text:
    STATE of Missouri, Plaintiff-Respondent, v. James Roy HILL, III, Defendant-Appellant.
    No. 35789.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 4, 1976.
    Motion for Rehearing or Transfer Denied June 15, 1976.
    Application to Transfer Denied July 12, 1976.

      Hayes & Heisler, Kenneth E. Reiter, Clayton, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Thomas E. Ditt-meier, Asst. Pros. Atty., Charles L. Merz, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   WEIER, Presiding Judge.

James Roy Hill, III was found guilty by a jury of two counts of murder in the first degree, two counts of robbery in the first degree by means of a dangerous and deadly weapon, and two counts of assault with intent to kill. As to the first two charges, he was sentenced to two life terms; as to the next three, to three terms of one-hundred years each, all five to run consecutively; and as to the sixth charge, to one term of one-hundred years to run concurrently with the term for Count V.

Defendant does not challenge the sufficiency of the evidence. The facts are briefly as follows. Defendant participated in the robbery of a tavern in Maplewood known as Cousin Hugo’s with four other young males during which a barmaid and one patron were wounded and two patrons were killed, one by a stab wound and the other, an off-duty police officer, by a shotgun blast to the head. The robbery and killings occurred at approximately 1:15 a. m., March 18, 1972. By 9:30 a. m. four suspects had been arrested at 1338 Banneker, Maplewood, Missouri, the home of one of the suspects, and taken into custody. Defendant was arrested on March 20, 1972 at an apartment on Natural Bridge Road. Three eyewitnesses testified that defendant was one of the five who robbed the tavern. Two of the witnesses observed defendant fire the shot that killed John Gallino, the police officer. The same two witnesses also identified defendant at a lineup. Nathaniel Heard testified that on March 18, 1972 defendant told him that he “blew a pig’s head off” and that the victim was on the floor when he shot him.

The police searched the Banneker Street house on two occasions. They discovered numerous items that were linked to the robbery. Among them were items taken during the robbery — shotguns, shotgun shells, other weapons and parts of weapons, and items of clothing. Six identifiable prints were obtained from the items taken during the robbery. Two of them were identified as defendant’s.

I.

For his first point on appeal defendant alleges simply that it was error to overrule his motion to suppress physical evidence but does not include a statement of wherein and why the ruling is claimed to be erroneous. He therefore fails to comply with Rule 84.04(d) which is applicable to criminal as well as civil cases. Rule 28.18; Boyer v. State, 527 S.W.2d 432, 437[6] (Mo.App.1975). This court is, as a result, under no duty to consider this contention. However, gratuitously we conclude that defendant does not, in any event, have standing to challenge the search and seizure under the facts of this case.

A defendant cannot challenge the admission of evidence on the ground that it was seized in an allegedly illegal search unless he has standing to raise the issue. One’s personal right to privacy guaranteed by the Fourth Amendment must be violated before he can object to the introduction of the fruits of a search. State v. Hornbeck, 492 S.W.2d 802, 808[10] (Mo.1973); In re J. R. M., 487 S.W.2d 502, 508[2] (Mo. banc 1972); State v. Achter, 512 S.W.2d 894, 899[3, 4] (Mo.App.1974). Only when he establishes that he himself was a victim of the improper activity which forms the basis of his challenge to the evidence may he obtain its suppression. He must therefore present evidence of some circumstance or set of circumstances demonstrating that the area searched was one in which he had a reasonable expectation of freedom from governmental intrusion before he can be said to have standing. State v. Hornbeck, supra; see In re J. R. M., supra, pp. 504-509. The issue of standing must be determined on a case by case basis. In re J. R. M., supra at 508[2]. The question of whether movant has a sufficient interest in the property searched to object can be answered only after an examination of the facts. State v. Pruett, 425 S.W.2d 116, 120[5, 6] (Mo.1968).

The facts adduced at the hearing on the motion to suppress and at trial have been examined to determine whether defendant had an interest in the premises sufficient to have given rise to a reasonable expectation of privacy. Subsequent to the arrest of four of the subjects, not including defendant, at 1338 Banneker, police officers seized, among other items, somewhere between one and three hundred pieces of paper, most of them handbills for an organization known as the Black Patriot Party. Defendant’s name or initials appeared on three to five of these pieces of paper. Only one item, a City of St. Louis Workhouse release paper, actually belonged to defendant. Defendant, when testifying at trial, also stated that he had an item of clothing with the initials JR on it at the Banneker house. There was, however, no testimony that such an item was found. Defendant’s claim to standing must rest solely on the fact that he left behind at the Banneker house a workhouse release paper with his name on it. Defendant cites, and we can find, no case that compels us to accord him standing on so slim a connection with the premises searched. There is no evidence that defendant had permission to use or had used the premises for his own purposes. He had no key. He did not use it or any part of it as an office or for conducting business of any kind. He was neither owner nor tenant. The evidence is inadequate to demonstrate an interest on the part of defendant in the premises searched such as would afford him standing to challenge the search. The facts of this case do not, as he suggests, bring him squarely within the holding of In re J. R. M., supra, in which the item searched was the family car which defendant, the owner’s son, used exactly as he would have had title been in him. Defendant’s lack of standing renders a review of the additional issues regarding the law of search and seizure raised in his brief on appeal unnecessary.

II.

Defendant next contends that the trial court erred in admitting into evidence five photographic exhibits. These black and white photographs were taken by police officers at the scene of the crime after the bodies of the two victims had been removed. Paper silhouettes illustrate the positions of their bodies in two photographs. One shows the spot where Owen Kelly, a patron, was wounded, and another shows the position of tables relative to the front door of the tavern. The last shows a live shotgun shell lying on the floor near the front door.

Defense counsel objected to their admission on grounds that they were gruesome, obscene, and highly inflammatory and prejudicial, and offered to stipulate to anything the prosecutor hoped to prove by their use. All of the photographs were illustrative of testimony clearly relevant to the case, describing the approximate positions of the bodies of the dead and wounded and the place where the live shotgun shell was found.

The admission of photographs such as these rests within the sound discretion of the trial court. State v. Strong, 484 S.W.2d 657, 661[13—14] (Mo.1972); State v. Hendrix, 454 S.W.2d 40, 43[8] (Mo.1970). Their admission is proper if they tend to “throw any relevant light upon a material matter at issue.” State v. Moore, 303 S.W.2d 60, 65[1] (Mo. banc 1957). “It is not a valid objection that witnesses have testified to matters shown by photographs because pictures give a much clearer impression of many things than any oral description and that is the reason for using them.” State v. Tyson, 363 Mo. 1242, 258 S.W.2d 651, 654[3, 4] (1953); accord, State v. Moore, supra at 65[2].

In the Moore case several photographs of the deceased showing a wound that tore away the right side of the heart and part of her forearm and collapsed a lung were admitted into evidence. The Supreme Court held that their admission was not error since, among other reasons, they “tended to corroborate the testimony of state’s witnesses, and the state, having the burden of proving defendant’s guilt beyond a reasonable doubt, should not be unduly limited as to the quantum of its proof.” State v. Moore, supra at 65[2]. Further comments by the Moore court are appropriate to the case at bar. “If the exhibits satisfy the rule as to the admission of demonstrative evidence, it is not a sufficient cause for their rejection that the sight of them would tend to agitate the feelings of the jurors.” Moore at 66[3]. “If the photographic views are shocking and horrible it is because the crime is one of that sort, whether described in words or pictures. Some phases of the oral testimony are as likely to cause agitation as the pictures.” Moore at 66[5]. No photograph could have been more gruesome than the testimony of Officer Deckelman, one of the first police officers to arrive on the scene.

The trial court did not err in admitting the challenged photographs. They illustrated and corroborated the witnesses’ testimony and helped establish facts such as the probable position of the person who fired the shots. The bodies and wounds of the victims were not shown. The point is ruled against defendant.

III.

Also complained of on appeal is the admission into evidence of certain items of tangible and photographic evidence taken from the Banneker house on the morning of the arrest of the four other persons charged with this crime.

Defendant bottoms his objection upon the assertion that the items were irrelevant because they were not connected to the commission of the crime or to him and were highly prejudicial and inflammatory. Items are sufficiently connected to a defendant when they are found in the possession of his criminal associates. State v. Cuckovich, 485 S.W.2d 16, 23[12] (Mo. banc 1972). A thorough consideration has been given to the issue of the admissibility of most of these same items in the companion case of State v. Theodore Roosevelt Johnson, Jr., 539 S.W.2d 493 (Mo.App.1976), in which precisely the same objections were raised. It was there held the items involved were admissible. No factual distinction exists in this case that would compel a contrary result. The circumstances of their finding justify an inference of the likelihood or possibility of many of these items having been used in the preparation or commission of the crime. They are therefore admissible “ ‘for the purpose of showing availability to accused of the means of committing the crime in the manner in which it is shown to have occurred.’ ” State v. Cuckovich, supra at 23[12]. This is especially true of the hacksaw, the gun barrels and the shotgun stocks not objected to in the Johnson case. Numerous persons testified that the robbers were armed with sawed-off shotguns. It is well-settled that “[articles showing motive, or malice, or intent, or knowledge or preparation, may be received in evidence if shown to be connected with the crime or with the accused.” State v. Evans, 237 S.W.2d 149, 151[1, 2] (Mo.1951). Items found soon after a crime in the possession of a defendant’s criminal associates are sufficiently connected to the defendant to be admissible in evidence against him. A hacksaw, gun barrels and gun stocks clearly indicate the availability of items used in the preparation of sawed-off shotguns and the items were therefore properly admitted. State v. Evans, supra.

A review of the record reveals the care exercised by the trial court in examining exhibits and excluding photographs depicting materials which referred to a black militant organization. The evidence received was competent and relevant and its admission therefore would not be erroneous even had it been prejudicial. State v. Wells, 367 S.W.2d 652, 655[9] (Mo.1963). Defendant’s contention is without merit.

IV.

Defendant states that it was error to permit an in-court identification by Sandra Clemens, an eyewitness, because to do so violated a court order issued on February 26, 1973. Subsequent to a hearing on the motion to suppress the identifications, the trial judge held that the lineups were properly conducted but found that Clemens and Brooks had not viewed any corporeal lineups. He issued the following order:

“Therefore, as to these two witnesses, Sandra Clemmons (sic) and Bonnie Brooks, the Court holds they cannot make an in-court identification until at trial the Court conducts a further Wade-Stovall-U. S. v. King hearing to determine whether their in-court identification is based upon a photograph of said defendants or an independent source from their knowledge of what they saw in Counsin (sic) Hugo’s March the 18th, 1972. * * * the Prosecuting Attorney, his assistants, and the police in the preparation of this case are ordered not to show any photographs of any defendants to these two witnesses until the hearing. * * * ”

Defendant also maintains that the portion of the order forbidding the authorities to show these witnesses pictures of defendant was violated. The instances to which he refers all occurred prior to the date of the court order. This contention is thus totally devoid of merit.

Bonnie Brooks did not testify for the prosecution. The prosecutor did call Sandra Clemens to testify but made no attempt to elicit an identification of defendant. Ms. Clemens was the last witness of the day and the court recessed immediately after she was excused. The record reveals that as soon as she finished testifying “she walked out and told the County Officer that that man was in there.” When it became clear the next morning that she was again going to testify, defense counsel objected on the ground that the witness had been dismissed and was not subject to recall. This specific objection is not carried forward in the motion for a new trial or in the brief on appeal and is therefore deemed abandoned. State v. Scott, 515 S.W.2d 524, 527[4] (Mo.1974); State v. Halk, 524 S.W.2d 44, 48 (Mo.App.1975).

Sandra Clemens was permitted to testify. She stated that after she was stabbed she was taken into the back room. One robber was holding a gun on the tavern owner when another robber, who she subsequently identified as defendant, came into the back and spoke to the man holding the gun. “That’s when I saw him. I remember his eyes and his mouth. And when I saw him yesterday I knew that’s where I had seen him.” She then on request pointed to defendant.

From the record it appears very likely that, by the time of trial, the court order had simply been forgotten. Defense counsel not only failed to call the order to the trial court’s attention but also questioned the witness extensively regarding her opportunity to observe defendant at the time of the incident. The existence of the court order was not called to the attention of the trial court until the time of the motion for a new trial. In his brief on appeal, defendant states that since no hearing was held to determine whether there was an independent basis for an in-eourt identification, it was error to permit the identification. No supporting authority is cited. Defendant therefore has failed to comply with Rule 84.04(d) which requires in part a statement of what rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous “with citations of authority thereunder.” State v. Orr, 493 S.W.2d 374, 375[2] (Mo.App.1973).

Even had the point been preserved, defendant would not prevail. The hearing court issued the order to prevent the witness from making an in-court identification until it was established that there existed an independent basis for her identification. Her testimony prior to identifying defendant did establish such a basis. The purpose of the court order was therefore fulfilled and her identification was properly permitted. State v. Ross, 502 S.W.2d 241, 246[2] (Mo.1973). Through defense counsel’s cross-examination of the witness the jury was made aware of her prior inability to identify defendant in pictures and of contradictions between her testimony in court and statements given previously in deposition. The weight to be given her testimony and identification was a decision properly left to the jury. State v. Sigh, 470 S.W.2d 503, 505[2] (Mo. banc 1971).

V.

Defendant also asserts as error the denial of his motion to suppress in-court identifications and testimony of lineup identifications because of allegedly unduly suggestive pretrial identification procedures and the absence of any source independent of the pretrial procedures that would support admissibility of the identifications. He also says the identifications were fatally tainted by local media accounts.

Defendant’s reliance for support upon the fact that the prosecutor on certain occasions showed photos of defendants to witnesses is misplaced. All of the occasions upon which the prosecutor employed such pictures occurred during trial preparation and long after the actual identification procedures. Defendant singles out for especially vigorous complaint a “reenactment” and says that it was very curious to have conducted it at the scene of the crime. The facts of this case were extremely complicated. Without diagrams, photographs and the like, it is difficult, if not impossible, to understand what occurred and how. It was essential that the prosecutor have a firm grasp upon the events of the incident so as to establish as concretely as possible what each of the five defendants was alleged to have done and where and when. Absent a reconstruction, he could not have presented his case to the jury in an intelligible manner. It is not curious that he felt it necessary to interview some witnesses at the scene. After the suspects had previously been firmly identified during properly conducted lineups, the use of photos of the five defendants to aid witnesses in describing what occurred was not objectionable. Defendant cites People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974) which says essentially that if a suspect is in custody and can be readily produced for a lineup, photographic identification should not be employed. This refers to initial identifications and was precisely the procedure followed here. Corporeal lineups containing other persons in addition to the suspects were conducted soon after they were taken into custody. There is no evidence that any suggestions were made to witnesses at the time. The injured who could not attend were shown photographs of these lineups rather than individual photographs of the five suspects. No case is cited or has been found that suggests that in preparing for trial a complicated case involving numerous defendants and witnesses, a prosecutor cannot use photographs but must gather defendants together for a properly conducted lineup each time an eyewitness is interviewed. The reenactment here was for the purpose of establishing how the crime occurred and the parts played by the various defendants. It was not meant for purposes of identification nor was it so used.

Identifications obtained by procedures that were not impermissibly suggestive, as is the case here, are admissible. The record reveals no constitutional infirmity in the conduct of the lineups. Therefore, it was not error to overrule defendant’s motion to suppress testimony of the extrajudicial identifications. State v. Few, 530 S.W.2d 411, 413[1] (Mo.App.1975). In addition, there was sufficient evidence that the in-court identifications of defendant by Miller and Kuper were based upon their observation of defendant at the time of the incident to overcome any taint from imper-missibly suggestive pre-trial identification procedures. Even had the pre-trial procedures been found impermissibly suggestive, there was sufficient evidence of an independent basis for the in-eourt identifications to have overcome the taint and support their admissibility. State v. Ross, supra, 502 S.W.2d at 246[2],

VI.

Defendant’s next point attacks the refusal of the trial court to grant a continuance to prepare for the testimony of one Nathaniel Heard, a state’s witness. This Point Relied On is not preserved for appellate review because there is no statement therein of wherein and why the court’s ruling was in error. Rule 84.04(d). For analysis of the law on the granting of continuances and the exercise of discretion in this area by the trial judge applicable here, reference may be made to the opinion in State v. Theodore Roosevelt Johnson, Jr., 539 S.W. 2d 493 (Mo.App.1976).

VII.

Defendant sets out in his brief on appeal seven quotations from the prosecuting attorney’s closing argument to which he objects on the grounds that they were prejudicial, inflammatory and outside the scope of the record. Only two of the remarks were objected to at trial. The trial court in one instance admonished the jury to recall the evidence and in the other sustained the objection. The trial court’s actions were sufficient under the circumstances to cure any error. The remaining statements of the prosecuting attorney complained of, which were interspersed among other portions of the argument, are as follows:

“You have offenses like these, maybe the most drastic thing you have ever heard of, Hill and a bunch of savages cut people with knives, shoot people and when they leave Cousin Hugo’s looks like a slaughter house. * * * Look at the photograph, look where the brain is, you can tell he put the gun right to the back of his head; * * * you don’t run into something like this every day, * * * how one human being can go up to the barmaid and stab her and drag her intestines out. * * * Ladies and Gentlemen, you are going to have to take James Roy Hill off the streets forever. He has forfeited his right to walk the streets amongst civilized people. I mean we don’t want him on the streets again, to put a gun to John Gallino’s head and kill him!”

No objection to these remarks was made at the time of trial and the motion for a new trial referred to the closing argument only in general terms. Complaints as to parts of a closing argument not set forth in detail and with particularity in the motion for a new trial are not properly preserved. Rule 27.20(a); State v. Spears, 505 S.W.2d 92, 93[1] (Mo.1974). The nature of the prosecuting attorney’s remarks, however, compels a consideration of the merits of the contention to determine whether a manifest injustice or miscarriage of justice occurred. Rule 27.20(c). Although considerable latitude is permitted a prosecuting attorney in closing argument, he must not lose sight of his obligation as set forth in State v. Heinrich, 492 S.W.2d 109, 114[8] (Mo.App.1973):

“Under our system of criminal jurisprudence, the prosecuting attorney occupies a quasi-judicial position with reference to the prosecution of a criminal offense. He has the right and duty to prosecute with vigor and present all of the admissible evidence and legitimate arguments at his command showing guilt. But no less a duty rests upon him to vouchsafe the defendant a fair and impartial trial— based upon facts, not guesswork; legitimate inference from the facts, not prejudice; cool analysis and decision, not passion. He should always keep uppermost in his mind the axiomatic principle that all persons charged with crime are presumed to be innocent; that a fair and impartial trial is a constitutional guarantee of all defendants guilty or innocent; and that not an unimportant part of his obligation as a prosecutor is to see that these goals are reached in every case.”

The state in its reply brief, both here and in a companion case arising out of the same set of facts, contends that “[o]f course, a prosecutor may argue the horribleness of the crime when addressing the issue of punishment.” The cases cited fully support several well accepted rules regarding the prosecutor’s closing argument, e. g., he may properly comment upon the prevalence of crime and urge upon the jury law enforcement and the assessment of punishment; he may argue for severe punishment to deter the commission of similar offenses by others; and his argument is proper so long as he stays within the record and reasonable inferences to be drawn therefrom. State v. Sibley, 411 S.W.2d 187, 189[5] (Mo.1967); State v. Evans, 406 S.W.2d 612, 616[3] (Mo.1966); State v. Jones, 384 S.W.2d 554, 560[6] (Mo.1964); State v. Allen, 343 S.W.2d 63, 67[12] (Mo.1961); State v. Eckenfels, 316 S.W.2d 532, 536[9] (Mo.1958); State v. Gay, 523 S.W.2d 138, 144[15] (Mo.App.1975). These cases do not suggest, however, that improper remarks can be insulated from scrutiny merely by inclusion in the portion of argument relating to sentencing. The remarks objected to in the cases cited are not comparable to those in defendant’s case. For example, in State v. Jones, supra, a case involving forgery of a check, the prosecuting attorney argued: “ ‘It is important to our community that in commercial life, matters that people rely on in every day affairs, that they be protected from this type of fraudulent activity.’ ” Finding this comment within the scope of permissible argument hardly supports the right to argue “horribleness” as the state appears to interpret the word. On the contrary, “[t]he loathsomeness of the crime * * * charged has a tendency to engender prejudice against its alleged perpetrator. That well-known fact places upon the State’s attorney a duty to conduct the trial with the utmost fairness and scrupulously to avoid injecting into the minds of the jurors prejudicially incompetent matters that will further inflame them.” State v. Groves, 295 S.W.2d 169, 174[9, 10] (Mo. 1956). “He may not * * * seek by inflammatory appeals to arouse in the jurors personal hostility toward or personal fear of the defendant. * * * Neither is it proper argument for a prosecutor to speculate as to the future possible acts or conduct of the defendant.” State v. Heinrich, supra, 492 S.W.2d at 114[9].

The prosecuting attorney in the instant case referred to defendant as a savage, unfit to walk the streets with civilized persons. He stated that someone had dragged the barmaid’s intestines out, called the juror’s attention to brain matter in a photograph of the crime scene and, in addition, implied that defendant would have to be kept off the streets to prevent further killing, not by others but by defendant. In State v. Morris, 248 S.W.2d 847, 852[7-9] (Mo.1952), it was held to be inflammatory and prejudicial and probably reversible error if properly preserved for a prosecutor to argue that the jury should not give defendant an opportunity to go out and kill somebody else. Certain of the remarks in the instant case are of the same variety. In addition, the prosecutor dwelt with special vehemence upon the most brutal details of this admittedly violent and loathsome crime. Such an argument as this is inflammatory and likely to arouse the personal hostility of the jurors. Because the point was not properly preserved, however, we consider the improper argument in the light of the evidence presented and we conclude that the remarks do not meet the test of plain error under Rule 27.20(c) requiring a determination that the error charged has resulted in a miscarriage of justice. “When guilt is established by * * * overwhelming evidence no injustice or miscarriage of justice will result from a refusal to invoke the rule.” State v. Hurtt, 509 S.W.2d 14, 15[2, 3] (Mo.1974). The evidence presented in this case amply supports the jury verdict and sentence. While we do not condone the prosecutor’s remarks, we cannot find that they affected the outcome or caused manifest injustice. No injustice will result from affirmance of the conviction.

The judgment is affirmed.

DOWD and McMILLIAN, JJ., concur.


source: Caselaw Access Project

author: GUNN, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Horace WILLIAMS, Defendant-Appellant.
    No. 36712.
    Missouri Court of Appeals, St. Louis District, Division Three.
    May 4, 1976.
    Motion for Rehearing or Transfer Denied June 15, 1976.
    Application to Transfer Denied Sept. 13, 1976.

      Joseph W. Warzycki, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Richard G. Callahan, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   GUNN, Judge.

Defendant-appellant was charged on two counts of felonious possession of Schedule One Controlled Substances in violation of § 195.020 RSMo Supp.1971. Count I charged possession of heroin, and Count II charged possession of marihuana. Prior to trial defendant filed a motion to quash a search warrant and suppress evidence seized thereunder, which, after hearing, was denied. Defendant’s motion to sever the two offenses — the separate marihuana and heroin counts — was granted, and he was tried on the heroin count before a jury, found guilty and sentenced under the Second Offender Act to twelve years imprisonment. We affirm the judgment.

On appeal defendant argues that the trial court erred in denying his motion to suppress the evidence seized, alleging that the police entered his apartment without giving notice of their authority and purpose and thereby violated his guarantee against unreasonable searches and seizures under the Fourth Amendment to the United States Constitution. The defendant also contends that the trial court erred in allowing testimony that a quantity of marihuana and narcotics paraphernalia were seized at the time of defendant’s arrest, as such testimony and items were evidence of a crime other than that for which defendant was on trial.

St. Louis police received information from an informant that defendant was dealing in narcotics from his St. Louis apartment, and a search warrant for the apartment was obtained. On the night of defendant’s arrest, undercover police officer Anton Wagner, with the search warrant in his possession, knocked at the door of defendant’s apartment planning to venture alone into defendant’s lair. Companion police officers stayed concealed from view in the distance outside the apartment building. The defendant’s wife answered Officer Wagner’s knock, and she asked whether Wagner was looking for her husband and was one of her husband’s customers. Officer Wagner identified himself as a narcotics customer seeking to purchase some necessities from defendant. The defendant’s wife admitted Officer Wagner to the apartment and led him down a darkened hallway to a back bedroom where he was met by defendant. Officer Wagner requested the defendant to sell him a $25 bag of heroin, and defendant agreed to the sale provided that Officer Wagner made use of the heroin on defendant’s premises. On being denied his request to take the heroin with him, Officer Wagner displayed his badge and for the first time identified himself as a police officer, giving the defendant the search warrant. He then arrested defendant and his wife. Officer Wagner used defendant’s telephone to notify his police station of the arrest. The officers waiting outside the apartment building were then called from the police station. The defendant’s mother, who had emerged from her bedroom, was asked by Officer Wagner to open the side door to the apartment to allow entry of other police officers. She complied with the request, and other officers entered the apartment for a search. A search of the defendant’s bedroom revealed three one pound bricks of marihuana on a table. The top of defendant’s dresser held quantities of heroin in foil packets, some syringes and a smoking pipe used for and containing marihuana. The foregoing items were seized and introduced into evidence with defendant’s counsel specifically objecting to the introduction of the bricks of marihuana and the smoking pipe.

Although defendant does not contend on appeal that the search warrant possessed by Officer Wagner was issued without probable cause, he does contend that the procedure employed in its execution rendered the search constitutionally impermissible. It is appellant’s contention that because the police officer did not give notice of his authority and purpose before entering the premises to be searched, appellant’s right to be free from unreasonable search and seizure was violated, and all evidence seized in the search was inadmissible at trial. In support of his position, appellant relies primarily on Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). Appellant’s reliance on this decision, however, is misplaced. In Miller, police officers went to the defendant’s apartment and knocked at his door. The defendant partially opened the door secured by a chain lock, asked what the police officers were doing there, and then closed the door immediately. The police officers responded by breaking open defendant’s door, ripping the chain lock from the wall. Although they had no search or arrest warrant and at no time stated the purpose of their presence, the officers entered and searched defendant’s apartment. The Supreme Court held it to be unlawful for police officers to break open a door to arrest the occupant for a felony where the officers, prior to entry, failed to state their “authority and purpose” for demanding admission.

But in the present case, we are presented with a significantly less offensive factual situation. Unlike the entry in Miller, the police here employed no violence or any threat of violence to gain entry into defendant’s premises. On the contrary, appellant’s wife, believing the undercover police officer to be one of her husband’s “customers,” actually invited him in and directed him to the room where the contested evidence was seized. Furthermore, the police officer entered with a valid search warrant for the premises. Because the entry was by invitation and without force, the Miller requirement for announcement of “authority and purpose” does not apply, and the validity of the search warrant was unimpaired by the manner of its execution.

The result we reach is consonant with our common law traditions, as well as Missouri law. At common law there has been a long-standing distinction between entries where force is applied and those obtained by ruse or deception, but without force. See Miller v. United States, supra; United States v. Beale, 445 F.2d 977 (5th Cir. 1971), cert. den., 404 U.S. 1026, 92 S.Ct. 697, 30 L.Ed.2d 676 (1972). Only in the former case is there a requirement of notice of authority and purpose before entry may be effected. Where ruse, deception or subterfuge are used to gain entrance to execute a warrant the federal courts have consistently held such conduct to be immaterial to the validity of the warrant so long as such misrepresentation is not accompanied by force. United States v. Beale, supra; United States v. Syler, 430 F.2d 68 (7th Cir. 1970); Dickey v. United States, 332 F.2d 773 (9th Cir. 1964), cert. den., 379 U.S. 948, 85 S.Ct. 444, 13 L.Ed.2d 545 (1965); Leahy v. United States, 272 F.2d 487 (9th Cir. 1959), cert. dismissed, 364 U.S. 945, 81 S.Ct. 465, 5 L.Ed.2d 459 (1961). As the Supreme Court noted in Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 820-821, 2 L.Ed.2d 848, 851 (1958): “Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer.” Missouri statutes governing the execution of arrest and search warrants have implicitly followed the distinction which we have here noted. Before he may “break open” doors in order to execute a warrant, a police officer is required to make a “public demand and announcement of his official character.” § 105.240 RSMo 1969. The statute imposes no such requirement where no breaking is necessary to execute the warrant. Nor is any such requirement found in Supreme Court Rule 33.02 V.A. M.R., which details the procedure for the execution of search warrants.

Considering the federal cases which have approved the use of deceptive strategy to gain access to premises for the purpose of enforcing search and arrest warrants, certainly, under the circumstances of this case there was no infringement of defendant’s constitutional guarantee against unreasonable search and seizures by the means of entry utilized by Officer Wagner to enter defendant’s apartment. The evidence in the case before us shows conclusively that no force was employed by Officer Wagner to gain entrance to defendant’s premises. He was invited inside the premises. The search warrant was not rendered invalid because Officer Wagner did not identify himself as a police officer before he entered to execute the warrant.

Defendant’s second assertion of error relates to the admission of evidence regarding the marihuana and marihuana paraphernalia (the pipe), which defendant contends was erroneously prejudicial as being evidence of a crime other than that for which defendant was being tried.

The general principle is well-established that evidence of commission of separate and distinct offenses is not admissible unless it has a legitimate tendency to directly establish the defendant’s guilt of the crime for which he is being tried. Evidence of unrelated crimes is inadmissible, because it violates defendant’s right to be tried for the crime for which he is charged. State v. Granberry, 530 S.W.2d 714 (Mo.App.1975); State v. McElroy, 518 S.W.2d 459 (Mo.App.1975). “It has the misleading probative force of tending to prove one crime by proving another.” State v. Martin, 506 S.W.2d 473, 474 (Mo.App.1974).

The general exclusionary rule, however, is not without exceptions. Evidence of other crimes is admissible to prove the specific crime charged when it tends to establish motive, intent, absence of mistake or accident, identity of the accused, or a common scheme embracing the commission of two or more crimes so interrelated that proof of one tends to establish the other. State v. Granberry, supra; State v. Jackson, 519 S.W.2d 551 (Mo.App.1975); State v. McElroy, supra.

In order to determine whether one of the exceptions to the general rule applies, the court must weigh “its logical relevancy to the particular excepted purpose or purposes for which it is sought to be introduced. If it is logically pertinent in that it reasonably tends to prove a material fact in issue, it is not to be rejected merely because it incidentally proves the defendant guilty of another crime.” State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307 (banc 1954). The difficulty in applying such a test to a given set of facts is readily apparent after an examination of the opposing briefs in the case sub judice. Both parties rely on substantially the same authorities to support their mutually exclusive conclusions.

The State contends the contested evidence was admissible under either the intent exception or as part of the res ges-tae, arguing that the evidence relating to the possession of a large quantity of marihuana by the defendant clearly demonstrates that his possession of heroin was knowing and that such evidence was admissible as part of the relevant facts surrounding the incident. The defendant, on the other hand, contends that the contested evidence was not logically relevant to the excepted purpose for which it was introduced, and therefore its admission was error.

After a review of the relevant authority, we are convinced that the State’s position is consistent with the case law. The State not only had the burden of proving that the heroin was in the defendant’s possession, but it also had the burden of proving that such possession was knowing on his part. State v. Wiley, 522 S.W.2d 281 (Mo. banc 1975). In State v. Tygart, 531 S.W.2d 47 (Mo.App.1975), it was said 1. c. 51:

“The sufficiency of the proof necessary to sustain a conviction for actual or constructive possession of a proscribed controlled substance is tested by whether ‘the defendant was aware of the presence and character of the particular substance, and was intentionally and consciously in possession of it.’ ” (original emphasis; cites omitted)

The court in Tygart found evidence of the separate crime of the sale of narcotics to be logically relevant to the charge against defendant of intentionally and knowingly possessing narcotics and an exception to the principle proscribing evidence of other crimes. The contested evidence here (the marihuana and marihuana pipe) is logically relevant to establish that the defendant’s possession of the heroin was with full knowledge of its illegal character. Although proof of possession of marihuana is not ipso facto evidence of knowing possession of heroin, where the two controlled substances and paraphernalia for their use are found at the same time and in the same place in open view, it has a logical tendency to prove a material fact at issue, that is, the knowing possession. See State v. Tygart, supra. Under the facts of this case, the marihuana and the concomitant apparatus (the pipe) were admissible under the intent exception.

Our decision is not an anomaly or aberration, for the precise issue before us was decided in State v. Tilcock, 522 S.W.2d 60 (Mo.App.1975), and State v. McClure, 504 S.W.2d 664 (Mo.App.1974). In Tilcock, a case in which the defendant was charged with the sale of amphetamine sulfate (mini whites), the arresting undercover officer testified that during the course of the sale of the mini whites, the defendant had offered to sell a quantity of heroin (“smack”). The defendant argued that evidence of the “smack” sale was impermissible in the trial for the separate crime of the sale of the mini whites. The court rejected defendant’s contention, holding that the evidence of the heroin sale had a direct bearing to show the intent of the defendant to sell the mini whites and was, therefore, within the exception to the interdiction of evidence of other crimes.

In State v. McClure, supra, the charge against defendant was the sale of LSD. At trial, the State presented evidence that when the defendant sold the LSD to an undercover police officer, he also made an effort to sell a quantity of marihuana. It was held that the marihuana evidence was logically relevant to prove the defendant’s guilt for the sale of LSD.

Thus, we find that the contested evidence possessed the requisite logical relevance to establish defendant’s intent to possess heroin; the exclusion of such evidence was therefore not necessary, although it incidentally presented evidence of another crime.

The judgment is affirmed.

SIMEONE, P. J., and RENDLEN, J., concur.

      . In the vernacular of the parties: Officer Wagner asked defendant, “Can you do me a quarter?” Defendant responded: “I’ll do you the quarter but you are going to have to do it here.” When Officer Wagner indicated he wanted his order to go, defendant’s wife, who was nearby, stated: “You are going to have to hit it here, nothing walks from here.”

      . In United States v. Syler, supra, federal agents used the ruse of a gas meter reader to gain entry to defendant’s premises. In Dickey v. United States, supra, a law officer assumed a false identity to enter defendant’s quarters. In Leahy v. United States, supra, the guise of county tax assessor was the deception employed by law enforcement officers to gain entry to defendant’s premises.

      . A recognized exception to the rule relating to admission of evidence of other crimes is “where the circumstances are such as to constitute one continuous transaction in the accomplishment of a common design and the crimes are concurrent so that the proof of one cannot be made without a showing of the facts tending to establish the other, the entire facts may be admissible since they are regarded as part of the ‘res gestae . . . ” State v. Cox, 508 S.W.2d 716, 723 (Mo.App.1974). When evidence of another crime forms part of the res gestae or falls within one of the other aforementioned exceptions the State is not required to “sift and separate” the evidence in order to exclude testimony tending to prove the crime for which the defendant is not being tried. State v. Sinovich, 329 Mo. 909, 46 S.W.2d 877 (1931); State v. Jackson, supra.

      . Certainly there is no question that paraphernalia suitable for utilizing the particular controlled substances of the charge — for instance, in a charge of heroin possession, evidence of the separate crime of possession of paraphernalia used for injecting the heroin — is admissible to establish knowing possession. State v. Lee, 521 S.W.2d 180 (Mo.App.1975); State v. Taylor, 508 S.W.2d 506 (Mo.App.1974).

      . See also: State v. Randall, 530 S.W.2d 407, 411 (Mo.App.1975), holding that in a hashish possession case, evidence of defendant’s possession of marihuana and the equipment for processing it to hashish was “ ‘logically relevant’ on the issue of the defendant’s knowledge of the nature of the substance [hashish].”


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Evans CHAPMAN, Jr., Defendant-Appellant.
    No. 37104.
    Missouri Court of Appeals, St. Louis District, Division One.
    May 4, 1976.
    Rehearing Denied June 15, 1976.
    Application to Transfer Denied Sept. 13, 1976.

      James C. Jones, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Defendant appeals from a judgment of conviction entered by the trial court on a jury verdict finding him guilty of burglary in the second degree, and a sentence of ten (10) years imprisonment imposed by the court.

The sole question for our decision is whether the trial court’s failure, prior to reading its instructions to the jury, to ask the defendant’s attorney, in the presence of the jury, if the defense wished to present any evidence, was a comment upon defendant’s failure to testify. We think not and affirm the judgment of conviction.

Defendant raises no question as to either the sufficiency of the evidence or the reception of the evidence; therefore, we present no narrative of the facts.

At the close of the state’s case, defendant’s attorney announced to the court, out of hearing of the jury, that defendant would not put on any evidence. After the instruction conference, trial was resumed, and the court announced that it would read its instructions. Defendant objected and requested a mistrial contending that the court’s announcing its intention to read the instructions prior to asking whether the defense wished to present evidence was an infringement upon defendant’s right to refuse to testify.

Defendant relies for support of his position upon Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); State v. Gray, 503 S.W.2d 457, 461-462 (Mo.App.1973) and § 546.270, RSMo 1969. While we agree with the general law set forth in the cases relied upon by defendant, we disagree with his conclusions drawn therefrom.

To develop at length defendant’s contention would have no precedential value.

In Gray, supra, we held that a direct comment by the court on a defendant’s refusal to testify was error. Likewise, our court has held that a statement by a prosecutor was a comment upon a defendant’s failure to testify. State v. McNeal, 517 S.W.2d 187, 188 (Mo.App.1974). In either of the above situations, we apply the “direct and certain reference” test. Eichelberger v. State, 524 S.W.2d 890, 894 (Mo.App.1975); State v. Jenkins, 516 S.W.2d 522, 528 (Mo.App.1974) and State v. Gray, supra, at 463. This test focuses upon the words “defendant,” “accused,” and “testify.” State v. McNeal, supra. Applying the “direct and certain reference” test to the instant case, the announcement by the court constituted neither a direct nor an indirect reference to defendant’s failure to testify. Consequently, we find no error and rule this contention against defendant.

Judgment affirmed.

WEIER, P. J., and RENDLEN, J., concur.


author: NORWIN D. HOUSER, Special Judge.

text:
    STATE of Missouri, Respondent, v. Billy Eugene LACKEY, Appellant.
    No. 36558.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Application to Transfer Denied Sept. 13, 1976.
    May 4, 1976.
    Motion for Rehearing or Transfer Denied June 15, 1976.
    Joseph W. Warzycki, James C. Jones, Asst. Public Defenders, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
   NORWIN D. HOUSER, Special Judge.

Billy Eugene Lackey, convicted of burglary, second degree, § 560.045, RSMo 1969, and sentenced to 7 years’ confinement, has appealed.

The State’s evidence: The police caught appellant red-handed, exiting from the rear of a vandalized and burglarized apartment with a tape recorder and jewelry box cradled in his arms. The recorder and box belonged to a tenant in the apartment. Appellant was wearing gloves and carrying a screwdriver-hammer in his pocket when apprehended.

Appellant testified he declined the suggestion of friend Tom that appellant join with him in the commission of this burglary; that he was present at the scene of the crime by coincidence, having gone back to retrieve a jacket loaned to Tom. He tried to disassociate himself from gloves and burglary tool, and denied entry into the apartment and possession of any fruits of the burglary.

Appellant’s first point: The court erred in not instructing the jury on appellant’s defense that another person — Tom— committed the burglary alone and that appellant’s presence at the scene when the police arrived was a coincidence. The point is without merit; the jury was adequately and fully instructed on the law of the case. Instruction No. 6 (MAI-CR 7.22) required a finding of appellant’s presence and active participation in the burglary and directed a not-guilty finding upon failure to find and believe from the evidence beyond a reasonable doubt “each and all” of the specified elements of the crime. Instruction No. 5 (MAI-CR 2.10) instructed the jury that the presence of a person at or near the scene of an offense at the time it was committed is not alone sufficient to make him responsible therefor, although his presence may be considered together with all of the evidence in determining his guilt or innocence. Instruction No. 7 (MAI-CR 3.02) instructed the jury that if the jury did not find from the evidence beyond a reasonable doubt that appellant, acting with another, had the criminal intent to break and enter the apartment and carry away the property of William Rasmussen, the jury must find him not guilty. These instructions, and others given, including Instruction No. 4 on the presumption of innocence and burden of proof (MAI-CR 2.20), covered the law of the case. There was no necessity of instructing the jury on appellant’s theory of innocence (that another person named Tom committed the burglary alone and that it was a mere coincidence that appellant was at the scene of the offense) for the reason that “[a] defense bottomed on evidence an accused had nothing whatever to do with the crime charged does not come within the connotation of the ‘theory of innocence’ principle used in the cases relied on.” State v. Banks, 491 S.W.2d 247, 248 (Mo.1973). “Defendant’s denial of the commission of the crime did not entitle him to a ‘theory of innocence’ instruction as a special defense to the charge.” State v. Broomfield, 510 S.W.2d 843, 846[2] (Mo.App.1974). In the cases appellant relies upon the defendant had a recognized defense other than an outright denial of any participation whatever in the crime, which theory of innocence was required to be instructed upon as a part of the law of the case [swap and not theft in State v. Cummings, 516 S.W.2d 49 (Mo.App.1974); accident and not manslaughter in State v. Kinard, 245 S.W.2d 890 (Mo.1952)]. There was no error in failing to instruct as proposed.

Appellant’s second point: The court erred “in holding that defendant was competent to stand trial and in failing, on its own motion, to convene a competency hearing because ‘bona fide doubt’ existed as to defendant’s competency to stand trial.” This point is without merit. An attorney from the Public Defender Bureau, representing appellant, filed a pretrial motion under § 552.020, subd. 2, RSMo 1969, requesting an examination of appellant and a written report as to his mental condition. The court granted the motion, removed the case from the trial docket and placed it on the Mental Examination Docket. Committed to State Hospital No. 1 at Fulton under the court order, appellant was subjected to a thorough physical and mental examination and evaluation. Henry Bratkowski, D. O., Director of the Maximum Security Unit of the hospital, prepared for the court a 6-page, single-spaced, typewritten report containing a detailed social and legal history of appellant, including his physical and mental status, including orientation, memory, speech and mental activity, mood and effect, insight and judgment, and a psychological report; his course in the hospital, present condition, diagnosis (no mental disorder under Chapter 552), a discussion of the results of the observation and study of appellant, while in the hospital, including the findings of the interviewing physician and the testing psychologist, findings and a recommendation. The findings were: (1) that the accused has no mental disease or defect within the meaning of § 552.010; (2) that the accused has the capacity to understand the proceedings against him and can assist in his own defense; (3) that the accused did know and appreciate the nature,, quality and wrongfulness of his alleged conduct and was capable of conforming his conduct to the requirements of the law; (4) that the accused does not require hospitalization pending further proceedings. The recommendation was that subject be returned to court for disposition of charges pending against him.

Paragraph 6 of § 552.020, supra, provides that if neither state nor accused contests the opinion as to whether the accused, as a result of a mental disease or defect, lacks capacity to understand the proceedings against him or to assist in his own defense, “the court may make a determination and finding of record on the basis of the report filed or may hold a hearing on its own motion. If any such opinion is contested the court shall hold a hearing on the issue.” On the basis of the report the court found that appellant had mental fitness to proceed; removed the cause from the Mental Docket, and set the case down for trial. Neither the state nor appellant or his counsel contested the findings of the report, or objected to the report, or the court’s findings based upon the report. Neither accused nor his counsel requested a second examination under § 552.020, subd. 4. Compare State v. Mullen, 532 S.W.2d 794 (Mo.App.1975). No competency hearing was requested prior to trial. The case was tried without pretrial objection or suggestion of any kind by appellant or his counsel that appellant was mentally incompetent to stand trial or lacked capacity to understand the proceedings against him or assist in his own defense.

During direct examination of Officer De-bres appellant interrupted, began speaking without being spoken to, stated that the witness hit him; that other officers beat him and were trying to put him back in the penitentiary; that he was not guilty. When the court began to admonish appellant he said the most the court could do was “give him” contempt of court and put him back (in jail). He said, “You are a liar and a peckerwood. You ain’t sending me to the penitentiary. Neither is this freak, or this one, or this one. [Later] Get your hands off me. Hit me if you want to. No, you’re not going to handcuff me to the chair. Come on, hit me.” A temporary recess was declared. The court advised the jury that “this does occur from time to time in these trials”; that “we try to handle them as quietly and expeditiously as we can, with safety to those in the courtroom * * *.” On order of the court two deputies and Officer Debres removed appellant from the courtroom. During the recess a mistrial was requested on the ground that the jury could not “give an impartial verdict after this happened.” The court did not rule on the motion immediately. Thirty minutes later appellant was brought back in the courtroom. Out of the jury’s hearing the judge informed appellant the trial would proceed with defendant in handcuffs and gagged if necessary to preserve order; that the judge preferred not to handcuff defendant and if he would promise not to be unruly the trial would proceed without handcuffing. Appellant refused to make any promises, claiming he could not help being mad at the officers because they beat him up. The judge told appellant he would have an opportunity to testify; asked for his promise to behave and conduct himself in an orderly fashion; overruled the motion for a mistrial and informed appellant that he was “not helping himself” with the jury. Appellant answered, “I am aware of this.” Having failed to elicit from appellant a promise to be quiet, the court decided to continue the trial with appellant handcuffed, and informed him if he was not quiet he would either be gagged or removed from the courtroom and the trial would proceed in his absence; that he might be held in contempt of court and punished in addition to any punishment the jury might give him. Appellant stated he understood he could be held in contempt of court. The judge then repeated his intention to try the case to a finish and asked appellant whether he wanted to do it the easy way or the hard way. Appellant said he was not capable of sitting there silent with people who had done him harm lying about him and said, “I cannot give you my word, a promise on something that I know I am subject to do.” Appellant did, however, agree to “try.” Appellant’s counsel asked leave to file a plea of not guilty by reason of mental disease or defect. Treating the oral request as a motion the court overruled the motion, with leave to file a written motion at a later time. (None was later filed.) The jury was brought back and the trial proceeded. Four or five times thereafter appellant called a witness a liar or accused him of beating appellant or knocking him down the basement steps, etc., but the court did not gag appellant, remove him from the courtroom or hold him in contempt of court, and the trial proceeded to a conclusion. The court expressed no opinion as to appellant’s mental condition and competency to stand trial.

Appellant testified in his own behalf, without handcuffs; asserted his innocence; claimed he was present only to retrieve his jacket; that he had no knowledge of the burglary tool before the police found it in his pocket; that he had not seen the gloves before the day of trial; that Tom had asked him to help with the burglary but appellant would not go along with it. He acknowledged pleading guilty in 1962 to three counts of operating a motor vehicle without the owner’s consent; admitted that in 1967 or 1968 he pleaded guilty to assault with intent to rob with malice; and testified that in 1963 he suffered a head injury in a car accident and may have suffered a brain injury and that in 1964 he was committed to Fulton State Hospital where he spent, approximately three years.

Appellant’s counsel claims the record indicates appellant did not have the ability to consult with counsel “with a reasonable degree of rational understanding” and did not have “factual or rational understanding of the proceedings against him” [which are the tests under Stroder v. State, 522 S.W.2d 77 (Mo.App.1975)]; that the disturbance and various outbursts in the courtroom indicate appellant’s “mentally unstable condition,” demonstrate his incapacity to act in a rational manner and constitute bona fide evidence that appellant was incompetent to stand trial; that the court should have suspended the trial and conducted a hearing sua sponte on appellant’s competence to stand trial, particularly in light of the psychiatrist’s report which, among other things, showed that appellant had a history of family and school problems, arrests, convictions, constant alcohol and drug abuse, problems with setting fires, cruelty to animals and homosexuality, and that in 1963 he was unconscious for two days from a head injury with a final diagnosis of “encephalopathy secondary to a remote trauma and a convulsive disorder, most traumatic suspected”; and further disclosed that in 1964 he was found not guilty on a burglary and stealing charge by reason of mental disease and defect and discharged from the state hospital at Fulton after three years with a diagnosis of chronic brain syndrome due to head injury and “basically antisocial personality.”

Neither appellant nor his counsel having objected or excepted to the psychiatric report, which concluded that he had no mental defect or disease and had the capacity to understand the proceedings against him and could assist in his own defense, the circuit court was not required to conduct a competency hearing sua sponte, prior to ordering the case to trial. Jones v. Swenson, 339 F.Supp. 789 (E.D.Mo.1972), aff. 469 F.2d 535 (8th Cir. 1972); Anderson v. State, 493 S.W.2d 681 (Mo.App.1973); McCormick v. State, 463 S.W.2d 789 (Mo.1971); Bibbs v. State, 504 S.W.2d 319 (Mo.App.1973), cert. den. 419 U.S. 852, 95 S.Ct. 95, 42 L.Ed.2d 84; Jones v. State, 505 S.W.2d 96 (Mo.App.1974).

The burden is on appellant to demonstrate that he was incompetent to stand trial and assist in his own defense, under the standards stated in Stroder v. State, supra. Appellant has failed to meet that burden. Appellant’s conduct at the trial did not constitute “bona fide evidence” of the fact. On the contrary, appellant’s trial testimony affirmatively demonstrates that he possessed a rational as well as a factual understanding of the proceedings against him. He testified openly, freely, and intelligently. His answers were responsive to the questions. His language was coherent, precise enough and self-excu-satory. He knew his constitutional rights at time of arrest. He testified to physical abuse by the officers; understood contempt of court and that penalties may follow a finding of contempt; refused to make a promise he felt he could not keep; recalled times and dates with ease, and was able without difficulty to describe facts and circumstances surrounding events leading up to the crime, previous convictions, pleas of guilty, commitments, possible terms of imprisonment upon a verdict of guilty, and his hospitalization, which he testified was made necessary by beatings and abuse by police officers. He said he was not under the influence of alcohol or drugs at time of trial, but stated he had been intoxicated when arrested. He was fully oriented in the courtroom, recognizing judge, jury, attorney, etc.

Nor does the transcript disclose any inability on appellant’s part to consult with his lawyer with a reasonable degree of rational understanding or to assist in his own defense. Evidently they conferred with respect to the advisability of appellant testifying. He took the stand, and testified to his own advantage. There is nothing to indicate that appellant refused to accept the advice of his lawyer or distrusted his lawyer; that there was any lack of communication between them; that they were unable to agree upon a trial strategy, or that appellant disapproved the trial strategy employed by his counsel.

Favorable portions of his past history in the psychiatrist’s report, excerpted by appellant but wholly ignoring the final conclusion of competency, taken in conjunction with appellant’s antics at trial, do not constitute substantial evidence of his mental incompetence to stand trial. Appellant’s erratic courtroom deportment may as easily be equated with mental competence as with mental incompetence to stand trial. Two explanations immediately suggest themselves. First, if appellant was telling the truth in asserting his innocence and if he actually was subjected to the police brutality he described, it is entirely within the realm of possibility that his oral outbursts and verbal abuse were in a sense involuntary, spontaneous reactions of outrage and revulsion that the very officers who had wrongfully accused him and abused him physically were now unjustly trying to “railroad” him into the penitentiary by means of perjured testimony. Or, if in fact he was guilty, appellant’s courtroom disruptions are subject to the interpretation that they were shrewdly calculated to abort the trial and redound to his benefit by causing a mistrial or producing a verdict of not guilty by reason of mental disease or defect or a reversal on appeal if convicted. Having been found not guilty of a criminal charge in 1964 by reason of mental disease and defect then existing, appellant knew how such a finding could affect the outcome of a trial. The psychiatrist’s report found appellant to have a “very selective” memory and selective amnesia of a self-serving nature and indicated that he “malingered, thereby creating a situation which was self-serving in the patient’s own interest.” According to the report, appellant declared to his examiners that he was not mentally ill but would “go along” with a plea of not guilty by reason of insanity, because he did not want to go back to the penitentiary. He expressed the fear that other inmates would kill him for having lied to and informed on them.

The court did not err in holding appellant competent to stand trial or in failing sua sponte to convene a competency hearing during the trial.

Appellant relies heavily upon Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), and Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), but neither ease compels a reversal for failure to stop the trial and conduct a competency hearing. In neither did the trial court have before it a psychiatrist’s report based upon a thorough physical and mental examination showing mental competency and capacity to understand the proceedings against him and assist in his own defense. In both accused’s mental aberration was clearly evident. Not so here. Appellant’s mental competence is portrayed in this record. While some of his courtroom conduct deviated considerably from normal, usual and accepted behavior it can be equated with mental competence, for the reasons stated. Even if that conduct be interpreted as indicative of some degree of mental illness or need of treatment such a conclusion, if valid, is not necessarily to be equated with mental incompetency to stand trial. “It does not follow from Pate that the mere presence of some mental problem precipitates reasonable doubt requiring sua sponte action by the trial court. Newbold v. State, 492 S.W.2d 809, 819 (Mo.1973) * * *.” McCarthy v. State, 502 S.W.2d 397, 403 (Mo.App.1973). See also Miller v. State, 498 S.W.2d 79 (Mo.App.1973).

Judgment affirmed.

SMITH, C. J., and STOCKARD, Special Judge, concur.