author: HAYES, Judge.

text:
    James R. YOCOM, Commissioner of Labor and Custodian of Special Fund, Appellant, v. Willie WEST, Letcher County Board of Education, and Workmen’s Compensation Board, Appellees. LETCHER COUNTY BOARD OF EDUCATION, Appellant, v. James R. YOCOM, Commissioner of Labor and Custodian of Special Fund, Willie West, and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Aug. 24, 1979.
    As Modified Sept. 14, 1979.
    Denis S. Kline, Asst. Counsel, Dept, of Labor, Louisville, Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, for James R. Yocom.
    Richard D. Cooper, Cooper, Gullett, Combs & Holliday, Hazard, for Willie West.
    John D. Hays, Stratton, May & Hays, Pikeville, for Letcher County Bd. of Ed.
   HAYES, Judge.

This is an appeal from a holding of the Letcher Circuit Court affirming an Opinion and Award by the Workmen’s Compensation Board. Both the employer and the Special Fund appeal in separate actions which we have consolidated for the purposes of this opinion.

Willie West, under circumstances which have no bearing on this appeal, injured his back in the performance of his job duties as a custodian for appellant Letcher County Board of Education. The Board found a temporary total disability, to be compensated at the rate of $96.00 per week. It also found a 25% permanent partial disability of which 10%, i. e. ⅜ of the total, was due to a prior active condition, and thus noncom-pensable. The Board apportioned the remaining 15%, ½ to the employer on the basis that 3/io of the total disability was attributable to the job related injury, and ½ to the Special Fund on the basis that Vio of the total disability was due to a pre-existing dormant condition.

The Board applied the Apache v. Fuller, Ky., 541 S.W.2d 933 (1976), minimum to a calculation of West’s usual income according to Transport Motor Express Co. v. Finn, Ky., 574 S.W.2d 277 (1978), raising his award from $13.90 per week to $32.00 per week. The first issue which we will consider on appeal is whether the claimant’s award should be reduced by the proportion of his disability which, but for the Board’s application of Apache, would have been excluded as being due to a prior active condition.

The amount of the award is challenged on three grounds: (1) that the Apache decision is unconstitutional; (2) that Finn, in effect, overrules Apache; and, (3) that because of specific statutory language which takes precedence, Apache is not here wholly applicable.

As to the first contention, we of course decline to review the constitutionality of a decision made by the Supreme Court of Kentucky with, we are sure, full cognizance of constitutional issues.

Similarly, since the majority opinion in Finn, supra, did not suggest that it intended to disturb Apache, we must assume that no such result was intended.

We do, however, hold that the express language of KRS 342.120(4), /. e. that all compensation for a prior disabling disease or condition shall be excluded from the award is controlling in this situation.

We believe that the method by which to honor the mandate of KRS 342.-120(4) and, at the same time, to give Apache the appropriate application, is to begin by raising a claimant’s award to the Apache minimum, and then calculating the appropriate proportionate reduction.

If we begin with the Board’s result, i. e. $32.00 per week, of which $16.00 is owing from the employer and the other $16.00 is payable by the Special Fund, we calculate the exclusion as follows: (Step I.) $16.00 X ⅜ = $6.40; and (Step II.) $16.00-$6.40 = $9.60. Thus the weekly amount owing from each' appellant for appellee’s permanent partial disability is $9.60. West’s total weekly award should then be $19.20.

Appellants point out in their briefs, and appellee’s brief does not seriously dispute, that the temporary total disability award of $96.00 per week was calculated prior to the issuance of Transport Motor Express, Inc. v. Finn, supra. The Board applied the “lost wages” method rather than the formula set out in KRS 342.730. This approach has clearly been discredited by the Finn case, supra.

We therefore remand to the Circuit Court with instructions to remand to the Board for calculation of West’s temporary total disability benefits according to KRS 342.-730, and for calculation of his permanent partial disability benefits according to the instructions set out in this opinion.

HOWARD and GANT, JJ., dissent.


source: Caselaw Access Project

author: CRIST, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. John EWANCHEN, Appellant.
    No. 40102.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 14, 1979.
    Robert C. Babione, Public Defender, Mary Elizabeth Dockery, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Jeffrey A. Cowin, St. Louis, for respondent.
   CRIST, Judge.

Jury conviction of exhibiting a deadly weapon in a rude, angry and threatening manner. Punishment assessed at four years by the court under the Second Offender Act. We affirm.

Defendant says the court erred in ruling on his motion in limine and thereafter admitting evidence of another separate crime. Defendant moved at a pre-trial conference to exclude testimony that he was involved in a hit and run accident just prior to the crime for which he was convicted. The court overruled the motion, but stated it would “rule on the merits of any objection at the time it may occur and [sic] the development of the evidence.”

A recitation of the evidence shows the defendant was involved in a hit and run accident. This evidence was admissible to establish defendant’s intent and state of mind for exhibiting the deadly weapon in a rude, angry and threatening manner.

Officer Rey arrived at 3150 Oregon at 8:11 p. m. in response to a call concerning a man armed with a pistol. Upon arrival, Rey observed the defendant standing on the porch of said premises with a gun in his hand. Rey positioned himself behind a pole and told defendant to drop his gun. Defendant ran from the porch and proceeded into a breezeway located between two buildings. Defendant turned toward Rey, who was only fifteen feet away, at which time Rey told defendant to drop the gun. Instead, defendant pointed it at another police officer who had accompanied Rey. Defendant then re-pointed the gun at Rey. At that time, defendant was tackled from the right by Detective Fredericks.

Fredericks had arrived at the same address at approximately 8:15 p. m. to investigate a hit and run accident involving the defendant. When Fredericks arrived, he noticed defendant standing on the steps of the premises and then running. Thereafter, Fredericks tackled defendant at which time the gun flew' out of defendant’s hand.

The admissibility of evidence pertaining to the hit and run accident is an exception to the general exclusory rule of evidence of other crimes. It was admissible to show why the defendant acted as he did when confronted with the officers. State v. Owen, 457 S.W.2d 799, 803 (Mo.1970).

Additionally, evidence of the hit and run accident was admissible for the reason that defendant did not properly object to its admissibility. When the court ruled adversely to defendant on his motion in li-mine, the court stated that it would “rule on the merits of any objection at the time it may occur and [sic] the development of the evidence.” Thereafter, Fredericks testified without objection that he had arrived to investigate a hit and run accident involving defendant. Defendant’s pre-trial motion in limine did not relieve defendant of his duty to object timely and specifically to allegedly inadmissible evidence as it was received during the trial proceedings, for the reason that the trial court had reserved its ruling to the time of admission of hit and run evidence. State v. Savu, 560 S.W.2d 244, 245 (Mo.App.1976).

Aside from the testimony of Freder-icks concerning the hit and run accident, the only other remark regarding the hit and run accident was made by Rey during cross-examinátion. This remark was not error because defendant elicited this testimony. State v. Myrick, 473 S.W.2d 402, 404 (Mo. 1971).

The judgment is affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: CLEMENS, Senior Judge.

text:
    STATE of Missouri, Respondent, v. Darrell McCAFFERTY, Appellant.
    No. 39548.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 21, 1979.

      Robert C. Babione, Public Defender, James M. Smith and Mary Elizabeth Dock-ery, Asst. Public Defenders, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   CLEMENS, Senior Judge.

A jury found defendant guilty of second degree burglary and the court sentenced him to eight years’ imprisonment as a prior felon.

On appeal defendant acknowledged the sufficiency of the evidence, which we need not relate. His contention is that the trial court erred in failing, sua sponte, to inform him of his right to represent himself at trial. Neither at trial, nor in his motion for new trial, did defendant raise this point.

Just prior to trial defendant “refused” to go to trial with appointed counsel and requested appointment of new counsel. Following an evidentiary hearing, the court denied defense counsel’s motion to withdraw and the case proceeded to trial.

We conclude that in the absence of any request by defendant to represent himself the trial court did not err in failing to inform him of his right to do so.

Defendant relies on the cases of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and Martin v. Wyrick, 568 F.2d 583 (8th Cir. 1978). Neither is in point. Each concerned a defendant who— contrary to our case — before trial specifically requested and was denied the right to represent himself. State v. Burgin, 539 S.W.2d 652, l.c. 653 (Mo.App.1976) and State v. Haddix, 566 S.W.2d 266[11, 12] (Mo.App.1978), although not precisely in point, lend support to the state’s present contention that a defendant’s right of self-representation must be affirmatively asserted in the trial court. In United States v. Bennett, 539 F.2d 45 (10th Cir. 1976) the court held that the right to self representation is one which the defendant “must clearly and unequivocally assert before trial, as the accused did in Faretta, supra.” And, in the recent case of Felts v. Oklahoma, 588 P.2d 572 (Okl.Cr.1978), which is squarely in point, the court ruled: “The implication of these cases (Faretta and Bennett, supra) is strong that if a defendant wishes to proceed pro se it is incumbent upon him to initiate a request therefore and not a duty for the court to advise him of this right.”

We hold the trial court did not err in failing sua sponte to inform the defendant of his right to represent himself at trial.

Judgment affirmed.

REINHARD, P. J., and GUNN and CRIST, JJ., concur.


author: DOWD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Charles UMFLEET, Appellant.
    No. 40097.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 21, 1979.

      John D. Ashcroft, Atty. Gen., Jefferson City, Hugh C. Roberts, Jr., Pros. Atty., St. Francois County, Farmington, for respondent.
    Ronald Pedigo, Public Defender, Farm-ington, for appellant.
   DOWD, Presiding Judge.

A jury convicted Charles Umfleet of selling LSD, a Schedule I controlled substance, to Dennis Becker of the St. Louis Metropolitan Police Department. He was sentenced by the court to twelve years imprisonment pursuant to the Second Offender Act, Section 556.280. Umfleet appeals.

Officer Becker, accompanied by another officer and an informant, contacted Um-fleet in a bar in St. Francois County at 9:30 p. m. on September 15, 1976. The informant asked Umfleet if he had “anything”. Umfleet answered that he did not but that they should return to the bar in one-half hour and he would. At 10:00 p. m. the trio again approached Umfleet. This time Um-fleet told Officer Becker that he could get them all the mescaline they wanted for $2.00 a hit. Becker gave Umfleet $20.00 for ten hits. Umfleet took the cash and walked out onto the bar’s front porch where the officers observed a man named Satterfield handing Umfleet a number of small orange pills. Umfleet returned to the inside of the bar and gave the pills to Becker. Chemical analysis subsequently revealed that the pills contained Lysergic Acid Diethylamide, otherwise known as LSD.

The appellant was charged by information under Sections 195.240 and 195.200 RSMo 1969. At the close of the State’s evidence, the appellant moved for a judgment of acquittal charging that the information incorrectly listed § 195.240 rather than § 195.020. The court overruled the motion as hypertechnical.

While giving expert testimony Richard Chaklos, a chemist for the Drug Enforcement Administration, stated that amounts of LSD anywhere from 15 to 100 micrograms could have an effect on a person’s body. The court overruled the appellant’s objection that the statement was irrelevant.

The appellant relied on an alibi defense, calling his wife, his wife’s cousin Barbara Dixon, and Barbara Dixon’s husband to testify that Charles Umfleet had been visiting the Dixons in Springfield, Missouri at the time of the sale. The State objected to defense counsel’s reference to a statement Barbara Dixon had given to appellant’s former attorney. The court sustained the objection on the grounds that appellant had not produced the statement in response to the State’s motion for discovery. The court also refused to admit a picture of the appellant’s motorcycle on the same grounds.

Since the information charged appellant under the Second Offender Act, the court was to impose sentence on appellant if convicted. During the course of the instruction conference, in response to a motion by the prosecutor, the court instructed the defense counsel not to mention minimum or maximum punishment during his closing argument. The prosecutor commented during his argument that it was not the jury’s responsibility to fix punishment.

The appellant asserts the following points relied on in this appeal: (1) that the evidence was insufficient to support the conviction; (2) that he was denied effective assistance of counsel; (3) that Missouri’s discovery rules are unconstitutional; (4) that Barbara Dixon’s statement and (5) the photograph of appellant’s motorcycle should have been admitted; (6) that the Assistant Prosecutor who tried the case was unqualified; (7) that certain comments the prosecutor made were unfair; (8) that the information was defective; (9) that part of the chemist’s testimony was irrelevant, incompetent, immaterial and without proper foundation; (10) and, that LSD should not be a Schedule I controlled substance.

Appellant contends that the evidence was insufficient to show that he was the seller of the drugs. He argues that he was a mere go-between and that the trial court should have directed a verdict in his favor.

On the night of the sale, the appellant took the money from Officer Becker, went out to the bar’s front porch, got the drugs from Satterfield, returned to the table where Becker sat and gave Becker the drugs. Appellant claims that these facts show that he acted as an agent of the police and was merely a go-between for the police and the actual seller, Satterfield.

In determining the sufficiency of the evidence, the appellate court should only decide whether the evidence was substantial enough to submit the case to the jury. State v. Longmeyer, 566 S.W.2d 496, 499 (Mo.App.1978). The above described facts could reasonably support a jury finding that the appellant was the actual seller of the LSD. The contention is without merit.

Appellant next claims ineffective assistance of counsel. A claim of ineffective assistance of counsel will not normally be considered on direct appeal from a conviction. State v. Hamell, 561 S.W.2d 357, 361 (Mo.App.1977). A hearing under Rule 27.26 VAMR is better suited to determine the relevant facts. State v. Robinson, 551 S.W.2d 309, 312 (Mo.App.1977). This court will, however, consider such a claim as plain error if the record completely discloses the facts necessary for a determination in each instance of alleged ineffectiveness. State v. Evans, 559 S.W.2d 641, 642 (Mo.App.1977).

Here the appellant alleges that his counsel was ineffective in failing to preserve a record or make an offer of proof of Barbara Dixon’s statement, in failing to raise certain points in his motion for a new trial and in failing to be adequately prepared for trial. Insufficient facts appear in the transcript to determine that these alleged failures actually constituted ineffective assistance of counsel. Since there is no complete disclosure of the relevant facts in the transcript, point two is ruled against appellant.

The third assignment of error which the appellant raises challenges Missouri’s discovery rules as unconstitutional. He asserts that defendants are required to release detailed statements made by alibi witnesses while the State is not required to disclose the names of persons it intends to call to rebut alibi witnesses. This, he claims, violates his right to due process of the law.

Appellant’s contention apparently results from an incorrect reading of the law. The Missouri Supreme Court has specifically held in State v. Curtis, 544 S.W.2d 580, 582 (Mo.banc 1976) that due process requires the State to reveal its alibi rebuttal witnesses when the defendant has indicated an intention to call alibi witnesses and has revealed their identities to the State. Point three is ruled against the appellant.

The fourth issue appellant raises concerns the exclusion of Barbara Dixon’s statement for failing to disclose its existence in discovery. He claims that the statement was admissible to controvert an attack on Mrs. Dixon’s credibility made by the prosecutor during cross-examination.

This point was not included in appellant’s motion for a new trial and so cannot be considered in this appeal. State v. Flynn, 541 S.W.2d 344, 348 (Mo.App.1976). It can be considered on review under the plain error doctrine of Rule 27.20 VAMR, but only if the criticized action resulted in manifest injustice or a miscarriage of justice.

We do not believe the court’s exclusion of this statement resulted in manifest injustice or a miscarriage of justice. The appellant failed to comply with Rules 25.-34(A)(2) and 25.37 VAMR which required him to produce the statement when requested to do so. Exclusion of the statement was a proper remedy for that failure under Rule 25.45 VAMR.

The reasoning used in deciding appellant’s fifth point is identical to that used in the fourth. Here the court excluded a photograph of appellant’s motorcycle for failing to supply it in response to the State’s request. Appellant claims that the photograph was admissible to rebut the State’s evidence as to the motorcycle’s make and color.

Since appellant failed to comply with Rules 25.34(A)(3) and 25.37 VAMR, exclusion again was proper under Rule 25.45 VAMR. Points four and five are ruled against the appellant.

In his sixth point, appellant challenges the qualifications of the assistant prosecuting attorney who tried this case. He charged that the assistant prosecutor had only been a resident of St. Francois County for a few days and not for the twelve months he alleges is required. This, the appellant asserts, deprived the court of proper jurisdiction. We disagree. A similar contention was rejected in State v. King, 379 S.W.2d 522 (Mo.1964). In State v. King, supra, the court held that a quo warranto proceeding, as set out in § 531 VAMS, is the proper method for challenging a public officer who usurps, unlawfully holds or unlawfully executes any office. This court will not attempt to determine a prosecutor’s qualification in a direct appeal. Point six is ruled against the appellant.

In his seventh point appellant complains that the prosecutor was allowed to comment to the jury during argument that it was not the jury’s duty to fix punishment while the defense counsel was prevented from mentioning minimum or maximum punishment in his argument. Appellant claims that this was unfair because it imposed restrictions on him which were not imposed upon the prosecution.

Defense counsel failed to object to the prosecutor’s comment about fixing punishment at the time it was made. A comment which was not objected to during argument cannot be reviewed unless it was so offensive and prejudicial that the court should have halted the argument sua sponte. State v. Goodwin, 352 S.W.2d 614, 620 (Mo. banc 1962). Such comments may be considered as plain error if they result in manifest injustice or miscarriage of justice. (Rule 27.20 VAMR). It will be unusual, however, for a court to find that a prosecutor’s comments even satisfy the threshold plain error requirement that substantial rights of the defendant were affected. State v. Brown, 528 S.W.2d 503, 505 (Mo.App.1975).

The appellant has failed to show how the prosecutor’s comment was either offensive or prejudicial. Neither has he demonstrated that substantial rights of the appellant were affected. Accordingly, point seven is ruled against appellant.

In his eighth point, appellant alleges that the court erred in overruling his objection to the information. He contends that the court lacked jurisdiction since the information’s caption listed the statute which prohibits the sale of Schedule III, IV and V controlled substances rather than the statute barring the sale of any controlled substance.

The information charged that appellant sold to Dennis Becker “a controlled substance, to wit: Lysergic Acid Diethylamide, a substance listed as a controlled substance by the Missouri Division of Health as a Schedule I controlled substance.” The information’s caption listed the applicable statutes as RSMo 1969, § 195.240 and § 195.200. While § 195.200 was the correct penalty section, in that it deals with penalties for violating provisions pertaining to Schedule I and II substances, § 195.240 was the incorrect conduct section since it deals with the possession, sale or distribution of Schedule III, IV, or V substances. The caption should have listed § 195.020 which, among other things, prohibits the sale of any controlled substance.

Rule 24.01 VAMR requires an information to list the Revised Missouri Statutes proscribing the conduct charged. By listing the wrong statute, the appellant claims that the court lacked proper jurisdiction. We disagree. In State v. Healey, 562 S.W.2d 118, 129-130 (Mo.App.1978), the court stated:

“The rules for judging the sufficiency of an information or indictment are that it must state essential facts constituting the offense charged and must adequately notify a defendant of the charge against him and constitute a bar to further prosecution for the same offense.”

In addition, Rule 24.11 VAMR states that no information should be held invalid which does not prejudice the defendant’s substantial rights as long as it fully informs him of the offense charged.

Here, although the caption did indicate that appellant was being charged with selling a Schedule III, IV or V controlled substance, there could have been no doubt as to what offense was charged. The body of the information plainly charged him with selling Lysergic Acid Diethylamide, a Schedule I controlled substance. Also, the penalty section which appeared in the caption was the penalty section pertaining to Schedule I and II controlled substances.

This court has held that when the information fails to state the schedule the particular substance belongs, the information will not be fatally defective if the substance is identified and the name of the substance appears in only one schedule. Merrill v. State, 576 S.W.2d 561, 462 (Mo.App.1978). The information in the present case clearly identified which substance appellant was being charged with selling and the schedule it belonged. The caption correctly listed the applicable penalty section for selling Schedule I substances. The information, therefor, notified the appellant of the charged offense and constituted a bar to further prosecution for that offense. Point eight is ruled against appellant.

Appellant, in his ninth point, complains that the court erred in allowing the chemist who testified for the State to give an opinion as to the amount of LSD which would be required to have an effect on the human body. He claims that this opinion was incompetent, irrelevant, immaterial and not based on proper foundation.

The State called Richard Chaklos, a forensic chemist for the Drug Enforcement Administration, to testify as to the chemical composition of the substance the appellant sold to Officer Becker. The direct examination of the chemist was as follows:

“Q. Now, did you form an opinion as to what the compound was?
A. Yes, I did.
Q. What was your opinion?
A. I found that the nine whole and the partial tabs contained 30.8 micrograms of Lysergic Acid Diethlamide [sic], commonly known as LSD, per tab.
Q. 30.8?
A. Micrograms.
Q. Micrograms. What does Lysergic Acid Diethlamide [sic], or LSD, what kind of substance is it?
A. It’s a hallucinogen.
Q. When you say ‘hallucinogen’ what do you mean by hallucinogen?
A. A compound who has — its effect, or one of its effects upon a body of causing perhaps disorientation, fantasies, something of that type.
Q. Do you know how much LSD it takes before it has an effect on a body?
Defense Attorney: Now, Judge, I’ll object to that as being irrelevant.
The Court: Overruled.
The Witness: The question again, please?
Prosecutor: Q. Do you know how much LSD, Lysergic Acid Diethlam-ide [sic] a hallucinogen, it takes before it has an effect on a person’s body?
A. Well, there is some biological variations. I would say, in my opinion, anywhere from fifteen micrograms to one hundred micrograms.”

An appellant waives his right to have testimony excluded from evidence when he fails to object to prior testimony of the same tenor when it is first given. Marshall v. Bobbitt, 482 S.W.2d 439, 444 (Mo.1972). State v. Patterson, 516 S.W.2d 571, 574 (Mo.App.1974). This case is analogous to Marshall, supra, in which a Highway Patrol Trooper testified extensively about skid marks, referring to a blackboard copy of a chart he had prepared in his investigation which showed the skid marks leading up to the decedent-defendant’s vehicle. An objection was made, however, when the Trooper gave his opinion that the skid marks were caused by the defendant’s vehicle. The court held that since he had failed to object to the prior testimony of the same tenor he had waived his right to have it excluded when he did object.

In the present case, when the appellant failed to object to the chemist’s testimony as to the effects of LSD on the human body, he waived his right to have subsequent testimony of the same tenor excluded. Therefore appellant waived the right to exclude testimony as to amounts of LSD needed to produce the effects described in the prior answer. Point nine is ruled against the appellant.

In his tenth point, appellant requests this court to take judicial notice that LSD has accepted medical uses and thus should not be classified as a Schedule I controlled substance.

Appellant cites no authority in support of this fact but merely states that it is true and is a matter of common knowledge. This court is not required to take judicial notice of factual matters. Schilling v. Bi-State Development Agency, 414 S.W.2d 818, 826 (Mo.App.1967). We are not prepared to do so here. Point ten is ruled against appellant.

Finding no reversible error in this record, the judgment is affirmed.

SATZ, J., and ALDEN A. STOCKARD, Special Judge, concur.

      . The record does not disclose the contents of the statement.


text:
    STATE of Missouri, Respondent, v. Clayton WILLIAMS, Appellant.
    No. 40172.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 21, 1979.
    Lang & O’Keefe, Karl F. Lang, Kevin M. O’Keefe, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, George R. Westfall, Pros. Atty., Clayton, for respondent.
   CRIST, Judge.

Jury convictions of robbery first degree and armed criminal action. The court sentenced defendant to concurrent terms of twenty years and five years, respectively, under the Second Offender Act. We affirm.

Louis Black finished his work as a custodian at Mercantile Trust Company at 11:50 p. m. on June 21, 1977, and drove to a chicken restaurant on Grand Avenue in St. Louis, Missouri. After obtaining food, he returned to his white 1975 Buick LeSabre automobile. He was approached by three men; two of them displayed hand guns. Black’s assailants ordered him into his car with them and directed him to drive to the corner of Grand and Kossuth, where they took his wallet, containing various personal papers, a Sears charge card and $46.00.

After taking his wallet, the men ordered him out of his car and drove it away. Black never saw his car again, but did identify various papers and the Sears charge card offered into evidence by the state as being items which had been in his wallet when it was stolen.

Black testified on direct examination that on two occasions St. Louis Police Officers showed him photographs of individuals in an attempt to establish the identity of three assailants. During the second display, conducted at his home, Black identified one of the photographs to be a picture of one of the assailants that sat in the back seat of the automobile.

Black was then asked if any of the assailants were in the courtroom. He said no one in the courtroom resembled any of the assailants. Defendant was present in the courtroom.

St. Louis Police Officer William McNabb thereafter stated on direct examination that on two occasions, he showed Black several photographs in an attempt to determine the identity of the assailants. He said the photographic display conducted at Black’s home contained five photographs; one of those photographs was a picture of defendant.

McNabb was not asked, and did not state, whether Black identified one of those photographs as a photograph of defendant.

Defendant argues that McNabb’s testimony was an attempt to bolster Black’s identification testimony, constituting reversible error pursuant to State v. Degraffenreid, 477 S.W.2d 57 (Mo. banc 1972). A proper objection was not offered when McNabb testified, and it was not raised in the motion for new trial. Defendant asks for review under “plain error” Rule 27.-20(c).

Degraffenreid held that: (1) a police officer may not testify that a witness has made an extrajudicial identification of a defendant; (2) the challenged testimony must be hearsay that tends to buttress the identification testimony of the first witness; and (3) reversal is justified only if the error is prejudicial.

Contrasting the instant case, Officer McNabb did not bolster Black’s testimony or testify that Black made an extrajudicial identification of defendant. McNabb testified about the circumstances surrounding the photographic display; he said there were five photographs, one of which was a photograph of defendant. Had McNabb further stated that Black identified the defendant as one of his assailants from the photographs then there might have been a Degraffenreid violation by a police officer’s testimony bolstering the identification testimony of a prior witness. Cf.: State v. Atkins, 545 S.W.2d 656 (Mo.App.1976) and State v. Carter, 557 S.W.2d 47 (Mo.App.1977).

Having found no prejudicial error under Degraffenreid, we also rule that the “plain error” doctrine does not protect the alleged error. See, State v. Johnson, 536 S.W.2d 851 (Mo.App.1976) and State v. Simmons, 500 S.W.2d 325, 329 (Mo.App.1973).

The judgment is affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: JAMES D. CLEMENS, Senior'Judge.

text:
    STATE of Missouri, Respondent, v. Arnold DOBSON, Appellant.
    No. 40598.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 21, 1979.
    Robert C. Babione, Public Defender, Terry Burnet and Mary Kay Wefelmeyer, Asst. Public Defenders, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   JAMES D. CLEMENS, Senior'Judge.

Defendant Arnold Dobson has appealed a judgment sentencing him to two years in prison, rendered pursuant to a jury verdict finding him guilty of manslaughter. Defendant claimed self defense.

On appeal defendant contends the trial court erred by admitting his incriminating statement to the police, and by permitting the display of photographs showing injuries inflicted on the victim.

The evidence: Police found defendant in the victim’s ransacked apartment. The victim’s bloody body, clad only in a T-shirt, showed knife wounds to his face, chest, abdomen and back; a heavy metal ash tray had penetrated his skull; a long, bloody knife lay on the floor. Defendant’s hands were bloody but they had not been injured. Police arrested defendant and “gave him his constitutional rights.” At first defendant stated four men had broken into the apartment and a fight ensued in which the victim was killed. Minutes later defendant withdrew his first statement and then related — as he later substantially testified at trial — that the victim enticed defendant to his apartment and then, under the victim’s promise of further gifts, as well as threats, defendant at first agreed to let the victim perform an act of rectal intercourse; that later when defendant refused, the victim threatened “do it or else,” and came at him with a knife; they struggled and when the victim dropped the knife defendant grabbed it and repeatedly stabbed him, and when he showed signs of life defendant struck him with the heavy metal ashtray.

Defendant’s first point contends there was no proper foundation for admitting the statement he had given the police since it lacked proper evidence of warning. Officer McDonagh testified he and Sergeant Wilson interrogated defendant after Sergeant Wilson had “given defendant his rights.” Sergeant Wilson did not testify, and defendant now contends McDonagh’s statement that he heard Wilson “give defendant his rights” was inadmissible as hearsay. Defendant misconceives the hearsay rule. Officer McDonagh’s statement that Sergeant Wilson had warned defendant was direct, not hearsay evidence. Thus, since Officer McDonagh’s statement about what Sergeant Wilson told defendant was not offered to prove the inherent truth of Sergeant Wilson’s statement but rather to show that Sergeant Wilson had in fact warned defendant. Compare State v. Hale, 371 S.W.2d 249 [7, 8] (Mo.1963) and State v. Herington, 520 S.W.2d 697 [2, 3] (Mo.App.1975). We deny defendant’s first point.

Defendant’s remaining point relied on concerns photographs. He contends the trial court erred in permitting the state during closing argument to display photographs depicting the site of the killing and the wounds defendant inflicted on the victim. Defendant now argues that since he raised no issue at trial concerning the victim’s identity or cause of death, “this gruesome display of the victim’s bodily injuries was highly prejudicial” and denied him a fair trial.

We have examined the challenged pictures. Four primarily show the victim’s apartment in bloody disarray; two show the victim in a prone position at the apartment, revealing bloody injuries to the back of his head; two more, taken at the morgue, show injuries to each side of the victim’s head.

As noted, defendant does not challenge the evidentiary relevance of the photographs. He relies on State v. Porter, 276 Mo. 387, 207 S.W. 774 [4, 5] (Mo.1918), which criticized the evidentiary admission of bloody clothing since there it did not “throw any relevant light upon a material matter at issue.” Porter, however, stated that the issue is one for initial exercise of the trial court’s discretion, and reversed on other grounds. In contrast, here the defendant’s claim of self defense was a material issue and light was shed thereon by comparing the severity of the victim’s wounds in contrast to the defendant’s freedom from injury. Porter is not controlling here.

In our review of this point we bear in mind the trial court’s broad discretion in allowing or rejecting jury argument. State v. Wright, 515 S.W.2d 421 [8] (Mo. banc 1974). And, absent a showing of evidentia-ry inadmissibility, it is presumed the evidence was properly before the jury and the prosecutor’s use of that evidence for “arguing and proving the state’s case would be proper.” Jackson v. State, 465 S.W.2d 642 [7-9] (Mo.1971).

State v. Jackson, 499 S.W.2d 467 [5-8] (Mo.1973) was a murder case where defendant challenged the admission of a morgue photograph showing the victim’s mangled body. The court upheld admission because, among other reasons, it “corroborates the oral testimony of the state [and] refutes defense testimony.” Here, the challenged photographs did corroborate the state’s oral testimony of injuries the defendant had inflicted, and in view of his not being injured tended to refute his claim of self defense. We find no error.

Judgment affirmed.

REINHARD, P. J., and GUNN and CRIST, JJ., concur.


author: JAMES D. CLEMENS, Senior Judge.

text:
    Henry Darrell JOHNSON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 40626.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 21, 1979.
    Stuart A. Cofman, Cofman, Townsley, Nissenholtz & Weinstein, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George Peach, Circuit Atty., St. Louis, for respondent.
   JAMES D. CLEMENS, Senior Judge.

Movant Henry D. Johnson (hereafter “defendant”) has appealed denial of his Rule 27.26 motion. He had been convicted of armed robbery and sentenced to twenty-five years in prison as a second offender. That conviction was affirmed on direct appeal. State v. Johnson, 536 S.W.2d 851 (Mo.App.1976).

In the initial case the robbery victim positively identified defendant. Defense was alibi: His grandmother testified he had moved from St. Louis two weeks before the robbery, and his aunt testified he had lived with her in Chicago for three months thereafter. The guilty verdict refuted the alibi defense.

Defendant now contends his trial counsel was ineffective by failing to subpoena two other alibi witnesses who lived in Chicago. The trial court found defense counsel had interviewed them in St. Louis two days before trial and they had assured him they would be present but they failed to appear. The court found it significant that defendant made no effort to call these other alibi witnesses to testify at the evi-dentiary hearing. In Davis v. State, 552 S.W.2d 68 [1] (Mo.App.1979), we held that the defendant thereby failed to meet his burden of showing the degree of prejudice allegedly caused by counsel’s failure to call an alleged alibi witness. So it is here.

We adopt the trial court’s finding that the trial transcript reflects trial counsel’s “competency rather than incompetency” and deny defendant’s first point.

Defendant’s initial point further charges that trial counsel was ineffective in failing to subpoena “records crucial to mov-ant’s defense.” This abstract point fails to comply with Rule 84.04(d) and preserves nothing for review. Looking to defendant’s argument, we find the point concerns penitentiary records showing possible contradiction on a collateral matter; it does not rise to the level of plain error. Defendant further contends the court erred by failing to make a finding of fact on this point. To the contrary, in denying ineffective assistance of counsel, the court found information of the alleged penitentiary records came to trial counsel’s attention during trial — too late for trial use.

By defendant’s second point he challenges a statement in the court’s findings referring to the now outmoded standard of “a farce and mockery of justice.” But the court went further and found that “the efforts of counsel for defendant were substantial and competent,” and concluded “the record reflects that defendant received a fair trial which is the ultimate question for determination where defendant seeks to receive a new trial based on asserted ineffective assistance of counsel.” We deny defendant’s second point.

The record as a whole does not show the court was clearly erroneous in denying defendant’s motion.

Judgment affirmed.

REINHARD, P. J., and GUNN and CRIST, JJ., concur.


text:
    Robert Francis GOMILLIA, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 40535.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 28, 1979.

      William J. Shaw, Public Defender, Patrick M. Sanders, Asst. Public Defender, Clayton, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George R. Westfall, Pros. Atty., A. Frances Carpini, Asst. Pros. Atty., Clayton, for respondent.
   CRIST, Judge.

Rule 27.26 motion.

Movant was previously convicted of first degree robbery with a dangerous and deadly weapon and assault with intent to kill with malice aforethought. State v. Gomillia, 529 S.W.2d 892 (Mo.App.1975). He filed in the court below this Rule 27.26 motion. After an evidentiary hearing, the court below denied the motion. Defendant appeals. We affirm.

Movant alleged in his motion, inter alia, that: (1) he was denied fair notice of the charge in that the state was allowed to amend the robbery information; and (2) he was denied due process in that he was not re-arraigned on the amended information. The court below incorrectly stated in its “Findings and Conclusions” that these claims were previously ruled upon in State v. Gomillia, supra. In its “Conclusions of Law” the court below ruled, “Many of petitioner’s points were raised on appeal or could have been raised then and not by a 27.26 motion. Defendant’s constitutional rights have not been infringed in any respect.” Movant contends the erroneous “Findings and Conclusions” warrant reversal, citing Lindner v. State, 552 S.W.2d 70 (Mo.App.1977). We disagree.

The state, before the beginning of the jury trial, and without objection, amended the information by deleting “on Fina Service Station” and substituting “Town and Country Tire Center, Inc.” There is nothing in the original jury trial transcript to show any prejudice to movant by such substitution. The error of the court below was a mere technicality. It would be a disservice to all parties for us to reverse and remand to the trial court to correct a meaningless error. Turner v. State, 559 S.W.2d 555, 556 (Mo.App.1977).

Movant also contends the court below erred in finding that his trial counsel was adequate. The court below heard testimony from movant and from his trial counsel. The court chose not to believe movant. The judgment of the trial court on this point is based on findings of fact which are not clearly erroneous. An extended opinion would have no precedential value. We rule this point against movant in accordance with Rule 84.16(b).

Judgment affirmed.

REINHARD, P. J., and GUNN, J., concur.


author: HOGAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Louis V. MONTJOY, Defendant-Appellant.
    No. 10844.
    Missouri Court of Appeals, Southern District, Division Three.
    Sept. 10, 1979.
    Motion for Rehearing or Transfer Denied Sept. 24, 1979.

      Stephen L. Taylor, Sikeston, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   HOGAN, Judge.

A jury has found Louis Montjoy guilty of robbery in the first degree, as defined and denounced by § 560.120, RSMo 1969, V.A. M.S., now repealed. His punishment has been assessed at imprisonment for a term of 10 years. He appeals.

The State made proof of the constitutive elements of the crime by one Delores Cook, manager of the E-Z Food Mart (the store) in Sikeston, Missouri. Just before the robbery was committed, Mrs. Cook had made a purchase and had counted the money in her purse. There was “approximately” $129 in her wallet, which was in her purse.

Shortly thereafter, three young men entered the store. All wore hats and stocking masks; one was armed. Two of the men were shorter than Mrs. Cook; the other was “about the same height” as she. The robbers “motioned” Mrs. Cook behind one of the sales counters, and asked her to open the [cash] drawer. Being told that the cash drawer was already open, the armed man “touched” Mrs. Cook with his weapon and asked her to “raise the [cash] drawer.” Some argument between Mrs. Cook and the robbers followed, one of the men “drew back to hit [her],” asserting “he didn’t want to hurt [Mrs. Cook],” and the robbers decided to put Mrs. Cook and another employee in a walk-in cooler at the rear of the store while they looked for something worth taking. One of the men opened the cooler so Mrs. Cook and her companion could enter. The cooler had glass doors, and Mrs. Cook “could see the front of the store from the inside.” Presently the men left. Mrs. Cook and her companion “came out of the cooler, walked up front and called the police . .” Mrs. Cook looked for her purse and found it lying on the floor behind the counter where she had left it. Her wallet was gone. Mrs. Cook was asked on cross-examination if she was “in fear when these [men] came in.” Her reply was that she had tried to be brave, but had indeed been put in fear, and was “afraid it showed.”

The defendant’s criminal agency was established by physical evidence and by the testimony of an abettor. A handprint was lifted from the metal latch by which the cooler door was opened. This print was compared with defendant’s handprint and “somewhere in excess of twenty” points of similarity were found. The expert who compared the handprints was unable to say how long the defendant’s handprint had been on the handle of the cooler, but the evidence was such that the jury could have inferred that it was fresh and undisturbed when it was lifted.

The abettor, one Curtis Dale Ivy, testified that he, the defendant and three other young men drove to the E — Z Food Mart during the early evening of August 27, 1976. Ivy, the defendant and another young man “had [stocking masks] on,” “was [sic] carrying a gun” and “got the money and left out." Ivy described the weapon as “a shotgun,” but was unable to recall which of the participants had carried it. After the money was taken, according to Ivy, “we put the ladies in the freezer and left out.” The defendant’s defense — to which he testified — was alibi. The jury chose to disbelieve the defendant and his witnesses.

The defendant’s first point is that he was denied a trial by a jury selected from a fair cross section of the community, as guaranteed by the Sixth Amendment. There is no doubt that such right inheres in the Sixth Amendment, Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), nor is there any question that the “fair cross section” requirement is applicable to the states, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), but defendant mistakes the nature of the right he claims was violated. The fair cross section requirement is not directed to the composition of a particular array or poll, Swain v. Alabama, 380 U.S. 202, 208, 85 S.Ct. 824, 829, 13 L.Ed.2d 759, 766 (1965); it is directed to the method of selecting potential jurors from the members of the community. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 668 and n. 20, 58 L.Ed.2d 579, 586-587 and n. 20 (1979). In Duren, the court held that a criminal defendant claiming violation of the fair cross section principle has the burden to prove: (1) that the group allegedly excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Duren, supra, 439 U.S. at 364, 99 S.Ct. at 668, 58 L.Ed.2d at 586-587. The difficulty with defendant’s argument is that the record before us reflects no effort to establish systematic exclusion of any “distinctive” group in the jury-selection process.

We grant it is fairly inferable that the defendant is a black man; his challenge to the array was timely and no proof is required to establish that blacks are a “distinctive” segment of the community. State v. Carter, 572 S.W.2d 430, 433 (Mo.banc 1978). There were, however, a number of black citizens on the panel from which the poll was selected, and apart from senior counsel’s bare assertions, the record itself does not show how many blacks were summoned for jury duty nor lend any support to the suggestion that the black members of the array were mere token talesmen. Senior counsel declined a timely and reasonable offer to make proof of systematic exclusion of blacks from the venires summoned in Scott County, electing instead to point only to the racial composition of a single venire and petit jury.

On appeal, counsel has sought to improve the record by asking us to take notice of census data showing that 8 percent of the population of Scott County is black. While we agree we may notice census data, Moulder v. Webb, 527 S.W.2d 417, 419[4] (Mo.App.1975), such data scarcely amounts to proof that blacks are systematically excluded from the venires summoned in Scott County. Defendant’s failure to prove such systematic exclusion is fatal to his claim that his Sixth Amendment rights were infringed. State v. Mooring, 445 S.W.2d 303, 305 (Mo.1969); Wallace v. State, 556 S.W.2d 471, 472[3] (Mo.App.1977).

A further assertion of error is that the court erred in permitting Curtis Ivy, defendant’s abettor, and one Joe Lee Hatchett, to testify because their testimony was given “under duress and threats made by the State and in abrogation” of their privilege against self-incrimination. This claim of error is not supported by the record, but if it were, such error would furnish no basis for complaint by the defendant. State v. Phillips, 511 S.W.2d 841, 845[11,12] (Mo.1974), and see United States v. Howell, 470 F.2d 1064, 1067 (9th Cir. 1972).

The other two assignments of error are so wholly devoid of any merit that they require no discussion. We find no prejudicial error in any respect briefed or argued here, and accordingly the judgment is affirmed.

All concur.

      . It is not clear from the record whether the weapon was a length of metal pipe or a short sawed-off shotgun. The handle was wrapped with electrical tape, and Mrs. Cook thought it was “a gun.” It is wholly immaterial in this case whether the weapon was a shotgun or a length of pipe. See: State v. Treadway, 558 S.W.2d 646, 652[13] (Mo. banc 1977), cert. denied 439 U.S. 838, 99 S.Ct. 124, 58 L.Ed.2d 135 (1978).


author: DOWD, Judge.

text:
    STATE of Missouri, Respondent, v. James Fowler GRAHAM, Appellant.
    No. 40492.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 11, 1979.

      John D. Connaghan, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., James S. Cook, Asst. Circuit Atty., St. Louis, for respondent.
   DOWD, Judge.

James Fowler Graham was tried before a jury and found guilty of burglary in the second degree and stealing. He was sentenced by the Circuit Court of St. Louis County to serve a term of five years for second degree burglary with a consecutive two year term for stealing.

At approximately 1:00 a. m. on July 30, 1977, Mr. Gerald Potthoff noticed an unfamiliar automobile in the driveway of his vacationing neighbor’s house. The police were called but arrived after the car had left. Mr. Potthoff gave a description of the car which was then broadcast over the police radio. The responding officer then observed that the house had been broken into. At about 1:15 a. m., another officer, in response to the radio broadcast, stopped a car that matched that description. The automobile was driven by the appellant and was stopped just several blocks away from Mr. Potthoff’s house. The appellant stated he was in the area because he was lost. Mr. Potthoff was then driven to the location where the appellant had been detained and identified the car as the one he had seen parked in his neighbor’s driveway.

The appellant was then arrested. The arresting officer attempted to look into the trunk of the car but was told by both the appellant and the passenger-owner of the car that they did not have a trunk key. The arresting officer did notice a black and yellow-handled screwdriver in the back of the vehicle. The automobile was then towed to the police station.

At about 10:00 a. m. that morning, the trunk of the car was pried open by Officer Jerome O’Keefe. He had not obtained a warrant to search the trunk. Appellant states that the police requested a search warrant but the St. Louis County Prosecuting Attorney’s office advised them it was not necessary. Inside the trunk was a stereo system similar to one reported missing from the burglarized house. At trial an occupant of the house identified the stereo as her own.

The appellant was found guilty by a jury of burglary in the second degree and stealing. He claims the trial court erred in overruling his motion to suppress evidence and in admitting into evidence the items found in the warrantless search of the trunk of the automobile at the police station.

Before considering the facts of this particular case, several principles must be noted. First, on appeal, this court is required to view the evidence in the light most favorable to the state and in conformity with the verdict. State v. Wiley, 522 S.W.2d 281, 292 (Mo. banc 1975); State v. Wilborn, 525 S.W.2d 87, 90 (Mo.App.1975). Secondly, according to the Fourth Amendment to the United States Constitution all searches and seizures are not condemned, but only those that are unreasonable. Carroll v. U. S., 267 U.S. 132, 147, 45 S.Ct. 280, 69 L.Ed. 543 (1925). If evidence is obtained in violation of the Fourth Amendment, it is inadmissible in a state criminal trial. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); U.S.Const., Amend XIV.

Furthermore, whether or not the police could have procured a warrant does not enter into the analysis. The only test is whether the search was reasonable and not whether it would have been reasonable to obtain a warrant. U. S. v. Rabinowitz, 339 U.S. 56, 66, 70 S.Ct. 430, 94 L.Ed. 653 (1950). In addition, the U.S. Supreme Court has held that the validity of warrantless searches must be determined on the “concrete factual context” of each case. Sibron v. State of New York, 392 U.S. 40, 59, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

In interpreting the Fourth Amendment prohibition against unreasonable searches, courts have drawn a distinction between the search of an automobile and the search of a residence. Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. U. S., supra, 267 U.S. at 153, 45 S.Ct. 280. This distinction is based on the rationale that the driver of an automobile does not expect the same degree of privacy that he expects in his home. Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974).

Where a search has been made without a warrant, the state has the burden of showing that their acts come within an exception to the warrant rule and are therefore, not unreasonable. The pertinent exception here is the “automobile exception". Carroll v. U. S., supra, 267 U.S. at 149, 45 S.Ct. 280; State v. Witherspoon, 460 S.W.2d 281, 284 (Mo.1970). This requires a finding of probable cause to search the automobile. Probable cause is present when the searching police officer has specific knowledge of certain facts and circumstances which would reasonably justify his belief that the automobile contains the fruits of a crime. Carroll v. U. S., supra, 267 U.S. at 167, 45 S.Ct. 280; Chambers v. Maroney, supra, 399 U.S. at 48, 90 S.Ct. 1975; Almeida-Sanchez v. U. S., 413 U.S. 266, 281, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973).

When the automobile is removed from the scene and taken to the police station and then searched, the state must shoulder the additional burden of justifying the seizure. The United States Supreme Court held in Chambers v. Maroney, supra, 399 U.S. at 53, 90 S.Ct. 1975, that if the police had probable cause to search the automobile at the scene, the probable cause is still obtained at the station if the seizure of the automobile was reasonable. A seizure is considered reasonable if the circumstances show that an immediate search at the scene would be impractical or unsafe. Chambers v. Maroney, supra at 52, n. 10, 90 S.Ct. 1975. The United States Supreme Court has also recognized that the police have the authority to remove an automobile from the street when public safety is threatened. South Dakota v. Opperman, 428 U.S. 364, 369, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

Turning to the facts of this case, the action of the police satisfy both requirements of Chambers v. Maroney, supra, and therefore validate the warrantless search. A burglary had been discovered; appellant’s car matched the description of the car seen by witnesses at the burglarized home; a witness identified appellant’s car as the car seen at the burglarized home; appellant’s car was spotted approximately two blocks away from the scene of the burglary; the arresting officer saw a tool commonly used in burglaries in the car; and, the time span for all of this activity was short. Under these circumstances, the police had probable cause to search appellant’s car.

The police also made a reasonable seizure of the automobile after appellant’s arrest. The auto was parked on the side of the road and it was dark. The seizure was to facilitate a safe and thorough search of the car. The fact that no trunk keys were available to open the trunk necessitated the removal of the auto to the station so that an adequate search of the trunk could be conducted.

The facts of this case demonstrate that the police had probable cause to search the auto at the scene. It was no Fourth Amendment violation to search the auto at the station because the seizure was reasonable and therefore, the probable cause to search was still obtained at the station. Chambers v. Maroney, supra. The actions of the police in this case conform to the Fourth Amendment standard of reasonableness, Cady v. Dombrowski, supra, 413 U.S. at 439, 93 S.Ct. 2523, 37 L.Ed.2d 706; Carroll v. U. S., supra, 267 U.S. at 147, 45 S.Ct. 280. The search, and the admission into evidence of the fruits of that search, were proper.

Affirmed.

REINHARD, P. J., and CRIST, J., concur.

      . Most cases cite the Chambers v. Maroney decision, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), for the proposition that probable cause to search an automobile at the scene is still obtained when the automobile is brought to the station. Texas v. White, 423 U.S. 67, 68, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975); State v. McCarty, 460 S.W.2d 630, 637 (Mo.1970);
        State v. Mick, 506 S.W.2d 35, 39 (Mo.App. 1974). The comprehensive analysis of the Chambers v. Maroney decision, supra, in the dissenting opinion of Texas v. White, 423 U.S. 67, 69, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975) (Marshall, X, dissenting), points out the additional requirements of justifying the seizure of the automobile when a warrantless search at the station is being challenged. Most courts have disregarded this second requirement.


author: PUDLOWSKI, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. David Lee SEMPSROTT, Defendant-Appellant.
    No. 40292.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 11, 1979.

      Whitney & Burnet, James W. Whitney, Clayton, for defendant-appellant.
    John F. White, Asst. Pros. Atty., Clayton, John D. Ashcroft, Atty. Gen., Steven D. Steinhilber, Asst. Atty. Gen., Paul Robert Otto, Chief Counsel, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   PUDLOWSKI, Judge.

Defendant appeals from a jury conviction of two counts of murder in the first degree and one count of murder in the second degree. The court, finding the Second Offender Act applicable, assessed punishment to be life imprisonment for each of the offenses.

Defendant does not contest the substan-tiality of the evidence in supporting the verdict and judgment. Consequently we shall only generally state the evidence introduced.

The evidence shows that defendant, David Lee Sempsrott, abused a variety of drugs for five years prior to conviction in the immediate action. Early in this period of drug abuse defendant befriended Donald Chronister. These two men developed a close friendship which centered around drugs. Usually, one of these two men would secure a quantity of marijuana, tet-rahydracannabinol (THC, an artificial derivative of marijuana), lysergic acid diethyl-amide (LSD), or amphetamines and share it with or sell it to the other. It was not uncommon for these two men to ingest a large amount of these drugs, or any other narcotic they could find, on a daily basis.

During the evening of January 10, 1977, defendant borrowed a car and drove to Troy, Missouri, where his friend John Ar-nell lived. Before departing defendant smoked a number of marijuana cigarettes and ingested a quantity of THC. Upon arriving at the Arnell residence defendant asked John if he would sell him a gun. Mr. Arnell, who lived with his wife and son, proceeded with defendant to a bedroom where they could speak in private. As Ar-nell passed defendant, on the way to the bedroom, defendant hit him on the head with a .22 caliber pistol. Apparently, defendant concealed the weapon until he made the assault. Defendant bought the weapon the day before for $35 from a man he met in the parking lot of a fast food restaurant. Arnell, who was heavier and larger than defendant, responded to defendant’s blow by knocking the gun out of defendant’s hand. Arnell then seized the gun and unloaded the chamber.

Defendant’s violent conduct was neither provoked nor the product of ill feeling. Immediately following the incident defendant told John he was just playing, he had dropped the gun and that he had not intended to strike his friend. At trial defendant could offer no explanation for his conduct. John Arnell described defendant as being “messed up on dope” and having a wild look on his face immediately following the incident. After the defendant became somewhat calm the two men moved into the kitchen where they conversed, played cards and drank coffee. Eventually Arnell returned the unloaded gun to the defendant. At around 10:45 p. m., the defendant departed in the borrowed automobile.

The defendant drove from the Arnell residence to Overland, where his friend Donald Chronister lived. Mr. Chronister shared an apartment with Mary Ann Blair and with Mary Ann’s four year old daughter from a previous marriage, Angela Blair. Defendant arrived at about 1:00 a. m. Although Chronister was somewhat annoyed by defendant’s late night visit, Chronister admitted defendant. The defendant entered the apartment with the pistol, now reloaded, hidden under his coat. Chronister invited defendant to take a seat at the kitchen table. The two men began to play cards and smoke marijuana. After playing a few hands Chronister rose to get two cold drinks from the refrigerator. The defendant followed Chronister. As Chroinster neared the refrigerator the defendant struck him in the back of the head with the barrel of the pistol. When Chronister turned around defendant took a step back and shot him in the head and chest.

Upon hearing the gun shots Mary Ann Blair, who had been in the master bedroom preparing to go to sleep, ran into the kitchen. Defendant calmly told Mary Ann that he had shot Donald and that she and her daughter should be quiet. Defendant then instructed Mary Ann to gag and tie Angela. Ms. Blair returned to the master bedroom and bound her daughter with items of underclothing. Mary Ann was then ordered into the livingroom where she was similarly tied with underclothing. After both Mary Ann and Angela were securely bound the defendant took a seat on the livingroom couch. Mary Ann, wearing only a robe and nightgown, lay directly in front of where defendant sat. At some point defendant untied Mary Ann and ordered her to remove her robe. After defendant retied the woman he cut away her nightgown with a pair of scissors. At trial defendant explained he removed Mary Ann’s clothing because if she were to loosen her bonds she would be less likely to escape. Mary Ann now lay naked on the livingroom floor. According to his own testimony, defendant sat on the couch for thirty-five to forty minutes. He then stood up, walked to the kitchen, put on a pair of gloves and picked up a large knife. Defendant walked back into the livingroom and stabbed Mary Ann thirteen times. During his attack Mary Ann freed her hands and tried to resist. Defendant responded by smashing the butt of the gun’s handle to her forehead. When defendant was sure Mary Ann was dead he went into the bedroom where Angela lay asleep on her mother’s bed. Defendant lifted the child from the bed and placed her on the floor. He then stabbed Angela in the throat and strangled her until dead.

After defendant finished he returned to the livingroom couch. Defendant sat there for thirty to forty-five minutes before he decided to leave the apartment. Prior to departing defendant collected whatever incriminating evidence he could find, including the gun, Mary Ann’s robe and nightgown, the ashtrays he touched while smoking and the knife. Defendant also seized the watch from Chronister’s wrist, the wallet from Chronister’s back pocket and an unemployment check for $85 issued to Chronister. Defendant left the apartment carrying the above items, at approximately 3:00 a. m., January 11, 1977.

Defendant’s first contention is that the trial court erred in admitting into evidence State’s Exhibits Numbers 6, 7 and 8, which were photographs of the victims. These photographs, which show the victims’ condition in gruesome detail, were taken some twenty hours after the murders had been committed. State’s Exhibit Number 6 shows Donald Chronister with blood on his head and hands, slouched against the kitchen wall. State’s Exhibit Number 7 illustrates Mary Ann Blair laying naked on the livingroom floor. Mary Ann’s face, hands and upper torso are smeared with blood as is the carpeted floor on which she rests. Angela Blair is shown in State’s Exhibit Number 8. A panty hose stocking is wrapped around Angela’s bloody neck. Defendant argues that these photographs “did not throw any light on an issue before the jury,” and the “sole purpose of producing the photographs was to inflame the jury” and that “non-prejudicial evidence had previously been admitted which made the photographs unnecessary.” We do not agree.

The admissibility of photographs of dead bodies, a form of demonstrative evidence, lies within the sound discretion of the trial court. State v. Robinson, 328 S.W.2d 667 (Mo.1959); State v. McClain, 536 S.W.2d 45 (Mo.App.1976); State v. Dodson, 556 S.W.2d 938 (Mo.App.1977). Such evidence is admissible when its tendency to prove a fact in issue outweighs its prejudicial effect. State v. Dodson, supra, at 947. Thus, when a defendant pleads not guilty to charges of murder in the first degree photographs are admissible if they: connect the accused with the crime, prove the identity of the deceased, show the position of the body, depict the location and nature of the wounds, tend to show the state of mind of the defendant, corroborate, explain or clarify the testimony of a witness or refute a defense unless the prejudicial effect is so great as to outweigh any possible probative values. State v. Jones, 515 S.W.2d 504 (Mo.1974); State v. Jackson, 499 S.W.2d 467 (Mo.1973); State v. Clark, 494 S.W.2d 26 (Mo.1973); State v. Stevens, 467 S.W.2d 10 (Mo.1971); State v. Floyd, 360 S.W.2d 630 (Mo.1962); State v. McDaniel, 336 Mo. 656, 80 S.W.2d 185 (1935). Photographs are not made inadmissible because the content of the photo, the victim and scene of the crime, are described and illustrated by other evidence. To the contrary it is well settled that photographs are admissible when they enable the jury to better understand the facts. State v. Thresher, 350 S.W.2d 1 (Mo.1961); State v. Edwards, 435 S.W.2d 1 (Mo.1968). Nor are photographs with probative value rendered inadmissible solely because they present a gruesome sight. State v. Moore, 303 S.W.2d 60 (Mo.1957). “If photographic views are shocking, when presenting an accurate picture, it is because the crime is of that sort, whether described in . words or pictures.” State v. Stevens, supra, at 24.

The trial court did not abuse its discretion in admitting the photographs of the victims, State’s Exhibits 6, 7 and 8. All three of the pictures identify the victims, show the position of the bodies as they were left by defendant, and corroborate, explain and clarify the testimony of witnesses, including the defendant. Further, defendant’s primary defense was that he did not form the intent to murder. In ascertaining the existence of the requisite intent the jury could consider all the circumstances surrounding the incident out of which the charge arose. State v. Woody, 406 S.W.2d 659, 661-662 (Mo.1966). The photos help establish that defendant acted with the requisite intent because they show the victims condition following the event, the nature and location of the wounds and the immediate area in which the murders transpired.

Defendant’s second contention is that the trial court erred by refusing to admit into evidence a letter written by defendant to Janet Chronister, sister of victim Donald Chronister. The evidence shows the letter was received by Ms. Chronister with a postmark of August 11, 1977. In the letter defendant expressed remorse for his actions and his inability to explain what happened the night of the murder. Defendant argues that the letter should have been admitted to prove his state of mind at the time of the incident. We do not agree.

Defendant’s letter to Janet Chron-ister contained self-serving statements and was properly excluded. Declarations in defendant’s own interest, not shown to have been made as part of the res gestae are properly excluded as self-serving. State v. Gooch, 420 S.W.2d 283, 289 (Mo.1967). In order for defendant’s statements in the letter to be part of the res gestae they must be the apparently spontaneous result of the occurrence operating upon his perceptive senses. State v. Stallings, 334 Mo. 1, 64 S.W.2d 643 (1933). Declarations that are the product of reasoning from collateral facts are not part of the res gestae. State v. O’Neal, 436 S.W.2d 241, 244 (Mo.1968). The element of spontaneity is absent here. The record in no way indicates that defendant’s letter was the spontaneous result of the murders operating upon his senses. To the contrary defendant wrote Janet Chron-ister seven months after the murders had been committed to apologize for killing her brother. The murders and the statements did not form one continuous transaction and the trial court committed no error in excluding this letter.

Defendant’s third contention is that the trial court erred by prohibiting defense counsel from questioning the venire panel, during voir dire examination, concerning their willingness to follow the law as it related to first degree murder. The record indicates that defense counsel informed the court that he intended to ask the members of the venire panel whether they could follow the law by assessing life imprisonment without parole for a minimum of 50 years, if they found defendant guilty of first degree murder. The prosecutor objected to this line of inquiry. The court responded that defense counsel could point out to the panel that murder in the first degree is punishable by a sentence of life imprisonment but no reference could be made to the eligibility of parole. In sum, defendant argues that he should have been able to inform the jury that he faced a minimum of 50 years imprisonment if convicted of first degree murder and sentenced to life imprisonment. We do not agree.

It is well settled that the examination of prospective jurors as to their ability to render an impartial verdict is conducted under the supervision of the trial court. State v. Johnson, 558 S.W.2d 284, 286 (Mo.App.1977). The trial court is vested with broad discretion in controlling this examination process and the appellate court will not interfere unless the record discloses a manifest abuse of that discretion. State v. Mudgett, 531 S.W.2d 275, 279 (Mo. banc 1975). Although there is no case precisely on point we are unable to hold that the trial court abused its discretion in prohibiting defense counsel from apprising the venire panel that a person found guilty of murder in the first degree and sentenced to life imprisonment would not be eligible for parole for a minimum of 50 years. In so holding we are guided by the rule that prohibits a prosecutor from calling the jury’s attention, in oral argument, to the possibility that a defendant may be released from imprisonment by parole as a reason for imposing a greater penalty. State v. Kaempfer, 342 Mo. 1007, 119 S.W.2d 294, 296 (1938). Likewise, we are directed by the rules which forbid the court from instructing that the sentence imposed by the jury may be lessened or cannot be diminished by the executive branch. State v. Rollins, 449 S.W.2d 585, 591 (Mo.1978); State v. Cornett, 381 S.W.2d 878, 881 (Mo. banc 1964). Since a defendant may not successfully offer an instruction concerning the availability of parole we think it reasonable that he be barred from inquiry of prospective jurors whether they could impose a life sentence knowing that parole would be unavailable for a minimum of 50 years. “The question of future clemency is extraneous to a proper determination of issues of guilt and punishment by the jury. It should be of no concern to them.” State v. Rollins, supra, at 591.

Moreover, the jury, after it found the defendant guilty, did not assess punishment in this case. The defendant was charged as a second offender. Therefore, the court, pursuant to the terms of § 556.280, RSMo. 1969, sentenced defendant. Because the jury only determined defendant’s guilt no prejudicial error could have been committed by prohibiting defense counsel from inquiry of the jurors’ ability to assess punishment.

Defendant’s final assignment of error concerns the State’s use of Dr. Joseph F. Shuman as a witness. The record shows that defendant called Dr. Robert B. Deitch-man as an expert witness. Dr. Deitchman’s testimony served as the basis for defendant’s allegation that he did not form the requisite intent to commit first degree murder due to his diminished mental capacity. To contradict Dr. Deitchman’s testimony the prosecutor called Dr. Shuman, a court appointed psychiatrist who had examined defendant, as a rebuttal witness. Defendant argues that Dr. Shuman’s testimony should have been excluded because the prosecutor failed to disclose his intention to call Dr. Shuman as required by Rule 25.32.

Whatever the merits of defendant’s contention may be, we are unable to review this issue. There is nothing in the record indicating either that defendant made a written request for discovery, or the state’s response thereto. Defense counsel baldly asserts that he “properly made a request for discovery in compliance with Supreme Court Rule 25.32.” But the transcript is absent of such a motion. Further the trial court made specific reference to defendant’s failure to file a written request for discovery with the court. “Rule 25.-32(a)(1) requires that the state shall, on written request of the defendant, disclose the ‘names and last known addresses of persons whom the state intends to call as witnesses . . . ” (Emphasis added). State v. Curtis, 544 S.W.2d 580, 582 (Mo. banc 1976). Since defendant failed to make a written request for discovery the state’s duty to disclose did not arise. State v. Curtis, supra. Further, if such a motion was in fact made there is nothing in the transcript indicating the ruling of the trial court. Because defendant failed to prepare and file a record incorporating the basis for the alleged error, there is nothing for this court to review. State v. McCoy, 559 S.W.2d 298, 300 (Mo.App.1977). Judgment affirmed.

SNYDER, P. J., and WEIER, C. J., concur.


author: REINHARD, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Robert L. JOHNSON, Appellant.
    No. 40582.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 11, 1979.
    Robert C. Babione, Public Defender, James Porter, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Richard G. Callahan, St. Louis, for respondent.
   REINHARD, Presiding Judge.

Defendant appeals from his conviction by a jury of burglary in the second degree. He was sentenced by the court under the Second Offender Act to serve a term of five years in the Department of Corrections.

The victim resides in the third floor south apartment at 5703 Cabanne in the City of St. Louis, Missouri. On the morning of January 3, 1978, he was at home alone. At approximately 11:30 a. m. he heard a “rattling and clicking” noise at his front door. The noise sounded like a key: “steel hitting against steel”. He went to the front door and looked out the window, but saw no one. He then heard a “rattling and shaking” noise at the. back door. He went to the back door of his apartment and saw there a screwdriver coming in and out of the door. The victim described the screwdriver as a single blade, non-Phillips, type. The screwdriver, when coming in the door, was inserted approximately one and one-half inches. It was being “pushed in . pulled out, twisted . . .”. He raised the Venetian blind at the window in the door and saw two people outside. The victim was almost face to face with one of the men, the one using the screwdriver, as he looked through the window. The second person, the defendant, was sitting about two feet away on the railing of the building’s outside staircase. Defendant’s profile was visible to the victim as he sat looking down the stairs. The victim hit the window of the door with a mop handle and the two men ran from the porch into the north apartment.

The police arrived at the apartment building within 17 minutes of the victim’s call. Two officers went with the victim to the adjoining third floor apartment where the two men were found and identified. The man identified as the one who had been using the screwdriver was wearing a white terry cloth glove. Another glove was found lying on the couch where defendant was seated. A non-Phillips screwdriver was found lying in the next room, four or five feet from the two men. An inspection revealed pry marks which had caused wood and paint chipping on the door jambs and front and back doors of victim’s apartment. One of the officers testified that, by his observation, the marks on the doors matched the blade of the screwdriver found near the defendants. Vincent Harvey, the man identified as having used the screwdriver, testified for the defendant. He admitted that he had committed the burglary and that he had pleaded guilty and been sentenced. He testified that defendant was present but that Johnson had not participated in the activity.

Defendant alleges that the court erred in several respects. One of his contentions: that the state failed to sustain its burden of proof as to entry, an essential element of burglary, we find to have merit. We find against defendant on the other points. Regarding these points, suffice it to say that there was sufficient evidence here for the jury to find defendant an active participant in the crime. See State v. Snyder, 502 S.W.2d 339[1] (Mo.1973). Also, defendant’s contention that he was not identified by the victim is refuted by the record. Similarly, there was ample evidence to support the court’s application of the Second Offender Act. The evidence, however, does fall short on the proof of entry. Although defendant raised this point in his motion for new trial and as one of his stated points on appeal, no authority is cited, nor is any argument advanced, in support of the contention that sufficient proof of entry was not adduced. Neither does the state respond in its brief to this contention of error. Nevertheless, a contention that the evidence is not sufficient to sustain a conviction will be reviewed under the plain error doctrine. State v. White, 439 S.W.2d 752[2] (Mo.1969); State v. Maddox, 549 S.W.2d 931[3] (Mo.App.1977).

Entry is an essential element of burglary. State v. Pigques, 310 S.W.2d 942[2] (Mo .1958). The only evidence here of entry was the victim’s testimony that the screwdriver entered the premises about one and one half inches. It is the law of Missouri that any entry — however slight — by any part of a person’s body is sufficient to establish entry. State v. Pigques, supra. Furthermore, entry by instrument under certain circumstances is sufficient in Missouri. In State v. Pigques, supra, our Supreme Court quoted from State v. McCall, 4 Ala. 643, 39 Am.Dec. 314, as follows:

“To constitute burglary, an entry must be made into the house with the hand, foot, or an instrument with which it is intended to commit a felony. . . .” (Emphasis added).

The Missouri Court of Appeals, Western District held in State v. Hodges, 575 S.W.2d 769, 772 (Mo.App.1978):

A burglarious entry can be made by an instrument, but only “where a hook or other instrument is put in with intent to take out goods, or a pistol or a gun with intent to kill; but it is necessary that the instrument shall be put within the house, and that it shall be inserted for the immediate purpose of committing the felony or aiding in its commission, and not merely for the purpose of making an opening to admit the hand or body, or in other words for the sole purpose of breaking.” 12 C.J.S. Burglary § 10 b., p. 674. See State v. Pigques, 310 S.W.2d 942, 1. c. 947 (Mo. 1958).

We have examined treatises on the criminal law and numerous cases from other jurisdictions. We find no authority to support a theory that the use of a screwdriver under the circumstances here would be sufficient to establish entry.

In the case before us, the purpose for entry of the screwdriver was breaking; that is, to open the door. The purpose of introduction of the screwdriver was not to remove the property. Therefore, evidence of entry of the instrument as here is not sufficient to constitute “entry,” an essential element of burglary. Since entry is a necessary element of burglary, and because we have found the evidence insufficient as to this element, we must reverse. Failure to make a submissible case requires the discharge of the defendant under the rule established in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and State v. Basham, 568 S.W.2d 518 (Mo. banc 1978).

Judgment reversed and defendant discharged on the charge of burglary second degree.

GUNN and CRIST, JJ., concur.

      . The Missouri Approved Instructions — Criminal for Burglary (7.20, 7.22 and 7.32) give as one of the options for a finding of entry: “(insertion of any part of a tool or other device)”.

      . See Wharton’s Criminal Law (12th ed.), Vol. 2, §§ 992-994; Bishop Criminal Law (9th ed.); 13 Am.Jur.2d Burglary § 10; Miller, Criminal Law (1934), § 108(c).

        .State v. Pigques, supra, contains citation to numerous authorities. See too: Foster v. State, 220 So.2d 406 (Fla.Dist.Ct.App.1969); Russell v. State, 158 Tex.Cr.R. 350, 255 S.W.2d 881 (Tex.Cr.App.1952); People v. Davis, 3 Ill.App.3d 738, 279 N.E.2d 179, 181 (1972).


author: GUNN, Judge.

text:
    Terry Lynn BRITT, Appellant, v. STATE of Missouri, Respondent.
    No. 41066.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 18, 1979.

      Walter S. Drusch, Jr., Cape Girardeau, for appellant.
    John D. Ashcroft, Atty. Gen., James R. Cumbee, Asst. Atty. Gen., Jefferson City, for respondent.
   GUNN, Judge.

Movant appeals from the denial of his Rule 27.26 motion alleging that the trial court erred in denying relief under the motion without evidentiary hearing. We affirm.

Movant pleaded guilty to a two count information charging second degree burglary and stealing in the first count and tampering with a motor vehicle in the second count. He was sentenced concurrently to ten years imprisonment for the burglary and five years for the two other offenses. His 27.26 motion and appeal allege: (1) that his plea was involuntary as it was made in reliance of his counsel’s assurance that he would receive a lesser sentence; (2) ineffective assistance of counsel in failing to seek dismissal of the information as based on an improper joinder of offenses.

Movant’s complaint that he was entitled to an evidentiary hearing is without merit. The record of his guilty plea, through straightforward inquiry by the trial court, manifestly refutes his contention that he was disabused of any reasonable belief that he could possibly have entertained any notion of a lesser penalty as a result of his attorney’s false assurances. Johnson v. State, 579 S.W.2d 802 (Mo.App.1979). Hence, he was entitled to no eviden-tiary hearing on his motion. Wilson v. State, 582 S.W.2d 725 (Mo.App.1979); Beaver v. State, 552 S.W.2d 36 (Mo.App.1977); Giggar v. State, 547 S.W.2d 870 (Mo.App.1977).

Schellert v. State, 569 S.W.2d 735 (Mo.banc 1978), and McMahon v. State, 569 S.W.2d 753 (Mo.banc 1978), which provide that a movant should be afforded the opportunity to withdraw his plea where disposition of the case is less favorable than contemplated by the plea agreement or recommended by the prosecutor, are not applicable here. In this case, it was evident that movant’s punishment was what he bargained for. The trial court’s action in denying the motion or refusing to allow a subsequent withdrawal of the plea a month later is not incongruent with Schellert and McMahon.

Movant also urges ineffective assistance of counsel by reason of his attorney’s failure to seek dismissal of the information, which he argues improperly charged three separate offenses arising out of the same transaction. The information was in two counts, the first charging movant with breaking into a building and stealing property belonging to William Strong, Jr. The second count charged him with the unauthorized tampering with a motor vehicle by using and operating a Jeep belonging to Ray Bennett.

The information was in proper form, as burglary and stealing may be charged in a single count. Section 560.110, RSMo 1969; See: State v. Wilson, 544 S.W.2d 859 (Mo.App.1976); State v. McLallen, 522 S.W.2d 1 (Mo.App.1975). With regard to the motor vehicle, the facts of the guilty plea firmly establish that the tampering occurred at the time of the burglary and stealing and that the Jeep was used in movant’s flight and asportation of the stolen goods. Thus, the tampering was a part of a common plan and properly joined as a separate count in the information under Rule 24.04. State v. Johnson, 505 S.W.2d 11 (Mo.App.1974).

Judgment affirmed.

REINHARD, P. J., and CRIST, J., concur.

      . Q. [Trial Court] Now, in talking with Mr. Robbins [defense counsel] he wanted to know whether or not I would assure you that you would not be sentenced to more than ten years in the penitentiary total, and I have indicated to him that I would grant that assurance. I have indicated this in front of you out in the hall just a few minutes ago, and I told you that it would be my intent to order a pre-sentence investigation to be conducted by the Board of Probation and Parole, and that based on that report, I would give you a sentence somewhere between two years at a minimum and a maximum of ten years; but I want to frankly say to you that I think the chances of your getting a minimum sentence are non-existent, and the chances are quite high that you will receive a sentence close to ten years; do you understand that?
      A. [Movant] Yes, sir. Q. Do you have any other understanding as to what is going to happen to you?
      A. No, sir.
      Further in the proceedings, the court again asked the movant:
      Q. Is there anything at all causing you to plead guilty today other than the fact that you are in fact guilty, and you are trying to get by with a ten year or less sentence instead of a greater sentence?
      A. Yes.
      Q. Is that the only reason you are pleading guilty?
      A. Yes.
      Also:
      Q. Has Mr. Robbins told you to do anything other than to tell the truth here this afternoon?
      A. No, sir.
      Q. Are all your answers going to be truthful?
      A. Yes, sir.
      Also:
      The COURT: Mr. Robbins, have all the defendant’s answers been truthful as far as you know?
      MR. ROBBINS: Yes, Your Honor.

      . In effect at the time of the offense.


author: PREWITT, Judge.

text:
    Clara DAMBACH, Plaintiff-Respondent, v. Charles JAMES and Hursel James, Defendants-Appellants.
    No. 10811.
    Missouri Court of Appeals, Southern District, Division One.
    Sept. 19, 1979.

      Melvin E. Carnahan, Rolla, for plaintiff-respondent.
    Ronald J. Fuller, Rolla, for defendants-appellants.
   PREWITT, Judge.

Defendants appeal from a finding and judgment of the trial court quieting title in plaintiff to land in Maries County, Missouri and finding against defendants on their claim to have title quieted in them.

The land in question is a triangular tract seventy-three hundredths of an acre in size. It is bordered on the north by a government survey lot line and on the east by the Gas-conade River. At that point the river flows almost due north. The tract is bordered on the west and south by a “stream” which flows across the lot line in a southeasterly direction into the Gasconade. Plaintiff has record title to Lot 4 of a government section. The land in dispute is part of Lot 4. Plaintiff paid the taxes on Lot 4 for many years prior to the time of trial. Defendants claim no record title to any of Lot 4 but own all or a portion of Lot 5 lying immediately north. Defendants’ claim to the property is based upon adverse possession pursuant to § 516.010 and § 516.070 RSMo 1969. While it was undisputed at the trial that defendants were exercising dominion over at least a portion of the property in question, the length of time of the adverse possession was seriously contested.

Going from west to east, a fence runs generally along the lot line separating the property of plaintiff and defendants until it comes to a bank southwest of the stream. Then the fence runs along the bank in a southeasterly direction. Plaintiff testified that the fence had been installed there by her husband and her mother’s hired hand about 1927 or 1928. Previously there was a fence continuing along the lot line to the Gasconade River, but it was changed because of the deep bank or ditch. A water gate couldn’t be put across the stream and it was necessary to run the fence in this manner to keep hogs in. The fence is now in a state of disrepair. The property had previously been owned by plaintiff’s mother. Defendants offered evidence that this triangular strip had been used by their predecessor in title, defendant Charles James’ father, as pastureland and to water his cattle. Defendants also contended that they had pastured the land until they improved it and made it a part of their resort. Defendant Charles James stated he cleaned it up and has been in the business of renting it out for campers and has placed picnic tables on it for about ten to twelve years. Other defendants’ witnesses testify similarly. Previous to this, the area had been in its natural state, often described by the witnesses as “rough” and a “wilderness”. In cleaning the property, defendants cut brush and weeds but no trees.

Plaintiff does not dispute that defendants did clean up a portion of the property and made it into a “picnic area” and had been taking care of it for some time. The dispute is whether or not it has been for at least ten years. Plaintiff testified that she was through the area three years before her husband died. He died in 1971. She saw a path from the defendants’ cabin to the river and a waste can next to the ditch. She didn’t know defendants were claiming the property until she arranged for timber to be sold in 1975 and defendants refused to allow the logger to cut on the triangular tract. She disputed that defendants’ predecessor watered cattle in the area. Defendants claimed they had always thought the property was theirs because of the location of the fence. A road defendants constructed loops into the tract and defendants made other improvements to the north of the disputed area in connection with the use of it, but not on it. They installed a pole light on the lot line which lights at least a portion of the disputed area. They also constructed a boat ramp north of the lot line.

The trial court found that the picnic tables were placed on the property less than ten years before the suit was filed and that defendants had failed to carry the burden of proof that their possession was exclusive and hostile for ten years. Defendants contend that the court erred in quieting title in plaintiff when they had established title in themselves by adverse possession. They further contend that facts were found by the trial court without support in the evidence.

Defendants, in their brief, urge that this court consider “de novo all of the facts in evidence”. This we cannot do. Under Rule 73.01, Y.A.M.R. our review in a court-tried case is to sustain the trial court's determination unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Defendants, claiming title by adverse possession, have the burden of proving each element necessary to establish title. Johnson County Post No. 2513, VFW, Inc. v. Jackson, 519 S.W.2d 335, 337 (Mo.App.1975). These elements are possession that is (1) hostile, that is, under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous, for ten years prior to commencement of the action. Walker v. Walker, 509 S.W.2d 102, 106 (Mo. 1974). The failure to prove any one of these elements prevents title being granted by adverse possession. Teson v. Vasquez, 561 S.W.2d 119, 125 (Mo.App.1977). Defendants have no deed or other color of title. If they had color of title less weight would be required to support their claim. Teson v. Vasquez, supra, 561 S.W.2d at 126; Cash v. Gilbreath, 507 S.W.2d 931, 935 (Mo.App.1974).

Defendants contend that because of the land being on their side of the fence, and their use of the premises, they have established title by adverse possession. Their use was pasturing cattle, clearing the premises, and putting picnic tables in the area.

The fact that a fence was established on plaintiff’s property does not establish that defendants have any rights to the property in absence of an agreement that the fence was the boundary line. Brown Paper Mill Co. v. Warnix, 222 Ark. 417, 259 S.W.2d 495 (1953). Also see 11 C.J.S. Boundaries § 77, p. 650. There was no evidence of any agreement that the fence was the boundary line. The evidence showed that the fence was placed there for convenience in maintaining it. While the location of the fence may be a factor in determining the property line, it is not conclusive in the absence of other findings. See Annotation 170 A.L.R. 1144. The mere location of a fence does not establish the boundary line, since a fence may be placed for other purposes. Cothran v. Burk, 234 Ga. 460, 216 S.E.2d 319, 321 (1975).

Defendants offered evidence that they and their predecessors had used the property to pasture cattle. Pasturing of cattle has been held insufficient in itself to establish adverse use, but does tend to show claim of ownership. Miller v. Warner, 433 S.W.2d 259, 264 (Mo.1968).

Defendants cleared and improved the premises. If this was rough, wild land as defendants contend, their possession could not have started until it was cleared and improved. Dudeck v. Ellis, 399 S.W.2d 80, 90 (Mo.1966). It could be reasonably inferred from plaintiff’s testimony that the improvements were not started until after 1968 when she and her husband visited the premises. All other improvements in connection with the campground and picnic area, except for a portion of a road, were commenced well within ten years of the filing of the petition. A light pole was put on the property line four to five years before the trial, a boat ramp north of the disputed property six to eight years, and a sign advertising the resort in 1971. Plaintiff testified that she first knew that defendants were making a claim to the property in 1975. The trial court also found that at least a portion of the property had been used jointly by the parties. Plaintiff testified she had watered her horse there, and went to the area to pick greens, mushrooms and pawpaws.

Defendants’ evidence as to use of the premises before 1975 was all given by defendants and their relatives. Even though some was undisputed, it was for the trier of fact to judge the credibility, and he may disbelieve the testimony even when uncontradicted. Labor Discount Center, Inc. v. State Bank & Trust Co. of Wellston, 526 S.W.2d 407, 420-421 (Mo.App.1975). The law and the evidence support his findings that the evidence did not show that the possession of defendants was exclusive and hostile for the required period of ten years. These are necessary elements to establish title by adverse possession.

The judgment is affirmed.

All concur.