author: SNYDER, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. John Joseph RAPHELD, Defendant-Appellant.
    No. 39871.
    Missouri Court of Appeals, Eastern District, Division One.
    July 3, 1979.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 17, 1979.
    Application to Transfer Denied Nov. 14, 1979.

      Raymond A. Bruntrager, Sr., Robert J. Thomas, Jr., St. Louis, for defendant-appellant.
    Courtney Goodman, Jr., Pros. Atty., George R. Westfall, Asst. Pros. Atty., Clayton, John D. Ashcroft, Atty. Gen., Steven D. Steinhilber, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
   SNYDER, Presiding Judge.

Appellant was found guilty by a jury of murder in the first degree and robbery in' the first degree. On the murder count the court sentenced him to life imprisonment without eligibility for probation or parole until he has served a minimum of fifty years of his sentence as provided by § 559.-011, RSMo Cum. Supp. 1975. On the first degree robbery count he was sentenced to serve a concurrent life term. As grounds for reversal, appellant raises twenty-one points of error.

The judgment is affirmed.

No complaint has been raised as to the sufficiency of the evidence to support the conviction. Therefore, the facts will be briefly stated. Additional facts needed to analyze and resolve the points relied on will be discussed with the issues.

On the evening of February 20, 1976, Judith Atchison, age twenty, was working as night cashier at the “7-11” Express Market at 1083 Woodsmill Road in St. Louis County. Appellant entered the grocery store between 11:30 and 11:40 p. m. He knew Ms. Atchison and frequented the store. He remained in the store, browsing and talking with her, until closing time— 12:00 o’clock midnight. When he saw Ms. Atchison counting the day’s receipts, he decided to rob her. As she prepared for the next day’s business, he went out to his car and got a sheathed bayonet or knife which he customarily carried in the car. He returned and walked to the rear of the store with Ms. Atchison where she began to arrange cans of soda and beer in the coolers. Appellant struck her on the side of the head with a soda bottle, which broke, and then he fell on her, stabbing her five times in the throat and seven times in the heart. He took $450 and fled the store.

In the days following the crimes, leads on several possible suspects were developed. One week after the murder and robbery, St. Louis County police officers picked up appellant for questioning, on information that he had been at the store on the night of February 19, 1976. At the police station appellant admitted he had also been at the store on the night of the crimes. After giving statements which conflicted with facts already known to the officers, appellant was placed under arrest, given Miranda warnings and presented with a rights waiver form. Appellant signed the waiver form and, following further questioning, confessed to the murder and robbery. Appellant made an oral statement, a tape recorded confession, a videotaped confession and a videotaped scene-of-the-crime reenactment.

Appellant’s first ground for reversal is that the trial court erred in overruling his motion to suppress the tape recorded and videotaped confessions and the videotaped reenactment of the crimes.

Appellant was in custody at the time he gave the challenged statements. At a pretrial hearing on a motion to suppress, the state must show, by the preponderance of the evidence, that the incriminating statements were voluntarily given.

While the burden of proceeding is on defendant, once he has made his allegations regarding the inadmissibility of the statements, the burden of proof is on the State to show compliance with the guidelines set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and the voluntariness of the statement. In Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), the Supreme Court held that voluntariness of such confession need be proved by a preponderance of the evidence, which is the standard we adopt for such cases.

State v. Olds, 569 S.W.2d 745, 751 (Mo. banc 1978).

When the testimony presented at the hearing on the motion to suppress is in conflict, the trial court must weigh the evidence and judge the credibility of the witnesses. State v. Lyle, 511 S.W.2d 817, 818 (Mo.1974); State v. Crowley, 571 S.W.2d 460, 464—465 (Mo.App.1978); State v. Carroll, 562 S.W.2d 772, 773 (Mo.App.1978); State v. Hamell, 561 S.W.2d 357, 363 (Mo.App.1977). “[Ajdmission of the confession into evidence by the trial court is a matter of discretion, and we defer to the trial court’s ruling on the credibility of witnesses unless manifest error has been committed. [Citing cases.]” State v. Crowley, supra, 464-465.

Miranda warnings were given to appellant before any incriminating statement was made. The warnings were repeated before each taped confession or reenactment. A rights waiver card was given to appellant before the confessions were obtained and was signed by him.

On the issue of voluntariness, appellant contended at the pretrial hearing, at trial, and now, on appeal, that physical force was used to obtain his confessions. The interrogating officers recounted in detail the circumstances surrounding the confessions and repeatedly denied striking, threatening or coercing appellant, or telling him what to include in his confessions. Appellant presented testimony by a correctional officer and jail nurse that his upper body appeared to be bruised following his arrest. As the cases cited above note, when the evidence on voluntariness is in conflict, the trial court weighs the evidence on and judges the credibility of the witnesses. “[W]here the testimony conflicts as to whether the confession was voluntary, admission of the confession into evidence by the trial court is a matter of discretion. [Citing cases.]” State v. Cook, 557 S.W.2d 484, 488 (Mo.App.1977). Further, in meeting its burden of proving that the in-custody statements were voluntarily given, “the State does not have to negate every possible circumstance which could present a fact issue. [Citing cases.]” State v. Hamell, supra, 363. The trial court did not err in determining the state had met its burden of proving by a preponderance of the evidence that the confessions were voluntary. The number, consistency and detail of the statements, the officers’ conduct before and after the questioning, the absence of complaint to other officers and an assistant prosecutor who assisted in the videotaping but was not present during the supposed incidents of coercion, and appellant’s recorded statements that no threats or promises were made to induce the confessions all support the trial court’s finding of voluntar-iness.

Appellant further contends the confessions were inadmissible because he did not have counsel present. When a defendant has been given full and proper advice as to his rights, and knowingly and intelligently waives them, the fact that he did not have counsel present at the time the statements were given does not render them inadmissible. State v. Williams, 566 S.W.2d 841 (Mo.App.1978).

Appellant also argues the presence of an assistance prosecutor, Gordon Ank-ney, during the videotapings rendered them inadmissible because the prosecutor questioned him without revealing his position or giving appellant his rights. Appellant’s argument completely ignores the testimony of Ankney and Police Officer Neidenberg. Neidenberg, the technician in charge of videotaping equipment, testified appellant asked him who Ankney was. Neidenberg told appellant Ankney was the prosecuting attorney. Ankney testified appellant asked him, before the statements at which he was present were taken, if he was the prosecutor. Ankney told appellant that he was. Neither authority nor logic supports appellant’s argument that Ankney was required to give appellant Miranda warnings, in addition to those given by the police, before he could question appellant at the videotaping.

The circumstances surrounding the confessions and reenactment were thoroughly developed at the suppression hearing. At trial, appellant, the interrogators and the jail personnel were examined and cross-examined in exhaustive detail. All of appellant’s statements were played for the jury. They could determine for themselves whether appellant’s behavior was consistent with a coerced or voluntary confession. They also had the opportunity to view the conduct and demeanor of the witnesses. The jury was properly instructed on the issue of voluntariness (then MAI — CR 3.44) and their verdict confirms the trial court’s determination that the confessions were voluntary and appellant’s own version of the crimes.

Appellant was charged with capital murder. Before trial he filed a motion to dismiss the indictment on the ground that the capital murder statute (§§ 559.005 and 559.009, RSMo Cum. Supp. 1975) was unconstitutional. The court stated in chambers prior to voir dire that it intended to instruct the jury on murder in the first degree, the penalty for which was life imprisonment with a minimum of 50 years without probation or parole. The motion to dismiss was overruled. At trial the jury was given the murder in the first degree instruction (then MAI-CR 6.02 “Murder: First Degree”). No capital murder instruction was given. The jury returned a verdict of guilty of murder in the first degree. Punishment was set by the court, as the state, after filing an amended information in lieu of indictment, proved two prior felony convictions. Appellant was sentenced to life imprisonment without eligibility for probation or parole until he has served fifty years.

Appellant’s argument appears to be that the only penalty for capital murder was death and that the capital murder instruction and possible death penalty should have been submitted to the jury. He also states in his argument that, in view of the fact that the death penalty was later declared unconstitutional in State v. Duren, 547 S.W.2d 476 (Mo. banc 1977) the indictment should have been dismissed. (Duren, id., was decided March 15, 1977; appellant was tried and convicted in January of that year.)

This latter argument is illogical because Duren was decided nearly two months after appellant’s trial. In any event, Duren held that the viability of § 559.011, RSMo Cum. Supp. 1975 precluded “any argument that ‘capital’ murder cannot be a crime because no penalty therefor is provided.” Duren, id., 481. Appellant was charged under a valid statute.

It is not clear from the record why the trial court decided to proceed at trial and instruct the jury on murder in the first degree when capital murder was charged. At the date of trial the death penalty had not yet been declared unconstitutional. However, under § 559.009.2, RSMo Cum. Supp. 1975 and MAI-CR 6.02 (“Capital Murder,” effective September 28, 1975), its Notes on Use, and “caveat (a)” and the evidence produced at trial (murder in the course of a robbery), an instruction on murder in the first degree would have been required in this case even if capital murder had been submitted. Further, even if capital murder had been submitted and the jury had returned the death penalty, § 559.013, RSMo Cum. Supp. 1975 provided for a re-sentencing hearing in the event the death penalty was later declared unconstitutional. Thus, appellant would have been resen-tenced to the exact same sentence he did receive. No prejudice resulted.

Appellant next challenges the trial court’s action in overruling his oral motion to suppress in-court identification of him by state’s witness Phoebe Dyer. The basis for appellant’s motion was the showing of several mug shots to Ms. Dyer. Apparently (it is unclear from his counsel’s comments on the motion) the police singled out appellant’s photo and told her he had confessed. The deposition of Ms. Dyer, in which these facts were developed, has not been included in the record on appeal. Appellant’s counsel stated, “I could object to any . statements . . . as to any relationship between the defendant and the man she saw out there [the Express Market] that day [of the murder].” The court overruled the motion on the understanding that Ms. Dyer was not going to say she saw the appellant there that night.

Ms. Dyer had known appellant for some time before the murder. She was at the store late on the night of the murder and saw a man about 5'8" tall, with white-blonde hair and a stocky build. He was wearing a tan leather or vinyl coat. She never saw his face, as the man was standing with his back to her. While this man matched the features of appellant and was wearing a coat similar to the one he allegedly wore that night, Ms. Dyer never identified appellant as the man she had seen, nor was she allowed at trial to compare appellant’s physical characteristics with that man. Ms. Dyer testified she did not recognize the man she saw at the store as anyone she knew.

Two points rebut appellant’s argument. First, the basis for Ms. Dyer’s description of the man at the Express Market was clearly her observations of that night and not any improper photo identification procedure. Second, no prejudice to appellant could have resulted from her testimony because she did not identify appellant as that man. Appellant wished to suppress any in-court identification and none, in fact, took place. Compare, State v. Daney, 541 S.W.2d 35 (Mo.App.1976).

Appellant’s fourth point of error raises the trial court’s refusal to strike the testimony of Dr. Chase, the pathologist who examined the victim’s body and prepared the medical report on her death.

In her preliminary report, which was sent to the prosecutor and provided to appellant pursuant to Rule 25.32(A), Dr. Chase had noted two small stab-like lesions, “round like an ice pick” on the victim’s back and a slightly larger, similarly shaped mark on her abdomen. Appellant’s counsel in his opening statement to the jury stated that the pathologist’s report “will prove to you conclusively that whatever killed the girl or whoever killed the girl, killed her with two (2) instruments. One (1) an ice, or ice pick, and the other a sharp cutting instrument.” The importance of this “second weapon” argument was that appellant, in his confessions, had stated that he had only used one weapon — a bayonet. If two weapons had, in fact, been used, doubts as to the accuracy and voluntariness of the confession might have been raised.

Dr. Chase appeared at trial as the state’s witness and detailed her opinion as to the cause of Ms. Atchison’s death. On cross-examination appellant attempted to bring out details about the three “ice-pick like” wounds. Dr. Chase, in essence, stated that while she had described these marks as “icepick like marks” in her preliminary report, in her final anatomical diagnosis she had concluded, on the basis of further tests and examinations, that they were abrasions. (In her final draft on the report she also had scratched out “ice-pick like marks” and inserted “abrasions only” and “contusions only.”)

During cross-examination it was discovered that neither the state nor appellant had copies of the two page final report Dr. Chase was using in her testimony. (This two page “final anatomical diagnosis” was prepared sometime after the preliminary report had been given to the prosecutor.) At a colloquy at the bench, appellant requested Dr. Chase’s testimony be stricken because he had not received the final report. The motion was denied. The court offered him, instead, the opportunity to recall the doctor the next day, after he had studied the additional pages, and a continuance, after the state had closed its case, to secure additional expert witnesses or other evidence to challenge the report. Appellant declined these offers.

Rule 25.32(A) places an obligation on the state to disclose to a defendant’s counsel, upon written request, materials and information “within its possession or control designated in said request.”

Since the rule’s adoption the cases have held that both negligent and bad faith failures to provide requested information are subject to sanction. See, State v. Dayton, 535 S.W.2d 469, 477 (Mo.App.1976). Were this a case of negligent nondisclosure of information or documents within the prosecution’s possession, the question of prejudice to appellant from its suppression would have to be closely examined. However, the record shows beyond any doubt that the two page final anatomical diagnosis was not in the possession or control of the prosecutor. Even if possession or control are construed to mean knowledge of the report’s existence [State v. Chambers, 550 S.W.2d 846, 850 (Mo.App.1977)], the record reveals that the state was unaware of the existence of these two pages until they were “discovered” on cross-examination of Dr. Chase. Therefore, because the report was not in the possession or control of the state, no duty to disclose could arise. The imposition of any sanction under Rule 25.45 would have been improper because there had been “no failure to comply with an applicable discovery rule.” The trial court did not err in overruling the motion to strike or appellant’s subsequent motion for a mistrial.

Appellant next challenges the trial court’s overruling his objections to the state’s cross-examination of two of his witnesses. In each instance, the prosecutor asked the witness if he remembered previously testifying in the case (at a hearing on the motions to suppress). Each witness did so remember and was then asked if he recalled testifying differently on that previous occasion. Witness Fields responded he had testified differently; witness Kolar could not remember. Witness Fields was given an opportunity to explain the discrepancies in his descriptions of a man he had seen at the Express Market the night before the murder. Once Kolar replied that he could not remember, the topic was dropped. In both instances, appellant objected to the manner of the cross-examination, claiming the proper foundation had not been laid for these impeachment attempts.

It is, of course, well settled that when a witness has testified to a material fact it is proper to admit evidence that he has previously made a statement relating to that fact which is inconsistent with his present testimony. A foundation must first be laid by asking the witness on cross-examination if he made the statement, and obtaining either a denial or an answer that he failed to remember it.

State v. Vaughn, 501 S.W.2d 839, 842 (Mo. banc 1973).

Both witnesses were told the occasion of their prior remarks, and both remembered testifying on that occasion. They then received an accurate account of their former testimony. Fields admitted the inconsistency. At that point, no formal introduction of the prior statement was necessary or permissible. See State v. Earvin, 539 S.W.2d 615 (Mo.App.1976). When Ko-lar could not recall his former testimony, the state had the option of introducing evidence showing he had made the previous inconsistent statement. Aboussie v. McBroom, 421 S.W.2d 805, 807 (Mo.App.1967). The issue, however, was dropped. The foundation requirements set forth by Vaughn, supra, were met and no error committed by allowing this manner of impeachment.

As his sixth point of error, appellant argues the trial court erred in overruling his objection to testimony by witness Norma Ferguson, the deceased’s sister, that appellant had asked Ms. Atchison for dates. The matter has not been preserved for review because appellant failed to object when the matter was first broached.

The prosecutor asked Ms. Ferguson if she had “ever heard him [appellant] ask Judy for a date? And I’m talking about in your presence?

A: Yes.
Q: To your knowledge, had Judy ever dated him?
A: No.”

No objection appears. Later objections to similar questions were both sustained (leading question) and overruled (materiality and relevancy).

Assuming, but not deciding, that the testimony was inadmissible, any objection appellant might have had to disclosure of this fact was waived by his failure to object when the question was first asked and answered. Appellant’s first objection to the information that he had tried to date the victim came long after the question and answer first revealing the fact.

A claim of prejudicial error concerning the admission of testimony to which no objection was made at the earliest opportunity after grounds for the objection became apparent cannot be considered on appeal because it is not properly preserved for review. [Citing cases.]

State v. McClure, 504 S.W.2d 664, 668 (Mo.App.1974).

In his seventh assignment of error, appellant challenges the trial court’s refusal to grant his motion for a mistrial after prosecution witness Curran was asked if he was assaulted by the police after being brought in for questioning after appellant's arrest. Appellant’s objection to this question was overruled. A colloquy at the bench followed, after which the objection was sustained, the motion for mistrial denied and the jury instructed to disregard the question and answer (although no answer appears in the record).

The superior opportunity of a trial judge to assess whether occurrences at trial prejudice a defendant’s rights has often been recognized, and an appellate court may not disturb the lower court’s denial of a motion for mistrial unless the ruling constitutes an abuse of discretion. [Citing cases.]

State v. Sykes, 571 S.W.2d 456, 458 (Mo.App.1978). No abuse of discretion has been demonstrated.

Appellant next assigns as error the admission into evidence of a procedure manual used by the St. Louis County Police Department in videotaping statements. Appellant referred to the manual in an attempt to show: (1) the proper procedure was not used in identifying Assistant Prosecutor Ankney at the videotaping, and (2) appellant was improperly “led” by the questioning during the videotaping.

During his cross-examination of Officer Neidenberg, the videotape technician, appellant’s counsel asked Neidenberg if he could obtain a copy of the manual used in videotaping. At the court’s direction, the officer left the stand and later returned with a copy of the manual. He was cross-examined extensively on its contents, appellant’s counsel frequently referring to specific section numbers. At the close of the cross-examination, the state attempted to offer the manual into evidence. Appellant's objection to its introduction was sustained. The court then asked the prosecutor if there were certain portions of the manual he wanted introduced. Appellant again objected, this time on the ground no proper foundation had been laid to show this manual was used during appellant’s confession. The objection was sustained, the court commenting that for the manual to be introduced, the state would have to produce the detective who conducted the questioning and have him identify the manual as the one used during the videotaping. The prosecutor asked if he could redirect Officer Neidenberg. from certain sections of the manual to show the general procedures of the department for making a videotaped statement. This was allowed, over appellant’s objection, and sections of the manual were read by Officer Neidenberg.

At the close of all the evidence the state again attempted to introduce the manual. Appellant objected and the trial court decided, “It will be received only for purposes of final argument, and you can only refer to those portions read to the jury, and nothing else.” No comment was made' on the manual, or on the sections previously read to the jury, in the state’s closing argument.

Appellant has failed to demonstrate any prejudicial error in the court’s limited admission. No comment was even made on the manual. In any event, the evidence could not have harmed appellant; his own counsel closely questioned Officer Neiden-berg on the procedures used. The jury saw the videotapes and read the transcripts of the statements. They were free to decide on the basis of the testimony whether the proper procedures were followed.

Appellant raises two points of error with respect to the testimony of defense witness Delores Harkness, nurse at the St. Louis County Jail. First he claims error in allowing her to testify on cross-examination, over his objection, that he had a rash on his shoulders and “ringworm” on his neck. Appellant argues this testimony was irrelevant and immaterial and never connected to the bruises he claimed to have suffered from an alleged beating at the hands of the police. The state’s purpose in asking these questions was to show that the bruises or marks on appellant’s shoulders and torso were not bruises but some other physical ailment.

The answer to the “rash issue” is that appellant, himself, brought out testimony on this issue on direct examination. As to the testimony on ringworm symptoms, the prosecutor stated his purpose was to show those symptoms’ similarity to the rash. While these symptoms were first noted at a time somewhat distant from appellant’s arrest, they were in the area of his body he claimed was beaten.

The determination of the materiality and relevancy of evidence is a matter within the discretion of the trial judge. [Citing cases.] Evidence is relevant if it tends to prove or disprove a fact in issue or corroborates relevant evidence bearing on the principal issue. [Citing cases.] It is settled that doubts as to the relevancy of evidence should be resolved in favor of the admissibility of the evidence. [Citing cases.]

State v. Proctor, 546 S.W.2d 544, 545 (Mo.App.1977).

No abuse of discretion has been shown. The testimony was arguably relevant in that it tended to discount the possibility that appellant was beaten and bruised and that his confession was involuntary. The jury could determine the effect the difference in time should be given in weighing the evidence.

Appellant’s second point of error with respect to Ms. Harkness’ testimony is that the trial court erred in refusing to allow him to question her as to what she had been told to include in her record of a patient examination. In the record of her March 4, 1976 examination of appellant, no mention of any bruises or police beatings was made. Her March 22, 1976 report did include mentions that appellant claimed to have been beaten and bruised by the police.

Appellant’s purpose was to prove that between March 4 and March 22 Harkness had been told by her supervising doctor to include allegations of police abuse in her medical report. His purpose thus was not simply to show a conversation had taken place, but to show the contents of that conversation — specifically, what the supervising doctor had said to Ms. Harkness. Such testimony has consistently been categorized as hearsay and excluded from evidence. See, State v. Trotter, 536 S.W.2d 877 (Mo.App.1976). The court’s ruling that this testimony was hearsay was correct.

As his eleventh point of error appellant contends the trial court erred in allowing witness Curran to testify that appellant said he used to date the girl in the Express Market. Curran testified that in December of 1975 he and appellant were at the Express Market. Appellant had gone into the market, Curran remaining in their auto, and when he returned, he stated he knew the girl and had dated her in high school. Curran stated appellant indicated he was referring to the girl “behind the counter.” On cross-examination it was developed that Curran was not sure who appellant was referring to since Curran could not see the girl from the auto.

As noted above, determinations as to materiality and relevancy of items of evidence are directed to the sound discretion of the trial court. Appellant’s familiarity with the victim would certainly be relevant to the motive for her murder, since the chances of escaping detection and arrest for a robbery are minimal when the victim knows the robber. No abuse of discretion has been shown; the jury could determine the likelihood that the girl referred to was, in fact, the victim.

As his twelfth point of error, appellant challenges the action of the trial court in overruling nine of his objections made when the state cross-examined him. Several principles of the law of cross-examination of defendants who take the witness stand refute appellant’s contentions.

First, three of the objections were to cross-examination topics directly covered and specifically opened up by appellant’s testimony-in-chief. In his direct testimony appellant stated he was married, denied ever asking Ms. Atchison for a date and denied he was in severe financial difficulties at the time of the crimes. The rule is well settled that a defendant “ ‘may be cross-examined with reference to any subject matter concerning which he gave testimony.’ ” State v. Scown, 312 S.W.2d 782, 787 (Mo.1958), quoting State v. Dees, 276 S.W.2d 201, 207 (Mo.1955). Therefore, questions as to whether appellant was married in late 1975 and early 1976, whether he asked the victim for dates, and whether he was in financial difficulties at the time of the robbery and murder were directly within the scope of direct examination, and the objections that they were not were properly overruled.

Second, the statute making a defendant a competent witness at his trial, § 546.260 RSMo 1969, specifically provides that a defendant who takes the witness stand “may be contradicted and impeached as any other witness . . ..” Questions designed to test the defendant’s memory or the accuracy of his testimony are not subject to the requirement that they be limited to the scope of his direct examination. See, e. g., State v. Abbott, 245 S.W.2d 876 (Mo.1952). While the prosecutor should be limited to factual areas related to the defendant’s testimony-in-chief, questions to test his credibility as a witness are proper under the statute. See, State v. Phillips, 480 S.W.2d 836 (Mo.1972); State v. Brown, 312 S.W.2d 818 (Mo.1958). It is also clear that a defendant who takes the stand may be impeached by evidence of a previous confession which is inconsistent with his testimony on the witness stand. State v. Kaufman, 254 S.W.2d 640 (Mo.1953).

This is precisely the case with the remaining objections made at trial and raised here. Appellant testified he did not commit the crimes and that he was coerced and beaten until he confessed. He thus directly and purposefully put the accuracy and truthfulness of the confessions in issue and submitted himself to cross-examination on the statements contained in the confessions. The state could test appellant’s credibility and impeach him on the basis of those prior inconsistent statements. The objections were properly overruled.

Appellant asserts the trial court erred in refusing to admit into evidence pleadings filed in a federal district court lawsuit brought by him to recover damages from the St. Louis County police officers who allegedly beat him. Specifically, appellant attempted to introduce his complaint and the officers’ motion to dismiss and their memorandum of law in support of that motion.

Appellant argued at trial, and now on appeal asserts, that the motion to dismiss and supporting memorandum contained an admission by the officers that they had beaten him. At trial appellant read language to the court from the memorandum which stated “. . . not every assault by a law enforcement officer comes under the Civil Rights Act.”

From the record, it appears the officers’ motion relied upon lack of jurisdiction and the failure of the claim to state a cause of action. The quoted language does not admit an assault, or even infer an assault. It is clearly a statement of the sort frequently found in pleadings, and even judicial opinions, which may seem to assume, solely for the purposes of argument, the truth of a certain statement. No abuse of the trial court’s considerable discretion in the admission and rejection of evidence has been shown.

As his fourteenth point of error, appellant charges the trial court erred in giving Instruction No. 5 (then MAI-CR 6.02 “Murder: First Degree,” effective March 1, 1975) because it was based on unconstitutional statutory authority and because it was in direct contravention of the evidence.

The first point has necessarily been disposed of by the discussion of appellant’s second point of error. It is sufficient to note appellant was charged under a valid statutory section.

As to appellant’s second point under this charge of error, the pathologist’s report and testimony established knife wounds as the cause of death. Appellant contends only ‘‘stabbing” should have been submitted and that it was error to also submit “cutting” because there was no testimony that “cutting” was the cause of death or that two methods had caused the death.

This argument is specious. Webster’s Third New International Dictionary defines “cut” as “to penetrate with or as with an edged instrument; cleave, pierce: make an incision in. . . ." This was precisely the substance of the pathologist’s testimony as to the cause of death. The instruction was supported by the evidence and appellant’s argument is rejected.

Appellant next challenges the trial court’s use of “offense” instead of “offenses” in the first paragraph of Instruction No. 4 (then MAI-CR 2.20) and its failure to include the optional language “on any Count against him” and “on that count” in paragraph three of the instruction.

The argument that this instruction would have misled and confused the jury into believing “that the instruction implied that a finding of guilty on one count required a finding of guilty on the other” count is untenable in light of the fact that then MAI-CR 2.70 was also submitted to the jury. Because all of the instructions must be read as a whole and construed together [State v. Blockton, 526 S.W.2d 915 (Mo.App.1975)], this argument must be rejected. Compare, State v. Ross, 523 S.W.2d 841 (Mo.App.1975), where then MAI-CR 2.10 was given and failed to include a reference to separate counts. The trial court’s submission of MAI-CR 2.70 was held to have removed any potential prejudice or error.

Appellant’s sixteenth, seventeenth and twentieth points of error are taken together, as they raise the claim that the trial court erred in refusing to declare a mistrial following certain comments by the prosecutor in closing argument. The sixteenth point refers to a comment that witness Ankney, the assistant prosecutor, was justified in feeling the way he did during cross-examination by appellant. The seventeenth point raises the state’s comment that appellant’s defense was “garbage.” Appellant’s twentieth point calls the court’s attention to the prosecutor’s statement that if the jury acquitted appellant it “might as well put a note on your verdict that you want the other four [state witnesses] indicted [for perjury] because that is what it [acquittal] will absolutely mean.” In each instance, appellant’s objection was sustained, the remark stricken, the jury instructed to disregard the comment and the request for mistrial denied.

The declaration of a mistrial is a drastic remedy to be granted only when the incident complained of is so grevious that its prejudicial effect can be removed in no other manner. State v. Raspberry, 452 S.W.2d 169, 173 (Mo.1970).

[10—15] Whether the remarks of counsel in closing argument necessitate the declaration of a mistrial rests largely with the discretion of the trial court and appellate courts will not interfere unless the record shows an abuse of such discretion to appellant’s prejudice. State v. Wintjen, 500 S.W.2d 39, 42[1] (Mo.App. 1973). Every instance where a prosecutor exceeds the limits of legitimate argument is not a cause for mistrial. . Generally, if the prejudicial effect can be removed through other corrective action and the trial court undertakes such action, mistrial need not be granted. [Citing cases.]

State v. Neal, 526 S.W.2d 898, 903 (Mo.App.1975).

Having thoroughly studied the record, this court cannot say that the possible prejudicial effect of these comments could not be removed by the actions taken by the trial court, or that, as a matter of law, the trial court abused its discretion in refusing to grant a mistrial. No reversible error has been shown.

Appellant’s eighteenth point challenges the state’s comment in closing argument that “you know he’s a guilty man and lying to save his life.” No objection was made to this comment.

Objections to allegedly improper arguments or comments must be made at the time of argument to properly preserve the point for appellate review. State v. Hatten, 561 S.W.2d 706, 713 (Mo.App.1978). “A trial court cannot be charged with error for reasons not timely presented so that remedial action may be taken during the trial, if required. [Citing cases.]” State v. Hatten, id., 713.

No request has been made to review the comment under the plain error doctrine, Rule 27.20(c), but, sua sponte, the matter will be considered.

While a prosecutor may not express to the jury in his closing argument his belief in the defendant’s guilt in such a manner that the comments imply knowledge of facts not in evidence pointing to guilt, “ ‘it is equally well settled that a statement by the prosecuting attorney in argument indicating his opinion that the accused is guilty, where it is apparent that such opinion is based on the evidence in the case, is permissible. . . . ’ ” State v. Haynes, 528 S.W.2d 11, 13 (Mo.App.1975), quoting State v. Chester, 445 S.W.2d 393, 399[8, 9] (Mo.App.1969).

Here, the prosecutor’s comment expressly relied on two “slips” in appellant’s testimony (his description of a customer at the store and his knowledge of the positions of the victim’s body), “plus the overwhelming credibility of the state’s witnesses.” The opinion of guilty was “based on the evidence in the case” (Haynes, id.), rather than on facts not in evidence.

Appellant also argues that the portion of the comment “to save his life” improperly suggested to the jury that appellant could receive the death penalty and was lying to avoid execution. While the prosecution’s choice of language may have been imprudent, it seems apparent that the intended meaning of the phrase was “to save himself” and that the phrase would have been so interpreted by the jury.

Appellant next charges that the court erred in allowing the prosecutor to argue that state’s witness Dyer had never said that appellant was not the man she had seen in the store on the night of the crimes. The restrictions on Ms. Dyer’s testimony were set out in discussion of appellant’s third claim of error.

In his closing argument, appellant’s counsel asserted that Ms. Dyer “never said . . . that this was the man that was in there that night, and she knows it. .” The state’s objection was overruled and the jury instructed to recall the evidence. The prosecutor’s comment was in response to appellant’s argument and was retaliatory. A prosecutor may retaliate to an issue raised by a defendant’s closing argument, even if his comment would otherwise be improper. State v. Swenson, 551 S.W.2d 917 (Mo.App.1977). The trial court has considerable discretion in permitting retaliatory arguments invited by a defendant. State v. Gordon, 527 S.W.2d 6, 10 (Mo.App.1975). No abuse of that discretion has been shown.

In his twenty-first, and final, point of error, appellant challenges the trial court’s action in sustaining the state’s objection to his comment that state witness Beasley had said appellant was not the man he had seen at the store.

In his closing argument appellant’s counsel stated, “When I asked him [Beasley] if this was the man that was in there that night, or is this the man that you saw . is this the murderer? What did Mr. Beasley say? He said no, sir.” The state’s objection was sustained.

Mr. Beasley was in the Express Market shortly before Ms. Atchison’s murder. He assisted the police in drawing a composite sketch of a man he had seen in the store. After appellant’s arrest, Mr. Beasley was shown appellant’s photograph. On cross-examination he stated he told the police at that time that the photo “didn’t blend in” with his description.' When asked if he “told him it wasn’t the man?”, he replied, “I didn’t say it wasn’t the man.” On both direct and cross-examination Mr. Beasley repeatedly stated appellant did not appear to be the same man he had seen, but that he could not “really say” whether appellant was or was not the man. Beasley never testified that appellant was not the man he had seen. Appellant’s comment was not supported by the evidence nor was it a reasonable inference from the evidence. The objection to his comment was properly sustained.

No error having been shown, the judgment is affirmed.

SMITH and GUNN, JJ., concur.


source: Caselaw Access Project

author: GREENE, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Calvin HANSON, Jr., Defendant-Appellant.
    No. 11001.
    Missouri Court of Appeals, Southern District, Division One.
    Aug. 29, 1979.
    Motion for Rehearing or to Transfer to Supreme Court Denied Sept. 20, 1979.
    Application to Transfer Denied Nov. 14, 1979.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Brenda F. Engel, Richard F. Engel, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
    David R. Fielder, Fielder & Jones, Springfield, for defendant-appellant.
   GREENE, Judge.

On April 13, 1977, defendant Calvin Hanson, Jr., after jury trial, was convicted of the crime of capital murder in violation of § 559.009. By reason of such conviction, defendant was thereafter sentenced by the trial court to life imprisonment with no possibility of parole for 50 years, pursuant to § 559.011, which statute was in force at the time of sentence. Defendant then filed this appeal. We affirm.

The basic facts in the case are as follows. On July 5, 1976, Ollie Adkins, the victim, left his home in Pacific, Missouri, between 9 and 10 a. m. He was going to Springfield, Missouri, on a business trip. He took at least $200 in cash with him for expenses and emergencies. He was driving his Dodge truck. His wife, Stella, never saw him alive again.

At about 6:45 p. m., on the same date, Mrs. Hollis Young was in her home, located just north of the 3200 block of East Kear-ney in Springfield. Mrs. Young heard dogs barking and voices coming from the rear of her home. She went outside and saw two men struggling. The men were some 400-450 feet from her. One man had light hair. The other man was taller and had dark hair. The dark-haired man struck the light-haired man, who then fell to the ground. The dark-haired man then leaned over, struck the other man with something several times and began to drag him into some brush. Mrs. Young then called the police. She had not seen the men arrive, did not see any motor vehicle, did not see any weapon, and could not identify defendant as one of the two men.

Officer Bill Dennis, of the Springfield Police Department, went to the crime scene in response to Mrs. Young’s call. He talked with Mrs. Young and searched the area where the struggle had taken place. He found two pieces of paper, a set of car keys, and a driver’s license belonging to the victim. One of the pieces of paper had the name “Dick Hanson” and a phone number written on it. The area showed signs of a struggle and a considerable amount of blood. Officer Dennis followed a trail through the grass for a short distance and found the body of Adkins. Adkins’ body bore numerous stab wounds, his right rear pants pocket was turned inside out, and his wallet was gone.

Dr. Busiek, the Greene County Medical Examiner, was called to the scene. He pronounced Adkins dead. The body was then taken to Cox Medical Center where an autopsy was performed by Dr. Robert Lo-vett. The examination revealed nine stab wounds in Adkins’ body, most of which were in the chest or abdomen. Dr. Lovett testified that death was caused by the stab wounds and the ensuing loss of blood. He stated that the stab wounds were consistent with having been inflicted by a knife of the same general size and shape as state’s exhibit 8 (the knife found on defendant’s person when he was arrested). Dr. Lovett then took a blood sample from the body of Adkins which, on analysis, was found to be type A.

News of the killing reached the local news media and details, as were known at the time, were reported by a local television station. At about 9:30 p. m. on July 5th, an informant, who had seen the television broadcast, called Detective William Lloyd. Lloyd and Sgt. Bob Humphrey, both of the Springfield Police Department, went to the informant’s home. The informant told them that he had seen the defendant hitchhiking near the crime scene earlier in the evening and that he had picked him up. He said that Hanson had blood on his clothing and was armed with a knife, which was located somewhere on his lower leg in a scabbard. The informant had given Lloyd information in the past that turned out to be reliable. Lloyd then checked Hanson’s name for a prior criminal record and found that he had previously been involved in stabbing/robbery incidents in Polk and Pulaski Counties. Based on this information, a pickup was ordered for Hanson.

The defendant was arrested about 1 a. m. on July 6, 1976, on the parking lot of the Repair Shop Lounge by Police Officer Don Pippin. Pippin read Hanson his Miranda rights and then conducted a pat-down search of his person. He found a knife in a sheath taped to Hanson’s lower right leg. Pippin took the knife (state’s exhibit 8) to Donald Smith, Director of the Region Two Crime Laboratory. Smith examined the knife and found that it had fresh human blood on it. The blood was type A, with a PGM factor of 1. This finding corresponded with the test that had been made of the victim’s blood.

After his arrest, Hanson told Detectives George Brinkman and Tony Glenn that he had been driving a truck on July 5, and that he had been involved in an accident. He said he did not know the name of the owner of the truck. Hanson admitted that the knife found on his person at the time of arrest was his, and that it had not been in the possession of anyone else for the past 2 years. He said there should not be any blood on the knife. Hanson denied any involvement in the crime.

After Hanson’s arrest, a blood sample was taken from his finger by Don Smith. The sample was taken with the consent of Hanson. Smith, a trained technician, made an analysis of the blood sample. The sampling and testing were done under controlled laboratory conditions. In his opinion, Hanson’s blood type was 0.

As news of the murder spread, the police received more information. Gertrude Os-bourne was the owner of the Quest Lounge located at 1810 East Kearney in Springfield. She said that Hanson had been in her lounge on the afternoon of July 5th with Joe Graves. Kenneth and Roseann Bass were school teachers in the Springfield school system. At about 6 p. m., on the evening of July 5th, they were stopped at the intersection of Kearney and Glenstone, waiting for the traffic light to change. They saw a hitchhiker standing on the southwest corner of the intersection. Later, when they saw television accounts of the murder, which included a picture of Hanson as the prime suspect, they both recognized that he was the hitchhiker, and identified him as such in court.

George and Barbara Innes were returning from a family outing at Fellows Lake, north of Springfield, about 6:30 p. m. on July 5th. They also stopped at the intersection of Glenstone and Kearney. A truck, with an “unusual” looking tank of some sort on the truck bed, was stopped in front of them. The truck and the Innes car both turned east on Kearney. The truck stopped to pick up a hitchhiker near the intersection. In court, they identified photographs of the victim’s truck as the truck that had stopped for the hitchhiker, and they testified that the hitchhiker was the defendant.

On July 5, at about 7 to 7:15 p. m., Rodney Stone, a 15 year old high school student, was'riding his bicycle in front of his farm home, located on Farm Road 199, one-quarter mile from East Kearney Street, when he saw a truck, which he identified in court as the truck pictured in state’s exhibits 15, 16 and 17 (the victim’s truck), come down the road and strike a concrete post. He “got a good look at the guy who came out of the truck”. Rodney went home and told his father of the incident. His father then called the sheriff’s office. Deputy Sheriff Barry Alexander came to the scene and photographed the truck. The defendant had left the scene before Alexander arrived. In court, Rodney identified defendant as the person who was driving the truck at the time of the accident.

On appeal, defendant makes 12 assignments of error, which are discussed in the order in which they appear in defendant’s brief.

POINT I

The first assignment of error is that the trial court erred in failing to sustain defendant’s first amended motion to dismiss the information for the reason that § 559.-011 was unconstitutional, in that the sentence prescribed by the statute constituted cruel and unusual punishment.

Section 559.011 was in force at the time of the murder and at time of trial. Statutes are presumed to be valid unless declared otherwise by the courts. The supreme court, in State v. Duren, 547 S.W.2d 476, 480-481 (Mo. banc 1977), decided March 15, 1977, ruled that § 559.011 was a valid statute which provided an alternative punishment to death for crimes of this class. Since the statute was valid, and since it set statutory limits on punishment, the sentence here, which conformed to those limits, cannot, as a matter of law, be held to be cruel and unusual punishment. State v. Grimm, 461 S.W.2d 746, 754 (Mo.1971). The assignment of error is denied.

POINT II

The second assignment of error is that the trial court erred in failing to sustain defendant’s first amended motion to dismiss for the reason that the sentencing of defendant under the provisions of § 559.011, constituted the application of an ex post facto law in violation of Article I, Sections 10 and 13 of the Missouri Constitution and Article I, Section 10 of the United States Constitution.

The homicide in this case occurred on July 5, 1976. Section 559.011 was enacted in 1975 and declared valid in State v. Duren, supra, on March 15, 1977. Defendant was tried on April 11, 1977 and was sentenced on June 3, 1977, with the formal judgment being filed on June 6, 1977. There was no application of an ex post facto law in this case. The statute in question had been enacted before the date of the crime, and had been declared valid by the supreme court in Duren, before defendant was sentenced under its provisions. The assignment of error is denied.

POINT III

The third assignment of error is that the trial court erred in submitting Instruction No. 5 to the jury, for the reason that said instruction failed to set forth the fact that if the jury found defendant guilty, and fixed his punishment at life imprisonment, he would have no possibility of parole for 50 years, and that the failure to so instruct was a denial of defendant’s constitutional rights under Article I, Sections 10 and 18(a) of the Missouri Constitution and Amendments 5 and 6 of the United States Constitution.

The trial court instructed the jury, in Instruction No. 5, as follows:

“If you find and believe from the evidence beyond a reasonable doubt: First, that on or about July 5, 1976, in the County of Greene, State of Missouri, the defendant caused the death of Ollie Adkins by stabbing him and (s)econd, that the defendant intended to take the life of Ollie Adkins, and (t)hird, that the defendant knew that he was practically certain to cause the death of Ollie Adkins, and (f)ourth, that the defendant considered taking the life of Ollie Adkins and reflected upon this matter coolly and fully before doing so, then you will find the defendant guilty of capital murder. However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, then you must find the defendant not guilty of that offense. If you do find the defendant guilty of capital murder, you will fix his punishment at life imprisonment by the Division of Corrections.”

The instruction was MAI-CR 6.02, as modified in accordance with Rule 20.02(d), which provides that where a MAI-CR form must be modified, the modification must be simple, brief, impartial, and free from argument. The modification consisted of changing the punishment from death to life imprisonment. This modification was necessary in view of the holding in State v. Duren, supra, that the death penalty provision of § 559.009(3) was unconstitutional.

Defendant fails to explain, in his point relied on or the argument supporting his point, wherein and why the failure of the trial judge to tell the jury that, if they found defendant guilty under Instruction No. 5 and fixed his punishment at life imprisonment, he had no possible hope of parole for 50 years, was prejudicially erroneous. This violation of the tenets of Rule 84.04(d) precludes review on this point, unless we consider the point under the plain error rule, Rule 27.20(c).

It is true that a defendant is entitled to have the jury correctly and fully informed as to the various punishments that might be assessed. State v. Bevins, 328 Mo. 1046, 1052, 43 S.W.2d 432, 435 (banc 1931). It is likewise true that failure to instruct the jury as to maximum or minimum punishments is prejudicial error. State v. Duddrear, 309 Mo. 1, 5, 274 S.W. 360, 361 (1925); State v. Hurt, 285 S.W. 976, 976 (Mo.1926). However, none of those decisions involve the question of whether or not the jury should have been told, at the time of trial, that under the law and the instructions in force at that time, the defendant would not be paroled for at least 50 years, if they found him guilty of capital murder.

Defendant, by implication, argues that had the jurors been aware of the preclusion of parole opportunities, they might have been less willing to convict him of capital murder with its mandatory penalty of life imprisonment. This argument does not hold water. In the first place, the jury was instructed not only as to capital murder, but also as to the lesser homicide degrees of second degree murder and manslaughter. The instructions were complete. The jury was well aware of the significance of their task and the alternatives available to them. They resolved the question by the verdict that they returned.

Secondly, courts have traditionally been reluctant to inject the question of the possibility or impossibility of parole into guilt determinative instructions. In State v. Rollins, 449 S.W.2d 585 (Mo.), cert. denied, 399 U.S. 915, 90 S.Ct. 2220, 26 L.Ed.2d 573 (1970), the same argument was advanced as is used ■ here. In Rollins, defendant was convicted of dispensing a controlled substance under § 195.020, RSMo 1959. The penalty section for such conviction was § 195.200(1), (4), RSMo 1959, which provided that no parole or probation was to be exercised in behalf of persons punished under certain sections of the statute. Upon conviction, Rollins urged that failure to instruct the jury that no parole or probation would be available to him, if convicted, was prejudicial error. The court rejected the argument and held that it was not error for the trial court to fail or refuse to inform the jury that no form of probation or parole would be exercised in the event of conviction, stating that the question of future clemency was extraneous to the issue of guilt.

It is true that the new 15.00 MAI-CR series, which applies to homicides committed after May 25, 1977 (which is not the case here), provides that in the second stage of a capital murder trial, the jury after a finding of guilt in the first stage proceeding, is told that if they reject the death penalty, they will return a verdict of life imprisonment with no possibility of parole for 50 years. However, present practice, via the two stage proceeding, is an entirely different kettle of fish from the case at bar. Under present practice, guilt has already been determined by the jury, absent the possible murky effect of the injection of the parole syndrome into the guilt determination process, before they decide the question of punishment. Here, defendant’s guilt or innocence and his punishment, if found guilty under the law as it was at that time, had to be determined by the jury in a one stage proceeding. The extraneous issue of parole or probation had no bearing on the issue of defendant’s guilt. Instruction No. 5 was proper. The assignment of error is denied.

POINT IV

The fourth assignment of error is that the trial court erred in admitting into evidence state’s exhibits 18,19 and 20, over the objection of defendant, for the reason that the exhibits were inflammatory, prejudicial, and of no overweighing probative value.

The challenged exhibits were photographs taken of defendant at the time he was booked at the Springfield Police Station. They showed his general appearance and the manner in which he had taped the knife and sheath to his leg. Photographs are admissible in criminal cases where they help to establish relevant facts or where they tend to clarify or corroborate the testimony of witnesses. State v. Johnson, 539 S.W.2d 493, 517 (Mo.App.1976), cert. denied, 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977). Trial courts have wide discretion in determining the admissibility of such photographs. State v. Jackson, 499 S.W.2d 467, 472 (Mo.1973).

The photographs were relevant and probative on the question of identity. They allowed the jury to compare the oral testimony of descriptions of defendant’s appearance, and of the finding of the knife and scabbard taped to defendant’s leg, with the photographs, to see if the exhibits corroborated such testimony. There was no error in the admission into evidence of state’s exhibits 18, 19 and 20.

POINT V

The fifth assignment of error is that the trial court erred in admitting into evidence state’s exhibit 8 (the knife), which was the alleged murder weapon, for the reason that no proper chain of custody was shown from the time it was taken from defendant’s person until the time that it was admitted into evidence.

Chain of custody is an irrelevant issue where, as here, the objects in question are positively identified, and the objects themselves, rather than their condition, are the significant factor. State v. Coleman, 441 S.W.2d 46, 51 (Mo.1969); State v. Russ, 537 S.W.2d 216, 218 (Mo.App.1976). Officer Pippin positively identified state’s exhibit 8 as the knife which he took from defendant’s person, when he arrested him, and as the knife that he then took to the crime laboratory. Esther Scurlock, defendant’s mother, also identified the knife as belonging to her son.

Don Smith, the laboratory director, testified that he had purposely broken the knife handle, during his examination of it, in order to test the hilt area for the presence of bloodstains. The procedure was necessary and was proper police practice. This did not constitute tampering with the evidence to the extent that the “chain of custody was legally destroyed. See State v. Baines, 394 S.W.2d 312, 316 (Mo.1965), cert. denied, 384 U.S. 992, 86 S.Ct. 1900, 16 L.Ed.2d 1008 (1966). Even if defendant’s chain of custody challenge had any merit, which we doubt, the accounting of the possession of the knife from the time it was taken from defendant until the time of trial, including the explanation as to why the knife handle was broken, provided reasonable assurance, and supported the inference, that the knife taken from the defendant and examined by Don Smith was the same knife that was admitted into evidence as state’s exhibit 8. There was no error in the admission into evidence of the exhibit in question.

POINT VI

The sixth assignment of error is that the trial court erred by refusing to compel the disclosure of the name of the confidential informant who gave Detective Lloyd information that led to the arrest of the defendant.

Disclosure of the name of a confidential informant is required where such disclosure is relevant to the defense of the accused, essential to a fair disposition of the case, necessary to avoid the risk of false testimony, or vital to secure useful testimony. State v. Edwards, 317 S.W.2d 441, 446-447 (Mo. banc 1958). Whether a defendant can have a fair trial without compelling disclosure of an informant’s identity is a matter addressed to the sound discretion of the trial court. State v. Yates, 442 S.W.2d 21, 25 (Mo.1969). The general rule, where the issue is probable cause for an arrest, is that the identity of the informant need not be disclosed if the trial judge is convinced, by evidence submitted in open court and subject to cross-examination, that the police officers did rely in good faith upon credible information supplied by a reliable informant. State v. Boyd, 492 S.W.2d 787, 791-792 (Mo.), cert. denied, 414 U.S. 1069, 94 S.Ct. 579, 38 L.Ed.2d 475 (1973); State v. McCann, 543 S.W.2d 504, 507 (Mo.App.1976).

Based on the testimony given by Detective Lloyd, outlined in the statement of facts above, it is clear that the trial court did not abuse its discretion in overruling defendant’s motion for disclosure. The information supplied by the reliable informant was credible, and it was relied upon. The assignment of error is denied.

POINT VII

The seventh assignment of error is that the trial court erred in overruling defendant’s motion to suppress evidence of the results of a test made of blood taken from defendant’s body at the time of his arrest, for the reason that there was no probable cause for his arrest and, therefore, the invasion of his body for the purpose of obtaining the blood sample was unconstitutional and illegal.

There is a broad gulf between what evidence is required to prove guilt, and the evidence required to prove probable cause for a warrantless arrest. Police officers may rely on information received from a reliable informant as the basis for an arrest on probable cause, as long as that information is reasonably corroborated by other matters within the officers’ knowledge. The corroboration must reduce the chance of a “reckless or prevaricating” tale. State v. Wiley, 522 S.W.2d 281, 287-288 (Mo. banc 1975). The information received from the informant in this case was corroborated by evidence found at the scene (the slip of paper containing the name “Hanson”), and by the information in the possession of the officers that defendant had been involved in stabbing/robbery incidents in Polk and Pulaski Counties. There was probable cause for the arrest of defendant and, therefore, the trial court did not err in overruling defendant’s motion to suppress the blood sample for lack of probable cause.

The probable cause issue is the only matter stated in defendant’s point relied on. Appellate review will only be made of matters raised in the points relied on in appellant’s brief. Thus, the other arguments raised in the argument portion of the brief on this point have not been preserved for review. State v. Hodges, 575 S.W.2d 769, 773 (Mo.App.1978). We decline to review, under the plain error rule, Rule 27.-20(c), defendant’s other arguments in his brief as to why the taking of the blood sample was illegal, as it is clear that the taking of blood was done under controlled conditions by a trained technician, with the consent of defendant. It did not violate his constitutional rights, or result in a manifest injustice or a miscarriage of justice. The assignment of error is denied.

POINT VIII

The eighth assignment of error is that the trial court erred in overruling defendant’s objection to the testimony of Don Smith for the reason that the witness lacked the training and experience to qualify him as an expert.

Don Smith testified that, based upon scientific tests he had made immediately after the arrest of the defendant, it was his opinion that defendant had blood residue on his hands, shirt, bandana, watch, knife, and scabbard. It was also his opinion that defendant had type 0 blood, while the blood of the victim and that found on the knife were both type A. There is no doubt that such testimony, which left the inference for the jury that defendant had recently been involved in a bloody encounter and that the blood found on him and his knife was the blood of someone else, was particularly damaging to defendant. The qualifications of the witness to give such opinions are, therefore, of utmost importance. In order to qualify as an expert, a witness must be shown to have knowledge, from education or experience, which will aid the trier of fact in forming an opinion on the subject matter of the inquiry. State v. Harvell, 527 S.W.2d 445, 448 (Mo.App.1975). This knowledge may be gained by practical experience, as well as by scientific study or research. State v. Rhone, 555 S.W.2d 839, 841 (Mo. banc 1977). The determination of an expert’s qualifications is a matter for the trial judge’s discretion, and his determination that a witness is qualified will not be overturned on appeal unless the record shows a clear abuse of that discretion. State v. Johnson, 539 S.W.2d 493, 502 (Mo.App.1976), cert. denied, 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977).

Smith had been the director of the Region Two Crime Laboratory for a period of 7 years. He spent 30 to 35 percent of his time doing laboratory work. He had attended many seminars relating to the identification and analysis of blood and had received laboratory training in that field, including training sessions held under the auspices of the F.B.I. and the Missouri Highway Patrol. This court and the Missouri Supreme Court have both held that Smith is an expert in this field and is qualified to give an opinion regarding blood identification and blood analysis. State v. Stevens, 502 S.W.2d 335, 338 (Mo.1973); State v. Jones, 518 S.W.2d 304, 311 (Mo.App.1975). Smith was qualified to give his opinion on the identification of a substance as blood and the type of blood it appeared to be. The assignment of error is denied.

POINT IX

The ninth assignment of error is that the trial court erred in failing to sustain defendant’s motion for judgment of acquittal filed at the close of all of the evidence for the reason that the evidence was insufficient, as a matter of law, to present a submissible case to the jury.

Defendant’s point relied on does not state briefly and concisely why the trial court’s ruling on the motion was erroneous or why the evidence was insufficient as a matter of law. The point, therefore, does not preserve anything for appellate review, Rule 84.04(d); State v. Robinson, 555 S.W.2d 667, 669 (Mo.App.1977), and can only be considered under the plain error rule, Rule 27.20(c).

In determining whether a case should have been submitted, the reviewing court is to regard all evidence in the record, that tends to prove defendant’s guilt, and all reasonable inferences to be drawn therefrom, in a light most favorable to the ver-diet and to disregard evidence to the contrary. State v. Miceli, 549 S.W.2d 113, 114 (Mo.App.1977). This is a circumstantial case. When the state’s case rests on circumstantial evidence, the facts and circumstances must be consistent with each other and with the hypothesis of defendant’s guilt, and they must be inconsistent with his innocence and exclude every reasonable hypothesis of his innocence. This rule is realistically tempered with the explanation that the circumstances need not be absolutely conclusive of guilt and need not demonstrate the impossibility of innocence. State v. Franco, 544 S.W.2d 533, 534 (Mo. banc 1976), cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977). Bearing this in mind, appellate courts should be reluctant to overturn a jury verdict based on circumstantial evidence, unless such verdict was premised solely on speculation or a mere suspicion of guilt and not based on competent evidence. Such is not the case here.

The evidence in this case, through a chain of circumstances, amply supports the inferences that Adkins picked up the defendant, who was hitchhiking, and that defendant shortly thereafter robbed Adkins of his money, killed him by stabbing him repeatedly with his knife, and stole his truck. Cases are legion where homicide convictions have been upheld on circumstantial evidence no stronger than we see here and, in some cases, where the evidence was weaker. The assignment of error is denied.

POINT X

The tenth assignment of error is that the trial court erred in allowing the victim’s widow and family to remain in the courtroom during the trial, in violation of the invoked rule of exclusion of witnesses, because their presence in the courtroom was inflammatory and prejudicial, thereby depriving defendant of due process and an impartial jury.

The victim’s wife, Stella Adkins, was the first witness at the trial. Her testimony was to the effect that her husband left the family home in Pacific, Missouri, between 9 and 10 a. m. on the morning of July 5,1976, to go to Springfield, Missouri, on business; that he had over $200 on his person; that he was driving his Dodge truck; and, that she never saw him alive again. She identified the picture on the driver’s license, found at the scene of the murder, as a picture of her husband. No other member of the family testified. At the conclusion of Mrs. Adkins’ testimony, defendant objected to her remaining in the courtroom and also objected to the presence of the victim’s family in the courtroom. The objection was overruled.

The decision as to whether witnesses should be excluded from the courtroom is discretionary with the trial court, State v. Crider, 419 S.W.2d 13, 14-15 (Mo.1967), and will not be disturbed unless abused. State v. Tummons, 34 S.W.2d 122, 123-124 (Mo.1930). It has been held that it was not an abuse of discretion to allow the wife of a murder victim to remain in the courtroom during the trial, even though she later testified as a witness for the state. State v. Thompson, 338 Mo. 897, 902-903, 92 S.W.2d 892, 894-895 (1936). Here, the trial court allowed the widow to remain in the courtroom, after she had finished her testimony, with the understanding that she was not to make any visual or oral demonstrations during the trial. The record does not disclose any disturbance during the trial.

Defendant has not cited any case, and we find none, which would require, or for that matter even allow, the trial court to exclude other family members, who were not witnesses, from the courtroom, where the record does not reflect that they have caused or threatened to cause a disturbance. The trial court did not abuse its discretion in allowing the widow and the family to remain in the courtroom. The assignment of error is denied.

POINT XI

The eleventh assignment of error is that the trial court erred in overruling defendant’s objection to the testimony of Police Officer George Brinkman regarding statements made to him by defendant after defendant’s arrest, for the reason that the statements were hearsay, not the best evidence, and were taken in violation of defendant’s constitutional rights.

This point relied on is defective because it does not state “wherein and why” the action of the trial court complained of was error. Rule 84.04(d). Points relied on should specifically isolate and formulate those precise issues to be reviewed, and such functions should not be relegated to the argument portion of the brief. State v. Dennison, 428 S.W.2d 573, 579 (Mo.1968). In the present case, defendant merely states that Brinkman’s testimony was hearsay, a violation of the best evidence rule, and in violation of his constitutional rights. This mere assertion is completely inadequate to preserve those points for review. State v. Flynn, 541 S.W.2d 344, 349 (Mo.App.1976); State v. Clark, 552 S.W.2d 256, 267 (Mo.App.1977).

Any review of this point would have to be via the plain error rule. Defendant’s statements to Brinkman that he had been driving a truck that had been involved in a wreck, that he did not know the owner of the truck, and that there should not be any blood on his knife, were voluntary statements made by the defendant, which tended to connect him with the crime in question and, as such, were admissible as admissions against interest. State v. Sinovich, 329 Mo. 909, 917, 46 S.W.2d 877, 881 (1931). None of the other arguments raised by defendant on this point, such as the defendant’s statements not being the “best” evidence or that the statements were inadmissible because defendant had not been “legally” arrested before they were made, have a valid foundation, either in fact or law, and do not merit plain error review. Brinkman’s testimony was according to his best recollection of what defendant told him. The best evidence rule does not apply in such situations. We have held in this opinion that there was probable cause for the arrest. The trial court did not err in admitting the testimony of Officer Brink-man. The assignment of error is denied.

POINT XII

The last assignment of error is that defendant was denied effective assistance of counsel, when trial counsel failed to properly object to the testimony of Officer Netzer, as the officer’s testimony was irrelevant, immaterial, prejudicial, and lacking in probative value.

In substance, Officer Netzer testified that he was called to the intersection of Kearney and Glenstone between 6 and 6:30 p. m. on July 5, 1976. When he arrived at that location, he found Joe Graves who was intoxicated. This tied in with the testimony of Gertrude Osbourne, who had testified that Joe Graves and the defendant had been drinking together in her bar at that location earlier in the afternoon. Netzer’s testimony was, therefore, relevant and material. It was corroboration of Mrs. Osb-ourne’s testimony that defendant had been in the immediate area of the murder on the afternoon of the killing, that he had been with Joe Graves, and that at the approximate time of the killing, defendant was no longer in the bar. While it is true that trial counsel did not object to Netzer’s testimony, we fail to see where an objection would have done him any good, as the evidence was admissible, or how defendant was prejudiced by a failure to object. There is nothing in the record on this point, or any other point for that matter, to indicate ineffective assistance of counsel at the trial court level. The assignment of error is denied.

We have carefully reviewed the pre-trial and trial transcripts, totalling 658 pages, and find no prejudicial error. Defendant was given a fair trial.

The judgment is affirmed.

All concur except PREWITT, J., not participating because not a member of the court when cause was submitted.

      . All statutory references, unless otherwise indicated, are to RSMo Supp.1975, V.A.M.S., and all references to rules are to Missouri Rules of Court, V.A.M.R.

      . § 559.011 provided that if the death penalty provisions of the capital murder statute in force at that time were declared to be unconstitutional, the alternative punishment for capital murder would be life imprisonment with no possibility of parole for 50 years.

      . State v. Williams, 515 S.W.2d 544 (Mo.1974); State v. Damico, 513 S.W.2d 351 (Mo.1974); State v. Maxie, 513 S.W.2d 338 (Mo.1974), cert. denied, 420 U.S. 930, 95 S.Ct. 1132, 43 L.Ed.2d 40 (1975); State v. Miceli, 549 S.W.2d 113 (Mo.App.1977).