July 15, 1974. Counsel stated, however, that it was not until the day of the trial that appellant informed him of his desire to have any of these witnesses testify in his behalf and that it was not until the appellant’s testimony on the second day of trial that counsel had any knowledge that appellant desired the testimony of Mattie Reed.

No written request for the recess was made; no affidavit was filed as to what testimony would be given by the witnesses; and, there was no showing of the availability of any of the witnesses (except Martin) or of their intention to appear.

The trial court again refused to delay the trial by granting a recess. Thereupon, the defense announced he would not call Martin to the stand.

It has long been the law in Missouri that the granting of a recess during the course of a trial, rests largely within the discretion of the trial court and an appellate court will not interfere with the exercise of that discretion unless it is clearly abused. State v. Lewis, 443 S.W.2d 186, 191[3] (Mo. 1969); State v. Odom, 369 S.W.2d 173, 183[3] (Mo. banc 1963), cert. denied, 375 U.S. 993, 84 S.Ct. 634, 11 L.Ed.2d 479; State v. Miller, 368 S.W.2d 353, 357[4] (Mo.1963); State v. Crayton, 354 S.W.2d 834, 838 (Mo. 1962); State v. Thompson, 299 S.W.2d 468, 473[12] (Mo.1957); State v. Jackson, 346 Mo. 474, 142 S.W.2d 45, 51[14] (1940).

The record in this case displays such a complete lack of diligence on the part of the defendant as to indicate that the matter of the testimony of the witnesses came as an afterthought during trial. Likewise, there was a complete lack of any showing by the defense that a recess would have made the testimony of Connie Raynor or her mother, or Hoffman, available, or even that such persons were then within the jurisdiction of the court. In Missouri, the matter of required procedures in applications for continuances in criminal trials because of the absence of witnesses is meticulously spelled out in Rule 25.08, Rules of Criminal Procedure. While research had not disclosed any decision applying the terms or requirements of Rule 25.08 to a situation where a recess or temporary adjournment because of the absence of evidence has been sought during trial, the court in State v. Odom, supra, at l.c. 183, mentions the absence of certain requirements incorporated in Rule 25.08 (without direct reference to the Rule).

The rationale of this situation was aptly stated in the ancient case of State v. Peters, 258 Mo. 334, 167 S.W. 520, 522[4] (1914). There, the court referred to Section 5204 RSMo 1909, which (when considered together with Section 5203) is quite similar to the present Rule 25.08, and stated:

“ * * * The rule concerning the showing to be made in applying for a continuance or postponement during the progress of the trial should not be less exacting than that applied to continuances before trial. * * * ”

In the final analysis, the matter rests in the sound discretion of the trial court acting in the trial atmosphere. This record discloses no abuse of discretion by the court in denying the recess sought by appellant.

The judgment is affirmed.

All concur.


author: SOMERVILLE, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Larry Nathaniel SMITH, Defendant-Appellant.
    No. KCD 27706.
    Missouri Court of Appeals, Kansas City District.
    March 1, 1976.

      William G. Mays, II, Public Defender, 13th Judicial Circuit, Columbia, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

Defendant, tried on a charge of murder, second degree, was found guilty by a jury of manslaughter. The trial court, in view of the jury’s inability to agree thereon, fixed defendant’s punishment at eight years confinement in Missouri Department of Corrections.

Defendant impugns the legality of his conviction by citing three rulings of the trial court as harbingers of reversible error on appeal: (1) in permitting the state, over objection of defendant that such invaded the province of the jury, to ask and elicit an affirmative answer from one of its witnesses on redirect examination that he had responded truthfully to questions posed to him on direct and cross-examination; (2) in permitting the state to improperly cross-examine the defendant by interrupting him before he had completed answering certain questions asked by the state; and (3) in permitting the state during its closing argument, over objection of defendant, to play selected portions from a taped confession of defendant which had been offered and received in evidence as a part of the state’s case.

A skeletal recital of facts will suffice since defendant does not question the sufficiency of the evidence to sustain his conviction. The jury could have reasonably found as follows: On May 24, 1973, defendant, formerly a student at the University of Missouri, Columbia, was residing in the “Black Culture House” in Columbia, Missouri. During the late morning hours of May 24,1973, Calvin Patterson, an acquaintance of defendant, visited defendant in his room. An argument erupted and Patterson left defendant’s place of residence. While Patterson was in the process of leaving, defendant armed himself with a “single action” .357 magnum revolver and followed Patterson. When defendant reached the top of the front steps of his place of residence, Patterson was in the sidewalk area approximately twenty-three feet in front of and facing defendant. At that point defendant fired one shot at Patterson. Defendant kept advancing toward Patterson and fired a second shot at him. When the second shot was fired by defendant, Patterson had his hands in front of his chest and was still facing defendant. While Patterson was reeling and falling from the impact of the two shots just mentioned, defendant fired three more shots at Patterson. An autopsy of Patterson’s body disclosed six entrance wounds at various locations— chest, face, back, abdomen, leg and hand. One shot accounted for two of the entrance wounds, the one in the hand and one of the five remaining entrance wounds. According to the pathologist, the bullet that entered decedent’s chest pierced his heart causing a fatal wound. A member of the Columbia, Missouri, police department, who was in the near vicinity at the time, heard the shots and immediately proceeded to the scene and arrested defendant. At the time of his arrest, defendant was still in possession of and holding the .357 magnum revolver. The arresting officer removed one live cartridge and five spent cartridges from the .357 magnum revolver. The autopsy revealed the presence of three bullets in decedent’s body. One of the bullets found in decedent’s body during the course of the autopsy was traced as entering decedent’s chest and piercing his heart. A taped confession given by defendant was offered and admitted into evidence as a part of the state’s case. The admission of said confession has not been questioned on appeal.

The three rulings of the trial court which defendant relies on as presaging reversal of his conviction will be seriately reviewed.

First, did the trial court commit reversible error in permitting the state, over objection, to ask and obtain an answer from its own witness that he had testified truthfully on direct and cross-examination? A perusal of the record leading up to the ruling condemned by defendant reveals the following sequence of testimonial events. During the presentation of its ease in chief the state called Dan Healan as a witness. Healan was working in an office next door to defendant’s place of residence at the time in question. While doing so, he heard the first shot fired by defendant. Thereupon, he looked up from his work and had an unobstructed view of defendant and decedent Patterson during the course of some of the ensuing shots fired by defendant at decedent. Needless to say, Healan’s testimony was damaging to defendant. Defense counsel, during his cross-examination of Healan, brought out the fact that Healan had told investigating police officers, and, as well, an investigator from the public defender’s office, that he had not witnessed the shooting. When so confronted on cross-examination, Healan recanted his earlier denials that he had not witnessed the shooting with the explanation that (1) he was afraid to get involved, and (2) the investigator from the public defender’s office had failed to identify himself. Healan, on cross-examination, again affirmed that he had, in fact, been an eyewitness to the shooting and the matters to which he testified on direct examination. The state, on redirect examination of Healan, posed and elicited the question and answer which defendant now faults. The crux of defendant’s argument is that the answer elicited by the objectional question invaded the province of the jury since it permitted witness Healan to pass on the truth vel non of his own testimony given on direct examination. The prosecutor apparently got carried away with his own exuberance in his attempt to rehabilitate witness Healan. Although his mode of doing so is not to be condoned, this court is not unmindful that the exuberances of counsel during trial do not always measure up to the laudable but seldom achieved goal of a perfect trial. Concomitantly, “[o]nly prejudicial error is reversible error.” State v. Mayberry, 272 S.W.2d 236, 240 (Mo. 1954). See also State v. Rohman, 261 S.W.2d 69, 72 (Mo.1953).

Surprisingly, there appears to be a paucity of authority specifically dealing with the type of question which defendant claims the trial court erroneously permitted witness Healan to answer. What little authority exists appears to go in both directions. Defendant, although, citing numerous cases standing for the general proposition that the jury is the sole judge of the credibility of witnesses, cites and principally relies upon Wright v. State, 149 Ala. 28, 43 So. 575 (1907), wherein the Supreme Court of Alabama held that the trial court did not err in sustaining an objection by the state to the following question posed to one of its witnesses by defense counsel on cross-examination, “When you stated that Bob Brown stepped outside of the road . . . you did not tell the truth?” The Supreme Court of Alabama tersely disposed of the matter adversely to the accused by holding that the question was “intolerable”, invaded the province of the jury, and called for a conclusion of the witness. A later Alabama case, Elliott v. State, 48 Ala.App. 515, 266 So.2d 318 (Ala.App.1972), also cited and relied upon by defendant, is not apropos since it involved the propriety of permitting one witness to testify that another witness had lied.

The state cites and principally relies upon 98 C.J.S. Witnesses § 419, State v. McKinney, 475 S.W.2d 51 (Mo.1971), and Grayson v. United States, 107 F.2d 367 (8th Cir. 1939). The following statement is found in 98 C.J.S. Witnesses § 419, pp. 224 — 225: “Where the cross-examination has been such as tends to discredit the witness, a line of reexamination directed toward rehabilitating him is proper. After a cross-examination which tends to show that the witness’ testimony was fabricated, it is proper to ask the witness whether any part of the testimony is not true; and where he has been confronted on cross-examination with a written statement at variance with his testimony on direct examination, he may be questioned on redirect examination as to whether his testimony on direct examination was true.” Grayson v. United States, supra, and Boatwright v. State, 94 Tex. Cr.R. 87, 249 S.W. 1075 (1923), rev’d on rehearing on other grounds, are footnoted as authoritative support for the textual statement. In Grayson a government witness, after being confronted on cross-examination with a prior inconsistent extrajudicial statement, was asked on redirect examination if her testimony on direct examination was true. The witness answered in the affirmative. Counsel for defendant moved to strike the answer. The motion to strike was overruled and the action of the trial court in doing so was assigned as error on appeal. The assignment of error was ruled against defendant on appeal. The court did so by tersely stating that the answer was “competent and relevant.” In Boatwright, one assignment of error centered on the state’s attorney having asked the prosecu-trix in a rape case, on redirect examination, whether any part of her testimony on direct examination had been untrue, and if any part had been to point it out. With reference thereto the court held: “We do not regard this so violative of the limits of proper interrogation as to make the error, predicated thereupon, serious.” The court in Boatwright appears to have said that although it was error to permit such questioning, it was not prejudicial error. A careful reading of State v. McKinney, supra, causes one to wonder why the state cited it as authority to support its position since none of the issues it disposed of are even remotely comparable to the issue posed by defendant.

The above mentioned authorities, both pro and con, may be said to project a common principle when viewed collectively — it is improper to ask a witness to pass on the truth vel non of his own testimony, but whether doing so constitutes reversible error depends on the attendant facts and circumstances of each particular case. As initially pointed out, this court does not condone the type of question put to witness Healan by the state. Such questions have no place in a trial, and when they creep in they defeat attainment of the highly prized but elusive goal of a perfect trial. But an imperfect trial is not per se an unfair trial, and every instance of error is not prejudicial error. The objectional question in this case is immersed in the following facts and circumstances which remove it from the realm of prejudicial error: (1) the existence of substantial evidence apart from witness Healan’s testimony to support defendant’s conviction for manslaughter; (2) MAI-CR 2.01 was read to the jury immediately after it was sworn and before opening statements of counsel were made; and (3) the question was not put to witness Healan until after he was confronted on cross-examination with certain prior inconsistent extrajudicial statements. Finding no prejudicial error associated with defendant’s first assignment of error, the same is overruled.

Defendant next complains: “The trial court erred in allowing the prosecuting attorney to cross-examine the defendant in an improper manner. Specifically, the court erred in allowing the prosecuting attorney to interrupt the defendant while he was testifying in response to questions on cross-examination, but before he could complete his response.” In the opening sentence of the argument portion of his brief he broadly alludes to eight different pages of the transcript to augment his second point. A careful reading of each of the eight pages fails to reveal a single instance of interruption. Even more confusing is the fact that the error leveled by defendant and the argument he ostensibly makes in its support don’t mesh. The cornerstone of his argument appears to be that nine questions to be found in the transcript references were either argumentative or attempts on the part of the prosecutor to “badger” him. Giving defendant the benefit of his argument supplementing his second point, in spite of the patent inconsistency between the point as literally stated and the argument made in its support, this court will review the challenged questions in light of the argument. In doing so, it should be noted that the trial court sustained objections to four of the questions and defendant sought no further relief. Thus, the matter is pared to five questions. The remaining questions will be paraphrased for purposes of discussion.

Question No. 1: Defendant was asked if he shot decedent in the back, while decedent was on his stomach trying to get up or after he turned over. Defense counsel objected on the ground that the question was “argumentative and compound”. Although the trial court overruled the objection, the prosecutor voluntarily rephrased the question and asked defendant when he shot decedent in the back. Defense counsel lodged no objection to the rephrased question. During its case in chief the state introduced evidence that one of the five wounds sustained by decedent entered his body in the area of his back. It is impossible to perceive how defendant can seriously contend on appeal that the rephrased question was argumentative and any error he belatedly attempts to attach to it on that basis is not well taken.

Question No. 2: When asked what decedent was doing with his “hand” when defendant first pulled the .357 magnum revolver from his waist, defendant replied, “Well, you see, it’s, you know, like that [indicating].” The state then asked defendant what decedent did, and in doing so commented, “I don’t know it’s just like that.” Defense counsel objected on the ground that the question and comment were argumentative. The trial court overruled the objection. This court senses no argumentative overtones to either the question or the prosecutor’s comment, however ill-advised the latter may have been. They appear to be nothing more than an effort to elicit a verbal description from defendant as to what decedent was doing with his “hand” in order to clarify the record. Defendant’s vague “indication” was meaningless.

Question No. 3: The prosecutor asked defendant if it was his testimony that decedent was trying to continue an attack upon him with a .357 magnum bullet through his heart and a shattered spinal column. Defense counsel objected on the ground that the question assumed a fact not in evidence, namely, that decedent’s spinal column was shattered. The pathologist who performed the autopsy on decedent testified that one of the bullets had gone through decedent’s heart and then “hit the spine of the spinal column, the bony vertebra.” The pathologist further testified that the bullet was recovered from decedent’s “vertebral column” and that a fragment of the bullet “went through the vertebral column.” With the added reminder that defendant shot decedent with a .357 magnum revolver at fairly close range, this court is at loss to understand how defendant can contend, seriously or otherwise, that the prosecutor unfairly characterized decedent’s spinal column as having been “shattered”.

Questions No. 4 and No. 5: Preliminarily, defendant testified on cross-examination that decedent “might” have said something to the effect, “I am not going to hit you.” A question or two later the prosecutor asked defendant when decedent made the statement. Defense counsel objected on the ground that the question was argumentative. The objection was overruled and defendant in answering the question testified that he didn’t recall the decedent making such a statement. The prosecutor then asked defendant if he hadn’t testified “a minute ago” that decedent “might” have made such a statement. Defense counsel objected to this latter question by charging the prosecutor with “badgering” defendant. The objection was overruled, and defendant answered by saying it was possible that decedent said something to that effect. The trial court apparently sensed an evasive attitude on defendant’s part concerning a highly pertinent area of evidence touching upon defendant’s claim of self defense. The trial court had the benefit of observing the demeanor of defendant; this court merely has the benefit of the printed record which is sterile at best and falls short of projecting the true complexion of defendant’s demeanor. Even so, the record itself bespeaks of defendant’s evasiveness.

It has long been the recognized rule in this state that trial courts are vested with “considerable discretionary latitude in controlling . . . cross-examination.” State v. Graves, 352 Mo. 1102, 182 S.W.2d 46, 53 (1944). See also: State v. Tyson, 363 Mo. 1242, 258 S.W.2d 651, 655 (1953), and State v. Mayberry, 272 S.W.2d 236, 242 (Mo. 1954). Absent a clear showing that they have abused their discretion, appellate courts will not interfere. State v. Tyson, supra, and State v. Mayberry, supra. Defendant’s second assignment of error vis-a-vis the complete factual background in which it reposes has been probed to the hilt. The complained of rulings and the questions to which they relate have been individually and collectively weighed. No abuse of discretion has been found. Defendant's castigation of the trial court because of its alleged failure to keep the prosecutor’s cross-examination of him within appropriate bounds is unwarranted.

Defendant’s final complaint is that the trial court erred in permitting the state to play selected portions from his taped confession (previously offered and admitted into evidence) to the jury during its closing argument. Defendant, absent citation of any supporting authority, contends that the net effect of permitting the state to do so gave it “the advantage of twice introducing and presenting to the jury previously recorded evidence, all to defendant’s prejudice and harm.” Defendant had obviously lost sight of the primary purpose and function of the state’s closing argument in a criminal case — to “marry” the favorable evidence to the offense for which the accused is standing trial and the applicable law laid down in the instructions. The collective experience of this court is not so far removed from the trial arena as to blind it to the fact that one of the most common objections lodged during closing argument is that certain evidence recalled to the jury has been misstated, or is incorrect or nonexistent. Here the prosecutor obviated this common objection by playing back to the jury certain portions of defendant’s taped confession rather than relying on his own memory to verbally summarize those portions he wished to emphasize. Defendant’s argument, if carried to its logical extremity, would result in an absurdity — the state would be precluded from commenting on the evidence in any manner because doing so would be tantamount to a reintroduction of evidence. Thus, the primary purpose and function of closing argument would be rendered a complete nullity. Neither of the parties have cited any cases from this or other jurisdictions directly in point. It would appear to be within the realm of fair comment to say that the apparent nonexistence of any decided case or cases in this jurisdiction precisely touching upon the point is accounted for by the fact that such procedure has never been questioned. Independent research conducted by this court in other jurisdictions, although failing to uncover any case involving the playing of portions of a taped confession during closing argument, has produced cases where the state, during closing argument, read to the jury signed confessions of accuseds which had previously been admitted into evidence. When questioned on appeal, the procedure was invariably approved. See: State v. Murray, 216 N.C. 681, 6 S.E.2d 513, 515 (1940); State v. Harris, 74 Wash. 60, 132 P. 735, 737 (1913), rev’d on other grounds; and State v. Baker, 58 S.C. 111, 36 S.E. 501, 502 (1900), rev’d on other grounds. Playing a taped confession to a jury during closing argument and reading a signed confession are deemed so analogous that the cases just cited are persuasive authority that defendant’s third point is not well taken. It should be pointed out that defendant makes no claim that the playing of his taped confession by the state during closing argument was mechanically awkward or otherwise disruptive of the jury’s deliberative function; nor does he claim that playing selected portions of his taped confession, as opposed to playing it in its entirety, was prejudicial. As noted, his final point rises or falls on the sole claim that playing portions of his taped confession constituted a reintroduction of evidence. Defendant’s final point, ingenious as it may be, is bereft of both logic and case support, and, accordingly, is overruled.

Judgment affirmed.

All concur.

      . So described in the evidence because the hammer had to be manually cocked each time it was fired.

      . Said instruction, in part, admonishes the jury: “It is your duty to determine the facts and to determine them only from the evidence and the reasonable inferences to be drawn from the evidence. In this determination, you alone must decide upon the believability of the witnesses and the weight and value of the evidence.”