author: STERNBERG, Justice.

text:
    Larry Russell BERNING, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    May 2, 1978.
    Jack E. Farley, Public Defender, Timothy T. Riddell, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.
   STERNBERG, Justice.

This is appellant’s third visit to this court. His journeys commenced with an appeal from a November 22, 1974, conviction of being a habitual criminal. Appellant traveled over a rough and rugged road. In each of his two prior appeals he convinced this court that the trial court erred to his prejudice. In the present appeal counsel for appellant, in attempting to stretch the cloak of innocence around his client, has justly and rightly come out second best.

On January 20, 1974, the appellant broke into the Fifth Street Market in Henderson, Kentucky, and on February 12,1974, he was indicted by the Henderson County Grand Jury for the offense of breaking and entering. On August .24, 1974, the appellant broke into the Sears Roebuck & Co. store, in Henderson, and engaged in an exchange of gunfire with the police before being apprehended. On September 9, 1974, he was indicted by the grand jury for the offense of breaking and entering into the Sears store, malicious shooting with intent to kill, and of being a habitual criminal. The indictments were consolidated for trial, and on November 22, 1974, the appellant, who testified in his own behalf, was found guilty.

On appeal to this court the conviction on the habitual-criminal charge was reversed in a memorandum opinion and the case remanded to the Henderson Circuit Court for a new trial on that issue only. (The memorandum opinion reversed the case on the grounds of insufficient evidence.) On April 1, 1976, the appellant was tried and was found guilty of being a habitual criminal. Appellant sought relief from that conviction, and again this court, in Berning v. Commonwealth, Ky., 550 S.W.2d 561 (1977), reversed and remanded the proceedings for a new trial, again on the habitual-criminal charge only.

On August 19, 1977, in compliance with the mandate of this court, the appellant was afforded a new trial on the habitual-criminal charge and subsequently was convicted. The appeal now before this court results from the appellant’s latest conviction on that offense. The appellant contends that the same type of error which required this court to reverse the trial court in Berning v. Commonwealth, supra, again was committed upon the retrial of the case and that therefore reversal is necessitated.

The sole issue to be determined on this appeal is:

“Did the court below err to appellant’s substantial prejudice during his trial for being a habitual criminal when it allowed the Commonwealth to disclose to the jury and to use the nature of the charges in the indictment upon which the prior felony convictions were had?”

To determine that issue, we need only review the facts in Berning v. Commonwealth, supra, and apply the existing law as elucidated in that case to the facts in the present case.

At appellant’s second trial on the habitual-criminal charge, the trial court allowed the Commonwealth to introduce certain prejudicial evidence, notwithstanding the timely objections of Berning’s counsel. Specifically, the circuit court clerk was allowed to testify concerning the nature of the prior felony convictions, and a deputy sheriff was permitted to describe in some detail the investigatory procedures and findings which ultimately resulted in the convictions of appellant. We held:

“ * * * There was no need for the clerk to read the nature of the charges in Indictment No. 73-28, nor was it proper for the deputy sheriff to portray before the jury the investigation which he made which led to the arrest and conviction of appellant on that indictment. All that was necessary for the Commonwealth to do was to show the dates the former offenses were committed, which can be established from the indictment, and that there was a judgment of conviction, which can be shown by the judgment or order book of the court. * * * ”

When the facts in the present action are gleaned from the record and compared with the facts in the former case, it becomes apparent that there are certain distinguishing characteristics. First, the deputy sheriff who testified in the former trial did not testify at the trial which gave rise to this appeal. Secondly, the information and investigative proceedings formerly described by the deputy sheriff were not brought out. Thirdly, the references by the circuit court clerk to the nature of the prior felony convictions were fleeting and were utilized only for purposes of differentiating between the various felonies. That is, the logical import of the record shows that the references to the generic names of the prior felony convictions were made solely to identify the prior offenses.

Our opinion in Berning should not be interpreted to prohibit an allusion to the nature of a crime when such a reference is made solely to facilitate an adequate understanding of the proceedings by the jury. On the other hand, our opinion should be interpreted to condemn references to the nature of a crime in a habitual-criminal prosecution when the cumulative effect of such references is calculated to, or likely to prejudice the jury, thereby rendering the proceeding devoid of the basic quality of fairness.

In the former proceeding the cumulative effect of the evidence before the jury required reversal; in the instant case the cumulative effect of the evidence does not render the proceeding in the trial court unfair.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: LUKOWSKY, Justice.

license: Public Domain

text:
    George KOTAS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    May 2, 1978.
    Jack Emory Farley, Public Defender, Edward C. Monahan, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., J. Gerald Henry, Asst. Atty. Gen., Frankfort, for ap-pellee.
   LUKOWSKY, Justice.

On September 10,1970, Kotas, along with his co-defendant Lycans, pled guilty to armed robbery. Kotas was represented by counsel. A jury was impaneled by the trial judge to fix the penalty. The verdict was life imprisonment and he was so sentenced. On May 18, 1977, the trial court granted a motion to vacate sentence made pursuant to RCr 11.42 because the jury had been improperly instructed on possible punishments.

On May 31,1977, Kotas made a motion to withdraw his plea of guilty on the ground it had not been made voluntarily, understandingly and intelligently. The trial court held an evidentiary hearing on this motion on June 9, 1977. On July 8, 1977, the trial court ruled that the 1970 plea was made voluntarily and with an understanding of the nature of the charge and the ramifications of the plea.

On July 13, 1977, the trial court impaneled a jury to fix the sentence for the 1970 armed robbery. The jury was instructed that they could assess a penalty of “. . . not less than ten (10) years or at life, in your discretion.” The jury selected twenty-one years in prison. Sentence was imposed. Kotas appeals. We affirm.

I

Kotas contends that the trial court committed prejudicial error when it denied his motion for leave to withdraw his guilty plea made prior to the entry of judgment.

The testimony of the 1970 attorney for Kotas at the evidentiary hearing disclosed:

1. Kotas and his attorney had prepared for trial for at least a year and had prepared a defense before Kotas elected to change his plea from not guilty to guilty.

2. His attorney explained to Kotas both the effects of a trial and of a guilty plea. His attorney also explained to him the results of plea bargaining and what might happen if he stood trial.

3. After this explanation Kotas elected to plead guilty.

4. Kotas knew of his right to trial by jury.

5. While the attorney was uncertain, he believed the trial judge asked Kotas if he understood the charges against him.

6. No force or coercion was used against Kotas in regard to the plea of guilty and he never recanted 'that plea to his 1970 attorney.

The testimony of Kotas at the evidentia-ry hearing disclosed:

1. He had prepared for trial and had prepared a defense to the charges in cooperation with his attorney.

2. He knew that witnesses against him at trial could be cross-examined by his attorney.

3. He had personally attended an earlier bond hearing where such cross-examination occurred.

4. He knew that a guilty plea foreclosed trial by jury and that it would cause his imprisonment.

5. He pleaded guilty of his own free will.

In addition, in response to his attorney’s continuing questions, Kotas first admitted and then denied that he was aware of his constitutional right not to incriminate himself. Kotas did not remember whether medicine he was taking in 1970 for an allergy affected his mental capacity.

Kotas testified further that the only thing the trial judge did in 1970 in regard to his guilty plea was to read off the charges. However, the files and records of the ease show that he appeared in open court with his counsel, withdrew his not guilty plea and entered a plea of guilty, that the judge asked him if he was satisfied with his attorney and his attorney’s advice and if he was pleading guilty of his own free will and without promise of any kind, and that his response was affirmative.

Kotas would have us believe that the evidence we have so tediously summarized is irrelevant to the disposition of his motion. He maintains that Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) requires that the constitutionality of his guilty plea be determined from the record of the plea proceedings alone and this record may not be supplemented by a later evidentiary hearing because of the danger of “murky memories.”

Boykin neither requires nor permits such a conclusion. On the contrary, it points to an opposite result at 242.

“We held [in Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962)]:
‘Presuming waiver [of the right to counsel] from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not a waiver.’
We think that the same standard must be applied to determining whether a guilty plea is voluntarily made. For as we have said, a plea of guilty is more than an admission of conduct; it is a conviction.” (emphasis added; footnote omitted)

The italicized language contemplates the propriety of a subsequent evidentiary hearing. Joe v. State, Alaska, 565 P.2d 508 (1977). Further support for this result may be found in North Carolina v. Alford, 400 U.S. 25, 29 n. 3, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Toler v. Wyrick, C.A. 8th, 563 F.2d 372, 373 (1977); Roddy v. Black, C.A. 6th, 516 F.2d 1380,1384, cert, den., 423 U.S. 917, 96 S.Ct. 226, 46 L.Ed.2d 147 (1975); McChesney v. Henderson, C.A. 5th, 482 F.2d 1101, 1109 (1973), cert, den., 414 U.S. 1146, 94 S.Ct. 901, 39 L.Ed.2d 102 (1974); Le-Blanc v. Henderson, C.A. 3d, 478 F.2d 481, 483 (1973), cert, den., 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 101 (1974); Fisher v. Wainwright, M.D.Fla., 435 F.Supp. 253, 259 (1977). The trial court was correct when it supplemented. the record by means of a later evidentiary hearing. Hartsock v. Commonwealth, Ky., 505 S.W.2d 172 (1974).

The alternate position of Kotas is that the evidence adduced at the subsequent hearing was insufficient to support the finding that his guilty plea was entered knowingly, intelligently and voluntarily. The validity of a guilty plea depends “upon the particular facts and circumstances . including the background, experience, and conduct of the accused.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). In other words, the validity of a guilty plea is determined not by reference to some magic incantation recited at the time it is taken but from the totality of the circumstances surrounding it. Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

The totality of the circumstances surrounding this plea are summarized above. The trial court had an opportunity to see the witnesses and observe their demeanor on the stand, and recognition must be given to its superior position to judge their credibility and the weight to be given their testimony. Taking into consideration all of these factors, it is beyond cavil that the trial court was correct when it found that this guilty plea was entered voluntarily and with an understanding of the nature of the charges and the ramifications of the plea. Fairness and justice will support no other conclusion. Fontaine v. United States, C.A. 6th, 526 F.2d 514 (1975), cert, den., 424 U.S. 973, 96 S.Ct. 1476, 47 L.Ed.2d 743 (1976); United States ex rel. Robinson v. Housewright, C.A. 7th, 525 F.2d 988 (1975); Calabrese v. United States, C.A. 1st, 507 F.2d 259 (1974). The trial court did not err when it denied the motion of Kotas to withdraw his guilty plea. Anderson v. Commonwealth, Ky., 507 S.W.2d 187 (1974); Dorton v. United States, C.A. 10th, 447 F.2d 401 (1971).

II

Kotas also contends that the trial court committed prejudicial error during the hearing at which the penalty was fixed, when it permitted the brother of a witness to act as interpreter for that witness. Counsel for Kotas objected to the use of the brother as an interpreter only until “his qualifications should be shown to the satisfaction of the court.” These qualifications were then established to the satisfaction of the court. No further objection was made on the basis of bias resulting from kinship.

It is not error per se for a trial court to select a close relative of a witness to serve as his interpreter. The question of bias by reason of kinship was never presented to the trial court for a ruling. Consequently, there is no action by the trial court for an appellate court to review. RCr 9.22; Brown v. Commonwealth, Ky., 551 S.W.2d 557, 559 (1977); Fairbanks v. Cowan, C.A. 6th, 551 F.2d 97, 99 (1977).

Ill

The final contention of error made by Kotas is that he was not sentenced in accord with the mandate of KRS 532.050 and 533.010 as applied by this court in Brewer v. Commonwealth, Ky., 550 S.W.2d 474 (1977).

These statutes are part of the new penal code which became effective on January 1, 1975. KRS 500.040(1) which is also a part of that code provides that the code shall not apply to any offense committed prior to its effective date, and that such an offense must be construed and punished according to the provisions of law existing at the time of the commission of such offense in the same manner as if the code had not been enacted.

The crime of which Kotas has been convicted was committed prior to January 1, 1975. He was sentenced in accord with the law in effect at the time of the commission of the offense. He is entitled to no more.

The judgment is affirmed.

All concur, except STEPHENSON, J., who did not sit.

      . This hearing culminated in the opinion in Lycans v. Burke, Ky., 453 S.W.2d 8 (1970).


author: JONES, Justice.

text:
    Murrell Toby HOCKENBURY, III, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    May 2, 1978.
    Jack Emory Farley, Public Defender, Larry H. Marshall, Asst. Public Defender, Frankfort, for appellant.

      Robert F. Stephens, Atty. Gen., Barbara B. Edelman, Asst. Atty. Gen., Frankfort, for appellee.
   JONES, Justice.

Hockenbury appeals from a judgment sentencing him to imprisonment for 30 years pursuant to a jury verdict finding him guilty of robbery in the first degree under the provisions of KRS 515.020. He was tried on three separate indictments charging him with robbery in the first degree. The jury found him guilty on two of the indictments and fixed his punishment at 15 years each. The jury was unable to agree on the third indictment and the court declared a mistrial. In conformity with the jury’s verdict the trial court sentenced Hockenbury to serve the two 15-year sentences consecutively.

Hockenbury asserts that he is entitled to a reversal of his convictions on the grounds: (1) the trial court erred by allowing the prosecutor to question him concerning his silence as to an alibi at the time of his arrest, (2) his identification at trial was based on suggestive out-of-court identification procedures, and (3) the trial court’s instruction on reasonable doubt was improper.

So that these issues may be placed in proper perspective, it is necessary for this court to briefly summarize the evidence.

The first indictment charged Hockenbury with committing first-degree robbery on December 6, 1976, at a Junior Food Market in Warren County, Kentucky, by using or threatening the use of physical force upon Ann Hayes while armed with a deadly weapon. The second indictment charged him with first-degree robbery of the Green-tree Market on December 29,1976, when he threatened the immediate use of physical force upon Mark Blankenbaker and was armed with a deadly weapon. A robbery at another Junior Food Market was the basis of the third indictment.

The convictions were on the first and second indictments. The jury was unable to reach a verdict on the third indictment and a mistrial was declared as to that charge.

The evidence adduced at trial was primarily identification testimony linking Hockenbury to the December 16th and December 29th robberies.

Ann Hayes was a cashier at the Junior Food Market on the night of December 16, 1976. At approximately 10:30 to 10:45 P.M., a man later described by Ann as being Hockenbury, entered the store. He asked if he could use the restroom and after so doing, walked over to the magazine rack. Ms. Hayes asked the customer if he needed help. At that point the man placed a silver .25 automatic pistol to her side and told her to put the money in a bag. She testified that the amount of money taken was $600.00. At the time of the robbery Ms. Hayes and Hockenbury were the only persons in the store. In her description to the police she said Hockenbury was wearing a gold jacket, dark pants, and tinted glasses. She positively identified Hockenbury at trial as the robber.

Ms. Hayes had also previously identified Hockenbury at a line-up conducted by the police on January 28, 1977. Subsequently, Ms. Hayes was working at another food store when two men came in. She recognized one of them as being Hockenbury. After the men left one of the other employees recognized Hockenbury’s companion and gave his name and address to the police. Acting upon this information the police were able to locate Hockenbury. They conducted a line-up at which time Ms. Hayes identified Hockenbury as the person who had robbed Junior Food Market on December 16, 1976.

Vicky Evans, another employee of Junior Food Market, was sweeping the parking lot at the time of the robbery. She saw the man who committed the robbery, but could not describe him because of poor visibility. At another line-up, however, she testified that Hockenbury looked “most like the man who came to our store that evening.”

Detective Lancaster testified that he found Hockenbury at the home of Alan Borders after he received the call from Ms. Hayes. Lancaster testified that Hockenbury was informed of his rights in conformity with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and voluntarily agreed to be placed in a line-up. Lancaster testified also that Ms. Hayes positively identified Hockenbury in the first line-up and that Ms. Evans selected him from the second line-up, but could not make a positive identification.

Mark Blankenbaker, a clerk at the Greentree Market, identified Hockenbury in a photographic display on February 2, 1977. Blankenbaker testified that Hockenbury came in the Greentree Market with a group of other persons around 7:26 P.M. on December 29, 1976, and that Hockenbury remained behind when the others left. Hockenbury then asked Blankenbaker about some seafood and then sought permission to use the phone. As Blankenbaker turned around, Hockenbury had a silver-plated gun aimed at him. Hockenbury then took cash and food stamps from the Greentree Market. Blankenbaker described the robber as wearing a floppy hat, vinyl jacket, and dark pants. He further described him as being 6' to 6'1" tall and his weight as approximately 184 lbs. He testified also that Hockenbury had “thick, curly, brown hair,” and that he was able to observe Hockenbury for 10 to 12 minutes. Blankenbaker was able to make positive identification of Hockenbury as the robber during a photographic display. Detective Payne testified that about 30 minutes before the Greentree robbery he observed Hockenbury going toward the Greentree Market dressed in the manner described by Blankenbaker. At the conclusion of all of the evidence offered by the Commonwealth, counsel for Hocken-bury moved for a directed verdict. That motion was overruled. Hockenbury testified in his own behalf and presented a defense of alibi. Jo Milby testified that she, Hockenbury, and Jan and Ron Gray were playing Yatzee in her trailer the evening of December 16, 1976. The Grays were not certain as to the date, but testified they were at Jo’s trailer on the evening of either December 15th or December 16th. Hockenbury’s father and sister each testi fied that he was at home having dinner with them on the evening of the Greentree robbery. The Commonwealth’s Attorney questioned Hockenbury as to why he didn’t explain his whereabouts on the robbery dates when first identified by the witnesses. Hockenbury’s counsel made no objection to that line of questioning. Detective Lancaster was called as a rebuttal witness and testified that Hockenbury at the time of his arrest said he could not remember where he had been on the dates in question. Hocken-bury had first said he was not in Bowling Green, but then according to Lancaster, he admitted that he was there.

The Commonwealth’s cross-examination of Hockenbury was in part directed at his failure to give an alibi at the time of his arrest. In his closing argument the Commonwealth’s Attorney bemoaned the fact that Hockenbury’s alibi was first offered at trial. This court has expressed its disapproval of the use of post-arrest silence to impeach a defendant. Niemeyer v. Commonwealth, Ky., 533 S.W.2d 218 (1976); Darnell v. Commonwealth, Ky., 558 S.W.2d 590 (1977) (Lukowsky, J., dissenting); Campbell v. Commonwealth, Ky., 564 S.W.2d 528 (Rendered February 21, 1978). However, this case is unlike one in which a defendant stands mute at arrest and first offers an explanation or alibi at trial. It is abundantly clear from the record that Hockenbury at the time of his arrest was willing to discuss with the officers his whereabouts at the time of the robberies. Hockenbury was not silent, as he contends.

It is also clear from the record that trial counsel made no objection during the cross-examination of Hockenbury, nor did he object to the prosecutor’s closing argument. This court has repeatedly held that absent proper objection, the failure to assert a claim in a trial court precludes its consideration on appeal. RCr 9.22; Ferguson v. Commonwealth, Ky., 512 S.W.2d 501 (1974).

Hockenbury contends that a line-up and photographic display in which he was positively identified by Ms. Hayes and Blankenbaker tainted the in-court identification. This argument is totally without merit and is refuted by the record. Ms. Hayes testified that Hockenbury was in the Junior Food Market approximately twenty minutes at the time of the robbery. She faced him squarely when he placed the gun at her side and demanded the money. Blankenbaker observed Hockenbury in the Greentree Market for approximately twenty minutes. He also looked into a gun barrel at the time he handed over the money. Common sense dictates that such experiences, and the actor’s appearance is indelibly imprinted on the mind of the victims. Both Ms. Hayes and Mr. Blankenbaker positively identified Hockenbury prior to trial and in court. These identifications are sufficient for this court to conclude that the in-court identifications were based upon independent recollections of the witnesses.

Finally, Hockenbury argues that the trial court’s instruction to the jury on reasonable doubt was improper. His counsel at trial submitted a reasonable doubt instruction to the court which stated:

“A reasonable doubt is a doubt based upon and generated by reason and common sense, the kind of doubt that would make a person of reasonable intelligence hesitate to act. A reasonable doubt exists whenever, after careful and impartial consideration of all the evidence in the case, you do not feel convinced to a moral certainty that the defendant is guilty of the charge.”

The trial court rejected Hockenbury’s instruction and gave a proper instruction that has been accepted by this court on many occasions. It is noted also that the trial court followed the reasonable doubt instruction set out in Palmore, Kentucky Instructions to Juries, § 11.01. In Evans v. Commonwealth, Ky., 474 S.W.2d 370 (1971), this court was confronted with the argument by the defendant much like that made by Hockenbury. In Evans, supra, this court reaffirmed its position approving the instruction given in that case and this as to reasonable doubt.

This court is of the opinion that the trial court committed no error prejudicial to the rights of Hockenbury.

The judgment should be and it is affirmed.

All concur.


author: PER CURIAM.

text:
    Honorable James J. GILLIECE, Judge, Kenton Circuit Court, Appellant, v. CITY OF COVINGTON, Kentucky, Appellee.
    Supreme Court of Kentucky.
    May 2, 1978.

      Richard C. Stephenson, Stoll, Keenon & Park, Lexington, Bernie Beck, Fort Mitchell, for appellant.
    A. Wallace Grafton, Jr., Sheri G. Snyder, Francis J. Mellen, Jr., Wyatt, Grafton & Sloss, Louisville, Douglas M. Stephens, Cov-ington City Sol., Covington, for appellee.
   PER CURIAM.

The City of Covington, Kentucky, in 1962 enacted four annexation ordinances. Within thirty days after their enactment four remonstrances were filed in the Kenton Circuit Court protesting the annexation. One of these actions has been prosecuted to a conclusion, approving the annexation. Hopperton v. City of Covington, Ky., 415 S.W.2d 381 (1967). The other actions, which had been consolidated with Beck v. City of Covington, Kenton Circuit Court, civil action # 9921, proceeded, but slowly. The record does not disclose that appellant in any way delayed or stalled the progress of this litigation. As a matter of fact, the petition filed herein indicates that activity outside the courtroom could have been, and likely was, the stumbling block. Being anxious for a judicial determination of pending motions, the appellee proceeded, on the 10th day of June, 1977, to file its petition for a writ of prohibition or mandamus against the appellant seeking to coerce him not only to decide the motions but to decide them in a particular way. The Court of Appeals of Kentucky granted the relief which the ap-pellee sought.

This is an appeal from the order of the Court of Appeals prohibiting the petitioner from proceeding further in the consolidated action of Beck v. City of Covington, except to issue such order or orders as may be required to appropriately dismiss the complaints of the remonstrants which have not been heretofore dismissed. An appeal rather than a motion for a discretionary review is the proper method of securing a review of an order of the Court of Appeals granting or denying a petition for a writ of prohibition or a writ of mandamus. Stephens v. Goodenough, Ky., 560 S.W.2d 556 (1977); CR 76.36(6).

The appellee contends that, (1) the remaining remonstrant actions are moot, consequently, there is no further jurisdiction in the Kenton Circuit Court except to enter an order dismissing them, and (2) the facts set out in the petition justify the action of the Court of Appeals in ordering the appellant to decide the issue in a particular way. The appellant argues that, (1) the Kenton Circuit Court had jurisdiction to determine whether it in fact had jurisdiction; (2) the facts necessary to disclose that the actions are moot have not been established; (3) there exists a right of appeal from any final action of the Kenton Circuit Court; and (4) the delay in deciding the motions which are pending is not unreasonable.

Our attention is specifically directed to the fact that the remonstrants’ actions in the Kenton Circuit Court, which are pending before the appellant, are 15 years old. For fear that the length of time that appellant has had the consolidated actions before him may be obscured by the period of time that these actions have been pending in court, we take note that the appellant did not become judge of the Kenton Circuit Court until April 10, 1974.

On June 18, 1975, the appellant entered an order vacating a prior order entered by a special judge, and on March 31,1976, pursuant to a motion, entered an order identical to the one he had set aside. On June 14, 1976, one of the remonstrants, City of Er-langer, Kentucky, moved for summary judgment denying the right of the City of Covington to annex any of its area. The summary judgment was granted by order of October 25, 1976. On October 27, 1976, the appellee filed a motion to dismiss the actions as being moot. At that time David Stallard moved the court for permission to intervene as a remonstrant. On November 29, 1976, these two motions were argued before the appellant and were then and there taken under submission. At the time this original action was filed, on June 10, 1977, the appellant had not passed on either of these motions.

The appellant’s statement of points and authorities and the appellee’s counterstatement of points and authorities raise both questions of law and questions of fact.

By reason of the disposition being made of this case, we need only concern ourselves with the questions of whether (1) the motion of David Stallard to intervene should be granted or denied; (2) the appellant is acting within the scope of his jurisdiction; and (3) the delay in deciding the motions is unreasonable and, if so, whether the appellant should be directed as to the disposition to be made of the motions.

The propriety of permitting Stallard to intervene is properly addressed to the trial court. CR 24.01. This is one of the motions pending before the appellant, and we will not second guess the action of the trial judge in that respect.

The appellee argues that the allegations of the petition for a writ of prohibition or mandamus clearly disclose that the consolidated actions have become moot and, therefore, the Kenton Circuit Court has no jurisdiction to proceed further. In Sharp v. Wadill, Ky., 371 S.W.2d 14 (1963), we said:

“The established rule is that where the jurisdiction of a court depends on a fact which the court is required to ascertain, the court has jurisdiction to determine that jurisdictional fact, and its judgment determining that fact is conclusive on the question of jurisdiction until set aside or reversed in direct proceedings; it cannot be attacked collaterally.”

The question as to whether the issues have become moot is one of fact and is for the trial judge to determine.

Although the consolidated actions have been long-lived, this court is net constrained to say that their longevity, guidance and disposition, while under the care of the appellant, are such as to cause this court to direct the nature of the disposition to be made of the two motions pending before him.

In Helton v. Stivers, Ky., 385 S.W.2d 172 (1964), we criticized a four-month delay in taking any action on a motion without some reason justifying the delay being shown. In Hyden v. Fanning, Ky., 469 S.W.2d 703 (1970), we were faced with a six-month delay in ruling on a pending motion. There were factors which made the delay necessary. We denied a petition for mandamus, but did so “without prejudice to a renewal of the motion in the event the desired relief is not forthcoming within a reasonable time.”

The appellant has shown no reason for the delay. We are of the opinion that the delay is unreasonable and that the Court of Appeals appropriately ordered the appellant to decide both motions. However, we are of the opinion that we are not authorized to direct the court how to rule on either or both of said motions.

So much of the order of the Court of Appeals as directs the appellant to issue an order dismissing the remonstrants’ complaints which have not been heretofore dismissed is reversed; in all other respects the action of the Court of Appeals is affirmed.

The appellant is ordered to decide forthwith the motion of Stallard to intervene and the motion of the appellee to dismiss all of the remonstrants’ suits consolidated in the action of Beck v. City of Covington.

All concur, except STEPHENSON and LUKOWSKY, JJ., who did not sit.


author: PER CURIAM:

text:
    J. H. B., Plaintiff-Respondent, v. K. M. H., Defendant-Appellant.
    No. 10587.
    Missouri Court of Appeals, Springfield District.
    April 4, 1978.
    Motion for Rehearing Denied April 25, 1978.
    Johnson & Berry, Neosho, for plaintiff-respondent.
    Leo W. Schrader, Joplin, for defendant-appellant.
   PER CURIAM:

The widowed 33-year-old natural mother of two girls, married a 21-year-old man in June 1974. The couple became the adoptive parents of the girls, then aged 9 and 8, in October 1975 and less than a year later, in August 1976, the marriage was dissolved and the mother’s former married name was restored. Thereafter, in November 1976, the mother instituted this equitable action in the Circuit Court of Newton County to set aside and vacate the decree of adoption previously made by that tribunal. The court entered its order setting aside the earlier decree of adoption and the adoptive father has appealed.

In substance, appellant’s first point relied on is that the trial court erred in not dismissing the mother’s petition because it failed to state a claim upon which relief could be granted. It suffices for our purposes to note that after alleging several facts and particulars as to why the decree of adoption should be annulled and set aside, the petition concluded “[t]hat the granting of this petition would be in the best interests of said two minor children.” This was sufficient to invoke the jurisdiction of the court. Simpson v. Rushing, 472 S.W.2d 647, 650[6] (Mo.App.1971).

Appellant’s second and final point is to the effect that the evidence did not support the trial court’s conclusion that setting aside the adoption was for the best interests of the children.

It is enough to say that after studying the transcript on appeal, carefully considering the briefs of astute counsel and conning authorities belaboring the presented problems, we conclude: (1) that posterity will not gain and the innocent children should not be ladened with a public recounting of the testimony in this case; (2) that the judgment of the trial court is supported by substantial evidence and is not against the weight of the evidence; (3) that no error of law appears; and (4) that a de-tailed opinion would have no precedential value.

The judgment of the trial court as to point one is affirmed because that point has no merit; the judgment of the trial court as ' to the second point on appeal is affirmed in compliance with Rule 84.16(b), V.A.M.R.

All concur.

      . See In re Novak, 536 S.W.2d 33, 37-38 (Mo. banc 1976) and In re McDuffee, 352 S.W.2d 23, 26-27 (Mo.banc 1961) as to the authority and jurisdiction of the court to vacate a previous decree of adoption.

      . We have gratuitously considered the appeal and the briefs of the parties upon the merits albeit the statement of facts contained in appellant’s brief consisted only of a resume of the testimony contrary to the mandates of Rule 84.04(c), V.A.M.R., and the printed brief of respondent did not conform to the requirements of Rule 84.06(a), V.A.M.R.


author: SNYDER, Judge.

text:
    LaVerne HUNTER, Administratrix of the Estate of Emil Hunter, Deceased, and LaVerne Hunter, Plaintiffs-Respondents-Appellants, v. William MADDEN, Glenn Smith, Philip V. Paul, Defendants-Appellants-Respondents.
    Nos. 38714, 38724.
    Missouri Court of Appeals, St. Louis District, Division Four.
    April 4, 1978.

      Walsh, Howe & Ebert, Robert T. Ebert, Clayton, for LaVerne Hunter.
    Paul Taub, Overland, for William Madden, Glenn Smith and Philip V. Paul.
   SNYDER, Judge.

Mandamus action brought by La-Verne Hunter individually and as adminis-tratrix of the estate of Emil Hunter, deceased. Plaintiff LaVerne Hunter, admin-istratrix, in Count I sought a writ of mandamus to the Board of Trustees of the Community Fire Protection District requiring the board to hold a hearing on the application of Emil Hunter, plaintiff’s deceased husband, for disability benefits under the district’s pension plan. Plaintiff LaVerne Hunter, individually, in Count II sought mandamus against the same board to require the members to hold a hearing on her application for widow’s death benefits under the pension plan. Plaintiff LaVerne Hunter, administratrix, appeals from the Count I judgment denying a peremptory writ of mandamus as to her deceased husband’s application for disability benefits.

Defendant trustees appeal the Count II judgment granting a writ of mandamus as to LaVerne Hunter’s application for widow’s benefits. The parties’ joint motion to consolidate the appeals was granted. The petition included a third count for damages which was dismissed by the trial court. No appeal was taken as to the judgment on this count and the issue has been abandoned.

Plaintiff moved to dismiss defendants’ appeal alleging that defendants’ brief failed to comply with Rule 84.04(a) and (d) which requires an appellant to state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous. We have examined the motion, defendants’ brief and the suggestions in support and in opposition to the motion submitted by the respective parties. The motion is denied.

Emil Hunter was first employed as a fireman by the Community Fire Protection District of St. Louis County on January 25, 1953. He attained the rank of Captain. His employment terminated on April 12, 1969 when he became totally disabled. He died on November 3,1971 after undergoing surgery at Wohl Hospital after a fall in the bathroom of his residence.

The Community Fire Protection District had established a pension plan by the passage on December 6, 1966 of Ordinance 66-1 which was amended on December 20, 1966 by Ordinance 66-2. The plan provided for retirement and disability benefits for salaried members of the district and “for the payment of death benefits to the widows and minor children of salaried members of the district who lose their lives in the performance of their duties, * *

Captain Hunter applied for benefits under the plan alleging that he had become disabled and that the disability was caused by disease to his heart and lungs suffered in the line of duty as a fireman. On February 13, 1970 the defendant trustees, through their attorney, wrote a letter to Captain Hunter advising him that the board by resolution had voted to deny him benefits from the pension fund because his disability was not incurred in the line of duty. The denial was based on a review of his medical history and a subsequent examination by the district’s medical board, the majority of whom were of the opinion that smoke inhalation was not the primary cause of his disability. No action was taken by Captain Hunter in response to this denial of benefits until September 24, 1970 when he filed suit seeking mandamus in the Circuit Court of St. Louis County. On October 23, 1974 the suit was dismissed for lack of jurisdiction. The petition here in question was filed on October 7, 1975.

The court ordered an alternative writ of mandamus to issue as prayed. Defendants’ return to the alternative writ included a motion to dismiss plaintiff’s petition. The court granted the motion to dismiss as to Counts I and III but denied the motion as to Count II. After hearing evidence, the court ordered a peremptory writ of mandamus to issue on Count II commanding the defendants to grant plaintiff LaVerne Hunter a hearing on her application for widow’s benefits. Timely appeals followed except as to Count III.

We shall consider first plaintiff’s appeal from the judgment dismissing Count I which related to Captain Hunter’s application for disability benefits. We affirm the trial court’s judgment as to Count I.

Chapter 536, RSMo 1959 relates to rules of administrative agencies (§ 536.010 through § 536.050), procedures by and before agencies (§ 536.060 through § 536.095) and judicial review of administrative decisions (§ 536.100 through § 536.150). It is applicable to municipal as well as state agencies. State ex rel. Leggett v. Jensen, 318 S.W.2d 353, 356[2] (Mo. banc 1958).

Rule 100 contains language identical to that in certain of the sections in Chapter 536 governing judicial review of administrative decisions. Rules 100.03 through 100.07 relate to judicial review of “contested cases” as defined in 100.01. Rule 100.08 relates to review of uncontested cases “by suit for injunction, certiorari, mandamus, prohibition or other appropriate action.” A “contested case” is defined in Rule 100.01 as follows: “a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing.”

The initial question presented in connection with Captain Hunter’s application for disability retirement benefits is whether it is a “contested case” under Rule 100. If so, a timely appeal would have required the filing of a petition for review within 30 days after the mailing of the notice of the board’s final decision to Captain Hunter on February 13, 1970. Rule 100.04. If this is not a “contested case”, the remedy of Captain Hunter would have been the filing of a petition for certiorari as permitted by Rule 100.08 in cases other than contested cases and as mandated by Section 4 of Ordinance 66-1. No time limitation is specified either in the rule or in the ordinance for the filing of a petition for certiorari.

The Supreme Court in State ex rel. Leg-gett v. Jensen, supra, at page 356, defines a “contested case” as follows:

“We think this means that a ‘contested case’ (to which the Administrative Procedure Act and its judicial review provisions apply) is a case which must be contested before an administrative agency because of a requirement (by constitutional provision, statute, municipal charter provision or ordinance; see Sec. 536.-105, subd. 1) for a hearing before it of which a record must be made unless waived. § 536.060.”

The § 536.105 referred to is now § 536.150 from which Rule 100.08 was derived.

The court in Jensen then stated:

“In other words, ‘contested case’ within the meaning of the Act does not mean every case in which there may be a contest about ‘rights, duties or privileges’ but instead one in which a contest is required by law to be decided in a hearing before an administrative agency.”

This case is not a “contested case” under the rule. No statute or ordinance requiring a hearing has been cited to us. On the contrary, Section 24 of Ordinance 66-1 states that the Board of Trustees may hold hearings. There is no reason to ascribe other than a discretionary meaning to the word “may”. If the board has discretion, obviously there is no requirement that a hearing be held. There is also no hearing requirement in the controlling statute which only grants a general authorization to the board of directors of a district to provide for pensions and death benefits after approval by the voters of the district and to have and exercise all rights and powers necessary or incidental to or implied from the specific powers granted by the statute. § 321.220, RSMo 1959 as amended 1961.

Captain Hunter’s application for disability benefits then is not a contested case and therefore falls under the provisions of Rule 100.08.

Section 4 of Ordinance 66-1 of the Community Fire Protection District provides that the records, evidence, findings and decisions of the Board of Trustees shall be preserved by the board and be “subject to judicial review on certiorari”, thus prescribing a specific remedy for those aggrieved by decisions of the board, a remedy which is included in Rule 100.08 as an avenue of judicial inquiry or review. Certiorari was the appropriate remedy here.

Plaintiff contends that judicial review on certiorari has been nullified by Article Y, Section 22 of the Missouri Constitution, citing State ex rel. Police Retirement System of City of St. Louis v. Murphy, 359 Mo. 854, 224 S.W.2d 68 (1949). However, the later case of State ex rel. Leggett v. Jensen, supra, at pages 357 and 358[3] and [4], clearly holds that the remedies provided in Rule 100.08, including certiorari, are applicable to many cases decided by administrative bodies without a hearing. Rule 100.08 does not specify a time limit on the filing of a suit for certiorari. Nor does Ordinance 66-1 establish a time within which a party shall apply for review by certiorari. The fact is that Captain Hunter never brought certiorari. His failure to pursue the proper remedy in appealing the decision of the board requires affirmance of the dismissal of Count I.

It is true that Captain Hunter filed a suit for mandamus, but even this improper remedy was requested more than seven months after he was notified of the board’s decision and not pursued for four years, after which it was finally dismissed by the court for lack of jurisdiction on October 23, 1974. Nearly a year then elapsed before the petition here in question was filed.

The controlling fact is that Captain Hunter did not pursue the proper remedy and mandamus, which his administratrix is here requesting, will not lie if an adequate remedy by appeal exists, even though a party has lost his proper remedy through neglect or ignorance. State ex rel. Pope v. Lisle, 469 S.W.2d 841 (Mo.App.1971).

Defendants in their brief contend that there was no statutory authority for accidental disability retirement allowances in 1966 when the ordinance was passed. Since Count I is dismissed for failure to apply in time for the proper remedy, we need not decide this question.

A different issue is raised by plaintiff La Verne Hunter in her application for widow’s benefits under Section 18 of the ordinance. The record shows that Mrs. Hunter applied for benefits for herself on April 19, 1975. This was more than three years after her husband’s death but we have been referred to no requirement that imposes a time limit on the filing of such an application. The Board of Trustees refused to grant Mrs. Hunter a hearing or to allow her to introduce evidence on her application. The application, on a form prescribed by the board, does not contain, nor does it ask for, any information as to the cause of death of the deceased husband. In the case of Captain Hunter’s application for disability retirement benefits, the board had examined medical reports and passed a resolution denying the benefits, whereas in the case of Mrs. Hunter’s application, the record shows that no action at all was taken by the board. No decision was made. Apparently the board ignored the application completely, perhaps upon the assumption that it was not necessary to take any action because they believed she obviously did not qualify. For whatever reason, no action was taken. Mrs. Hunter had no ruling from which she could appeal under the provisions of Rule 100. Therefore, her remedy is mandamus.

“Mandamus is a proper remedy to compel municipal officers or boards to take action and exercise their discretion in respect to matters properly presented to them and within their jurisdiction, but it will not lie to control or review the exercise of this discretion, or compel the officers or boards to act in a particular way. The courts will, however, relieve against an abuse of discretion by the officers or boards. 38 C.J. 689.” State ex rel. Schulz v. Fogerty, 195 S.W.2d 908, 911 (Mo.App.1946). Plaintiff is attempting to compel the Board of Trastees of the pension fund of the Conmunity Fire Protection District to take some action on her application for widow’s benefits. She wants them to exercise their discretion. They have failed to do this on a matter which was properly presented to them, on an application form approved by the Board of Trustees, and within their jurisdiction under Ordinance 66-1.

No action was taken on the application. Therefore, plaintiff’s remedy is a mandate from a court to the Board of Trustees directing them to consider the application in accordance with the terms of the ordinance.

Defendants argue extensively that: (1) Emil Hunter did not lose his life in the performance of his duties, and (2) La Verne Hunter is not eligible for benefits since the ordinance prescribes that a widow is eligible for a pension only if the death of her employee husband was “the result of an accident or exposure at any time, or place, provided that at said time or place the member was in the actual performance of his duty, or exposed while in the actual performance of duty, or in response to an emergency call, or was acting pursuant to orders; * *

No determination has ever been made that Emil Hunter did not lose his life in the performance of his duties. Defendants’ statement to that effect in their brief is a conclusion not supported by the record. It is true that in the evidence presented to the trial court at the hearing on the issuance of the writ of mandamus there was testimony that Captain Hunter died following surgery after a fall in his home. However, the record also shows that Hunter had respiratory and heart problems and that his prognosis in the autumn of 3971, prior to his fall, was very poor. The record shows he suffered several periods of smoke inhalation and developed congestive heart failure around 1969. Plaintiff should be permitted to develop at a hearing whatever evidence she has that the cause of her husband’s death was service connected under the terms of the ordinance.

The ordinance in Section 17 specifically defines occupational disease and states that: “The terms ‘as the natural and proximate result of an accident occurring while in the actual performance of duty, or exposure while in the actual performance of duty, or in response to an emergency call’ shall include ‘occupational disease’.” It is possible that the occupational disease provision is applicable here. Obviously there are questions of fact to be determined before it can be ruled positively that LaVerne Hunter is or is not entitled to widow’s benefits under the pension plan.

The cases cited by defendants in support of their proposition that mandamus will not lie to command a futility are well-taken. However, their argument is based on a conclusion unsupported by the evidence, i. e. that Captain Hunter did not die as a result of a service connected disability.

The application form prescribed by the Board of Trustees of the Community Fire Protection District does not request information on the cause of death of the applicant’s spouse. Thus the mere receipt by the board of petitioner’s application does not constitute “the receipt and evidence of proof that the death of the member was the result of an accident or exposure while in the actual performance of duty” as required by Section 18 of the ordinance. In fact, it is reasonable to infer from the prescribed form of application that the applicant’s evidence as to the cause of her spouse’s death would be presented to the Board of Trustees following an initial determination by the board that she was a qualified applicant. The petition alleges and the record shows that the trustees have refused to permit Mrs. Hunter to present any evidence to them. Mandamus is the proper remedy to require defendants to act. The trial court’s order directing the issue of a peremptory writ of mandamus requiring defendants to grant plaintiff LaVerne Hunter a hearing on her application for widow’s benefits is affirmed.

Judgment affirmed in all respects.

DOWD, P. J., and ALDEN A. STOCK-ARD, Special Judge, concur.

      . An order refusing an Alternative Writ of Mandamus is not appealable. However, once an alternative writ is issued, an appeal can be taken from an order of the court sustaining a Motion to Quash or Dismiss the Alternative Writ. State ex rel. Karmi v. VonRomer et al., 562 S.W.2d 112 (Mo.App.1978); State ex rel. Brandon v. Hickey, 462 S.W.2d 159 (Mo.App. 1970).


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Roe Harold LANCE, Defendant-Appellant.
    No. 10636.
    Missouri Court of Appeals, Springfield District.
    April 21, 1978.

      John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Ted M. Henson, Jr., Scott & Henson, Poplar Bluff, for defendant-appellant.
    Before BILLINGS, C. J„ and HOGAN and TITUS, JJ.
   BILLINGS, Chief Judge.

Defendant Roe Harold Lance was convicted by a Stoddard County jury of armed robbery and sentenced to 25 years imprisonment. We affirm.

Defendant was charged with the June 18, 1975, armed robbery of Mr. and Mrs. Glen Harrison at their Stoddard County home. Following the robbery, the victims were handcuffed to clothes rods in a closet and furniture stacked against the closet door. At trial Mr. and Mrs. Harrison and defendant’s accomplice testified defendant was one of the two armed men who perpetrated the crime.

The transcript discloses the verdict of the jury was returned January 19, 1977, and at defendant’s request he was granted 15 days in which to file a motion for new trial. The new trial motion was filed 21 days later on February 24, 1977. On March 7, 1977, defendant was granted leave to file an amended motion for new trial and this was done on March 15, 1977. The trial court overruled the motion on March 16, 1977, afforded defendant allocution, and imposed sentence and rendered judgment.

Rule 27.20, V.A.M.R., requires that a motion for a new trial in a criminal case be filed within ten days after the return of the verdict unless the court, on application of the defendant, extends the time for an additional period of time, not exceeding 30 days.

Here, defendant had a total time of 15 days in which to timely file a motion for new trial. His failure to do so within the time allotted rendered his motion a nullity and preserved nothing for appellate review. State v. Collett, 542 S.W.2d 783 (Mo.banc 1976); State v. Laden, 536 S.W.2d 880 (Mo.App.1976). The amendment of the motion for new trial was unauthorized and prohibited by Rule 27.20, V.A.M.R., and preserved nothing for review.

We have read the transcript in its entirety to determine if the plain error provision of Rule 27.20(c) is applicable. We conclude not. The state’s evidence was substantial and overwhelming as to defendant’s guilt. The jury only required 16 minutes to select a foreman, deliberate and arrive at its verdict. Defendant offered no evidence by way of defense. We do not find manifest injustice or miscarriage of justice and hold that the plain error doctrine does not apply in this case. State v. Sanders, 541 S.W.2d 530 (Mo.banc 1976); State v. Hurtt, 509 S.W.2d 14 (Mo.1974); State v. Wendell, 542 S.W.2d 339 (Mo.App. 1976).

The judgment is affirmed.

All concur.

      . Colloquy between court and counsel indicated defendant was also charged with an armed robbery of Mr. and Mrs. Harrison on June 2, 1975. Defendant, serving federal sentences at time of the instant trial, was also awaiting trial on an armed robbery charge in Butler County.

      . The clerk, in entering the judgment, omitted the offense for which defendant was convicted. We remanded the case for entry of judgment as required by Rule 27.11, V.A.M.R. State v. Lance, 561 S.W.2d 446 (Mo.App.), filed January 19, 1978.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Roe Harold LANCE, Defendant-Appellant.
    No. 10789.
    Missouri Court of Appeals, Springfield District.
    April 21, 1978.
    John D. Ashcroft, Atty. Gen., Daniel F. Lyman, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Ted M. Henson, Jr., Scott & Henson, Popular Bluff, for defendant-appellant.
    Before BILLINGS, C. J., and HOGAN and TITUS, JJ.
   BILLINGS, Chief Judge.

A Butler County jury found defendant Roe Harold Lance guilty of armed robbery, and fixed his punishment at 20 years imprisonment. We affirm.

Defendant’s accomplice and the victims of the February 17, 1975, robbery, Mr. and Mrs. Thacker of Poplar Bluff, testified the defendant was one of the two men who, at rifle point, robbed Mr. Thacker, a gun dealer, of an assortment of pistols, rifles and shotguns at the Thacker residence. The Thackers were bound, gagged, and handcuffed to their car by defendant and his accomplice before the two bandits left the residence with the stolen guns.

We have read the trial transcript and the briefs of the parties. Defendant’s guilt was established by substantial evidence. No error of law appears. An opinion would not have any precedential value.

The judgment is affirmed pursuant to Rule 84.16(b), Y.A.M.R.

All concur.

      . Defendant was serving a federal sentence at Leavenworth, Kansas, and was returned to Missouri by Stoddard County authorities to face prosecution for another armed robbery charge. State v. Lance, 561 S.W.2d 446 (Mo. App.1978) No. 10636 filed this date. He was then delivered to Butler County authorities for prosecution on this charge.


author: CLEMENS, Presiding Judge.

text:
    Charles PERRY, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39361.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 25, 1978.
    0. J. Gibson, Jr., Cape Girardeau, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Bradshaw Smith, Pros. Atty., Cape Girardeau, for respondent.
   CLEMENS, Presiding Judge.

Movant Charles Perry (hereafter defendant) pleaded guilty to separate charges of unlawful sale of a firearm and assault without malice. The trial court sentenced him to four years’ imprisonment on the weapon charge and a consecutive three-year term on the assault charge. Defendant’s Rule 27.26 motion was denied without an eviden-tiary hearing and this denial is now assigned as error.

Defendant contends the allegations in his motion were sufficient to require an eviden-tiary hearing — his pleas were involuntary because he was subject to coercion, his counsel was ineffective, and he was not aware of the possible range of sentences. Other reasons stated in the motion are not considered since we review only matters briefed on appeal. McQueen v. State, 475 S.W.2d 111[3] (Mo.1971).

Three prerequisites must be met to qualify for an evidentiary hearing on a Rule 27.26 motion: (1) Movant must allege facts as distinguished from conclusions; (2) those facts must raise matters not refuted by the record in the trial court; (3) matters complained of must have resulted in prejudice. Haliburton v. State, 546 S.W.2d 771[1] (Mo.App.1977).

Defendant’s allegations all fall short of complying with the second prerequisite. Both guilty pleas refute the allegation his pleas were involuntary because he was subject to coercion. In response to questions by the trial court, defendant stated his pleas were not made in response to promises, threats or force, but were voluntary and freely entered. Such a refutation shows a guilty plea was entered with full knowledge, making an evidentiary hearing unnecessary. Shepherd v. State, 540 S.W.2d 619[1] (Mo.App.1976).

The records refute defendant’s allegation of ineffective assistance of counsel. When asked if he was satisfied with his attorney’s efforts, defendant answered, “Yes, sir; he tried hard,” and, “He’s all right; there ain’t nothing he did wrong.” Additionally, this allegation fails to meet the first prerequisite, since a bare assertion of ineffective assistance of counsel is conclusory. State v. Washington, 399 S.W.2d 109[7] (Mo.1966).

Defendant’s final allegation, that he was unaware of the range of sentences, is also contradicted by the record. In each case, the court explained the range of punishment which could be imposed and defendant said he understood.

The trial court did not err in denying defendant’s motion without an evidentiary hearing.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


author: McMillian, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Edgar Vernell FUTRELL, Defendant-Appellant.
    No. 39060.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 25, 1978.
    Robert A. Hampe, St. Louis, for defendant-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 plaintiff-respondent.
   McMillian, Judge.

Appellant Edgar Vernell Futrell appeals from a judgment entered in the circuit court of the City of St. Louis upon a jury verdict finding him guilty of two counts of robbery in the first degree with a dangerous and deadly weapon. The trial court, after finding appellant had a previous felony conviction, sentenced appellant to two terms of forty-five (45) years imprisonment, said terms to run concurrently. For reversal appellant argues that the trial court erred in permitting the jury to view state’s exhibits # 1-9 (“mugshots” of appellant and others). For the reasons discussed below, we disagree and affirm the judgment.

Appellant does not challenge the sufficiency of the evidence. On March 29, 1976, about 1:00 P.M., two men entered the Wagner Furniture Company. They inquired about dinette sets and followed a salesman, Bert Stein, to the rear of the store. One of the men grabbed Stein and held a shotgun to his back. The other man took out a pistol and, pointing toward the office where the owner, Michael Hearst, and his brother, were working, ordered Michael Hearst to give him the money. Mr. Hearst gave him the money from the office cash register, approximately $400 to $500. The man with the pistol then approached another desk where two other salesmen were working. One of the salesmen, Sidney Wasserman, noticed the man with the pistol and told the other, Gary Barnholtz, who was talking on the phone, to hang up. The man with the pistol searched Barnholtz and took his wallet, which contained about $400.

The man with the pistol then ordered Michael Hearst to get the money from the store safe. The gunmen and store personnel all moved to the store safe. Michael Hearst removed cash, about $4500, and some jewelry from the safe and handed it to the man with the shotgun. The gunmen threatened to kill everyone unless they were given the rest of the money. After Michael Hearst told them they had all the money in the store, the gunmen ordered the store personnel downstairs to the basement and then left.

The police arrived shortly thereafter and took down statements and descriptions of the robbers. The next day, March 30,1976, the police returned with nine photographs or “mugshots” (state’s exhibits # 1-9). The three store employees present that day, Michael Hearst, Richard Hearst and Bert Stein, each identified independently appellant’s photograph as that of the man with the pistol. On April 9, 1976, Gary Barn-holtz, Sidney Wasserman and Richard Hearst each independently selected appellant out of a lineup as one of the robbers. They also identified another person in the lineup as the other robber, subsequently identified as James Haynes.

On February 14 and 15,1977, at the hearing on appellant’s motion to suppress identification, all five witnesses testified that just before the hearing they again identified appellant’s photograph as that of the man with the pistol. Each witness also testified about the identification of the photograph at the store the day after the robbery or the lineup. The trial court denied the motion to suppress. In addition each witness made an in-court identification of appellant as one of the robbers at the trial. The arresting officer also testified.

Appellant’s counsel made an objection to the admission and use of the exhibits at issue before the testimony of the state's first witness. The prosecutor argued that the use of the “mugshots” was proper, particularly because he was not going to pass them to the jury. The trial court overruled appellant’s objection, noting that its ruling was “further enforced by the fact that these photographs, according to the State, will not be passed to the jury.” The photographs were referred to throughout trial to show prior witness identification and to support the witnesses’ in-court identification. The prosecutor offered the photographs into evidence; appellant’s objection was again overruled. The prosecutor reof-fered the photographs at the end of the state’s ease and the trial court, subject to the objection of appellant, admitted the photographs and permitted the jury to file past and view the photographs.

Appellant’s brother, Kenneth Futrell, provided some alibi testimony for appellant. Kenneth Futrell testified that on the day of the robbery he had asked appellant to watch his niece and nephew so that he could take his car to be repaired. He testified that he left appellant with the two small children at about 11:00 A.M., returning at 2:45 P.M. He also testified that appellant had been wearing slacks and a shirt on the day of the robbery and not a beige leisure suit, as described by the state’s witnesses.

Appellant’s sole point on appeal is that the trial court erred in permitting the jury to view state’s exhibits # 1 — 9, consisting of “mugshots” of appellant and others, because these photographs tended to show that appellant had committed other crimes and were therefore inflammatory and inherently prejudicial to a fair determination of appellant’s’ guilt or innocence. We note initially that the theory of appellant’s argument on appeal is somewhat inconsistent with that of the objection made at trial and in the motion for new trial. On appeal appellant urges that the “mugshots” were inadmissible as evidence of the commission of other crimes. See, e. g., State v. Diamond, 532 S.W.2d 873, 876 (Mo.App.1976); State v. Fox, 510 S.W.2d 832, 838 (Mo.App. 1974). At trial and in the motion for new trial appellant’s objection was to the general prejudicial impact of “mugshots,” in that they indicated prior police contact. Normally reliance upon inconsistent theories to support an objection will not preserve the point for review, e. g., State v. Merritt, 564 S.W.2d 77 at 78 (Mo.App.1978); State v. Harper, 553 S.W.2d 895, 897 (Mo.App.1977). In the present case, however, because we believe the theory of the objection made at trial in the motion for new trial and on appeal to be substantially the same, that is, that the “mugshots” are prejudicial because they improperly put before the jury appellant’s criminal past, we proceed to a consideration of the merits.

Although there is considerable difference of opinion in the federal circuit courts over the introduction of “mugshots” into evidence in criminal trials, see, e. g., United States v. Harrington, 490 F.2d 487, 494 (2d Cir. 1973) (development of a rule of analysis); compare Barnes v. United States, 124 U.S.App.D.C. 318, 319, 365 F.2d 509, 510 (1966), with United States v. Watts, 532 F.2d 1215, 1217 (8th Cir.), cert, den., 429 U.S. 847, 97 S.Ct. 131, 50 L.Ed.2d 119 (1976); see also Annot., 30 A.L.R.3d 908 (1970), our supreme court has established guidelines controlling the admission into evidence of “mugshots.” Basically, “mugshots” are admissible if the objectionable parts of the photographs which contain police data are masked and the photographs are relevant to the issue of identity. See State v. Crossman, 464 S.W.2d 36, 41 (Mo. 1971); State v. Childers, 313 S.W.2d 728, 731 (Mo.1958); State v. Jones, 531 S.W.2d 67, 72-73 (Mo.App.1975). For example, in Crossman, supra, the defendant, although he did not testify himself, offered alibi evidence and challenged his identification by the state’s witness. The trial court admitted the “mugshots”. The supreme court upheld the trial court, noting that the objectionable parts of the photographs had been blocked out and “the introduction of the photographs helped the jury to determine the accuracy or inaccuracy of the identification made by the witness.” 464 S.W.2d at 41.

In the present case the primary issue was identification. The police data was removed from the photographs by blocking out the serial numbers and other information. Although it is true that the prosecution did not “make every effort” to disguise the nature of the photographs, under the rule as stated in Crossman, we are unable to find the trial court erred in admitting these “mugshots” into evidence.

Furthermore, even if we were to find the trial court erred in admitting the “mugshots” into evidence, in light of the other evidence presented, including multiple lineup and in-court identifications, it was at most harmless error. Cf. United States v. Rixner, 548 F.2d 1224, 1226 (5th Cir.), cert, den, 431 U.S. 982, 97 S.Ct. 2639, 53 L.Ed.2d 248 (1977) (admission of partially cropped mugshots in trial, including one of defendant, in connection with redirect examination of identification witness, was erroneous but constituted only harmless error in view of other strong evidence of defendant’s participation and identification by other witnesses).

Accordingly, judgment is affirmed.

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

      . Appellant cites United States v. Watts, 532 F.2d 1215, 1217 (8th Cir.) cert, den., 429 U.S. 847, 97 S.Ct. 131, 50 L.Ed.2d 119 (1976), to support his argument that we should restate the principles of Crossman to include a requirement that the photographs be disguised by separating the frontal and profile shots and placing them on exhibit sheets. See also United States v. Harrington, 490 F.2d 487, 495 (2d Cir. 1973) (suggesting avoidance of use of juxtaposed full face and profile photographic display and use of photographic duplicates rather than the actual “mugshots” in addition to removal of incriminating indicia). Despite the difference of opinion as to the exact impression “mugshots” make on juries, compare Bames v. United States, 124 U.S.App.D.C. 318, 319, 365 F.2d 509, 510 (1966) with id. 124 U.S.App.D.C. 324, 365 F.2d at 515 (Prettyman, J., dissenting), and United States v. Calarco, 424 F.2d 657, 661 (2d Cir.) cert. den. 400 U.S. 824, 91 S.Ct. 46, 27 L.Ed.2d 53 (1970), “[w]e recognize . . that double-shot pictures, with front and profile shots alongside each other, are so familiar from ‘wanted’ posters in post offices that the inference that the person involved has a criminal record or has been in trouble with the police is natural.” United States v. Watts, 532 F.2d at 1217. Although we would encourage the prosecution to disguise any “mugshots” exhibited to the jury, we cannot find the failure of the prosecution to rearrange the physical display of the photographs or of the trial court to so require this to be reversible error.


author: STEPHAN, Judge.

text:
    In the Matter of the ESTATE of Louis L. KATICH, Deceased.
    No. 38979.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 25, 1978.

      Fred Boeckmann, Clayton, for appellant. John R. Musgrave, Coburn, Croft, Shepherd & Herzog, Roy D. Mueller, St. Louis, for respondent.
   STEPHAN, Judge.

Appellant, Dorothy Martin, is the executrix of the will of Louis L. Katich, deceased; and, in such capacity, filed exceptions to the report of the inheritance tax appraiser in the Probate Court of the City of St. Louis. She is also named as a legatee and devisee in the will; and, as such, she filed a petition to construe the will so as to distribute all personal property in the estate to her.

The dispute arises as a result of the wording of Article III of the will, which reads as follows:

“I hereby give and bequeath to my grandniece DOROTHY MARTIN, ail my personal property, to have and to hold as her absolute property forever.
All the rest, residue and remainder of my estate of every kind and description both real and personal property, wheresoever located I give, devise and bequeath to the following or their heirs, to my niece WILHELMINA PUTICH, to my niece DOROTHY GAVRAN, to my nephew SAM KA-TICH, to my sister-in-law MARY C. HANNIBAL, and to my grandniece DOROTHY MARTIN, to have and to hold as their absolute property forever, share and share alike.” (Emphasis added.)

The will was drafted at the request of the testator by a funeral director who was unskilled in the law. It replaced an earlier will in which Wilhelmina Putich had been named executrix and in which Dorothy Martin was not mentioned, although the other residuary legatees were. The probate court overruled the exceptions and construed the will so as to distribute to her only the tangible personal property and one-fifth of the residuum with one-fifth to each of the other four persons named. The circuit court affirmed, and we affirm the order of the circuit court. Our efforts herein were greatly facilitated by the excellent briefs filed by counsel.

Appellant’s basic contention is that under the first sentence of Article III, supra, she is entitled to all of the personal property in the estate, tangible and intangible. In support of this position, she urges that the trial court erred in permitting the scrivener to testify concerning the testator’s intent with respect to the first sentence of Article III, that the construction accorded by the probate and circuit courts to Article III was against the weight of the evidence, and that the specific provision giving “all my personal property” to appellant should prevail over the general provisions of the residuary clause. We take these assignments of error in order, reviewing the same as in causes of an equitable nature. Cranford v. Langston, 356 S.W.2d 581, 584 (Mo.App.1962).

The scrivener was permitted, over appellant’s objection, to testify that the bequest of “all my personal property” to Dorothy Martin was intended to implement Mr. Ka-tich’s wish, expressed to the scrivener, that Mrs. Martin receive Mr. Katich’s furniture and that the reference to personal property in the residuary clause meant all personal property other than furniture.

It is clear that latent ambiguities in a will may properly be explained by testimony of the scrivener concerning intentions of the testator. Evans v. Volunteers of America, 280 S.W.2d 1 (Mo.1955). In that case, a beneficiary under the will was referred to therein as the “Volunteers of America, commonly known as the Salvation Army”. The court stated that the ambiguity was “latent” because “[t]he uncertainty does not become apparent until it is shown that the Volunteers of America and the Salvation Army are two separate, independent, charitable corporations and not one organization known by the two names.” Id. 4.

Such is not the case here. Use of the phrase “personal property” in the clause relating to Dorothy Martin individually and in the clause relating to all the residuary legatees gives rise to a patent ambiguity, for the uncertainty is immediately apparent on the face of the instrument. See Citizens National Bank v. Hanes, 541 S.W .2d 70, 71 (Mo.App.1976); Mudd v. Dillon, 166 Mo. 110, 65 S.W. 973, 975 (1901). Where an ambiguity is patent, it has been said that:

“The general rule is that parol evidence as to the testator’s declarations concerning his intention, whether made before, at the time of, or subsequent to, the execution of his will, are incompetent upon the question of the construction to be given the language employed in the instrument. This for the reason that the testator’s intention is to be ascertained from the will itself, considered in the light of relevant, extrinsic circumstances where the language used is ambiguous; and were parol evidence of the testator’s verbal declarations to be admitted, not only would the result be to subject the question of his intention to evidence of declarations which he, being dead, could not dispute, but it would also, in effect, be violative of the statute which requires all wills to be made in writing.”

Aurien v. Security National Bank Savings & Trust Co. of St. Louis, 137 S.W.2d 679, 684 (Mo.App.1940). See also Evans v. Volunteers of America, 280 S.W .2d 1, 5 (Mo. 1955) and Winkel v. Streicher, 295 S.W.2d 56, 58-59 (Mo.banc 1956). Thus, if the “general rule” applies here, it would appear that the scrivener’s testimony concerning Mr. Katich’s intentions should not have been admitted. However, such error, if error it be, does not require reversal of this court-tried case.

In L. S. v. L. M. S., 538 S.W.2d 753, 755 (Mo.App.1976), this court said:

“Error in the admission and rejection of evidence in a court-tried case does not have the same significance accorded such error in a jury trial. Such error in the court-tried case is not cause for reversal because ‘. . . the appellate court considers such evidence in the record as deemed admissible, and excludes from consideration evidence improperly admitted and reaches its judgment on the competent evidence offered without regard to the trial chancellor’s ruling.’ Linders v. Linders, 356 Mo. 852, 204 S.W.2d 229, 234 (Mo.1947); Martin v. Norton, 497 S.W.2d 164, 169 (Mo.1973)."

Thus, we decide the case without regard to the testimony of the scrivener and, in view of the result reached below, observe that the trial court apparently took the same approach.

Appellant next contends that it was against the weight of the evidence for the trial court to construe the phrase “all my personal property” in the first sentence of Article III as meaning only tangible personal property. We measure this contention against Rule 73.01 as explicated by Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo.banc 1976) where it is said:

“Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.”

Having thoroughly examined the record of the proceedings in the trial court and the briefs of the parties, we are unable to harbor such “firm belief” and, indeed, hold that there is substantial evidence to support the trial court’s construction of the will.

The trial court properly admitted certain extrinsic evidence, other than the testimony of the scrivener, to aid it in construing the will and ascertaining the testator’s true intent. Aurien, supra, 683[4]. Appellant now argues that the following facts permit no conclusion other than that Mr. Katich intended for her to have all of his personal property:

(a) that Dorothy Martin and her family lived near testator and took care of him both before and during his final illness;
(b) that Dorothy Martin was the only beneficiary with financial obligations toward young or growing children, and the other beneficiaries were either retired, on pensions or were gainfully employed;
(c) that Samuel Katich and Dorothy Gav-ran, respondents herein, lived far from testator and seldom visited him.

Although the foregoing facts would support the conclusion appellant seeks, they do not preclude that reached by the trial court.

It is true that appellant and her family gratuitously extended many kindnesses to the testator in the final months of his life. During 1974 appellant and her sons went shopping for Mr. Katich, cut his grass, and ran errands for him. In August of 1974 his physical condition deteriorated to the point where he needed someone with him at all times. Appellant’s eighteen year old son, Robert, moved into Mr. Katich’s home, cooked and cleaned for him, “helped him when he had to get up from bed or anything, to go to the bathroom, and so forth.” Robert continued to live with Mr. Katich until he entered a hospital in the early part of February, 1975, where he died on February 21. Under the circumstances, it is understandable that Mr. Katich would have, on September 20,1974, executed a new will to include appellant as one of the objects of his bounty.

However, the trial court could well have determined that by the inclusion of appellant, Mr. Katich did not mean to exclude the other residuary legatees, all of whom were more closely related to him than was appellant, from sharing in his intangible personal property. By naming them again in' his last will, he effectively ratified his desire that they share in such property; and, to adopt appellant’s interpretation of the will would render nugatory that wish. In further support of the construction placed on the will by the trial court, we note that all of the legatees other than appellant and an elderly widow resided great distances from Mr. Katich’s home in St. Louis, making it all the more reasonable that he would leave his tangible personal property to Mrs. Martin. For these reasons, we cannot agree that the trial court’s ruling was against the weight of the evidence and rule that point against appellant.

We also reject appellant’s third point, i. e., that the first reference to personal property in Article III is specific and should, therefore, prevail over the use of the phrase in the residuary clause. While recognizing that specific provisions of wills ordinarily do prevail over those that are general, we are not persuaded that such rule has any application here. The first reference to personal property can be said to be more specific than the second only because the latter appears in conjunction with a reference to real property and is followed by the names of five persons, of whom the appellant is one. Under the circumstances of this case, we find apposite the rule that, where possible, no part of a will should perish by construction. Obetz v. Boatmen’s National Bank of St. Louis, 234 S.W.2d 618, 621 (Mo.1950); Adams v. Conqueror Trust Co., 217 S.W.2d 476, 481 (Mo. 1949). In Obetz, supra, 623, the court recognized that, “A genus may be a species with reference to a higher genus and a species may be a genus in relation to a lower species.” We believe the trial court correctly held, in effect, that the personal property given to appellant in the first sentence of Article III was a species — tangible personal property — and that the term “personal property” was used the second time in the generic sense after the tangible property was carved out. Only such construction gives meaning to both uses of the term.

Affirmed.

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

      . Asked, “What do you mean by ‘personal property’ there?”, i. e. in the residuary clause, the scrivener testified:
      “A Well, if he had a car. See, I didn’t know if he had a car or not, sir, or any other property that he could have had besides the furniture.
      Q How did you differentiate in the first paragraph between personal property and the second paragraph personal property?
      A The first one was supposed to be furniture, sir.
      Q That’s not what you wrote down, was it?
      A No, sir, I didn’t.”


text:
    STATE of Missouri, Plaintiff-Respondent, v. Leadell WALTON, Defendant-Appellant.
    No. 38784.
    Missouri Court of Appeals, St. Louis District, Division Four.
    April 25, 1978.
    Huck, Kasten & LaBeaume, Graham W. LaBeaume, St. Louis, for defendant-appellant.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   SNYDER, Judge.

Defendant was found guilty by a jury of two counts of assault with intent to kill with malice aforethought and sentenced to twenty-five years’ imprisonment on each count, the sentences to be served consecutively. He appeals. We affirm.

Defendant raises two issues on appeal. He charges that the trial court erred in overruling: (1) his motion to suppress evidence obtained in the search and seizure of his automobile, and (2) his motion to suppress his confession. He does not question the sufficiency of the evidence.

On July 18, 1975 the New Age Federal Savings and Loan Association at 1401 North Kingshighway, St. Louis, Missouri was robbed. During the course of the robbery a security guard and a New Age employee were shot by one of the robbers. On July 21, 1975, an informant told Captain Troupe of the St. Louis Metropolitan Police Force that two of the robbers, including Leadell Walton, the defendant, could be found in front of 7915 Cool Valley Drive seated in a dark brown Chrysler automobile with a white top. Captain Troupe testified that he had known the informant for thirty years and that during that time the informant had given him information concerning other crimes which proved to be substantially correct when it was checked out and always resulted in convictions. A photo identification of defendant as one of the robbers had also been made by a New Age employee before the tip was received from the informant.

St. Louis police officers requested assistance from Normandy police, Normandy being the St. Louis County municipality where the Cool Valley address is located. Two Normandy officers, arriving first at the address, saw the Chrysler automobile and one of the suspects alighting from it as they approached in their unmarked police car. The other suspect was standing near the Chrysler and as the police car approached closer, the defendant and his companion fled the scene, each going in a different direction. An unsuccessful pursuit by one of the Normandy officers followed. The St. Louis police then arrived. They found the Chrysler unlocked and with no key in the ignition.

The St. Louis police searched the car. No search warrant had been issued. An application for a title for the car, the sales contract for the car and a safety inspection certificate were seized from the glove compartment. New clothing was seized from the trunk. The car was photographed and fingerprints were taken from the interior.

The search of the Chrysler automobile took place on July 21, 1975 but the defendant was not apprehended until August 11, 1975. The day after the arrest, defendant was taken from the hold-over to the homicide division offices by a St. Louis police officer who testified that on the way he had a general conversation with defendant for about two minutes. During the conversation, defendant remarked that he did not understand why he was being charged with two counts of assault, to which the officer responded, “I will explain the whole thing to you later,” or words of that general meaning. After this exchange, the officer went to get a cup of coffee for the defendant. He returned almost immediately with two F.B.I. agents. Defendant was then given a written statement of his constitutional rights which he read aloud. The paper from which he read the rights contained a waiver of those rights which defendant signed. He then confessed to participation in the robbery of the New Age Federal Savings and Loan Association.

Defendant first asserts that the trial court erred in overruling his motion to suppress evidence obtained in the search and seizure of his automobile because the search was made without a warrant or other lawful authority, was not incidental to an arrest and neither defendant nor a third party consented to the search and seizure. He also contends that there was no showing that the police could not have obtained a search warrant. We rule against defendant on this point.

The state claims that defendant has failed to preserve this point for appellate review because he did not object to testimony concerning the items taken from the automobile at the time they were identified and described by witnesses. However, defendant at the beginning of each witness’ testimony concerning the seized items renewed his motion to suppress and objected to the witness' testimony. He was overruled each time by the trial court. Although he did not object specifically as each item was identified, he objected to the formal introduction of all the items and was overruled.

The case cited by the state to support its contention that the error was not preserved for review, State v. Kiesling, 399 S.W.2d 63 (Mo.1966), is distinguishable. In Kiesling, the appellant made no objection of any kind to the testimony in question. The alleged error here was preserved by means of the renewal of the motion to suppress, the general objection of the defendant to the testimony of the witnesses and his objection to the formal introduction of the items.

Even so, it was not error for the trial court to overrule defendant’s motion to suppress. The warrantless search of the automobile falls within the recognized exceptions to the Fourth Amendment’s prohibition against unreasonable searches and seizures. In reviewing a warrantless search and seizure to determine its reasonableness, courts take into consideration “the totality of the circumstances” [State v. McGee, 473 S.W.2d 686, 687 (Mo.1971)] and the “concrete factual context”. Kansas City v. Butters, 507 S.W.2d 49, 52 (Mo.App.1974). Mere suspicion that the contents of an automobile offend against the law is not sufficient basis for conducting a warrantless search. There must be belief rising to the level of probable cause. State v. Hornbeck, 492 S.W.2d 802 (Mo.1973).

The “totality of circumstances” here included probable cause based on the state’s reliable information that appellant had committed an armed robbery and was carrying, a weapon. There was probable cause to believe that the contents of the automobile offended against the law. Defendant’s flight from the automobile when the police approached gave reasonable cause to believe the automobile contained weapons or evidence relevant to the crime. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); State v. Edmonds, 462 S.W.2d 782 (Mo.1971); State v. Hornbeck, supra; State v. Cromwell, 509 S.W.2d 144 (Mo.App.1974).

The cases relied upon by the defendant to support his position are not apposite. The search of a residence, not an automobile, after the arrest of the renter-occupant is the subject of the appeal in State v. Peterson, 525 S.W.2d 599 (Mo.App.1975). Other cases cited by defendant are also distinguishable on the facts. In State v. Achter, 512 S.W.2d 894 (Mo.App.1974), the court found no violation of defendant’s Fourth Amendment rights and held his motion to suppress was properly overruled. The court, at page 902, further held that the right to search is dependent on “ ‘the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.’ ” [Citing Carroll v. U. S., 267 U.S. 132, 158-159, 45 S.Ct. 280, 69 L.Ed. 543 (1925)]. The defendant, who owned the automobile, had been identified as one who had robbed the New Age Federal Savings and Loan Association. He fled from the scene of the contested search. There was reasonable cause to believe the contents of the automobile offended against the law. A warrantless search was justified considering “the totality of the circumstances.”

Defendant next assigns as error the trial court’s overruling of his motion to suppress his confession. This point is also ruled against defendant.

Defendant argues that a preliminary conversation between a police officer and himself “tainted” his subsequent confession and made it inadmissible.

The evidence in the hearing on the motion to suppress showed only that the police officer had some general conversation with the defendant as he was escorting him from the hold-over to the office where the later interrogation took place. The exact text of the conversation was not recalled by the officer but he denied any actual questioning of the defendant. During the conversation defendant volunteered that he did not understand why he was being charged with two counts of assault and was told by the officer that the whole thing would be explained to him later. There was no evidence of any actual interrogation concerning the crime prior to the time defendant read and signed a waiver of his rights before making his confession.

There is no question of two confessions by defendant as there was in United States v. Bayer, 331 U.S. 532, 540, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947) cited by defendant. Moreover, in Bayer, the second confession was held admissible because it was voluntarily given six months after the first statement after fair warning that it might be used against defendant.

Defendant also cites State v. Pike, 516 S.W.2d 505 (Mo.App.1974), a juvenile case where there were two confessions, the first made before the juvenile was adequately warned that he might be certified to stand trial as an adult. The facts in Pike are dissimilar and lend no support to defendant’s position.

Other cases in which a confession was held to be admissible when made after a defendant had responded to police questions before being given a constitutional warning are State v. Wright, 515 S.W.2d 421 (Mo. banc 1974) and State v. Boykins, 399 S.W.2d 70 (Mo.1966).

Defendant freely and spontaneously asked about one of the charges against him. Nothing he said could be construed as an incriminating statement or as an admission of guilt. His remarks were not made in response to interrogation. In no way did the prior conversation taint defendant’s confession made after he read his rights aloud and signed a waiver of those rights.

The judgment is affirmed.

DOWD, P. J., and ALDEN A. STOCK-ARD, Special Judge, concur.


author: CLEMENS, Presiding Judge. McMILLIAN, Judge,

text:
    Helen PAPPAS, Executrix of the Estate of Bessie Pappas, Appellant, v. BI-STATE DEVELOPMENT AGENCY, Defendant.
    No. 38260.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 25, 1978.

      Donald M. Witte, Clayton, for appellant. John A. Walsh, Jr., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Wrongful death action. Original plaintiff, Bessie Pappas, sued for damages for injuries sustained as a result of a fall on defendant’s bus on November 23,1973. After Bessie’s death on December 10,1974, her executrix was substituted as plaintiff and the action became one for wrongful death. Plaintiff submitted on the theory of res ipsa loquitur. Judgment was entered for defendant following an adverse jury verdict. Plaintiff moved for a new trial, alleging the verdict was against the weight of the evidence and that defendant’s closing argument was prejudicial and denied plaintiff a fair trial. The motion was denied and plaintiff has appealed.

Plaintiff’s first contention that the judgment was against the weight of the evidence is a point peculiarly within the trial court’s discretion. A trial court may weigh the evidence but we lack authority to do so. Baumle v. Smith, 420 S.W.2d 341[5-7] (Mo.1967). We deny plaintiff’s initial contention.

Plaintiff next contends the trial court committed plain error in overruling plaintiff’s objection when defense counsel argued: “Are you prepared to go upstairs and find a verdict for the plaintiff knowing that when you come back downstairs with that verdict that what you’re going to be saying to Mr. Robb [driver of defendant’s bus] is that Robb is a killer, because that’s what you’re saying, Mr. Robb’s action killed Bessie Pappas.”

The trial court has discretion in controlling the range of closing argument. Handshy v. Nolte Petroleum Co., 421 S.W.2d 198[4 — 6] (Mo.1967). Since the trial court has an opportunity to determine the prejudicial effect of jury argument, appellate courts defer to its rulings unless there is found an abuse of discretion. Handshy, supra. And, when complaints about the argument are presented to the trial court in a motion for new trial and the trial court does not consider the “transgression” sufficient to require a new trial, deference is given to the trial court’s ruling.

Plaintiff urges us to consider her point under the plain error doctrine, Rule 84.13(c), because she made only a general objection to defendant’s argument at trial. Only when we find that manifest injustice or miscarriage of justice has occurred do we consider the alleged error. If an argument contains reckless assertions unwarranted by the proof and intended to arouse hatred or prejudice against a litigant or witness, it may be condemned as tending to cause a miscarriage of justice. Calloway v. Fogel, 358 Mo. 47, 213 S.W.2d 405[4] (1948). While we do not approve the use of the word “kill” in defendant’s argument because it may be misleading, we do not find the use of the word here so inflammatory, reckless or prejudicial as to constitute manifest injustice.

Our case is distinguishable from Dodd v. Missouri-Kansas R. Co., 353 Mo. 799, 184 S.W.2d 454 (Mo.1945). There, decedent was employed by defendant as a signal maintainer. Defendant’s train struck and killed him. Appealing from a judgment in favor of decedent’s estate, defendant contended the trial court erred in failing to grant a new trial when the plaintiff argued to the jury: “. . . Put yoursel[f] in his [decedent’s] place, run into from the rear, stabbed in the back and killed in cold blood by an engineer who could have stopped.” (Emphasis added.) Dodd, supra, at 457.

The Dodd court held that although decedent had been “killed,” there was no evidence he was “killed in cold blood.” In addition, the phrase “stabbed in the back,” when taken with “killed in cold blood,” was extravagant language tending to arouse hostility and prejudice. In the present case, according to plaintiff, Bessie Pappas was “killed” and the jury could have found the defendant’s bus driver caused her death. The mere use of the word “kill,” absent an inflammatory phrase such as that used in Dodd, does not necessarily carry connotations of criminal activity as plaintiff suggests. We find no abuse of discretion by the trial court in refusing to grant plaintiff’s motion for new trial on this ground.

Judgment affirmed.

SMITH, J., concurs.

McMILLIAN, J., dissents in separate opinion.

McMILLIAN, Judge,

dissenting.

I respectfully dissent. Here the sole issue is the defendant’s driver’s negligence. For the defendant’s counsel to argue that if the jury returned a verdict for plaintiff, they are branding the driver a killer is a false, inflammatory, and misleading issue. Such an argument that plays upon a jury’s reluctance to brand a person a felon not only oversteps the boundaries of legitimate argument but also places an undue burden upon plaintiff’s cause of action. The assertion made was reckless, unwarranted, and prejudicial; consequently, the analogy permitted to be made by defendant’s counsel caused a miscarriage of justice.

I would reverse and remand for a new trial.

      . See excellent discussion in Kelley v. Hudson, 407 S.W.2d 553[8-14] (Mo.App.1966) regarding the sufficiency of an objection to an argument to preserve for review.

      . In the Calloway case, the plain error rule was applied to reverse on the basis of improper argument.