author: SOMERVILLE, Judge.

text:
    STATE of Missouri, Respondent, v. Warren FRAZIER, Appellant.
    No. KCD 28455.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.
    Motion for Rehearing and/or Transfer Denied May 2, 1977.

      Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for respondent.
    Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.
   SOMERVILLE, Judge.

Defendant was indicted for first degree murder (one David L. Holiway being the victim), tried before a jury, found guilty, and sentenced to life imprisonment.

Two instances of alleged trial error are raised by defendant on appeal: (1) permitting defendant’s ex-wife, Denise Frazier, to testify as to defendant’s complicity in a criminal offense (shooting into a dwelling house, Section 562.070, RSMo 1969) committed during coverture over defendant’s objection that such violated the “interspousal privilege”, constituted proof of a separate and distinct crime wholly unrelated to the one for which defendant was being tried, and was irrelevant; and (2) admitting State’s Exhibits 1, 11, 12, and 13, photographs of the victim, over defendant’s objection that they were “irrelevant to any issue at trial and were offered for the sole purpose of inflaming the passions and prejudices of the jury.”

Defendant has not challenged the sufficiency of the evidence to sustain his conviction. An account of the homicide, in substance, reveals that on the evening of March 12, 1975, the Holiway brothers, Michael, David (the victim) and Paul, were the occupants of an automobile traveling on 44th Street in Kansas City, Missouri, near the intersection of 44th Street and Indiana Street. Michael was driving, David was sitting in the front seat on the passenger side, and Paul was sitting in the rear seat. After crossing Indiana Street a Thunderbird automobile in front of the Holiway vehicle pulled to the right and stopped. Michael stopped his automobile alongside the Thunderbird. The defendant was identified as the driver of the Thunderbird. Two other males were in the Thunderbird. The driver of the Thunderbird, defendant, had a gun in his hand. No other weapons were observed.

A conversation ensued between the occupants of the two automobiles and shortly thereafter a volley of shots was fired from the Thunderbird at the Holiway brothers. Defendant was the only occupant of the Thunderbird actually seen brandishing a weapon (a handgun) and firing at the Holi-way brothers, although the number of shots that were fired indicated that more than one weapon was involved. A bullet struck Michael and he fell out of his vehicle on the driver’s side. Michael’s wound was not fatal. Four bullets struck David (the victim) and he fell out of the vehicle on the passenger’s side. Paul escaped unscathed.

A forensic pathologist, who performed an autopsy on the body of the victim, testified that multiple entrance gunshot wounds were observed. State’s Exhibit 1 (earlier identified as a picture of David Holiway taken at the scene following the fatal shooting), 11, 12 and 13 were identified as depicting the person on whom the autopsy was performed. The pathologist also identified State’s Exhibit 11 as depicting an entrance gunshot wound in the area of the victim’s left knee, State’s Exhibit 12 as depicting an entrance gunshot wound in the area of the victim’s left shoulder, and State’s Exhibit 13 as depicting an entrance gunshot wound in the area of the victim’s back. The pathologist further testified that three slugs were removed from the victim’s body, one from the area of the left knee, one from the area of the left chest, and one from the right lung. According to the pathologist, the slug removed from the victim’s right lung was the cause of death. The pathologist delivered the three slugs removed from the victim’s body to a member of the Kansas City, Missouri, police department, who in turn delivered them to a ballistic expert.

Digressing momentarily, Denise Frazier, ex-wife of the defendant, who appeared as a witness for the state, testified that on July 25, 1974, while separated from defendant but prior to their divorce, she was living in a residence at 6121 Swope Parkway which belonged to a friend of her mother. At approximately 1:30 in the morning, while sitting on the front porch, she observed a car belonging to a friend of her estranged husband drive up. She went inside the residence and locked the door. After doing so she observed defendant alight from the passenger side of the car, come upon the front porch, and knock at the front door. Seconds later, when no one responded to defendant’s knock, four shots were fired through the front door. She did not actually see defendant fire the shots. She called the police after she heard the car drive away. A police officer, during the course of investigating the incident, removed four .38 caliber slugs, which had entered via the front door, from a wall in the residence.

The ballistics expert heretofore referred to testified that the slugs removed from the victim’s right lung and left shoulder were fired from a .38 caliber revolver and the slug removed from his left knee was fired from a 9 millimeter, semi-automatic pistol. The ballistic expert further testified that the four .38 caliber slugs removed from the wall of the residence at 6121 Swope Parkway and the two .38 caliber slugs removed from the victim’s body were fired from the same weapon.

Defendant took the stand, denied any involvement in the homicide, and offered nine alibi witnesses.

Section 546.260, RSMo 1969, addresses itself to the “interspousal privilege” aspect of defendant’s first point. For all practical intents and purposes it has remained intact as originally enacted in 1879 (Section 1918, Ch. 24, RSMo 1879). Section 546.260, supra, reads: “No person shall be incompetent to testify as a witness in any criminal cause or prosecution by reason of being the person on trial or examination, or by reason of being the husband or wife of the accused, but any such facts may be shown for the purpose of affecting the credibility of such witness; provided, that no person on trial or examination, nor wife or husband of such person, shall be required to testify, but any such person may, at the option of the defendant, testify in his behalf, or on behalf of a codefendant, and shall be liable to cross-examination, as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case; provided, that in no case shall husband or wife, when testifying under the provisions of this section for a defendant, be permitted to disclose confidential communications had or made between them in the relation of such husband and wife.”

The case history construing this statute evidences a metamorphosis rare in the annals of statutory law. As a proem, the common law rule was that a husband and wife could not testify for or against each other in any legal proceeding in which the other was a party, except in the prosecution of one for criminal injury to the other. State v. Willis, 119 Mo. 485, 24 S.W. 1008 (1894); and State v. Kodat, 158 Mo. 125, 59 S.W. 73 (1900). What is ¿now Section 546.260, supra, was originally enacted to relieve certain fixed, common law disabilities attached to spousal testimony, but not to create new disabilities. State v. Kollenborn, 304 S.W.2d 855, 861 (Mo. banc 1957).

Early cases construing this statute focused upon the statutory language “at the option of the defendant”. State v. Willis, supra, and State v. Kodat, supra, are illustrative of the view taken by the early cases. In Willis, the defendant was charged with uttering a forged instrument. The gist of the charge was that defendant had forged his wife’s name to a promissory note. Defendant’s wife, over his objection, was permitted to testify on behalf of the state that she did not sign the note in question. In reversing and remanding the court held, 24 S.W. l.c. 1009, that “both at common law and under the statute the wife of defendant was clearly incompetent as a witness on the trial of this cause, unless called by the husband, and that the court committed error in permitting her to testify against him, over his objections.” In Kodat, the defendant was charged with assault with intent to kill a Mrs. Josephine Kretsch who was visiting defendant’s wife when defendant appeared and provoked an argument with his wife. Defendant left, then returned with a pistol and, when his wife and Mrs. Kretsch started to flee, he fired the pistol and a bullet passed through Mrs. Kretsch’s dress. Mrs. Kodat, who was divorced from defendant at the time of trial, was permitted to testify against defendant over his objection. In reversing and remanding the court held, 59 S.W. l.c. 74, that spouses “may testify for each other in criminal prosecutions, except as to confidential communications, but not against each other . . . ” and at l.c. 75 that such rule prevailed even though defendant and the witness were divorced at the time of trial. See also State v. Wooley, 215 Mo. 620, 684, 115 S.W. 417, 438 (1908), where the court broadly stated “that under the law the wife is not a competent witness against her husband in a criminal case, and, had she been introduced as a witness to testify against her husband, her testimony would have been clearly inadmissible.”

State v. Dunbar, 360 Mo. 788, 230 S.W.2d 845 (1950), is illustrative of the next metamorphic stage of the statute. In Dunbar, the defendant was charged with felonious assault with malice upon his wife. During the trial the wife was called as a witness by the state. Pi •liminary questioning by defense counsel revealed that she did not desire to testify against her husband and that she appeared as a witness solely because she had been subpoenaed. Notwithstanding her reluctance to testify against her husband, and over his objection, the trial court compelled the wife to testify. On appeal, the case was reversed and remanded. In doing so, the court held, l.c. 847: “Under the statute, we must reluctantly hold that, while Mrs. Dunbar was competent to testify in this case, she could not legally be required to do so. One synonym for ‘require’ is ‘compel’ and that is the sense in which the term ‘required’ is used in the statute.” The court went on, however, and stated, l.c. 847: “The first part of Section 4081 makes either spouse competent to testify in any criminal case, in which the other spouse is a defendant, but the proviso says that neither spouse shall be required to testify, which must also refer to any criminal case, including a prosecution of one spouse for criminal injury to the other. That portion of the statute which reads ‘but any such person may, at the option of the defendant, testify in his behalf,’ has no bearing on the instant case and seems to be an unnecessary provision. The preceding portion of the statute makes one spouse a competent, but not compellable, witness in any criminal charge against the other spouse; that is, he or she may, at his or her own option, testify as a witness for the State. Then the statute, in effect, goes on to say that such spouse may, at the option of the defendant, testify as a defense witness. Of course, any defendant has the option to determine what witnesses shall be summoned on behalf of the defense.” Dunbar obviously emphasized a different portion of the statute than that emphasized in the earlier case. Dunbar, albeit by way of dictum, construed the statute to permit, but not to compel, a spouse to testify against the other spouse in any criminal case, as well as permitting a spouse to testify on behalf of the other spouse at the latter’s option.

State v. Kollenborn, 304 S.W.2d 855 (Mo. banc 1957), is illustrative of the next succeeding metamorphic stage of the statute. In Kollenborn, the defendant was charged with mistreating his infant son (Section 559.340, RSMo 1949). Betty Kollenborn, although divorced from the defendant at the time of the trial, was the mother of the infant and the wife of defendant at the time the offense occurred. She voluntarily appeared and testified on behalf of the state. The defendant’s conviction was affirmed on appeal. The court, l.c. 862, took note of the dictum in State v. Dunbar, supra, with the following observation: “[I]t further indicated (as we understand the opinion) that our statute (then § 4081, RSMo 1939) means: (1) that in no event may one spouse be required to testify against the other; but (2) that in any criminal case he or she may testify voluntarily against the other, if he or she so chooses. In so far as clause (2) is concerned, that question was not directly involved there on the facts, and we need not go so far here in our construction of the statute.” The rationale employed by the court in Kollenborn in affirming the conviction is best explained by quoting at some length from the opinion (l.c. 864): “We are much inclined to the view stated by Mr. Wigmore (8 Wigmore on Evidence, § 2239, p. 258) that: ‘By a liberal view any injury to a spouse’s child is a wrong to the spouse, and his or her testimony becomes admissible against the other.’ However, we need not go so far here. The offense presently charged was a crime against the person of an infant less than 5 months of age; there is at least a fair inference that no one was present except the defendant, the wife, and the child. We now hold that the wife, testifying voluntarily, is a competent witness against her husband in a prosecution for acts constituting a crime of personal violence against her child. The exact scope of the common law exception has been somewhat nebulous and confused; we need not attempt at this time to define further its precise limits and boundaries. The present offense can well be classed as one against the marital status, within the authorities using that test as a guide. We hold that every reason of public policy and true necessity which permits the wife to so testify in the event of a personal injury to herself, applies equally here. The modern tendency is to relax the old rules of incompetency of witnesses, generally. Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369. This tendency is exemplified in many of the modern statutes. It is, in our opinion, contrary to all principles of morality and justice to close the mouth of the only witness in such a case as the present. What is not good sense should not be the law.” (Second emphasis added.) Despite the court’s earlier disclaimer in Kollenborn that it was not adopting the dictum contained in State v. Dunbar, supra, it appears to have done so, at least in a limited sense, because it refused to pigeonhole the facts before it into the common law exception that permitted one spouse to testify against the other in the prosecution of one for criminal injury to the other (on the theory that an injury to the child of a spouse was a wrong to the spouse), and specifically held, l.c. 864, that “[t]o the extent indicated in this opinion, the broad statements in certain cases to the effect that in no event may a wife testify against her husband in a criminal case, or testify without his consent, should no longer be followed.”

State v. Damico, 513 S.W.2d 351 (Mo.1974), illustrates the completion of the statute’s metamorphosis. In Damico, the defendant was charged and convicted of murder in the first degree. His ex-wife appeared as a witness for the state and testified that before and while she was married to the defendant they had frequently crawfished and picnicked in the area where the victim’s (unrelated to either defendant or his ex-wife) body was discovered. In affirming the conviction on appeal, Division No. 2 of the Supreme Court, l.c. 361, held: “The court did not err in admitting this testimony. The objections that she was an improper or incompetent witness are not well taken. While at common law a wife was incompetent to testify against her husband that complete legal disqualification was removed by the enactment of the statute, now § 546.260, RSMo 1969, V.A.M.S., which states in plain language: ‘No person shall be incompetent to testify as a witness in any criminal cause or prosecution by reason of being * * * the husband or wife of the accused, * * *.’ As stated in State v. Kollenborn, supra, the broad statement in State v. Kodat, supra, and other cases indicating that in no event may a wife testify against her husband in a criminal case, is no longer to be followed. If we indulge in an assumption that counsel’s objection was intended to block Margaret Brett’s testimony on the ground of privileged communications between husband and wife, that objection would likewise have been untenable. In order to make a communication between husband and wife privileged it must be confidential in its nature, and where not intended to be confidential, it is not privileged. 58 Am.Jur. Witnesses, § 380, p. 222. ‘Where husband and wife are competent as witnesses for or against each other, either of them may testify to any fact the knowledge of which was acquired by them independently of their marriage relation, and not by reason of the confidence growing out of the marriage relation. It is immaterial that the knowledge was derived during the existence of that relation and pertains to the transactions of the one or the other.’ 58 Am.Jur.Witnesses § 384, p. 225. Appellant’s going picnicking and crawfishing with the witness in the area of Wild Horse Creek Road did not constitute a privileged confidential communication, made to her by reason of the confidential relationship of marriage, but was a fact ascertained by her independently of the marriage relationship. Furthermore, according to Margaret Brett, appellant’s first trips into the area occurred prior to the marriage. It follows that appellant’s knowledge of the area, gleaned during these premarital trips, which in and of themselves were sufficient to apprise him of its lonely and secluded character, could not possibly be counted upon as privileged confidential communications between husband and wife. The testimony with reference to subsequent trips, after marriage, was cumulative merely. We are not deciding this point on the basis that the marital relationship had been dissolved by divorce and therefore Margaret Brett was free to testify against appellant. We are deciding it on the basis that Margaret Brett obtained knowledge of the fact that appellant was fully acquainted with this territory by general observation independently of the marriage — not by reason of any confidential communication growing out of that relation.” It should be noted that Damico and State v. Kollenborn, supra, at 859, continue to recognize the sanctity of confidential communications between spouses, thus precluding their admissibility.

If this court’s analysis of the metamorphosis undergone by the statute is correct, the holding in Damico, with respect to permitting a spouse to testify against the other spouse in a criminal proceeding, warrants the following conclusion: A spouse is now a competent witness against a defendant spouse in any criminal proceeding if the witness spouse willingly testifies; the option of doing so belongs to the witness spouse; and a witness spouse is permitted, but may not be compelled, to testify in any criminal proceeding against a defendant spouse as to any relevant and admissible matter save confidential communications between the spouses. As the matters testified to by defendant’s ex-wife in the instant case did not, by any stretch of the imagination, relate to or spring from a confidential communication, the “interspousal immunity” argument tendered by defendant is without merit.

The second aspect of defendant’s first point is that the testimony of his ex-wife impermissibly constituted evidence of a separate and distinct crime. The governing rules dispositive of this issue have been stated many times, most comprehensively perhaps in State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307 (banc 1954): Proof of a separate and distinct crime is generally not admissible; exceptions to this general rule of exclusion are as well established as the rule itself; evidence of another crime is admissible to prove the specific crime charged if the former tends to establish (1) motive, or (2) intent, or (3) the absence of mistake or accident, or (4) a common scheme or plan embracing the commission of multiple crimes so related to each other that proof of one tends to establish proof of the other, or (5) the identity of the person charged with the commission of the crime on trial; the acid test for determining whether proof of a separate and distinct crime falls within one or more of the enumerated exceptions is its logical relevancy to a particular exception and its tendency to prove a material fact in issue; existence of the requisite degree of relevancy is a judicial question; and, finally, if the requisite degree of relevancy between proof of a separate and distinct offense and the crime charged and being tried cannot be clearly perceived, the accused should be given the benefit of the doubt, and such proof or evidence should be rejected.

This court concludes that the requisite degree of relevancy can clearly be perceived between the testimony of defendant’s ex-wife as to the separate and distinct offense complained of and the homicide for which defendant was being tried because the former tended to prove defendant’s access to one of the handguns employed to slay the victim and his identity as one of the perpetrators of the homicide. See: State v. Griffin, 336 S.W.2d 364, 367 (Mo.1960); State v. Richetti, 342 Mo. 1015, 119 S.W.2d 330, 337-40 (1938); and State v. McKeever, 339 Mo. 1066, 101 S.W.2d 22, 28-29 (1936).

A claim that the ex-wife’s testimony was “irrelevant” is the remaining facet of defendant’s first point. As garnered from the argument portion of defendant’s brief, its true complexion is that his ex-wife’s testimony was insufficient to identify him as the person who fired the shots into the dwelling house at 6121 Swope Parkway. This contention can be readily answered without citation to authority. By way of brief recapitulation, defendant’s ex-wife testified: (1) that she saw defendant walk up onto the front porch of the dwelling where she was staying; (2) after she entered the dwelling she pulled back the curtain and saw him knocking at the front door; and (3) seconds later shots were fired through the front door. From this evidence, the jury could reasonably infer that defendant did the shooting.

Defendant’s final point charges the trial court with error for having admitted certain post-mortem pictures of the victim — one being a picture taken of the victim at the scene of the homicide and three being pictures taken from different angles during”the course of the autopsy showing the various entrance gunshot wounds. The fact that such pictures are gruesome and shock provoking, thereby giving them a prejudicial and inflammatory aura, does not in and of itself preclude their admission if they are otherwise relevant and possessed of probative value. State v. Jones, 515 S.W.2d 504, 506 (Mo.1974); State v. Parsons, 513 S.W.2d 430, 439 (Mo.1974); State v. Clark, 494 S.W.2d 26, 30 (Mo. banc 1973); State v. Crow, 486 S.W.2d 248, 256 (Mo.1972); State v. Stevens, 467 S.W.2d 10, 24 (Mo.1971); and State v. Moore, 303 S.W.2d 60, 66 (Mo. banc 1957). Pictures of this nature have been found to be infused with probative value for a wide variety of reasons. They are deemed to have probative value if they show the nature and location of wounds inflicted upon a deceased. State v. Jones, supra, at 506; State v. Wallace, 504 S.W.2d 67, 72 (Mo.1973), cert. denied, 419 U.S. 847, 95 S.Ct. 84, 42 L.Ed.2d 76 (1975); State v. Jackson, 499 S.W.2d 467, 471-72 (Mo.1973); State v. Whiteaker, 499 S.W.2d 412, 418 (Mo.1973), cert, denied, 415 U.S. 949, 94 S.Ct. 1472, 39 L.Ed.2d 565 (1974); State v. Stevens, supra, at 24; and State v. Moore, supra, at 65-66. They possess probative value if they enable the jury to better understand the facts elicited from various state witnesses, State v. Wallace, supra, at 72, State v. Crow, supra, at 256, State v. Stevens, supra, at 24, and State v. Perkins, 382 S.W.2d 701, 704 (Mo.1964); or if they corroborate the testimony of the state’s witnesses, State v. Wallace, supra, at 72, State v. Jackson, supra, at 472, State v. Stevens, supra, at 24, State v. Aubuchon, 394 S.W.2d 327, 331 (Mo.1965), and State v. Bozarth, 361 S.W.2d 819, 825 (Mo.1962). They also have probative value if they aid in establishing any element of the state’s case. State v. Parsons, supra, at 439; State v. Damico, supra, at 359; State v. Jackson, supra, at 472; and State v. Clark, supra, at 30.

Notwithstanding defendant’s charge that the complained of pictures were inflammatory and prejudicial, they met several tests of probativeness heretofore set forth. They tended to corroborate the testimony of certain witnesses called by the state, they visually demonstrated the nature and location of the various wounds inflicted upon the victim, they enabled the jury to better understand the facts elicited from several of the state’s witnesses, and they aided in establishing certain elements of the state’s case. A trial court is vested with broad discretion in admitting or rejecting demonstrative evidence of this type because of the superior vantage point it occupies for striking a proper balance between the probative value and prejudicial effect of such evidence. State v. Parsons, supra, at 439; State v. Parker, 509 S.W.2d 67, 70 (Mo.1974); State v. Jackson, supra, at 472; State v. Crow, supra, at 255; and State v. Stevens, supra, at 24. As the record in the instant ease, for a variety of reasons, clearly demonstrates that the pictures were seized of probative value, the trial court did not abuse its discretion in admitting them into evidence.

Judgment affirmed.

All concur.

      . Defendant makes no claim that his ex-wife was compelled to testify against him; it is implied that she was a willing witness against him.

      . In Kollenborn, the court, l.c. 864, expressly stated that it was not basing its decision upon the fact that Betty Kollenborn was divorced from the defendant at the time of trial: “We do not base this decision upon the fact that Betty Kollenborn had been divorced from the defendant prior to the time of trial. It has been stated that her marital status at the time of trial should control. State v. Dunbar, 360 Mo. 788, 230 S.W.2d 845, 848. The contrary has also been asserted. State v. Kodat, 158 Mo. 125, 59 S.W. 73. There is a conflict on that subject generally. Vol. 3, Wharton’s Criminal Evidence, 12th Ed., § 772, pp. 109, 110; 8 Wigmore on Evidence, 3rd Ed„ § 2237, pp. 247-250.”


source: Caselaw Access Project

author: DIXON, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Andrew STEVENSON, Defendant-Appellant.
    No. KCD 28616.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.
    Motion for Rehearing and/or Transfer Denied May 2, 1977.
    Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for defendant-appellant.
    John C. Danforth, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.
   DIXON, Judge.

Defendant was convicted under a three-count indictment of murder in the second degree on two counts and on one count of assault with intent to kill with malice. Punishment was fixed by the jury as life imprisonment on the two counts of second degree murder and at 99 years on the assault charge. The defendant appeals these convictions claiming that the evidence was insufficient to identify the defendant, that the prosecution improperly used a prior statement of a State’s witness and the impropriety of a clerk’s entry erroneously entering a judgment of conviction of murder in the first degree as to Count I. A prior trial of this case resulted in a conviction, later reversed for error in the admission of a statement made by the defendant. See State v. Stevenson, 523 S.W.2d 349 (Mo.App.1975). The issue in that case required only a summary statement of fact. For the purpose of this appeal, the facts need further explication.

On March 8, 1973, Andrew Stevenson, Willie Ed Taylor, and Larry Wyatt drove to a liquor store in Wyatt’s car. Taylor testified that the defendant, whom he had known all his life, had a .30 caliber revolver in his belt. The men picked up a fourth person, Earl Wright, and drove to the home of Patricia Russell. Taylor testified that he approached a blue car parked in front of the Russell home and asked if Patricia was at home and then Andrew Stevenson, according to this witness, came up and started shooting. Wyatt, the driver of the car, testified that he saw Taylor and the defendant approach the blue car, that he heard five shots but could not see who did the shooting. The defendant, when he returned to Wyatt’s car, laid a gun on the console. Wright testified that he accompanied the other three to the home of Patricia Russell and was standing on the porch when a blue car pulled up in front of the house. He denied seeing Andrew Stevenson with a gun. After the shooting, an officer arrived and found a dead person in the front seat of a blue car, a wounded person in the back seat, and a wounded person on the pavement just south of the car. The latter two were still alive at the time’, but-one subsequently expired. There were bullet holes in the car, and the window was shattered on the right side. There were no weapons at the scene. An eye witness testified that she saw the shooting, but she could not identify the defendant. Wyatt, Taylor, and Wright all knew the defendant, Andrew Stevenson, and testified to that effect. Only Taylor directly testified concerning the fact that Andrew Stevenson fired the shots which resulted ultimately in the death of two of the persons and the serious wounding of the third. Wright, Taylor, Stevenson and Wyatt, had all been drinking and had made conflicting statements concerning the events leading up to the shooting. The defendant took the stand out of the hearing of the jury and testified that he had agreed with his counsel it was in his best interest not to testify in the case. The case was submitted to the jury upon evidence of the State without any defense evidence, and the jury returned the verdicts as noted above.

Defendant makes as his first point the novel argument that the evidence does not reveal that Andrew Stevenson, the defendant in the ease, was ever identified by any of the witnesses as the Andrew Stevenson who the witnesses said was carrying the gun and who Taylor said fired the shots. Defendant concedes that in his attack upon the evidence on this novel theory, the general rule applies that all substantial evidence supporting the verdict will be considered as true and all legitimate inferences will be indulged. State v. Taylor, 324 S.W.2d 643 (Mo.1959). Some reference is made to State v. Sallee, 436 S.W.2d 246, 249 (Mo.1969), a circumstantial evidence situation, but this case does not involve circumstantial evidence. The evidence of Andrew Stevenson’s guilt is direct eye witness testimony. The thrust of the defendant’s argument is that without a witness directing the jury’s attention to the defendant and saying, “He is the Andrew Stevenson I know,” there is no proof that the Andrew Stevenson who admittedly appeared at trial is the proper person to suffer punishment for the offense.

Bereft of substance, as this contention is, the vigor with which it was briefed and argued requires some answer. The defendant was arraigned and given allocution under the name Andrew Stevenson. That he was present throughout the trial is unquestioned. He testified out of the presence of the jury that he understood his right to testify in this case. He testified in the previous case. The transcript has been examined and there are numerous references to “this defendant” both by the State and defense counsel. Taylor was asked specifically if he “knew the defendant Andrew Stevenson,” and he responded that he had known him all his life. Wyatt was then asked the same question and gave the same reply. There was no issue of identification. The entire tenor of the trial is such that no possible confusion could have occurred.

Because of the vehemence with which this issue was presented at the oral argument and in order to determine that the jury was aware of the defendant’s identity, this court has ordered up a portion of the voir dire examination under Rule 81.12(c). The defendant had not requested the voir dire be included in the original transcript.

During voir dire, a general question concerning the panel having formed an opinion as to the guilt of “this defendant Andrew Stevenson” was directed by defense counsel. Then during the same line of inquiry, defense counsel asked if there was “anything” that would make it difficult to sit as a juror. A juror responded that he “had some contact with the defendant” and replied affirmatively that he “knew” the defendant. This juror then admitted his personal knowledge might affect his view of the evidence, and he was excused. Thus, the entire panel was apprised that “this defendant Andrew Stevenson” was present and was the person later referred to by the witnesses.

It is also true that upon identity of names being shown, identification of the person may be presumed. State v. Jenkins, 516 S.W.2d 522 (Mo.App.1974); State v. Amos, 490 S.W.2d 328 (Mo.App.1972); State v. Reed, 298 S.W.2d 426 (Mo.1957); State v. Collins, 394 S.W.2d 368 (Mo.1965). The point is without merit.

The defendant’s claim of error in the use of a prior statement of the witness Wright is based on an erroneous assumption with respect to what actually occurred. When Wright was on the stand, he was questioned by the State as to the defendant having a gun. The witness stated he never did see the defendant with a gun. The State asked without objection whether the witness had made a statement to the police which the witness answered affirmatively. The prosecutor thereupon marked for identification the statement. Defense counsel out of hearing of the jury objected, and the prosecutor asserted he was going to attempt to refresh the recollection of the witness. The State then properly inquired of the witness if reading the statement he had admitted making would refresh his recollection. The witness conceded it might and the witness examined the statement. The question was then repeated as to the witness’s observation of the defendant’s possession of a gun. The witness denied seeing a gun at any time. The State then, out of the hearing of the jury, asked to attempt impeachment. The defense objected, and the court took an overnight recess. The State abandoned the attempt to impeach, and no questions were asked of his witness when the trial resumed the next day that related to this issue.

What has been recited as to what occurred at trial makes inapposite the cases cited by the defendant where the jury was permitted to read or had read to it a prior statement by a witness for the State.

The procedure here of having the witness identify the statement and then examine it to see if it would refresh his recollection is proper and within the rule set forth in State v. Renfro, 408 S.W.2d 57 (Mo.1966) and State v. Patton, 255 Mo. 245, 164 S.W. 223 (1914).

As to the claim of error arising from the erroneous entry by the clerk, the record has been corrected by an appropriate nunc pro tunc order. The trial court upon the record made at the time of pronouncing sentence and affording allocution correctly recited the verdict and judgment and the entry of a judgment of conviction of first degree murder was a simple clerical error by the clerk. The court clearly had the power to enter nunc pro tunc the correct and proper judgment in accordance with the verdict of the jury. Cruces v. State, 452 S.W.2d 180 (Mo.1970).

Judgment affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    F. Scott SHANNON, Jr., Appellant, v. Paula D. SHANNON, Respondent.
    No. KCD 28733.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.
    Motion for Rehearing and/or Transfer Denied May 2, 1977.

      Jon M. Krebbs, Kansas City, for appellant.
    James E. Campbell, Loren G. Rea, Kansas City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Dissolution of marriage proceeding. The contested issue was custody of a child. Trial court dissolved marriage and awarded custody of child to mother. Father appeals.

F. Scott Shannon, Jr., and Paula Shannon were married September 8, 1966. Paula was 19 years of age at that time. A child was born to the parties January 8, 1969. The custody of that child, Craig Lee Shannon, the only child of the marriage, is the issue here. In August, 1969, the parties separated. According to Scott, the separation followed an incident in which the child was left at the couple’s residence all day, unattended. Paula explained the incident by stating that she was looking for a job and left the house early with the understanding that Scott would take the child to relatives for the day.

Scott left the apartment where the couple lived and took Craig. He left him with an aunt for about 30 days while a room at Scott’s parents’ house was prepared for Scott and Craig. They then moved into the parents’ house. Scott, who was employed at a bank, took the child to a baby-sitter’s Monday through Friday for about 2½ years.

In January, 1972, Craig was enrolled at the Belmont Montessori School. Scott rented a house in which he lived with Craig. According to Scott’s stepbrother, Scott’s girl friend also had lived there for about a year prior to the hearing in the trial court in March, 1976.

In March, 1975, a joint petition for dissolution of the marriage was filed. Paula denied knowledge of the filing of the joint petition and denied that the signature purporting to be hers on the petition was in fact her signature. She filed an answer and counterclaim so stating. After a hearing at which the parties and other witnesses were heard and which included an in camera interview by the court of Craig with attorneys present, the court entered a decree of dissolution and awarded Paula custody of the child at the conclusion of the current school year. She was awarded $200 monthly for his care.

In awarding custody to the mother the trial court stated that the child in the in camera interview had indicated his love for both parents and had expressed no preference for living with either of them. The court stated that both parties were fit parents and that the home environment and surroundings provided by each were adequate for the healthy, normal upbringing of the child. He further found that the child had been in the actual custody of the father, partially explained by the father’s reluctance to share custody. The court also found that, although the mother might not at one time have appreciated the value of the child and the obligation of motherhood, that situation no longer prevailed. The court concluded that the best interest of the child would be served by granting custody to the mother.

On this appeal, appellant urges that the finding of the trial court regarding the custody of the child was contrary to the credible and uneontested evidence. “Appellant rests his argument on the following uncontroverted facts: ,

“1. That Appellant has been the primary caretaker and custodian of the child since August 1969.
“2. That all witnesses testified that the minor child was a normal, bright, intelligent young man with no apparent psychological problems.
“3. That Respondent never requested sole custody or took full charge of the minor child during the seven year separation of the parties.
“4. That Appellant has been the most stable economically and psychologically during the period of separation.”

Appellant’s argument overlooks the countervailing evidence before the trial court which undoubtedly diminished the convincing effect of the evidence relied upon by appellant.

Unquestionably the evidence did show that appellant had the primary custody of the child from the time of the separation until the dissolution of the marriage. What appellant ignores is the testimony before the trial court which would alleviate the weight to be afforded this proof. For example, appellant testified that, for about a two-year period following the separation, respondent displayed no interest whatsoever in Craig. The respondent, on the contrary, testified that she had the child on weekends, almost without exception, and that from the outset of the separation she was concerned about Craig’s welfare and arranged her employment in order to be accessible and be able to see her child. She testified that she arranged for the enrollment of Craig at the Montessori School, selected the school and aided appellant in paying the tuition.

According to respondent, she loved her son and wanted custody of him for that reason and because they had an excellent relationship and “he needs me.” She didn’t take the child upon the separation because she was afraid of appellant.

“ * * ⅝ I was in a state of turmoil at the time, and I wanted to go out and find— make a life for my own and find a place that I could have the child, and I just couldn’t take the child to nothing, and I didn’t have a home for him, and Scott would not let me stay at our home.”

No one disputed the testimony as to the well-being of Craig at the time of the hearing. There was no evidence presented to the trial court which called for the conclusion that a transfer of custody to respondent would adversely affect the child’s development.

There was no evidence that respondent had sought full custody of the child prior to the dissolution proceedings. However, as above pointed out, the trial court had respondent’s explanation of her proper role in the circumstances. The prior attitude of respondent did not preclude a change in her attitude and a seeking of custody.

As a bank employee, and a vice-president at the time of the hearing, appellant undoubtedly demonstrated greater economic stability than respondent. Respondent had held a number of jobs. At the time of the hearing, she was receiving unemployment compensation and was also the beneficiary of food stamps. She was living in a rental house in a rural area near Louisburg, Kansas. The trial court recognized that the parties to the litigation enjoyed a radically different life style. He acknowledged their right to do so and did not see fit to disregard respondent’s claim to the custody of Craig because of a somewhat unconventional style.

There was no convincing evidence that respondent’s psychological stability was so deficient as to call for a contrary result on this issue. There was some evidence of emotional stress at the time of the separation, but not of such continuing nature as to render respondent unfit for the custody of her child. The only claim of misconduct was evidence of appellant’s witnesses that respondent had appeared nude from the waist up in a production of a film based upon the Manson family. Respondent did appear in the film but denied that she had disrobed. At best, this was testimony to be weighed against the testimony that Craig was living with his father and his father’s girl friend.

As appellant points out, the inclination of courts to prefer the mother in awarding custody of children of tender age is not a rule of automatic application. See R_ G_ T_ v. Y_ G_T_, 543 S.W.2d 330 (Mo.App.1976). In that case, the court affirmed an award of custody to the father, stating (543 S.W.2d 331-332):

“The desirability of awarding custody of children of tender years, especially girls, to their mothers should not be indulged to the extent of excluding consideration of all other relevant matters. Johnson v. Johnson, 526 S.W.2d 33, 37 (Mo.App.1975). The dominant concern when determining custody is the ‘best interests’ of the child or children. Section 452.375, RSMo Supp.1973; In re Marriage of Powers, 527 S.W.2d 949, 952 (Mo.App.1975) and Kanady v. Kanady, 527 S.W.2d 704, 707 (Mo.App.1975). Once the trial court has spoken on the subject, an appellate court should not disturb a custody order unless the ‘best interests’ of the child or children require a different disposition. In re Marriage of Powers, supra, at 952. Deference should be given to a trial court’s assessment of what serves the ‘best interests’ of a child or children in custody matters and its decision in that respect should be affirmed on appeal unless it lacks substantial evidence to support it, or is against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).”

In that case, the appellate court declined to substitute its judgment for that of the trial court.

An exceptional case in which the appellate court did reject the finding of the trial court on a custody issue is that of In re Marriage of Zigler, 529 S.W.2d 909 (Mo.App.1975). There the trial court denied a mother’s claim to custody because the evidence showed her to be emotionally unstable. On appeal, the court found the conclusion to have been unsupported by the evidence and reversed the trial court’s order.

In this case, the trial court’s order was based essentially upon the conclusion that other significant factors being equal, preference should be given to the mother’s right of custody. Undoubtedly, there was evidence upon which the court might have come to a contrary conclusion, but that fact does not necessitate the conclusion that the trial court was mistaken. There was evidence to support its conclusion. Therefore, this court will not substitute its judgment for that of the trial court.

Judgment affirmed.

All concur.


author: KELLY, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Franklin D. REDD, Defendant-Appellant.
    No. 37551.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 5, 1977.
    Motion for Rehearing or Transfer Denied May 6, 1977.

      Robert C. Babione, Public Defender, Joseph W. Warzycki, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Robert M. Sommers, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Richard G. Callahan, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   KELLY, Presiding Judge.

The appellant, Franklin D. Redd, was convicted by a jury in the Circuit Court of the City of St. Louis of burglary in the second degree, § 560.045 RSMo 1969, and sentenced by the trial court to five years imprisonment pursuant to the Second Offender Act, §§ 560.095(2) and 556.280 RSMo 1969. On appeal he assigns two points of error which he contends entitle him to a new trial. We affirm.

Appellant does not attack the sufficiency of the evidence to support a verdict of guilty of burglary in the second degree and therefore a short statement of the facts is sufficient for disposition of this appeal.

Theresa Jackson, a 14 year old girl, resided in an apartment, 4240 West Cote Bril-liante Avenue in the City of St. Louis, with her parents. This was a four-family apartment building and Miss Jackson’s aunt lived in the downstairs apartment in the building known and numbered as 4238 West Cote Brilliante. Mrs. Deborah Cleveland lived in the apartment upstairs over that occupied by Miss Jackson’s aunt. On the evening of March 13,1975, at approximately 8:30 p. m. Miss Jackson was visiting in her aunt’s apartment when she observed through the curtains on the front door of her aunt’s apartment a man standing and knocking on the front door of Mrs. Cleveland’s apartment. When no one answered, the man commenced rattling the front door to Mrs. Cleveland’s apartment. At this time Miss Jackson left her vantage point at the front door of her aunt’s apartment but soon thereafter heard noises coming from Mrs. Cleveland’s apartment. Shortly thereafter she observed the same man leaving Mrs. Cleveland’s apartment carrying something small. It was dark outside and she could not identify what it was that he was carrying.

Mrs. Deborah Cleveland testified that she had left her apartment at about 6:00 p. m. that evening, locking the door as she did so, and when she returned at 11:30 p. m. she found the front door open, the lock and the door frame damaged, and her portable television set missing.

The incident was reported to the police who later that evening arrested the appellant as he was about to enter his home around 12:11 a. m., March 14, 1975. The basis for appellant’s arrest was “more or less a composite description” from the eyewitness and Mrs. Cleveland, who was acquainted with him. After appellant was taken into custody he was given his Miranda warnings and taken directly to the police station. At approximately 2:00 a. m. defendant was once again given Miranda warnings and about 10 minutes later, after he had been advised what charges were going to be lodged against him, inquired what he could do to get rid of the cases. The police officers advised him that if he wished to waive his rights, make a complete statement and cooperate, it might be to his advantage, but that they could not drop the charges. Appellant then admitted taking the television set from Mrs. Cleveland’s apartment and stated that he would take the police to recover it. However, after he was taken out of the police station and put in a car to go to where the television set was, he changed his mind and said he did not wish to go anywhere. He was thereupon returned to the police station.

Shortly thereafter the appellant was put in a three-man lineup with two other Black men, both prisoners detained at the police station. He resisted going into the showup room and had to be carried into it. Throughout the showup appellant remained seated on the floor of the room while the other two men remained standing. Miss Jackson was brought into the viewing room where she could observe the lineup and after studying the lineup for a minute, pointed out the appellant as the man she had seen earlier that evening at Mrs. Cleveland’s front door.

At trial Miss Jackson also identified the appellant as the culprit.

Prior to trial the appellant’s counsel filed a motion to suppress identification on the grounds “that the conduct of identification procedures at a pre-trial confrontation were so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of due process.” A hearing was had on this Motion on May 29,1975. Appellant did not testify. On the same date the Motion was overruled because the trial court found “beyond a reasonable doubt that the principles of Wade v. U. S. were not violated, and that under a totality of the circumstances shown in this cause, the identification of the defendant has a source independent of any alleged illegal lineup.” At trial, after Miss Jackson took the stand and gave her name, appellant’s counsel renewed his motion to suppress identification “which was made and filed by our office in this cause of action.” The trial court overruled counsel’s “objection” for a hearing outside the jury on the question of the motion because the matter was decided at a prior time by another judge after an evi-dentiary hearing. In his Motion for New Trial appellant raised this same point as follows:

“2. It was error for the Court to deny the motion to suppress identification which was renewed at the time of trial because testimony at trial supported the allegation that the conduct of identification procedures at the lineup were so unnecessarily suggestive and conclusive to irreparable mistaken identification as to be a denial of constitutional due process of law.”

Appellant, in the Points Relied On section of his brief, raises this Point as follows:

“The trial court erred in denying the motion to suppress identification of appellant because the pre-trial identification procedures were so unduly suggestive and conducive to the irreparable mistaken identification as to be a denial of due prosess (sic) of law.”

Respondent, correctly, contends that appellant has failed to preserve anything for this court to review because both his Motion to Suppress Identification and Motion for New Trial consist of' bare con-clusional allegations, absent any factual support. It is incumbent upon the movant in his motion to suppress identification to state facts of such specific nature as to enable the court to conclude that a serious claim is presented. State v. Rutledge, 524 S.W.2d 449, 454[2] (Mo.App.1975); State v. Jordan, 506 S.W.2d 74, 80[7] (Mo.App.1974); State v. Parker, 413 S.W.2d 489, 494[6] (Mo. banc 1967), cert. den. 390 U.S. 906, 88 S.Ct. 823, 19 L.Ed.2d 874 (1968). It is also incumbent upon a defendant to set forth in detail and with particularity the specific grounds or causes which he contends entitle him to a new trial in his Motion for New Trial, Rule 27.20(a) V.A.M.R. Rule 84.04(d) requires that Points Relied On in an appellant’s brief state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous. Appellant’s Point here is nothing more than a mere abstract statement of the law applicable to criminal trials where the question is raised whether a witness’s identification testimony should be admitted at trial in accord with the principles of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and its progeny. The purpose of Rule 84.04(d) is to facilitate the work of the appellate court and the litigants so that the issues raised on appeal may be clearly presented by a concise, factual summary of what the appellant claims the trial court did wrong and why he claims it was wrong, so that respondent’s counsel may answer appellant’s contentions. Murphy v. Deksnis, 476 S.W.2d 150, 151[1] (Mo.App.1972). As stated, this Point Relied On utterly fails to fulfill the purpose of the Rule; it does not advise either this court or respondent’s counsel why the trial court’s: action was wrong in other than conclusional terms. Points Relied On by an appellant seeking reversal of his conviction should definitely isolate and formulate precise issues to be reviewed, and if that function is to be observed, these issues should not be relegated to the argument portion of the brief. State v. Gomillia, 529 S.W.2d 892, 895[4] (Mo.App.1975). We hold, therefore, that this Point has not been preserved for review.

Appellant’s second Point is that the trial court erred in denying his motion to suppress the statements made by appellant because said statements were: (A) the fruit of an arrest without probable cause, (B) made without a voluntary, knowing and intelligent waiver of, (1) right to counsel, or (2) the right to remain silent, and (C) involuntary. Respondent again points out to this court that appellant’s Motion to Suppress Statements, was general in nature, that he did not object to the testimony of the police officers relative to statements he had made while in custody other than to renew his Motion to Suppress without any specific objections, and in his Motion for New Trial simply reiterated the general allegations previously made in his Motion to Suppress. Respondent contends that nowhere, during the course of the trial, did the appellant raise the specific objections appearing for the first time in his brief in this court.

Appellant’s Motion to Suppress Statements, as it appears in the transcript, is based upon the grounds that the statements “were made involuntarily, that there are the fruit of an illegal arrest, that they were made without adequate advice concerning defendant’s right to counsel and his right to remain silent, or that they were made without an intelligent waiver of his rights.” After an evidentiary hearing the Motion to Suppress Statements was overruled.

The trial court found beyond a reasonable doubt that the appellant was advised of his constitutional rights (1) that he had the right to remain silent, (2) that anything he .said would be used against him in Court, (3) that he had the right to have an attorney present at any questioning, and (4) that if he could not afford an attorney one would be provided him without cost to him. The trial court further found that the appellant understood his rights given, and knowingly, intelligently and voluntarily waived them.

The cause proceeded to trial and when Patrolman Gerald McFadden was offered as a witness for the State, appellant renewed his “motion to suppress” which had been filed “on a prior occasion” on the grounds that the appellant had reason to believe that the police officer witness was going to testify with regard to a statement made by the appellant which would implicate him in the crime. The trial court then inquired whether appellant’s request was for a voir dire examination to determine the admissibility of the statement, and after appellant’s counsel affirmed that was the purpose, the trial court denied the motion because the matter had already been ruled on by another member of the court. Officer McFadden was then permitted to testify to statements made by the appellant after he had been taken into custody and given his Miranda warnings, wherein he admitted commission of the burglary of the Cleveland apartment and stated that if the charges were dropped he would show them the house in the 4200 block of Cook Avenue where he had taken the T.V. and get it back so it could be returned to the owner. The police officer further testified that when the police officers got ready to take appellant to the house on Cook Avenue he changed his mind and informed them that he wasn’t going to show them where the T.V. set was. Richard Boyd, another police officer, was called as a witness by the State, and without objection, testified that after appellant was taken into custody and advised of his Miranda rights he made the statement attributed to him by Patrolman McFadden in his testimony. The only objection interposed to this line of testimony was that it was “getting to be narrative,” and that objection was sustained. A third police officer, Jack Hendricks, when offered by the State, was permitted to testify that he was present in the “report room” at the 8th District Police Station when the appellant was questioned after he had been advised of his Miranda rights by Officer McFadden concerning the burglary on Cote Brilliante and that the appellant said that he did commit the burglary, that he would take the police officers to where he sold the television set if they were to see about “getting him off or turned loose,” and that he had sold the television set to a person whose name he refused to give them but who lived on Whittier and Cook. This police officer reiterated appellant’s offer to take them to the house on Cook to recover the television set and appellant’s refusal to carry out the offer when they got out of the police station and into the police car. The only objection to this line of testimony voiced by the appellant was: “Object at this point, getting to be narrative,” and this objection was sustained by the trial court on those grounds.

In view of the foregoing we conclude that the appellant failed to preserve this point for review. As we have previously stated in disposing of the appellant’s first Point, it is the responsibility of the appellant to make known to the trial court his objections to the admissibility of evidence and whether it has been obtained in violation of guarantees afforded him by the Constitution of the United States or of the State of Missouri, or the decisional law of the Federal or State courts. In doing so he must state specifically the grounds for his objection. It has been held that where a party has reasonably objected to evidence of a certain character by one witness and his objection has been overruled it is not necessary for him to repeat his objection when testimony of the same kind by another witness is offered. Schierbaum v. Schemme, 157 Mo. 1, 57 S.W. 526, 532[7] (1900). Since, however, appellant’s objection to Patrolman McFadden’s testimony relative to incriminating statements made by the appellant at trial were no more specific than the conclusional allegations contained in appellant’s Motion to Suppress Statements, and which his counsel stated was the basis for his objection, it suffered from the same infirmities afflicting the Motion to Suppress and failed therefore to preserve anything for review. We have already pointed out with respect to appellant’s Motion for New Trial that it constituted nothing more than a reiteration of the grounds for suppression of the appellant’s statements contained in the Motion to Suppress Statements, and it too failed to preserve anything for this court to review. Appellant’s Point II Relied On also fails to meet the requirements of Rule 84.04(d) in the same manner as did his first Point Relied On. We hold, therefore, that this Point has not been preserved for review on appeal.

Pursuant to the requirements of Rule 28.-02 V.A.M.R. we have considered the sufficiency of the Amended Information, the verdict, the judgment and the sentence and find them to be in proper form and free from error.

The judgment is affirmed.

GUNN, J., and JOHN L. ANDERSON, Special Judge, concur.


author: REINHARD, Judge.

text:
    Charles GARY, Plaintiff-Respondent, v. FEDERAL BARGE LINES, INC., Defendant-Appellant.
    No. 38016.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 26, 1977.

      Thompson & Mitchell, Raymond L. Massey, St. Louis, for defendant-appellant.
    Francis H. Kennedy, Jr., St. Louis, for plaintiff-respondent.
   REINHARD, Judge.

Plaintiff Charles Gary brought this action seeking damages from defendant Federal Barge Lines, Inc., for injuries he received while working as a longshoreman upon a barge owned by defendant. A jury concluded that defendant’s negligence was the cause of plaintiff’s injuries, and assessed his damages in the amount of $8,000.00. Defendant has duly perfected its appeal from the judgment entered upon this verdict. The sole issue presented for our consideration is whether the trial court erred in denying defendant’s motion for a directed verdict at the close of plaintiff’s case. It is defendant’s contention that plaintiff failed to present a submissible case of negligence under the amended Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. For reasons hereinafter stated we reject this contention, hold that a prima facie case of negligence against defendant was established, and affirm the judgment below.

Defendant acquired barge number CJ-1661 sometime in 1964 and utilized this barge from the day of its manufacture until the present. The barge’s cargo compartments are protected by eight heavy steel hatch covers. Every hatch cover has rollers underneath which enable the longshoremen to move them forward or backward. The covers are fastened in place on the hull by means of a latching mechanism. Each cover has two “u” loops, approximately one inch wide and three to five inches long, attached to the side of the cover. When these two loops are aligned with a hole in the barge hull, a heavy iron pin (seven or eight inches long, one-half inch thick, and three and one-half to four inches wide) is inserted. This safety latch mechanism, when functioning properly, binds the hatch covers to the appropriate positions on the barge and prevents them from rolling to and fro on their rollers.

On February 12, 1973 plaintiff was working as a helper for Continental Grain Company at their docking facilities on the Mississippi River. Isaac Jackson also worked for Continental that day. As the lead man, Jackson’s responsibilities included checking the hatch covers before loading began to see if they were fastened, opening the hatch covers and fastening them into place, and generally directing the loading of grain from Continental’s dock into the barges “spotted” at the dock. Plaintiff’s job simply required that he stand on the barge and control the flow of grain from the loading spout into the open compartment. He did not make, nor did his job require that he make, any inspection of the barge. During the morning of February 12 the men loaded one barge with grain and then awaited the arrival of defendant’s barge CJ-1661. A tugboat brought the empty barge to Continental’s dock shortly after the noon hour. It was tied to the dock so that it could be loaded with grain.

Jackson put his life-preserver on and went down to the barge with plaintiff. Jackson conducted a visual inspection of the barge and determined that all of the hatch covers were securely fastened. Hatch cover #3 was then unfastened, rolled back beneath cover #4, and fastened there. The open compartment was filled with grain and cover #3 was then unfastened, rolled back into place, and fastened again to its original position. The men then opened up compartment #7 by moving hatch cover #7 beneath cover #8. The loading spout was placed over compartment #7 and plaintiff stood in the middle of hatch cover #6 while he directed the grain flow into the open compartment.

The barge gradually assumed an inclined posture from the cargo weight. The front of the barge reared up. Jackson heard a rumbling noise and saw hatch cover #3 break loose and roll downward towards plaintiff, who had his back to the onrushing danger. Jackson’s exclamations went unnoticed due to the wind and plaintiffs proximity to the roaring grain chute. Cover #3 crshed into cover #4, which broke off and careened into cover #5. The swiftly moving hatch cover #5 struck plaintiff in the back of his lower legs as he stood on hatch cover #6. Plaintiff suffered a broken leg as a result of this impact.

After this accident, Jackson examined the latching mechanism for #3 and found the bottom loop broken off. He saw that this bottom loop has been welded but was rusted, and the weld formed a tenuous bond at that time. In fact, there was a crack in this weld, and this crack was not a fresh break. It is reasonable to assume that the tilting of the barge due to the increasing cargo forced hatch cover #3 to slide back, putting pressure on the safety pin nestled inside of the rusted loop. The weight of the hatch cover against the pin caused the defective loop to break off. The safety pin was then able to lean back and slip out of its hole in the barge hull since it was then held only by the top loop. When the pin slipped out of the hole the hatch cover rolled downward into hatch cover #4, causing it to snap free. In turn, cover #4 rolled into cover #5, which broke free and collided with plaintiff.

Jackson’s visual inspection of the barge prior to commencement of loading operations did not reveal anything unusual about the safety latches on cover #3. He did not see the rust on the bottom loop then, and in order to have seen the defect he would have had to lie on his stomach and look up. This would have been beyond the scope of his customary inspection. His job was only to look at the top. No one else inspected the barge at the dock that day, although defendant’s inspectors had come there on pri- or occasions to inspect their barges. Defendant admitted that this barge was inspected on various occasions in St. Louis. No Continental Grain employee received any warning from defendant that the latching mechanisms on this barge were weak or loose.

These facts constitute a prima facie case of negligence against defendant. The applicable substantive law is the Federal Longshoremen’s and Harbor Workers’ Compensation Act, supra, and the cases construing it. The 1972 amendments to that act permit the longshoreman to bring an action against the vessel owner based upon negligence. This cause of action is to be predicated upon a uniform federal standard. Gay v. Ocean Transport & Trading, Ltd., 546 F.2d 1233, 1237[1] (5th Cir. 1977); Kelleher v. Empresa Hondurena de Vapores, S.A., 57 Cal.App.3d 52, 129 Cal.Rptr. 32, 35[3] (1976). In the interest of fulfilling the Congressional desire for uniformity, the federal courts have adopted the Restatement, Second, Torts formulations as the uniform guidelines for these actions. Gay v. Ocean Transport & Trading, Ltd., supra, 546 F.2d at 1238[5]; Anuszewski v. Dynamic Mariners Corp., Panama, 540 F.2d 757, 759 (4th Cir. 1976); Napoli v. Hellenic Lines, 536 F.2d 505, 509 (2nd Cir. 1976).

The negligence standard in this case is guided by analogy to land-based negligence law concepts. The plaintiff, an employee of an independent stevedoring contractor, is regarded as a business invitee of the vessel owner-defendant. Gay v. Ocean Transport & Trading, Ltd., supra, 546 F.2d at 1237-1238[3]; Anuszewski v. Dynamic Mariners Corp., Panama, supra, 540 F.2d at 759[4]. Although the 1972 amendments specifically preclude an employee of an independent stevedoring contractor from bringing a suit against the vessel owner based upon the warranty of seaworthiness, nothing in the amendments is intended to derogate from the vessel’s responsibility to take appropriate corrective action where it knows or should have known of a dangerous condition. Bess v. Agromar Line, 518 F.2d 738, 741 (4th Cir. 1975); House Report No. 92-1441, 92d Congress, 2d Session (1972), U.S. Code Cong. & Admin. News 1972, pp. 4698, 4703. Defendant owed no duty to warn plaintiff of a defect or danger which was known to plaintiff, or which was as well known to plaintiff as to defendant, or which was obvious, or which should have been observed by plaintiff in the exercise of ordinary care. Cummings v. “Sidarma” Soc., 409 F.Supp. 869, 872[2] (E.D.La.1976); Fedison v. Vessel Wislica, 382 F.Supp. 4, 7 (E.D.La.1974). But defendant did owe a duty to plaintiff to warn him of latent defects or dangers of which it knew or should have known, and it must take reasonable precautions to protect plaintiff and other invitees from dangers which are foreseeable from the use of the vessel. Frasca v. Prudential-Grace Lines, Inc., 394 F.Supp. 1092, 1097[7] (D.Md.1975); Kelleher v. Empresa Hondurena de Vapores, S.A., supra, 129 Cal.Rptr. at 36.

The evidence presented by plaintiff entitled the jury to pass upon the issues of whether defendant, through its periodic inspections of this barge, knew or in the exercise of reasonable care should have known of the rusted and defective latching mechanism; whether defendant should have realized that this defective latching mechanism involved an unreasonable risk of harm to plaintiff; and whether defendant should have expected that plaintiff would not discover or realize the danger. Frasca v. Prudential-Grace Lines, Inc., supra, 394 F.Supp. at 1101[18]. The trial court properly overruled defendant’s motion for a directed verdict at the close of plaintiff’s case.

Finding no error, we affirm the judgment.

McMILLIAN, P. J., and STEWART, J., concur.

      . 33 U.S.C. § 905(b), as amended, provides in pertinent part as follows:

        “In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel * * *. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. * * * The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter.” (Emphasis added.)

      . Restatement, Second, Torts § 343 states:

        “A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
      (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
      (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
      (c) fails to exercise reasonable care to protect them against the danger.”
      Section 343 A continues:
      “(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
      (2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.”
      Restatement, Second, Torts § 343, Comment a instructs that § 343 “should be read together with § 343 A, * * *.”

      . See Griffith v. Wheeling Pittsburgh Steel Corporation, 521 F.2d 31, 45 (3rd Cir. 1975), cert. denied, 423 U.S. 1054, 96 S.Ct. 785, 46 L.Ed.2d 643 (1976).


text:
    STATE of Missouri, Plaintiff-Respondent, v. John Joseph PETRIK, Defendant-Appellant.
    No. 37955.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 26, 1977.

      Lawrence 0. Willbrand, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Pros. Atty., James R. Hartenbach, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   KELLY, Presiding Judge.

In this appeal from a conviction of Possession of a Schedule II Controlled Substance (Amphetamine) in violation of § 195.017 RSMo. 1969 and sentence of 12 years in the custody of the Missouri Department of Corrections, appellant, John Joseph Petrik, contends that he is entitled to have the judgment set aside and a new trial ordered because the trial court committed prejudicial error in three respects. Appellant’s first Point Relied On is that the trial court erred in overruling his objection to argument of the prosecutor during the final portion of the State’s argument with respect to punishment when the prosecutor had not argued punishment in the opening part of his argument. His second Point is that the trial court erred in failing to declare a mistrial when a police officer witness interjected into the case evidence of an unrelated crime. The third Point raised by the appellant is that the trial court erred in overruling his motion to suppress evidence of statements he made after he was taken into custody by reason of the failure of the arresting officers to give him his Miranda warnings. We have examined each of these contentions and find them to be without merit. We therefore affirm.

Appellant does not challenge the sufficiency of the evidence to support the jury verdict; therefore a shortened version of the facts which the jury could have found from the evidence will be sufficient for our purposes except where necessary in the disposition of appellant’s Third Point Relied On we deem it necessary to further set out facts necessary for decision.

Jerry Guerra, a California resident, who was “involved in drugs,” flew into St. Louis in October, 1974, with Thomas Kelly and appellant and went to appellant’s house to stay. Guerra and Kelly shared a bedroom. In the bedroom Guerra told Kelly that he had a quantity of drugs, 25,000 to 50,000 pills, he was going to sell to Jack Wishnauf the following Saturday night. Guerra hid the drugs in appellant’s attic. Op the morning of October 20,1974, Guerra died of a drug overdose at Christian Northwest Hospital in St. Louis County. During the course of the investigation of the death of Guerra the St. Louis County Police officers arrested appellant at a farmhouse in North St. Louis County after a conversation he had with Thomas Kelly in the kitchen of the farmhouse. The police officers were hidden in an adjoining bedroom and a kitchen pantry and overheard this conversation. After he was taken into custody, the appellant “voluntarily” accompanied the officers to his home in Woodson Terrace where a fruitless search was conducted and then to a rented car, the keys of which appellant had on his person when arrested, parked on Brackleight Lane in Florissant, Missouri, where suitcases containing 600,000 to 650,-000 amphetamine pills were discovered in a locked trunk. After the drugs were found appellant was placed under arrest suspected of possession of controlled substances and given his Miranda warnings. Appellant was thereafter charged with possession of these Schedule II drugs.

On October 24, 1975, a hearing was had on appellant’s motion to suppress evidence, allegedly obtained by means of a wiretap. This motion was overruled that same day, and on November 3,1975, the day on which the cause was peremptorily set for trial, appellant’s counsel filed another motion to suppress alleged statements and on this occasion, for the first time, alleged as grounds for the motion that the statements had been obtained from the appellant after he was in custody without advising him of his Miranda rights. This motion was overruled without a hearing.

In considering appellant’s first point we have examined the transcript filed in this court but have ascertained that it does not contain all of the argument and is only a partial transcript of same. Nevertheless, from what has been filed, we discern that the prosecutor in his opening argument made reference to that instruction given to the jury on the range of punishment to be assessed in case it found the appellant guilty of the offense for which he was on trial and argued that there was “a broad penalty involved here.” He stated the range of punishment and remarked that the range of punishment was broad “to cover a broad range of crimes.” In concluding his opening argument, the prosecutor said: “I will ask you to assess his punishment against him as provided by law.” During his argument appellant’s counsel made no mention of punishment, and then the prosecutor, in his rebuttal, argued:

“Now, as I said before, the penalty ranges anywhere from six (6) months minimum designed for little people; but that man is not ‘little people,’ he’s a drug dealer and he deals in large quantities of drugs and he deserves the punishment at the other end of the range. He deserves the maximum and I ask that you find him guilty as charged and assess a serious penalty.”

It is this argument which appellant contends entitles him to a new trial.

This point has already been decided by appellate courts of this state, and the general rule is that if the matter of punishment is to be discussed at all, it should be argued in the opening portion of the state’s argument in order to afford defense counsel an opportunity to answer that argument. As the court warned in State v. Maxie, 513 S.W.2d 338, 345 (Mo.1974), cert. den. 420 U.S. 930, 95 S.Ct. 1132, 43 L.Ed.2d 402 (1975), “The failure to do so will cause serious risk of reversal for there are not many cases wherein the determination of no prejudice can be made on an appellate level in the area of argument.” The argument here under attack, like that in Maxie, supra, did not ask for any particular punishment, but merely advised the jury to assess a “serious penalty.” See also State v. Brown, 480 S.W.2d 839, 840 (Mo.1972); State v. Hale, 371 S.W.2d 249, 255-256[12, 14, 15, 16] (Mo.1963). We find no abuse of discretion in the trial court’s overruling of appellant’s objection amounting to prejudice under the circumstances here. We rule this point against the defendant.

Appellant’s second point is that the trial court erred in failing to declare a mistrial when one of the police officer witnesses, Lieutenant Mahoney, replied to a question propounded by the prosecutor by testifying that he overheard a conversation between the appellant and a third person, and during this conversation appellant remarked that “Jack shot me up once and it was really bad.” This, appellant argues, constituted evidence of the commission of another crime brought into the case by the prosecutor in bad faith when he knew that the question asked of the witness would elicit this testimony. After this answer came in, appellant’s counsel interposed his objection, requested that the jury be instructed to disregard the testimony and that a mistrial be declared. The trial court sustained the objection, instructed the jury to disregard the testimony and specifically cautioned the jury “not to take his (the witness’s) last comment into consideration as evidence.” This statement of the witness was not in evidence; rather, it was specifically excluded from the evidence in response to appellant’s objection. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (Mo. banc 1954) is inapposite, because there evidence of another crime, unrelated to the one for which defendant was on trial, was in evidence and this was held to be error.

As has oftentimes been said, the granting of a mistrial is a drastic remedy to be exercised only in extraordinary circumstances where the prejudicial effect can be removed in no other way, State v. Harris, 535 S.W.2d 145, 150 (Mo.App.1976), and rests in the sound discretion of the trial court who is in a better position than an appellate court to evaluate the prejudicial effect of the occurrence initiating the request for mistrial. State v. Camper, 391 S.W.2d 926, 927—928[3] (Mo.1965). The gauge to be applied by a reviewing court where a mistrial has been denied was thus enunciated in Harris, supra, l.c. 150:

“. . . the reviewing court, in order to hold that the failure to grant a mistrial was reversible error, must determine and conclude as a matter of law from the entire record that the error was prejudicial and so impressive that its effect was not removed by the action of the trial court.”

We do not find the facts in this case meet this test and rule this point against the appellant.

Appellant’s third, and final point, is that the trial court erred in overruling his motion to suppress statements made by him to the police after he was taken into custody without advising him of his Miranda rights.

Whether appellant’s point would otherwise be well taken, we conclude that by taking the stand in his own defense and testifying to facts which corroborated the testimony of Detective Klier, the officer who conducted the interrogation of the appellant, any error, if error there was, was rendered non-prejudicial.

The only grounds stated in appellant’s initial motion to suppress statements as a basis for suppression thereof was that the statements were the product of an illegal wiretap of a telephone conversation. At the hearing on this motion no evidence was adduced that any wiretap was involved. The trial court cannot be faulted for overruling a motion based on grounds unsupported by the evidence.

Assuming, arguendo, that the trial court should have considered the evidence adduced at the evidentiary hearing on the original motion in disposing of appellant’s subsequent motion to suppress and thus erred in summarily overruling said motion, any error thereby induced into the case was cured when appellant testified at trial.

The evidence adduced at the initial motion to suppress was that while Detective Klier and other police officers were concealed in the farmhouse occupied by Jack Wishnauf and his girl friend, Sharon Reed, appellant and a friend entered the kitchen where Thomas Kelly, an acquaintance was seated at the kitchen table, and incriminating statements made by the appellant to Kelly followed. Detective Klier overheard these statements from his place of concealment in the kitchen pantry until the appellant approached the sliding door to the pantry and attempted to jerk it open. At this point the Detective, with gun drawn, exited from the pantry, ordered the appellant to the kitchen table and to spread-eagle his legs. Detective Klier then frisked the appellant. The appellant’s friend, Prank Assero, was then taken outside, questioned, and his car searched with his permission. Mr. Assero was then left outside with a police officer while Detective Klier returned to the kitchen and led appellant into the basement where he interrogated the appellant and appellant “consented” to accompany the police officers to his home to search for drugs. Ultimately appellant led the police officers to the rented car in Flor-issant where the drugs were recovered. Conversations which took place between appellant and the police officers while this was being accomplished were among the evidence appellant’s motion sought to suppress, although the motion itself was in broad terms and did not specify them as such.

Detective Klier, over objection, testified at trial to essentially the same facts he had at the evidentiary hearing on the initial motion to suppress. We have carefully examined the testimony of the appellant during the defense case at trial and have concluded that in his testimony he has corroborated the testimony of the Detective in all respects save one. The only part of Detective Klier’s testimony appellant takes issue with is the testimony of the Detective with respect to a portion of the conversation between appellant and Tom Kelly while the Detective was concealed in the pantry. According to Detective Klier, appellant was discussing with Kelly the fact that he was upset and that the police were onto Wish-nauf and that the heat would be on. He opined that the police were probably watching Wishnauf and in no time the police would arrive and begin an investigation and he was worried about that. He further stated that he did not trust Wishnauf and that he was worried because of the knowledge of the police of Wishnauf as an alleged drug dealer. In this context Detective Klier said that appellant made a statement that he wondered if he gave Wishnauf 20,-000 or 50,000 pills would that shut up Wish-nauf. Appellant, during direct examination, was asked by his counsel:

“Q. Mr. Petrik, did you at any time make a statement about twenty five (25) or fifty thousand (50,000) pills?”

His reply to this question was: “A. No, I did not.”

Reversible error cannot be predicated upon the admissibility of evidence which came in improperly and which a defendant himself later confirms by his own testimony. State v. Sanders, 473 S.W.2d 700, 703-704[2] (Mo.1971); State v. Ussery, 357 Mo. 414, 208 S.W.2d 245, 246[5] (Mo.1948); State v. Cooper, 541 S.W.2d 40, 43[3] (Mo.App.1976).

In Ussery, supra, the court said, l.c. 246[5, 6]:

“. . . Ussery himself removed any objection to admitting the confessions in evidence by testifying to the matters contained in them, thus confirming their truth. Involuntary confessions are rejected as evidence because they are regarded as testimonially unreliable and untrustworthy . . . Yet when the truth of a confession is established by the very person who made it under oath in open court, he may not be permitted to claim error because of the use of the confession on the ground it was involuntary.”

We conclude the testimony of appellant denying any statement relative to 20,000 or 50,000 pills attributed to him by Detective Klier, in the face of his corroboration of the balance of statements he made to the Detective is not prejudicial hnd does not require a new trial.

The judgment is affirmed.

WEIER and GUNN, JJ., concur.


author: CLEMENS, Presiding Judge.

text:
    WATERWAY GAS ’N WASH, INC., a corporation, Appellant, v. N. P. SANDBOTHE and G. J. Grewe, Respondents.
    No. 37735.
    Missouri Court of Appeals, St. Louis District, Division One.
    April 26, 1977.
    B. C. Drumm, Jr., Clayton, for appellant.

      David G. Dempsey, Clayton, for respondents.
   CLEMENS, Presiding Judge.

Plaintiff-optionee sued defendant-option-ors to recover a $2,500 refundable deposit plaintiff had paid defendants for an option to buy their land. Judgment was for defendants and plaintiff has appealed.

The issues: Did plaintiff comply with its contractual obligation to use its best efforts to obtain rezoning? If not, did defendant waive that requirement?

Plaintiff-optionee and defendants-option-ors entered into a contract whereby plaintiff paid defendants $2,500 for a one-year option to purchase its land. The option contract provided plaintiff would use its best effort to diligently apply to the St. Louis County Planning Commission for a change of zoning. Sellers agreed to return the option money on ten days’ notice that plaintiff did not intend to exercise the option, provided plaintiff so endeavored.

The county ordinance declaring procedure for rezoning required a site plan showing proposed uses and structures, existing and proposed contours, locations of trees, section profiles showing building form, proposed ingress and egress and a plan for sanitation facilities.

On January 28, 1972 plaintiff filed a picture of the proposed site and its legal description with the County Planning Commission. The Commission requested additional information from plaintiff to meet the procedural requirements of the ordinance. Plaintiff did not comply and failed to get the zoning change.

Soon thereafter plaintiff discovered that another application was pending before the Commission for a similar use nearby and then became disenchanted with prospects for success. Plaintiff discussed this other application with defendant and both agreed the success of plaintiff’s application looked “pretty grim.” Plaintiff then told defendants it did not seem reasonable to proceed with the application, that plaintiff would not exercise its option and wanted defendant to return the option money. Defendant, in a later conversation, suggested the option money might be considered as option money on another site, but no firm agreement was reached.

Plaintiff then wrote defendants demanding a refund of the option deposit. Defendants did not comply and plaintiff sued.

After trial the court entered judgment for defendant and denied plaintiff’s motion for new trial. Plaintiff appealed.

Plaintiff’s right to a refund of the option money was by agreement specifically conditional. It was plaintiff’s burden to show it had used its best effort and had employed diligence to secure rezoning. The trial judge found it had not, and this finding was supported by evidence of plaintiff’s complete failure to meet the County’s requirements for a detailed application to support its application for a zoning change. We deny plaintiff’s first point.

Plaintiff’s second point is that defendants waived plaintiff’s contractual obligations concerning rezoning. Plaintiff did not plead waiver by defendant or assert it at trial. Waiver is an affirmative defense and must be pleaded. Civil Rule 55.08. A new issue, an affirmative defense, not pleaded, presented, or passed on in the trial court, cannot be presented for the first time on appeal. Gross v. Merchants-Produce Bank, 390 S.W.2d 591[3] (Mo.App.1965).

Judgment affirmed.

DOWD and SMITH, JJ., concur.