author: DOWD, Presiding Judge.

text:
    STATE, ex rel., Susan C. PINI, Shirley A. Ball, Nellie E. Beel, Victoria L. Schroeder, Ralph J. Klocker, Charles M. Chastain, Karen S. Geers, Michael J. Reid, Marianne Simpson, David R. Floyd, John P. Ryan, Joan E. Andrews, and Ann L. O’Brien, Petitioners, v. Edward MORELAND, Director of St. Louis County, Department of Justice Services, Respondent.
    No. 49219.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 28, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 13, 1985.
    Application to Transfer Denied April 30, 1985.

      Timothy J. Finnegan, David C. Drury, David O. Danis, Mark Belz, Timothy Belz, St. Louis, for petitioners.
    Richard S. Bender, Perry B. Newman, Rosenblum, Goldenhersh, Silverstein & Zafft, Clayton, for respondent.
   DOWD, Presiding Judge.

This is an original proceeding in habeas corpus in which thirteen petitioners are testing the legality of their detention by the Director of St. Louis County Department of Justice Services. The petitioners allege various violations of their legal, procedural, and constitutional rights. The petitioners were all found guilty of indirect criminal contempt and all sentenced to confinement and fines in various terms and amounts as a result of their activities with the Roitman and Palmer Women’s Clinical Group, Inc., a medical corporation providing obstetric and gynecological services. The activities occurred on three Fridays in September, 1984. We have jurisdiction. Mo. Const. Art V, § 4.

This case presents an issue of unusual importance and delicacy requiring a balance between persons who have firm beliefs in their views on abortion and the law of the land which must be upheld for the welfare of society, including the petitioners.

All of the petitioners were cited for contempt of court by the Circuit Court of St. Louis County for violating its temporary restraining order issued September 11, 1984, directed against John P. Ryan, et al., and which stated as follows:

1. The named Defendants and their officers, agents, servants, employees and attorneys and those persons in active concert or participation with them who receive actual notice of the order or otherwise, are temporarily restrained and enjoined from obstructing, barricading, blockading or interferring with ingress to and egress from Plaintiffs office suite known as Suite 111, and the building located at 3394 McKelvey Avenue, St. Louis County, Missouri.
2. Nothing shall be construed to restrain Defendants or any other persons from peacefully picketing, provided they do not obstruct or interfere with ingress to and egress from Plaintiffs office suite or the building located at 3394 McKelvey Avenue, St. Louis County, Missouri.
3. This restraining order is being issued to avoid continual and repeated trespasses and blocking ingress to and egress from Plaintiff’s office suite and the building at 3394 McKelvey Avenue, St. Louis County, Missouri.
This order shall remain in effect, for good cause shown until October 1, 1984, or unless further order of Court extending this order is issued.

The court order was violated on the following three Fridays: September 14, 21, and 28, 1984. The contempt charges were initiated and prosecuted by an attorney for the clinical group. The petitioners were tried, convicted, and sentenced on charges of indirect criminal contempt stemming from the incidents occurring on those Fridays in September. The petitioners offered no evidence at the hearing. From the trial court’s judgment, we summarize its actual findings:

Defendants Date of Violation Sentence
Joan E. Andrews 9/21, 28/84 20 days and $100
Shirley A. Ball 9/14/84 10 days and $100
Nellie C. Beil 9/21/84 5 days and $100
Charles W. Chastain 9/14/84 10 days and $100
David R. Floyd 9/14/84 3 months and $500
Karen S. Geers 9/21/84 5 days and $100
Ralph J. Klocker 9/14/84 10 days and $100
Ann Lamb O’Brien 9/14/84 30 days and $300
Susan C. Pini 9/14/84 10 days and $100
Michael J. Reid 9/14/84 30 days and $300
John P. Ryan 9/14/84 5 months and $500
Marianne Simpson 9/21/84 5 days and $100
Victoria L. Schroeder 9/21/84 5 days and $100

On October 3, 1984, the Circuit Court issued its judgment finding petitioners guilty as set out above. A petition for a writ of habeas corpus was filed on behalf of petitioners on October 4, 1984. This court issued its writ on that day and provided for petitioners release on bond pending the resolution of this writ. All of the petitioners except one has either served their sentences or have been released on bond.

Indirect criminal contempt has been defined as conduct outside of the presence of the contemned court in violation of the dignity of the court and in derogation of its decree. Ryan v. Moreland, 653 S.W.2d 244, 247 (Mo.App.1983); Mechanic v. Gruensfelder, 461 S.W.2d 298, 304-305 (Mo. App.1970). This case fits this definition. As this court stated in Ryan v. Moreland, supra 653 S.W.2d 247: “Although, ‘a proceeding for criminal contempt is sui gener-is, and as such is controlled by its own rules... ’ one charged with criminal contempt is entitled to essentially the same rights of procedural due process as a defendant in a criminal case” citing Mechanic v. Gruensfelder, supra 461 S.W.2d 309.

Under Missouri law to sustain a finding of criminal contempt the guilt of the accused must be proven beyond a reasonable doubt. Curtis v. Tozer, 374 S.W.2d 557, 581 (Mo.App.1964). Furthermore, the most basic requirement of the trial of an accused is that he be shown to be that person who committed the offense. State v. Parker, 458 S.W.2d 241, 243 (Mo.1970); State v. Murphy, 508 S.W.2d 269, 274 (Mo.App.1974).

Being cognizant of these legal principles, we examine the record to determine whether the prosecution proved its case against petitioners beyond a reasonable doubt and examine the contentions raised by petitioners. In their petition for habeas corpus relief, the petitioners raise a multitude of contentions. However, we need not detail each and every issue raised. After a thorough and careful reading of the record, we are convinced that there are numerous procedural flaws in the hearing which precludes us from upholding the judgments of contempt of these petitioners. We shall detail only two which are of a more serious nature.

The prosecution attempted to prove its case by the use of police reports under the Uniform Business Records as Evidence Law. §§ 490.660-490.690 RSMo 1978. This law is intended merely to enlarge the operation of the common law rule providing for the admission of business records as an exception to the hearsay rule. State v. Taylor, 486 S.W.2d 239, 242 (Mo.1972). The statute is not to be considered as authorizing the police officer to read his report as a substitute for direct testimony where he has witnessed the act. However, this does not prohibit the use of a police report to refresh the recollection of the witness.

First, much of the “evidence” against the petitioners consisted of reading from certain police reports — exhibits 8, 9, and 10, relating to the various September, 1984 incidents at the clinic. Exhibit 9, prepared by Officer Ruth Zobrist, a Bridgeton police officer, was attempted to be qualified as a business record under § 490.680, RSMo 1978, and which was objected to as violating the petitioners’ rights to confrontation under the federal and state constitutions. The officer read from exhibit 9, which was admitted into evidence, the names of certain petitioners arrested on September 21, 1984. She testified that she was present at the scene on September 21, 1984, and saw several persons picketing, and others standing near the south-east doorway. She assisted in making arrests but did not arrest all of the protestors. Other evidence of violations was based on the two other police reports, exhibit 8 & 10, but the record does not indicate by whom exhibit 10 was prepared. These exhibits allegedly showed violations on September 28 and 14, 1984, respectively. Moreover, exhibit 10 was never introduced in evidence. However, the record indicates that one officer testified extensively from the non-admitted exhibit 10.

There is no question that a witness, while testifying, may refresh his recollection by a writing or report prepared by the witness or known by him to be correct. State v. Patton, 255 Mo. 245, 164 S.W. 223 (1914); Watson v. Meredith Development Company, 410 S.W.2d 338 (Mo.App.1966). The foundation for use of a report to refresh recollection is that the witness must exhibit both a lack of present memory and the need for the aid of the writing for recall, before being allowed to refer to the writing. See Griffith v. San Francisco Railroad Co., 559 S.W.2d 278, 281 (Mo. App.1977). The record is completely devoid of this foundation. Furthermore, the witness may only use the report to refresh his recollection. Watson v. Meredith Development Company, supra 410 S.W.2d at 341. It was therefore error here to permit over objection the use of the police reports in an attempt to establish the identity of petitioners as violators of the court order.

After holding that the proof of identity by the use of the police reports was fatally defective, we note that the only other attempt at identification occurred when Police Lieutenant Woodland was asked if he would be able to identify any of the violators. He answered, “A couple of them, if I could see them.” The petitioners were seated in the jury box in plain view of the officer. However, the identification was not pursued further.

Second, a thorough examination of the record demonstrates a lack of clear and positive evidence that the petitioners violated the court order by “obstructing, barricading, blockading or interferring with ingress to and egress from” the clinic and that the petitioners were identified as the persons who were arrested on those three occasions in September. In short, there was no clear chain showing proper identification that the petitioners were the persons who violated the order and the persons who were arrested at the scene. As such there was a failure of identifying proof.

Lastly, while contempt of court is a very serious charge and is an integral part of our orderly system of justice, one of our most cherished rights and “the most basic requirement of a trial is that [the accused] be shown to be that person who committed the offense.” State v. Parker, supra 458 S.W.2d at 243. While the law must be upheld to prevent violations of court orders and no one can be permitted to ignore or flaunt judicial pronouncements, lawful and legal procedures must be strictly followed before any American is deprived of liberty. As Justice Frankfurter once said “The history of American Freedom is in no small part a history of proper procedures.”

With this opinion, the Court urges the petitioners to consider the consequences of their actions in the future. Further violations of court orders will undoubtedly result in further charges, which this court, when procedures are properly followed, is prepared to enforce.

The petitioners are discharged.

SIMON and PUDLOWSKI, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Ladelle STEPHENS, Defendant-Appellant.
    No. 47759.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 8, 1985.
    Motion For Rehearing and/or Transfer to Supreme Court Denied Feb. 28, 1985.
    Application to Transfer Denied April 2, 1985.
    Leslie D. Edwards, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Jefferson City, for plaintiff-respondent.
   ORDER

PER CURIAM.

A suspended imposition of sentence is not a final judgment and is not appealable. The appeal is dismissed pursuant to Rule 30.25(b).


author: BERREY, Judge.

text:
    STATE of Missouri, Respondent, v. Richard W. DAVIS, Appellant.
    No. WD 35439.
    Missouri Court of Appeals, Western District.
    Jan. 8, 1985.
    As Modified March 5, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied March 5, 1985.
    Application to Transfer Denied April 2, 1985.

      J.D. Williamson, Jr., Independence, for appellant.
    Albert Riederer, Pros. Atty., Kansas City, for respondent.
    Before KENNEDY, P.J., and NUGENT and BERREY, JJ.
   BERREY, Judge.

Richard W. Davis defendant below, appellant herein (hereinafter defendant), was convicted by a jury of violating § 565.090, RSMo 1978, harrassment, a class A misdemeanor. The indictment alleges he called a telephone number at 3602 S. Slayton, Independence, Missouri, anonymously for the purpose of frightening and disturbing R.A.E. and M.L.W. The jury assessed and declared the punishment at fifteen (15) days in the county jail and in addition a fine. The judge imposed a fine of $100.

Davis assigns three points as error: (1) that the evidence was insufficient to support a conviction; (2) that the defendant’s statement to police was involuntary and should have been suppressed; and (3) that the prosecuting attorney erred in commenting on defendant’s failure to call certain witnesses that were equally available to state and defendant and their testimony would have been cumulative.

Davis had a friend, Terry Boone, who was incarcerated in the Jackson County jail charged with rape and sodomy of R.A.E. and M.L.W. on November 1, 1982.

Between November 14 and November 20 the women received several anonymous calls. R.A.E. reported one call about 1:30 a.m. on November 14, 1982, in which the caller said, “I have something of yours,” and she hung up. There were “at least a couple” of calls after that which R.A.E. did not answer. She added, “It sounded like a man’s voice, but it was whispered and I really couldn’t tell very much.”

M.L.W. testified she answered the phone on November 15, 1982, and, “A voice basically whispering, I don’t remember exactly what they were whispering, ‘I’ll be back,’ or something like that.”

It was at this point the women notified the Independence police department and requested their “line be tapped.”

The following Saturday, November 20, 1982, about 5:00 p.m. another call was received by M.L.W. “It was another voice whispering saying, ‘I want — ’ and I didn’t let them say too much more, I just gave the date and the time and then hung up.” She also testified she could not identify the voice.

State’s Exhibit No. 1 was a record of the phone trap and the calls made to the victim’s phone. On November 20, 1982, at 17:04 (5:04 p.m.) the exhibit reflects number 12100 appearing opposite that phone number. Richard W. Wright, staff manager of security for Southwestern Bell Telephone Company, testified to the correlation between the 12100 and the phone number of defendant’s parents, Mr. and Mrs. Marion Beard. He said the phone was located at 3700 Queenridge, Independence, Missouri, and explained that the phone company uses a “translation device” to locate the incoming phone call that is “trapped.” Exhibit No. 1 also contained the translation and the trace result and was received without objection. The information was subsequently relayed to Officer Gordon Brown of the Independence, Missouri, Police Department.

Later Brown talked with the Beards and learned that Richard Davis, step-son of Marion Beard, lived with them at 3700 Queenridge, Independence, Missouri. Brown learned that when the Beards got home about “5:00 p.m. or later,” the evening of November 20,1982, no one else was home. The detective was told by Mrs. Beard that Richard had gone to Garden City, Missouri to visit his sister. Mr. Beard stated Richard had gone about 11:30 a.m. and Mrs. Beard stated that when she talked to her daughter about 12:30 or 1:00 the daughter advised her that Richard was “there and he was all right.” As a result of this information Brown contacted the defendant.

In response to Brown’s request the defendant, accompanied by his sister, went to the Independence, Missouri, Police Department where Brown interrogated him.

Davis told Brown he had received several collect calls from Boone while Boone was held in the Jackson County jail. He also told Brown that Boone told him to call a certain phone number, “to talk real soft to the girl and tell her that she was a bitch.” Davis admitted calling the number three times. In his statement Davis said he felt Boone “might do some harm to my house and car_that he might beat me up ... if I didn’t make these phone calls.” Davis said he would not use vulgarity and according to the victims the caller did not use foul language. Davis remembered calling the number on different days but claimed he no longer knew the number.

The defendant alleges that the evidence was not sufficient to convict. The evidence is coupled with defendant’s statement to officer Brown that indeed he did make about three calls to the women.

In considering sufficiency of the evidence all evidence must be viewed in the light most favorable to the verdict. No consideration is given contrary or adverse evidence and inferences. State v. Burnau, 642 S.W.2d 621, 623 (Mo. banc 1982); State v. Giffin, 640 S.W.2d 128, 130 (Mo.1982).

We are not to weigh the evidence. Our review is limited to determining if there was sufficient evidence from which reasonable persons could have found the defendant guilty as charged. State v. Kelly, 539 S.W.2d 106, 109 (Mo. banc 1976).

From the evidence herein, viewed in light most favorable to the verdict, there is no doubt that a submissible ease was made.

The defendant received calls from Terry Boone, the alleged rapist. The defendant admitted making calls to the rape victims and one such call was “trapped” by Southwestern Bell Telephone equipment as coming from defendant’s home. Although the defendant presented an alibi, the jury chose to disbelieve him. The credibility of the witnesses and the weight to be accorded their testimony was for the jury and not within purview of appellate review. State v. Chester, 445 S.W.2d 393, 397 (Mo.App. 1969); State v. Giffin, supra, at 130-31.

The state’s case herein did not rest solely on circumstantial evidence. The defendant had given a statement to the police department admitting the calls. State v. Franco, 544 S.W.2d 533 (Mo.banc 1976); State v. Thomas, 452 S.W.2d 160, 162 (Mo.1970); State v. Ramsey, 368 S.W.2d 413, 416 (Mo. 1963).

Defendant alleges that his statement should be suppressed because it was coerced by Officer Brown and not voluntary. The defendant is a twenty year old high school graduate. Defendant in response to a request from Brown appeared at the Independence, Missouri, Police Department on December 8, 1982, accompanied by his sister who did not sit in on the interrogation. At this time he executed State’s Exhibit No. 6, a document entitled “Warning and Waiver of Rights,” in three places. A suppression hearing was held and the trial court found that the defendant was given the Miranda warning and understood it. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Pursuant to this interview he gave an oral statement which was reduced to writing and executed. He acknowledged receiving at least five calls from Terry Boone who was in the Jackson County jail awaiting trial for the rape of two women. He acknowledged Boone gave him a phone number and told him to call it and make statements to the person who answered. He admitted calling the number at least three times. His statement about the calls and their content and the evidence the two women gave was virtually identical.

Officer Brown first gave Davis the “warning of rights.” He read it to him and Davis read it and signed it. For the next fifty minutes they discussed the case; Brown told Davis what evidence he had and what acts Davis had done. Davis talked about his involvement. Brown asked Davis if he wished to make a statement and read him the second half of the “waiver of rights” form. Defendant signed the waiver as well as the certification.

Defendant gave his statement which was reduced to writing by Brown. Defendant initialed each answer as well as any changes. Brown denied any threats, coercion, or intimidation of defendant. The defendant alleges Brown spoke harshly to him, threatened him with jail, the arrest of his parents and loss of their phone. Defendant also alleges Brown promised him he would “talk to the girls and the women about what happened and that everything would be all right.” Davis was released to go with his sister and advised that he would be contacted if there was to be prosecution.

The court is mindful of its responsibility to give due regard to the trial court to judge the witness’s credibility. State v. Dixon, 655 S.W.2d 547, 554 (Mo.App.1983). The admission of a confession is a matter of discretion by the trial court and will not lightly be disturbed. State v. Flowers, 592 S.W.2d 167, 170 (Mo. banc 1979).

From the facts presented the trial judge could have concluded, as he so stated, that defendant received and understood his rights under Miranda. Miranda v. Arizona, supra.

Points I and II are ruled against defendant.

For his final point on appeal the defendant alleges the trial court erred in permitting the prosecuting attorney to draw a negative inference from the fact that defendant’s parents did not testify.

It is improper for a party to raise negative inference in argument when the witness not called is equally available to both sides or the testimony would be corroborative or cumulative. Barnett v. Equality Sav. & Loan Ass’n Inc., 662 S.W.2d 924, 927 (Mo.App.1983).

However, we do not know nor can we presume that the testimony of the parents of the defendant would have been either corroborative or cumulative. Neither did the state. The only evidence regarding Beard’s knowledge of the facts came from Officer Brown. It is quite possible that upon cross-examination their memory might be refreshed adversely to the best interests of their son.

It is likely that defendant’s parents knew facts relevant to the issue at trial and since they were not equally available to the state the state’s comments were proper.

The word “available” as used herein is not necessarily restricted to mean that either party may subpoena the witness. If the relationship of the witness to the party is such that one would reasonably be expected to testify in favor of that party the witness is not equally available.

In Pointer v. Pointer, 251 S.W.2d 334 (Mo.App.1952) the court held that failure to call such a witness gives rise to a logical inference that their testimony would be damaging rather than favorable.

The prosecuting attorney may comment on the failure of the defendant to call witnesses available to him who might be expected to give testimony in his favor. State v. Moore, 620 S.W.2d 370, 373 (Mo. banc 1981).

Whether a witness is equally available depends on several things:

1. one party’s superior means of knowledge of the existence and identity of the witness;
2. the nature of the testimony that the witness would be expected to give in the light of his previous statements or declarations, if any, about the facts of the case; and
3. the relationship borne by the witness to a particular party as the same would reasonably be expected to affect his personal interest in the outcome of the litigation and make it natural that he would be expected to testify in favor of one party against the other.

Hill v. Boles, 583 S.W.2d 141, 145-46 (Mo. banc 1979); Leehy v. Supreme Express and Transfer Co., 646 S.W.2d 786, 790 (Mo. banc 1983). The Beards were not equally available to the state and therefore it was not error for the state to comment on defendant’s failure to call his parents to testify on his behalf. Point III is ruled against defendant.

Judgment affirmed.

All concur.


author: CRANDALL, Judge.

text:
    STATE of Missouri, Respondent, v. Gale Leon VARVIL, Appellant.
    No. 47397.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 15, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 28, 1985.
    Application to Transfer Denied April 2, 1985.

      James M. Martin, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   CRANDALL, Judge.

Defendant, Gale Leon Varvil, was prosecuted in a jury trial on four counts of receiving stolen property. He was acquitted of Counts I through III and convicted of Count IV. He was sentenced as a prior offender to a three-year term of imprisonment and a $5,000 fine. On appeal defendant alleges seven points of error. In view of our disposition, we only consider defendant’s first point which challenges the search for and seizure, inter alia, of a 1973 Camaro automobile, and point seven which challenges the submissibility of the State’s case. We reverse and order the defendant discharged.

The defendant owned a tract of land in northern Jefferson County which was the site of two steel buildings and two mobile homes. He opened an automobile dealership in the building referred to at trial and in this opinion as building A and named the dealership D & L Auto Sales. The defendant claimed that he leased the other building, referred to as building B, to another party. These two buildings were clearly separate structures.

Police had the site under surveillance prior to the search at issue here. They suspected a “chop shop” operation which involved stolen automobile parts. On March 6, 1982, two Highway Patrol officers went to the premises in response to a request from the defendant to conduct an inspection in order to renew his dealer certification. During their visit they observed a 1977 Camaro inside building B. They later learned the car was stolen. The troopers also went inside building A during that visit. The officers stated they thought D & L Auto Sales occupied both buildings.

Later that day officers attempted to gain consent to search the premises but obtained no response. Two officers then left to apply for a search warrant while additional officers kept the premises under observation. A man identified by several names but whom we shall call William Remspecher was seen going into building A during this surveillance.

A search warrant was issued and given to Troopers Ralph Campbell and Paul Jones who turned it over to Sheriff’s Deputy Ronnie Jones who was assigned to execute the warrant. Late in the evening the officers returned with the search warrant. Building B was searched first and officers found the 1977 Camaro, another car and other items. The officers, believing the warrant covered both buildings, then broke into building A. A man, identified as Rem-speeher, was found inside and arrested. Officers testified this man was seen earlier in the day during the dealer inspection in building B by the 1977 Camaro and was the man seen entering building A during the surveillance that evening. During a search of building A, officers found, among other items, a 1973 Camaro, which was found to have been stolen.

Defendant was prosecuted on four counts of receiving stolen property. Counts I, II and III charged him with acting with another (Remspecher) in receiving stolen property. In Count I the stolen property was a 1977 Camaro automobile which was found in building B. In Count II the stolen property was a 1979 Thunderbird which was found in building B. In Count III the stolen property was a 1982 pickup truck which was found in plain view parked outside building A. In Count IV defendant was charged with acting individually. The stolen property was a 1973 Camaro automobile found inside building A. As previously stated, defendant was acquitted of Counts I, II and III.

We now consider defendant’s first point of error. The first question is whether the search warrant itself justified the search of building A. The scope of a search warrant is limited by the terms of its authorization. Walter v. United States, 447 U.S. 649, 656, 100 S.Ct. 2395, 2401, 65 L.Ed.2d 410 (1980). However, “in the execution of a search warrant, officers may seize items not specified in an otherwise valid warrant, when the item is reasonably related to the purpose of the search and its seizure is within a recognized exception to the requirement for a search warrant.” State v. Clark, 552 S.W.2d 256, 260 (Mo. App.1977). Yet, “[i]t is well accepted that the authority to search granted by any warrant is limited to the specific places described in it, and does not extend to additional or different places.” United States v. Heldt, 668 F.2d 1238, 1262 (D.C. Cir.1981), cert denied, 456 U.S. 926, 102 S.Ct. 1971, 72 L.Ed.2d 440 (1982); United States v. Alberts, 721 F.2d 636, 639 (8th Cir.1983).

The State essentially argues that the warrant describes the entire acreage owned by defendant. We disagree. In addition to the obvious geographic separation of buildings A and B, we look to the application for search warrant and the warrant itself. The pertinent portion of the warrant stated:

a 1977 Chevrolet Camero, [sic] vehicle identification number 1S87U7L508919 black and silver in color, and stolen on or about March 5, 1982, in St. Louis County, Missouri, is now being kept and held at the following location, located within Jefferson County, Missouri:
the northern-most metal building, tan in color, approximately 30 feet by 90 feet, located 300 feet north of Lion’s Den Road at a point approximately 1.2 miles east of its intersection with Missouri Highway 21, on the premises known as D and L Auto Sales,
NOW THEREFORE, these are to command that you search the said premises above described within ten (10) days after the date of the issuance of this warrant. ...

The application was in substantially the same language. Affidavits by Troopers Jones and Campbell mentioned “both buildings” but did not further describe them or state where the 1977 Camaro was located, or which building was northernmost.

The warrant only describes with particularity building B. While it is true the warrant authorizes a search of “the said premises above described” and the word “premises” was used above in the phrase “on the premises known as D and L Auto Sales,” we cannot accept the State’s argument that this authorized a search of the entire property.

The “premises above described” clearly refers to one building. The “premises known as D and L Auto Sales” is not described except for the one building. Since the warrant states the vehicle is to be found at the particular building, there is no reason for the warrant to authorize the search of any other structure, and it did not.

The application and the warrant both complied with the specificity requirements of the U.S. and Missouri Constitutions, U.S. Const. Amend. IV and Mo. Const. Art. 1, § 15, and § 542.276, RSMo (Supp.1984). They specifically described a 1977 Camaro located in building B. The officers went to building B and seized the item specified in the search warrant. Once they seized that automobile and other-related evidence inside building B or in plain view outside, they were finished. They had accomplished the purpose of the search warrant. Whether the officers could have properly obtained a search warrant for building A or whether they could have searched building A for the 1977 Camaro if they had not found it in building B is not before this court. The search warrant was issued for a specific building and the item described therein was found in that building. We therefore hold that the search warrant did not authorize the search of building A and the seizure of the 1973 Camaro automobile.

The next question is whether the search of building A was justified under the good faith exception of United States v. Leon, - U.S. -, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and Massachusetts v. Sheppard, — U.S. -, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984).

In Leon, a facially valid search warrant was issued allowing police to search some residences and automobiles for numerous items. The defendants argued that the affidavit supporting the warrant was insufficient to establish probable cause. The Supreme Court, assuming that probable cause was lacking, held that where the executing officer reasonably relies in good faith on a facially valid warrant, evidence obtained in the search should not be suppressed, under a good faith exception to the exclusionary rule.

In Sheppard, a police officer was unable to find a proper form. He used a warrant application form which had previously been used in another district to search for controlled substances, while in his case the officer wanted to search for several items other than controlled substances. The officer changed the name of the district to make it correct, but the reference to controlled substances was not deleted in the part of the application which would become the warrant itself. A judge, after being advised of the problem with the form, told the officer the necessary changes would be made. The judge in fact made some changes and issued the warrant, assuring the officer it was sufficient to conduct the search as requested. At trial, the court found the warrant failed to particularly describe the items to be seized, but allowed the fruits of the search to be used as evidence because the court found the officers acted in good faith relying on the warrant. The Supreme Court, using the test in Leon of whether the officers reasonably believed that the search they conducted was authorized by a valid warrant, found the good faith exception of Leon had been met here. In Sheppard, as in Leon, the case did not involve police going beyond the scope of a warrant.

Both Leon and Sheppard deal with situations where police officers acted in reliance upon search warrants that subsequently were held to be defective. In other words, the judge or magistrate, not the police made the critical mistake. Sheppard, 104 S.Ct. at 3429. In those situations the fourth amendment does not mandate suppression of the evidence “particularly where an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope.” (Emphasis added.) Leon, 104 S.Ct. at 3420. “[T]he exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.” Leon, 104 S.Ct. at 3418. (Emphasis added.)

Leon and Sheppard essentially deal with bootstrapping a search warrant which is defective because of judicial error. In this case, the search warrant was not defective. The scope of the warrant simply did not include building A. The question of good faith reliance on the warrant is therefore not a viable issue.

.Three officers testified in this case that they learned shortly after the search began that the warrant covered only building B, but that they had thought prior to the start of the search that it covered both buildings. The mistake was theirs, not the judge’s. Since the officers readily learned of the warrant’s limits after the search had started, it is clear that there was an opportunity to learn of the limits prior to the search. “In order for a warrant’s limitations to be effective, those conducting the search must have read or been adequately apprised of its terms.” United States v. Heldt, 668 F.2d at 1261.

The Supreme Court in Sheppard recognized the possibility of circumstances such as these arising, and clearly stated it was not deciding whether the good faith exception would apply:

Normally, when an officer who has not been involved in the application stage receives a warrant, he will read it in order to determine the object of the search. In this case, Detective O’Malley, the officer who directed the search, knew what items were listed in the affidavit presented to the judge, and he had good reason to believe that the warrant authorized the seizure of those items. Whether an officer who is less familiar with the warrant application or who has unallevi-ated concerns about the proper scope of the search would be justified in failing to notice a defect like the one in the warrant in this case is an issue we need not decide. We hold only that it was not unreasonable for the police in this case to rely on the judge’s assurances that the warrant authorized the search they had requested.

Sheppard, 104 S.Ct. at 3429 n. 6. In the present case, the affidavits presented to the judge said nothing about any items in a second building. A reference was made to “both buildings,” but building A was not described, nor was any item inside. The warrant application and the warrant only referred to the northernmost building and only to the 1977 Camaro. Sheppard is limited to a situation that is not found in the present case. The Court stated: “Whatever an officer may be required to do when he executes a warrant without knowing beforehand what items are to be seized, we refuse to rule that an officer is required to disbelieve a judge who has just advised him, by word and action, that the warrant he possesses authorizes him to conduct the search he has requested.” Sheppard, 104 S.Ct. at 3429.

We therefore hold that the search of building A cannot be justified by the good faith exception rule.

We turn now to the question of whether the search of building A was justified in the absence of a search warrant. “In general, an entry and search without a warrant are deemed unreasonable under the Fourth Amendment to the Constitution of the United States unless the action falls within certain carefully delineated exceptions .... The burden is on the State to show an exception exists.” State v. Epperson, 571 S.W.2d 260, 263 (Mo. banc 1978), cert denied, 442 U.S. 909, 99 S.Ct. 2820, 61 L.Ed.2d 274 (1979).

The police arrested Remspecher in building A without an arrest warrant and without a search warrant for that building. In this case we are not concerned about a possible violation of Rem-specher’s rights. See e.g., Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); State v. Mayes, 654 S.W.2d 926 (Mo.App.1983). The issue here is the search, not the arrest. Whether the police had an arrest warrant is immaterial; the question is whether the search of building A was reasonable from defendant’s Varvil’s viewpoint. Steagald v. United States, 451 U.S. 204, 216, 101 S.Ct. 1642, 1649, 68 L.Ed.2d 38 (1981). The State concedes that under Steagald police must usually have a search warrant to enter the premises of a third party for the purpose of effecting the arrest of a suspect located there. The arrest of Remspecher does not give the police the right to search Varvil’s property without a search warrant in absence of consent by Yarvil or exigent circumstances. Steagald, 451 U.S. at 216, 101 S.Ct. at 1649. Since there was no consent, we consider whether exigent circumstances justified the warrantless search of building A and the seizure, inter alia, of the 1973 Camaro automobile. We consider whether this case falls within the “need for help” or “emergency” exception discussed in State v. Epperson, 571 S.W.2d 260.

Several factors are considered when deciding whether exigent circumstances exist. They include: (1) that a grave offense is involved, particularly a violent crime; (2) the suspect is reasonably believed to be armed; (3) a clear showing of probable cause to believe the suspect committed the offense; (4) strong reason to believe the suspect is in the premises to be entered; (5) a likelihood the suspect will escape if not swiftly apprehended; (6) the entry, though not consented, is made peaceably. State v. Timmons, 574 S.W.2d 950, 955 (Mo.App. 1978).

The present ease shows no exigent circumstances. The man inside building A had been there for several hours prior to the search of that building. The entire area was staked out. There was little likelihood he could have escaped. Police had ample time to obtain a proper search warrant and arrest warrant. The search was not justified as a “need for help” or an “emergency.” Remspecher was armed, but no shots had been fired for the several hours he was in the building prior to the search. There was no violence involved.

We therefore hold that the trial court erred in failing to suppress the evidence seized in the search of building A and in particular the 1973 Camaro automobile. In view of our holding we consider defendant’s challenge to the submissibility of the State’s case. Having reviewed the record, it is clear that without the evidence seized in building A the State does not have a submissible case against the defendant. A remand of this case for further proceedings would be futile.

The judgment of the trial court is reversed and the defendant is ordered discharged.

DOWD, P.J., and CRIST, J., concur.

      . We review this issue even though the State in its brief appears to rely solely on the theory the warrant included building A.

      . Although the Steagald case speaks of a home, clearly a place of business comes within the protection of the fourth amendment. Marshall v. Barlow's, Inc., 436 U.S. 307, 311, 98 S.Ct. 1816, 1819, 56 L.Ed.2d 305 (1978).


text:
    Bobbie Lewis SHAW, Appellant, v. STATE of Missouri, Respondent.
    No. 47586.
    Missouri Court of Appeals, Eastern District, Division Three.
    Jan. 15, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 28, 1985.
    Application to Transfer Denied April 2, 1985.

      Michael Wade Clark, Union, for appellant.
    John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   CRANDALL, Judge.

Movant, Bobbie Lewis Shaw, appeals from the denial of his Rule 27.26 motion after an evidentiary hearing. Movant was convicted of capital murder and sentenced to death. His sentence was affirmed on direct appeal. State v. Shaw, 636 S.W.2d 667 (Mo.banc 1982), cert. denied, 459 U.S. 928, 103 S.Ct. 239, 74 L.Ed.2d 188 (1982). In this proceeding movant raises two points of error: (1) failure of the trial court to order a psychiatric examination on the issue of movant’s lack of mental capacity for purposes of the Rule 27.26 proceeding; and (2) the finding against the movant on his claim of ineffective assistance of counsel. We affirm.

Movant’s first point is essentially that he was entitled to a determination of his mental competence for the purpose of ascertaining whether he was fit to proceed with his Rule 27.26 motion and whether he can be legally executed pursuant to the death sentence that he received. We first consider whether movant was entitled to a determination of his fitness for purposes of proceeding with his post-conviction motion.

Movant relies on § 552.020(1), RSMo (Supp.1984), which provides: “No person who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures.” (Emphasis added.) This language has been interpreted to mean the procedures of § 552.020 may be invoked “any time before sentencing.” State v. Stock, 463 S.W.2d 889, 894 (Mo.1971). “Since § 552.020 is concerned with pretrial or presentence proceedings to determine an accused’s fitness to proceed, it does not apply to post-trial procedures.” (Emphasis added.) Brown v. State, 485 S.W.2d 424, 428 (Mo.1972). We can find no case applying § 552.020 to Rule 27.26 proceedings.

In Brown, the Rule 27.26 motion alleged error in the denial by the trial court of a motion made at the Rule 27.26 hearing for a psychiatric evaluation under § 552.-020. The movant was attempting to gain a § 552.020 examination regarding his capacity at the earlier trial and not for purposes of the 27.26 hearing. However, the court made clear § 552.020 “does not apply to post-trial procedures.” Brown, 485 S.W.2d at 428. Later Missouri decisions have affirmed the rule that “[a] motion for an order for mental examination may be made at any time before sentencing ....” State v. Rider, 664 S.W.2d 617, 620 (Mo.App. 1984). See also State v. Wagner, 587 S.W.2d 299 (Mo.App.1979). But see Miller v. State, 498 S.W.2d 79, 87 (Mo.App.1973), and Duisen v. State, 652 S.W.2d 162, 163 (Mo.App.1983), where the trial court ordered an examination to determine the movant’s capacity to proceed. We do not find it clearly erroneous for the trial court to decline to determine competency in a Rule 27.26 proceeding, since such a proceeding is designed to remedy constitutional and statutory violations at trial rather than matters which may arise after trial. “[I]t is not the existence of ‘mental disease or defect’ per se which brings the section into play, but the effect of such disease or defect in one specific area. In Section 552.-020 it is the effect of the disease or defect upon defendant’s capacity to defend himself that is critical.” State v. Montague, 510 S.W.2d 776, 778 (Mo.App.1974). In this case the mental condition of movant was evaluated prior to his trial for capital murder. He was found to be fit to proceed. Although defense counsel raised the issue of diminished mental capacity at trial and on direct appeal, the finding of fitness to proceed was never contested.

This Rule 27.26 motion is a collateral attack directed at vacating, setting aside or correcting the sentence. Rule 27.26(a). Movant’s present mental condition is irrelevant. In addition to finding § 552.020 does not give movant a right to a mental examination for purposes of the Rule 27.26 proceeding, we are also unable to find any constitutional basis for such a right.

We therefore hold that the trial court’s failure to determine movant’s mental status for purposes of the Rule 27.26 proceeding is not clearly erroneous. Rule 27.26®.

We now turn to the issue of mov-ant’s mental status as it relates to the State’s ability to execute him. It is clear that movant cannot be executed if he does not at the time for execution meet the standard of competence set forth in § 552.-060. That section provides the vehicle in which to raise the issue prior to an impending execution. The purpose of a Rule 27.26 motion, on the other hand, is to provide a remedy to prisoners who claim a “sentence was imposed in violation of the Constitution and laws of this state or the United States,” or other reasons as stated in Rule 27.26. The rule addresses the validity of the imposition of a sentence and says nothing about a prisoner’s mental capacity in serving that sentence. It is not clearly erroneous for the trial court to decline to allow a competency hearing under § 552.060 in this Rule 27.26 proceeding. Rule 27.26(j). Defendant’s first point is denied.

Movant next contends that he was denied effective assistance of counsel because his attorney overlooked the discovery report of a witness and failed to object to his testimony at trial as hearsay. He concedes that counsel conducted a thorough and competent cross-examination of the witness. The testimony in question was summarized in State v. Shaw, 636 S.W.2d at 669-670:

Inmate Byron Berry testified that earlier in the morning, as he was walking back to his job in the main kitchen after applying for a job on the loading dock behind the vegetable room, he saw appellant (Shaw) and another inmate standing alone outside one of the buildings. As he passed within two or three feet of them, he overheard the other inmate ask appellant, ‘When are you going to do that?’ Appellant replied, ‘I’m going— might as well do it, now.’ Berry said that there was ‘something mentioned of a ring, a payment.’ He also said that he heard one of the men mention the name ‘Clint’ and that he knew of only one person named Clint — Clinton Wyrick — inside the penitentiary.

Movant’s argument must fail because he has failed to prove that he was prejudiced. Seales v. State, 580 S.W.2d 733, 735-737 (Mo.banc 1979); State v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The testimony of witness Berry was relevant. Berry’s testimony of movant’s statements were an admission and therefore an exception to the hearsay rule. State v. Engleman, 634 S.W.2d 466, 480 (Mo.1982). Berry’s testimony of the other inmate’s question to Shaw was not offered to prove the truth of the matter asserted but rather to supply meaning to movant’s statement. Lanham v. Vesper-Buick Automobile Co., 21 S.W.2d 890, 894 (Mo.App.1929); see also State v. Walker, 484 S.W.2d 284 (Mo.1972). If defense counsel had made an objection to Berry’s testimony, it would have been properly overruled. Counsel cannot be deemed ineffective for failing to make a nonmeritorious objection. Wolfe v. State, 613 S.W.2d 892, 894 (Mo.App.1981). In addition, movant has failed to show what alternative course counsel might have been able to take had he been more fully aware of the Berry statement at an earlier time before trial. Movant’s second and final point is denied.

The judgment of the trial court is affirmed.

DOWD, P.J., and CRIST, J., concur.

      . The legal file indicates the original execution date was set for December 30, 1980. There is nothing in the file to indicate a new date has been set.


author: GAERTNER, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Ronald CLAY, Defendant-Appellant.
    No. 48240.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 15, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 28, 1985.
    Application to Transfer Denied April 2, 1985.

      John Putzel, Asst. Public Defender, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Jefferson City, for plaintiff-respondent.
   GAERTNER, Judge.

Appellant was found guilty by a jury of one count of first degree robbery and one count of attempted first degree robbery. The trial court sentenced appellant as a persistent offender to concurrent prison terms of 25 and 10 years on the respective convictions. We affirm.

Appellant contends the trial court erred in: (1) admitting evidence of other crimes; and (2) admitting testimony of a police officer regarding descriptions from police reports which the officer did not prepare.

On December 27, 1982, a man identified as appellant entered a Jack-in-the-Box restaurant at 1807 Gravois in the City of St. Louis and ordered tacos and french fries. He then turned from the counter where he had placed his order and confronted a couple, who were standing in line beyond him, with a handgun. He demanded that the woman, who was wearing a security guard’s uniform with a gun in a holster, deliver her weapon to him, with which demand she complied. He then turned back to the counter and ordered the cashier to give him money. The cash register jammed shut, however, and he fled with no money. The first degree robbery charge was based upon the forcible stealing of the security guard’s weapon. The attempted theft of cash from the restaurant supports the attempted first degree robbery charge.

Appellant’s first contention is that the trial court erred in allowing evidence regarding his alleged participation in a robbery of another Jack-in-the-Box restaurant on January 4, 1983. In the early morning hours of that date a man approached the front door of a Jack-in-the-Box restaurant at 5600 South Grand Avenue. An employee directed him to the drive through window as the doors were locked. The man went to the window and placed an order for tacos and fries. When handed his order, the man displayed a gun and demanded money. The employee gave him money from the cash drawer and the man then drove off. The employee identified appellant as the robber. Another employee obtained the license number of a robber’s car.

A police officer observed a car run a stop sign a few blocks from this restaurant and gave chase. During the pursuit, which covered several city streets, the officer was informed by radio that the car he was pursuing was the car involved in the robbery. The pursuit ended with the apprehension of appellant, the driver and sole occupant of the car. Later that morning, a pistol was found on the pavement of one of the streets over which the pursuit had taken place. This pistol, as well as hush puppy type shoes worn by the appellant when apprehended, were identified as the pistol and shoes used and worn by the perpetrator of the first Jack-in-the-Box robbery on December 27, 1982.

The general rule is that evidence of crimes committed by the accused other than the crime charged is inadmissible; however, evidence of other crimes is admissible to show motive, intent, absence of mistake or accident, common scheme or plan, or identity of the accused. State v. Malady, 669 S.W.2d 52, 56 (Mo.App.1984). The evidence in this case of the subsequent robbery was properly admitted as being within the common scheme or plan and identity exceptions. The phrase “common scheme or plan” as used within this rule is not limited to multiple crimes which form a part of the same transaction or series of transactions or which have a common or related purpose. Cf. State v. McCrary, 621 S.W.2d 266 (Mo.banc 1981); State v. Smith, 631 S.W.2d 353 (Mo.App.1982); State v. Knighton, 518 S.W.2d 674 (Mo. App.1975). It is also applied to distinct crimes committed in such a similar fashion as to lead to an inference that both were perpetrated by the same individual. See e.g. State v. Young, 661 S.W.2d 637, 639-640 (Mo.App.1983) (identical methodology earmarking separate crimes as the handiwork of the accused); State v. White, 654 S.W.2d 288, 290 (Mo.App.1983) (common scheme or plan and identity, “the modus operandi was similar in both cases”); State v. Heffner, 641 S.W.2d 803, 808 (Mo.App. 1982) (common scheme or plan and identity though crimes were one and one half months apart); State v. Williams, 602 S.W.2d 209, 212 (Mo.App.1980) (common scheme or plan and identity though crimes were one half months apart, “the two transactions were committed in strikingly similar fashion”).

This case falls within the latter category. Both the December 27 and the January 4 robberies involved Jaek-in-the-Box restaurants in South St. Louis. Both involved a robber who, after placing an identical order for tacos and fries, displays a handgun and demands the money in the cash drawer. The modus operandi is so similar as to lead to an inference both robberies were committed by the same person. This plus the use of the same weapon in each robbery has a legitimate tendency toward earmarking both crimes as the handiwork of appellant. The evidence regarding the second robbery was necessary in order to prove appellant’s possession of the handgun used in the first. Where the investigation of one crime involves an inquiry into another crime the two may be so inseparably connected that proof of one necessarily involves proving the other. State v. Lue, 598 S.W.2d 133, 137 (Mo. banc 1980). Appellant’s first point is without merit.

Appellant’s second point is that the trial court erred in permitting a police officer to testify regarding the descriptions contained in the police reports of the two robberies. The officer had not prepared the reports himself and appellant argues his reading from these reports constituted hearsay upon hearsay. The evidence was adduced for the purpose of explaining why the individual arrested after the January 4 robbery was placed in a line-up and shown to the witnesses of the December 27 robbery. Testimony offered in explanation of conduct rather than as proof of the facts testified to is not inadmissible hearsay. State v. Brooks, 618 S.W.2d 22, 25 (Mo. banc 1981); State v. Calmese, 657 S.W.2d 662, 663 (Mo.App.1983). Moreover, the same evidence of the physical description of the perpetrator of the two robberies had previously been testified to by other witnesses without objection. Therefore, even if the testimony had been improperly admitted, reversal would not be warranted.

“Admission of improper evidence is usually harmless if the fact sought to be shown is properly proved by other evidence.” State v. Mullen, 645 S.W.2d 3, 5 (Mo.App.1982).

Judgment affirmed.

PUDLOWSKI, P.J., and KAROHL, J., concur.


author: PUDLOWSKI, Presiding Judge.

text:
    Randall D. ARMBRUSTER, Petitioner-Appellant, v. STATE of Missouri, Respondent.
    No. 48758.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 15, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 28, 1985.
    Application to Transfer Denied April 2, 1985.

      Gary L. Robbins, Public Defender, Jackson, for petitioner-appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Gary Stevenson, Pros. Atty., Farm-ington, for respondent.
   PUDLOWSKI, Presiding Judge.

This is an appeal from a final order overruling and denying appellant’s 27.26 Motion without conducting an evidentiary hearing. We affirm.

Appellant, Randall D. Armbruster, was convicted of capital murder and was sentenced to serve a term of life imprisonment with no eligibility for parole for a minimum of fifty years. His conviction and sentence was affirmed by our Supreme Court. State v. Armbruster, 641 S.W.2d 763 (Mo. 1982). Thereupon, appellant filed a 27.26 motion pro se. On September 19, 1983, the Public Defender Office entered its appearance and filed an amended 27.26 motion.

On January 27, 1984, appellant’s counsel appeared before the circuit court on the state’s motion to dismiss appellant’s 27.26 motion. Appellant requested an evidentia-ry hearing which was denied.

Appellant alleges the trial court abused its discretion in refusing to grant an evi-dentiary hearing on his motion because the issues of fact raised by appellant were sufficient to entitle him to a hearing as a matter of law. Specifically, appellant alleged he was denied effective assistance of counsel in that counsel failed to properly investigate and interview potential witnesses and failed to review taped and transcribed confessions made by appellant. Appellant also argues that the trial court did not maintain a posture of absolute impartiality before the jury.

An evidentiary hearing is required if: (1) the motion alleges facts, not conclusions, warranting relief; (2) which are not refuted by the files and records; and (3) the matter complained of resulted in prejudice to the movant. Hammond v. State, 661 S.W.2d 850 (Mo.App.1983). Appellant, in support of his appeal, argues that counsel failed to properly investigate Jim Frazier, a witness for the defense. However, in appellant’s amended 27.26 motion, he alleged “counsel failed to properly investigate movant’s case so that he would be prepared to cross-examine the state’s witnesses without being surprised by their testimony.” (Emphasis added). The issue of whether appellant’s counsel failed to properly investigate a witness for the defense was not before the trial court. A trial court cannot be found to have committed error on issues not before the bench. Johnson v. State, 615 S.W.2d 502, 506 (Mo. App.1981).

Further, in considering appellant’s argument that counsel failed to properly investigate a defense witness, we find no error was committed. Appellant’s counsel and his investigator both talked to Frazier before the trial. Representation will not be labeled ineffective because unknown to counsel a witness decides to change his testimony on the stand. Boyet v. State, 671 S.W.2d 417, 418 (Mo.App.1984). The trial court did not err in denying appellant an evidentiary hearing on this issue.

In regard to appellant’s allegations that his attorney was ineffective for failing to carefully review a taped confession with its transcription, the trial court, in its findings of fact and conclusions of law, stated the issue of the transcripts was considered on appellant’s direct appeal. Our Supreme Court, in appellant’s direct appeal, held the transcript was accurate. State v. Armbruster, 641 S.W.2d at 767. A 27.26 motion may not be used as a substitute for a second appeal on the same issue. Pollard v. State, 628 S.W.2d 430 (Mo.App.1982); Rule 27.26(b)(3).

Lastly, appellant alleges he was denied a fair and impartial trial. The law is clear that a trial court must maintain a position of absolute impartiality, must avoid any conduct which might be construed as indicating a belief on the part of the judge as to the guilt of the defendant and must not demonstrate hostility toward the defendant. State v. Davis, 653 S.W.2d 167, 177 (Mo. banc 1983).

Appellate review of findings of fact and conclusions of law is limited to the determination of whether such findings, conclusions and judgment of the trial court, as appear in the record, are clearly erroneous. Jenkins v. State, 637 S.W.2d 808, 809 (Mo.App.1982). Generally, for these findings and conclusions to be clearly erroneous, the appellate court must be left with the definite and firm conviction that a mistake was made after reviewing the entire record. Cherry v. State, 625 S.W.2d 681, 682 (Mo.App.1981).

The trial court in the case at bar denied appellant’s motion without an evi-dentiary hearing. The rationale stated by the court was that the only facts presented on the issue of the court’s alleged partiality were contained in letters submitted by various individuals, several of whom disclaim actual presence in the courtroom at the time of trial. The other letters refer to personal opinions as to the rulings made by the court. The trial court found only bare contentions of court prejudice and no facts evincing actual prejudice. Bare contentions of court prejudice do not require an evidentiary hearing. Starr v. State, 564 S.W.2d 335, 336 (Mo.App.1978). Additionally, any incorrect rulings by the court would be mere trial error unreviewable under a Rule 27.26 motion. Johnson v. State, 615 S.W.2d 502, 506 (Mo.App. 1981).

Judgment affirmed.

GAERTNER and KAROHL, JJ., concur.


text:
    Darrell Gene SHOPBELL, Appellant, v. STATE of Missouri, Respondent.
    No. WD 35628.
    Missouri Court of Appeals, Western District.
    Jan. 22, 1985.

      Michael Radosevich, Columbia, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before KENNEDY, P.J., and DIXON and CLARK, JJ.
   PER CURIAM.

Darrell Shopbell appeals from denial after evidentiary hearing of his Rule 27.26 motion to vacate. He was convicted by a jury of murder in the second degree, § 565.004, RSMo 1978. The court set his punishment at 50 years of confinement. He waived his right to move for a new trial or to appeal his conviction. On appeal from denial of his motion to vacate, he argues that he was denied effective assistance of counsel because his trial counsel incorrectly advised him concerning his right to appeal, and that he did not knowingly waive the right to move for a new trial and to appeal.

We find the circuit court did not err in concluding that movant was not denied due process or denied effective assistance of counsel, and accordingly affirm.

Shopbell was charged by indictment with murder in the first degree, § 565.003, RSMo 1978, and murder in the second degree, § 565.004, RSMo 1978, in the death of Leslie Meeks. Meeks was beaten to death with a large flashlight by a single assailant during an attempted robbery.

The jury found Shopbell guilty of murder in the second degree. On the day the jury returned its verdict, movant had a brief conference in the courtroom with his trial counsel. His father, mother and sister were present. The parties to this conference testified at the Rule 27.26 hearing concerning the conversation that took place. Counsel said he had expressed the opinion that if movant successfully appealed the conviction he could be retried on the first-degree murder charge and possibly receive a longer sentence. Shopbell testified that counsel said he would “definitely” be given a longer sentence if they appealed. Shopbell’s father and sister also testified that the attorney said Shopbell would receive a longer sentence if they appealed. Movant’s sister admitted, however, that she did not know whether the statements by counsel had any effect on his decision to waive the appeal.

Movant’s trial counsel made several subsequent efforts to inform him about his rights and to encourage him to appeal. Ten days after the trial he visited the Buchanan County jail to speak with him. He had heard that Shopbell had undergone a religious conversion and did not wish to appeal his conviction. While at the jail, counsel explained to Shopbell the consequences of the decision not to appeal, and asked him to call before the end of the time period for filing the motion. Movant indicated that he wished to speak with his family before making the final decision. When the end of the time period approached, movant had not notified counsel of his decision. Counsel set a hearing before the trial court. His investigator visited the jail and obtained movant’s signature on a written waiver of appeal form. At the hearing, the court found Shopbell had voluntarily, in open court, orally and in writing, waived his right to move for a new trial. His attorney testified at the Rule 27.26 evidentiary hearing that he scheduled the sentencing hearing because he wanted to make a complete record of Shopbell’s waiver before the time to file the motion for new trial ran out. The court sentenced Shopbell to a 50-year term of confinement.

On appeal movant raises as his only point that he was denied effective assistance of counsel because his appointed trial counsel failed to correctly advise him concerning his right to move for a new trial and to appeal. His attorney warned him that if he appealed his conviction, he might be tried on the first-degree murder charge again and receive a longer sentence. Movant argues that this warning constituted a “threat” that prevented him from appealing and consequently denied him the right to a fair trial. We disagree.

The right to effective assistance of counsel in a criminal trial is a fundamental aspect of the right to a fair trial. Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984). The period between the verdict and the expiration of the time allowed in which to file an appeal is a critical stage of the criminal proceedings and the right to counsel is in effect during that period. State v. Frey, 441 S.W.2d 11, 15 (Mo.1969). The criminal defendant has the right to be represented, during the period before an appeal must be filed, in a competent and effective manner. The failure to take the simple steps required to file a notice of appeal in a timely manner when instructed to do so by the client, for instance, would represent such extraordinary inattention to the client’s interests that it would constitute ineffective assistance of counsel. State v. Frey, 441 S.W.2d at 15.

The advice given to movant by his trial attorney concerning the appeal in this case was incorrect. The jury in the first trial was instructed on both the first-degree and second-degree murder charges. When the jury convicted movant of second-degree murder, they impliedly acquitted him of first-degree murder. Price v. Georgia, 398 U.S. 323, 330, 90 S.Ct. 1757, 1761, 26 L.Ed.2d 300 (1970); Ray v. State, 532 S.W.2d 478, 482 (Mo.App.1975). Retrial on the first-degree murder charge after a successful appeal was barred by the double-jeopardy clause of the United States Constitution. Green v. United States, 355 U.S. 184, 194, 78 S.Ct. 221, 227, 2 L.Ed.2d 199 (1957); Ray, 532 S.W.2d at 482. After appeal the prosecution would have been limited to retrial on the lesser offense, second-degree murder, which the jury convicted Shopbell of in the first trial. Price v. Georgia, 398 U.S. at 328, 90 S.Ct. at 1760; Green v. United States, 355 U.S. at 191, 78 S.Ct. at 225.

The trial court could very well believe from this evidence that the public defender’s mistaken advice that Shopbell would be exposed to a first-degree murder prosecution upon a second trial did not enter into Shopbell’s decision to waive his appeal. Shopbell and his father and sister all testified that it was the prospect of a longer sentence that was the determining factor in his decision not to appeal. It was Shopbell’s own testimony that the public defender had told him that “if I appeal my case I would definitely get more time”. His father testified that the public defender had said, “If we appeal this case, he would probably end up getting more time”. He testified: “He made a comment he has heard of cases like this that have got more time.” None of the three witnesses said anything about first-degree murder as opposed to second-degree murder. It was only the prospect of a longer sentence which prevented Shopbell from appealing, according to their testimony; he was willing, apparently, to trade his chances for a shorter sentence for the certainty of not getting a longer one.

According to the statutes in effect at that time, the maximum sentences were the same for second-degree murder and first-degree murder, namely, life imprisonment, § 565.008, subd. 2, RSMo 1978 — although one might say that there could be a longer term for second-degree murder, in that the jury could assess a term of years far in excess of the human life span, see State v. Stephens, 507 S.W.2d 18 (Mo. banc 1974), whereas the only sentence for first-degree murder was life imprisonment. The advice that Shopbell could get a longer sentence than the 50 years was correct advice.

The testimony about the erroneous advice about the first-degree murder exposure came from the public defender himself, who denied that he had told Shopbell that he would “probably” get more time on a second trial. He testified that he had told Shopbell:

It was my opinion of the law, if we went to trial again, it would be a whole new trial not only for him, but for the State, and that he possibly could be found guilty of murder in the first degree on the second trial or murder in the second degree on the second, and he possibly could be given a sentence of longer than fifty years.

The public defender testified to other conferences with Shopbell in which he explained to him the consequences of not filing a motion for a new trial, and in which he had urged Shopbell to appeal. Shopbell advised him, though, that he did not wish to appeal. The public defender was asked: “Did he give you any reason for not wishing to proceed with a motion for a new trial?” The public defender answered: “He advised me at that time that he had had a religious experience and had become a religious person and that he felt he should pay for what he had done.”

The case of Ray v. State, 532 S.W.2d 478, 482 (Mo.App.1975), is different in several respects. There was evidence in that case that the prospect of being tried for first-degree murder was indeed a dominant factor in defendant’s decision to waive his appeal; defendant himself so testified. He had received the maximum sentence for manslaughter — ten years imprisonment— and really had nothing to lose and everything to gain by an appeal and a new trial and nothing to lose thereby. It was inevitable that a belief by a defendant in such a case that he would be subject to a first-degree murder prosecution with the possibility of life imprisonment would cause him to accept the ten years voluntary manslaughter conviction without appeal.

In our case, however, there is no evidence from any source that any erroneous belief of Shopbell about his exposure to first-degree murder prosecution played any part in his decision to waive his appeal. Any holding that it was a significant factor in his decision to waive his appeal would be based upon no evidence at all. As to the variance between defendant’s testimony that the public defender had told him he would certainly get more time on a second trial — which was really his trial court position — and the public defender’s testimony that he had told him that more time was possible, it was the trial court’s place to assess credibility. We are unable to say that the trial court’s finding of a valid and binding waiver by Shopbell of his right of appeal was erroneous.

In order to entitle defendant to relief from his waiver of appeal on the ground of the mistaken advice with respect to his exposure to the first-degree murder charge on retrial, it is incumbent upon the defendant to show that the mistaken advice influenced his decision to waive — that the decision to waive appeal would probably not have been made had he been correctly informed on that point. See Trimble v. State, 588 S.W.2d 168, 170 (Mo.App.1979); Richardson v. State, 632 S.W.2d 13, 15 (Mo.App.1982). This the defendant wholly failed to show.

Judgment affirmed.


author: PREWITT, Chief Judge.

text:
    Ted MAPLES and Virginia Maples, Plaintiffs-Appellants, v. UNITED SAVINGS AND LOAN ASSOCIATION, Defendant-Respondent.
    No. 13502.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 30, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 21, 1985.
    Application to Transfer Denied April 2, 1985.

      Jerry Mee, Springfield, for plaintiffs-appellants.
    Jack L. Miller, Lebanon, Michael J. Patton, Turner, Reid, Duncan, Loomer & Patton, P.C., Springfield, for defendant-respondent.
   PREWITT, Chief Judge.

Plaintiffs sought actual and punitive damages, contending that defendant had converted personal property belonging to them. A jury found for defendant and judgment was entered accordingly. Plaintiffs appeal, contending instructional error.

The case came to us on an abbreviated record. The facts agreed to by the parties state:

Respondent foreclosed on Appellants home March 26, 1981. Respondent’s Vice President notified Appellants of the foreclosure in the first part of April, 1981, and asked for Appellants keys to the home which Appellants supplied. Removal of Appellants personal property by Appellants was discussed at that time. Appellants denied any mention of a time limit on the moving of their personal property from the home. Respondent’s Vice President testified that he recalled discussing a time interval of two weeks ■for the removal. Appellants retained keys to the house to get into it to remove their property. Appellants denied any contact with Respondent after some of the keys to the house were given to Respondent’s agent in the first part of April. Appellants denied a time limit mentioned or agreed upon in personal conferences or letters.
Respondent’s Senior Vice President testified that he mailed Appellants a letter on May 15,1981, the pertinent part of which reads:
We are in the process of trying to sell this house now to protect our security and investment, but we find you still have your personal effects in the house. We feel you have been given sufficient time to have these removed and we now must advise that if these are not removed within 10 days (May 25, 1981) you leave us no other choice but to have our Attorney take whatever steps are necessary to have them removed.
Appellants denied receiving such a letter.
On May 17, 1981, Appellants took most of their personal property to another house, 7 miles or so away which they had rented. The rental home had little space for all of their property and had no enclosed garage. Appellants claimed that they had to leave some of their personal property in the enclosed garage of the house which had been foreclosed. Appellants claimed to have gone to the foreclosed property frequently because of their concern that their property left in the garage could be taken from the garage by burglars. There was no For Sale sign in the yard and no posted advice to Appellants to move their personal property. On or about June 26, 1981, Respondent employed Mark Hall (who was a party defendant against which Appellants claim was dismissed before submission of the case to the jury) to clean the garage of all the property that is the subject of this suit. Mark Hall testified that he moved property out of the garage at the request of Respondent. Hall testified that he did not see all of the items Appellants claimed removed, but that he did carry away three pick-up loads of property to the dump while keeping some items for his own use.
Appellants went to the foreclosed home on June 28, 1981, and determined that their property had been taken from the garage. Appellants called the Sheriff’s office first, and then on the 29th of June, were in contact with Respondent’s agent about the removal of their property. Mark Hall returned the items he had retained to Appellants on August 15, 1981.

In their point on appeal appellants contend that the trial court erred in giving the following instruction:

“Your verdict must be for defendant if you believe either:
First, plaintiffs abandoned the personal property referred to in evidence, or
Second, the conduct of plaintiffs implied their permission for defendant to take the property referred to in evidence.”

Appellants contend that the portion starting with “Second” is erroneous because it did not require a finding that plaintiffs had knowledge that their property was subject to being removed and discarded by respondent. Appellants’ brief cites only Kegan v. Park Bank, 320 Mo. 623, 8 S.W.2d 858 (1927), modified on rehearing 320 Mo. 623 at 654, 15 S.W.2d 333 (1928). They refer us to the court’s discussion in 8 S.W.2d at 871, placed under headnotes 16 and 17.

We do not believe it aids appellants. The removal there would not have been anticipated and consent to it could not reasonably have been implied without knowledge that it might occur. A bank taking over one’s property, earlier improperly taken from the owner’s box in the bank, would not be contemplated without the owner’s knowledge and consent. Here, appellants would know that if they did not remove their personal property from the house, respondent would likely move it or dispose of it in some manner.

Conversion is the unauthorized assumption of the right of ownership over the personal property of another to the exclusion of the owner’s rights. Kegan, supra, 8 S.W.2d at 871; Houston v. Columbia Fed. Sav. & Loan Ass’n, 569 S.W.2d 211, 214 (Mo.App.1978); Dewey v. American Stair Glide Corp., 557 S.W.2d 643, 649 (Mo.App.1977); Wirth v. Heavey, 508 S.W.2d 263, 267 (Mo.App.1974). See also Annot., Duty and liability of one in possession of real property in respect of personal property which he finds thereon belonging to another. 131 A.L.R. 165 (1941).

Obviously, if the owner consents, there is no unauthorized taking. That consent can either be express or implied. Graves v. Stewart, 642 S.W.2d 649, 650-651 (Mo. banc 1982); Kegan, supra, 8 S.W.2d at 871; Wirth, supra, 508 S.W.2d at 267; 18 Am.Jur.2d, Conversion, § 72, p. 202; 89 C.J.S. Trover & Conversion, § 5, p. 535.

“Implied” means necessary deduction from the circumstances, general language or conduct of the parties. Farm Bureau Mut. Ins. Co. v. Dryden, 492 S.W.2d 392, 394 (Mo.App.1973). “Implied consent” is that manifested by signs, actions or facts, or by inaction or silence which creates an inference that consent has been given. State v. Stanfield, 1 S.W.2d 834, 836 (Mo. 1927).

If appellants’ conduct implied permission for respondent to take their property, it does not matter what appellants’ actual knowledge may have been. This is similar to apparent mutual assent required to have a contract. That assent is not determined by the state of mind, but by the conduct of the parties and the language employed by them, judged by a reasonable standard. Roper v. Clanton, 258 S.W.2d 283, 289 (Mo.App.1953); Longmire v. Diagraph-Bradley Stencil Mach. Corp., 176 S.W.2d 635, 646 (Mo.App.1944); 17 Am. Jur., Contracts, § 19, p. 355.

If respondent believed and it reasonably appeared to respondent that appellants were assenting to the taking of their property, then respondent was not guilty of conversion. Whether that occurred or if there was evidence to support the instruction is not before us.

It seems obvious that appellants would know that respondent might dispose of the items. Such knowledge could bear on whether their consent was implied, but it is not what knowledge appellants had, but what was indicated by their conduct that controls. We hold that under these facts the instruction was not erroneous in the particular claimed.

The judgment is affirmed.

HOGAN, P.J., and MAUS, J., concur.

CROW, J., recused.