text:
    ARO SYSTEMS, INC., d/b/a ARO Liquors, Plaintiff-Appellant, v. SUPERVISOR OF LIQUOR CONTROL, Defendant-Respondent.
    No. 48251.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 4, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 9, 1985.

    Application to Transfer Denied Feb. 26, 1985.

      John Warshawsky, St. Louis, for plaintiff-appellant.
    John Ashcroft, Atty. Gen., Charles E. Smarr, Asst. Atty. Gen., Jefferson City, for defendant-respondent.
   GAERTNER, Judge.

ARO Systems, Inc. d/b/a ARO Liquors, appeals from a trial court order affirming the decision of the Administrative Hearing Commission sustaining a two day liquor license suspension imposed by the Supervisor of Liquor Control.

The facts are not in dispute. On May 25, 1981, an employee of ARO Liquors sold a six-pack and a twelve-pack of Busch beer to a 19 year old minor without asking for identification. The sale was reported by an off-duty police officer. On August 28, 1981, the Supervisor of Liquor Control imposed a two day suspension of plaintiff’s liquor license because of this violation of § 311.310, RSMo.1978.

ARO appealed this order to the Administrative Hearing Commission pursuant to § 311.691, RSMo.1978, raising issues concerning the severity of the penalty. The supervisor’s order wa’s stayed and a full evidentiary hearing was held on September 3, 1982. On June 15, 1983, the Commission entered its “Statement of the Case, Findings of Fact, Conclusions of Law and Decision.” ARO conceded the violation had occurred, but contended only that the two day suspension was too harsh. The Commission noted that under § 161.272, RSMo. 1978, it is authorized to conduct hearings and to make findings of fact and conclusions of law regarding the suspension or revocation of a license. However, the Commission held it was without authority to either decide against the Supervisor on the ground the suspension was too harsh or to reduce the sanction, and therefore ordered the suspension be reinstated.

On June 27, 1983, the Supervisor, without any hearing, issued an amended order reimposing the two day suspension. ARO appealed to the Circuit Court of St. Charles County. That court, on December 29,1983, issued its judgment affirming the Administrative Hearing Commission’s decision. ARO appeals.

Resolution of the issues raised by ARO requires us to review the history of the relevant statutes and procedures applicable to liquor license violation cases. Prior to 1978, the initiation of a proceeding to suspend or revoke a liquor license was by written notice from the Supervisor to the licensee stating the charges and the time and place of a hearing. § 311.690, repealed L.1978 p. 441. After the hearing, notice of the decision and the penalty imposed was sent to the licensee who had 15 days to file an application for review by the circuit court. § 311.700, repealed L.1978 p. 441. In 1978 the legislature repealed these statutes and enacted § 311.691, RSMo. 1978, which provides as follows:

Any person aggrieved by official action of the supervisor of liquor control affecting the licensed status of a person subject to the jurisdiction of the supervisor of liquor control, including the refusal to grant, the grant, the revocation, the suspension, or the failure to renew a license, may seek a determination thereon by the administrative hearing commission pursuant to the provisions of section 161.-272, RSMo., and it shall not be a condition to such determination that the person aggrieved seek a reconsideration, a rehearing, or exhaust any other procedure within the office of the supervisor of liquor control.

By this action the legislature eliminated the hearing before the Supervisor. This action was commenced by the Supervisor by giving notice to ARO of the violation charged and the penalty imposed. No pre-determi-nation hearing was held. The only hearing was that held by the Administrative Hearing Commission. The Commission answered ARO’s contention that suspension was unduly severe by ruling that it “has no authority either to decide against [the Supervisor] on the ground that the suspension imposed was too harsh or to reduce the sanction imposed ...,” and reinstated the two day suspension. Accordingly, ARO, which admitted the violation and seeks only to be heard with regard to mitigating circumstances, has never been afforded a meaningful opportunity to be heard on the only issue in dispute. ARO argues that the absence of any such hearing relating to the penalty causes the two day suspension to be arbitrary and capricious. It contends that the procedure set forth in § 161.292, RSMo.1978, should have been followed. That section of the Administrative Hearing Act provides that the Commission may, after hearing, make a recommendation to the agency involved regarding appropriate punishment. The agency is not bound by the recommendation but must set a date for a hearing on the issue of appropriate disciplinary action with notice thereof to the licensee.

The Supervisor argues that § 161.292 has no application to liquor license violations because that section is not mentioned in § 311.691. Noting that different procedures are utilized by the 18 agencies whose actions are within the purview of the Administrative Hearing Commission, the Supervisor argues that the absence of any reference to § 161.292 in § 311.691 is conclusive of the legislative intent that the second hearing procedure relating to punishment was not intended by the legislature to be required in such cases. In effect, the Supervisor argues that since he has already determined the appropriate discipline it would be a useless waste of time and effort to conduct a hearing on that subject after his determination of the violation has been upheld.

Where an Administrative decision is based upon interpretation and application of the law, rather than simply a finding of fact, the Administrative conclusions of law and the decision based thereon are matters for the independent judgment of the reviewing court, and for correction where erroneous. Mo. Const. Art. V, § 18; Section 536.140, RSMo.1978; State Board of Reg. for Healing Arts v. Masters, 512 S.W.2d 150, 158 (Mo.App.1974). The decision by the Administrative Hearing Commission to reinstate the two day suspension ordered by the Supervisor without a hearing is obviously based upon its legal conclusion that the procedure set forth in § 161.-292 has no application to liquor license violation proceedings.

The scope of judicial review of decisions of the Administrative Hearing Commission is governed by § 536.140, RSMo.1978. § 161.332, RSMo.1978. Seven areas of inquiry toward which this judicial review should be directed are set forth in § 536.-140.2.

2. The inquiry may extend to a determination of whether the action of the agency
(1) Is in violation of constitutional provisions;
(2) Is in excess of the statutory authority or jurisdiction of the agency;
(3) Is unsupported by competent and substantial evidence upon the whole record;
(4) Is, for any other reason, unauthorized by law;
(5) Is made upon unlawful procedure or without a fair trial;
(6) Is arbitrary, capricious or unreasonable;
(7) Involves an abuse of discretion.

We find the procedure followed by the Administrative Hearing Commission in this case to be in violation of subsections 1, 2, 3, 4, and 5 of § 536.140.2. Therefore, the trial court erred in ruling that § 161.-292 was inapplicable and that the Commission “only has the authority to affirm the ^Supervisor’s] orders upon a showing that ... the violation charged did occur,” without remand to the Supervisor for a hearing on appropriate discipline.

It is fundamental that constitutional guarantees apply to any state action which affects a property interest represented by a validly issued license. See Mueller v. Ruddy, 617 S.W.2d 466, 475 (Mo.App.1981). Among these is procedural due process which requires, among other rights, a meaningful opportunity to be heard, to confront and cross-examine adverse witnesses and to present evidence rebutting their testimony. Id. Any charge of violation of liquor laws by the Supervisor is comprised of two components — the facts constituting the violation and the appropriate discipline to be imposed if these facts are found to be true. The licensee is entitled to procedural due process with regard to each component. Here, the procedure adopted by the Administrative Hearing Commission effectively denied ARO any opportunity to be heard regarding the issue of appropriate discipline and was therefore in violation of the 14th Amendment of the United States Constitution and of Art. I, § 10 of the Missouri Constitution.

The dispute between the parties regarding the interpretation of § 311.691 revolves about a determination of legislative intent. The Supervisor urges us to hold that because the legislature mentioned only § 161.272 in bringing liquor license matters under the purview of the Administrative Hearing Commission, it must have intended to exclude the procedure for post-violation hearings relating to punishment as set forth in § 161.292. ARO argues that the language of § 311.691 was intended to invoke the totality of the applicable procedures outlined in the Administrative Hearing Act.

The primary rule of statutory construction is to ascertain and give effect to legislative intent. City of Kirkwood v. Allen, 399 S.W.2d 30, 36 (Mo.banc 1966). One guideline in accomplishing this purpose is found in the presumption that the legislature is familiar with constitutional requirements so that “when the words used permit a reasonable construction consistent with the obvious legislative intent and within constitutional limitations, a construction leading to invalidity should be avoided.” Id. We look to the purpose of the statute, St. Louis Southwestern Railway Co. v. Loeb, 818 S.W.2d 246, 252 (Mo. banc 1958), and seek a construction, where the language permits, which tends to avoid unjust, absurd, unreasonable, confiscatory or oppressive results. Laclede Gas Co. v. City of St. Louis, 363 Mo. 842, 253 S.W.2d 832, 835 (banc 1953).

The effect of the Supervisor’s interpretation of § 311.691, as applied in this case, would eliminate any hearing whatsoever as to the appropriate penalty for a violation on the part of a licensee of the liquor laws and thereby constitutes a denial of due process. On the other hand, if we assume, as we should, the legislature did not intend to create a constitutionally impermissible procedure, the interpretation of § 311.691 urged by ARO, that the mention of § 161.272 was intended by the legislature to authorize hearings by the Administrative Hearing Commission but only, by implication, under the procedures outlined in other sections in the Administrative Hearing Act, we avoid the constitutional problem as well as an unjust, confiscatory and oppressive result. The object and purpose of the legislature in enacting § 311.-691 was to transfer from the Supervisor to the Administrative Hearing Commission the constitutionally required hearing in cases involving liquor licenses, so that such hearings would be conducted in similar fashion to those involving licenses issued by the other 17 agencies listed in the statute. To say that the legislature intended to single out liquor licenses for different procedural treatment, especially where the difference leads to a denial of due process, would be contrary to all accepted rules and guidelines of statutory construction. Accordingly, the trial court erred in affirming the reinstatement of the two day suspension ordered by the Supervisor without a hearing. The issue of appropriate discipline should have been referred back to the Supervisor for a hearing upon that issue, with or without a recommendation by the Commission, pursuant to § 161.292.

We need not elucidate reasons for concluding that the imposition of a penalty without any hearing upon that issue is an action unsupported by evidence, unauthorized by law, made upon unlawful procedures and without a fair trial.

Accordingly, the judgment of the trial court is reversed and the cause remanded to the trial court with directions. to order the Supervisor to conduct a hearing regarding appropriate discipline pursuant to the procedures set forth in § 161.292, RSMo. 1978.

PUDLOWSKI and KAROHL, JJ., concur.


source: Caselaw Access Project

author: CRANDALL, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Willie Earl CHILDS, Appellant.
    No. 48555.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 4, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 9, 1985.

      William J. Shaw, Public Defender, Clayton, for appellant.
    John Ashcroft, Atty. Gen., John Munson Morris, Asst. Atty. Gen., St. Louis, for respondent.
   CRANDALL, Judge.

Defendant Willie Earl Childs was convicted after a jury trial of two counts of kidnapping, three counts of forcible rape, and one count of sodomy. He was sentenced as a persistent offender to concurrent ten-year prison sentences on the kidnapping counts, a consecutive five-year term for the sodomy count, and three consecutive five-year terms for the three rape counts for a total of thirty years’ imprisonment. On appeal, defendant alleges that the three rape convictions relate to a single offense of rape, thus subjecting him to double jeopardy in violation of the Missouri Constitution and U.S. Constitution. Mo. Const. Art. 1, § 19; U.S. Const. Amend. V.

Defendant has not properly preserved his allegation of error for appellate review because it is not included in his motion for new trial. We therefore review his point under plain error. Rule 30.20. “No precise method exists for determining plain error but it can be said that plain error includes prejudicial error which so substantially affects the rights of the accused that a ‘manifest injustice or miscarriage of justice inexorably results if left uncorrected.’ ” State v. Valentine, 646 S.W.2d 729, 731 (Mo.1983). Finding no error, plain or otherwise, we affirm.

Defendant’s double jeopardy contention is, in effect, a challenge to the sufficiency of the evidence to support separate convictions of rape. State v. Henderson, 669 S.W.2d 573, 575 (Mo.App.1984). In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict, accepting the State’s evidence as true and disregarding all adverse evidence and inferences. State v. Jones, 672 S.W.2d 707, 708 (Mo.App.1984).

Defendant lived with a woman and her three children in a house in Meacham Park in St. Louis County, Missouri. The defendant and the woman were not married. Defendant came home at about 4 a.m. on September 9, 1983, and tore the telephone off a kitchen wall saying he was in trouble and he was “tired of all this.” He began attacking the woman using a telephone cord and his hands. He also began attacking the woman’s teenage daughter.

Defendant’s violent behavior continued into the daughter’s bedroom where he took another phone out of the wall and tore up furniture. He then forced the daughter and her mother into the master bedroom and threatened to kill them. He tore up furniture in that room and barricaded the door with the broken furniture so they could not escape and continued attacking them, now using a leg he had torn off of a sewing machine cabinet to strike them.

Defendant then told both the daughter and her mother to undress. He abused them verbally, saying he would “make whores out of them,” he would put them on the “Stroll,” and said he would make the daughter have his baby.

At approximately 7 a.m. he began fondling the breasts of the daughter. He subsequently had intercourse with her three times, starting on top of her, then entering her from behind, then getting on top of her again. After these three attacks, he then committed sodomy on her. Since the rapes are the focus of the appeal, more detail regarding them is necessary.

The mother testified that the sexual assaults began after 7 a.m. She testified that the defendant fondled the daughter’s breasts, then got on top of the daughter and had sex with her. The mother did not state how long this act lasted, stating only it seemed like forever.

The mother stated that then the defendant got off the daughter. The daughter, who had been lying on her back during the first attack, turned on her side to see her mother, and subsequently the defendant “started having sex with her again from the back.” There was no mention by the mother of what period of time elapsed, if any, between the time the defendant got off the daughter and began the second rape.

The mother testified that at some point that attack stopped, and the defendant then “got back on her” and had sex with the daughter. Again, there was no mention of any time periods by the mother, other than that the sexual assaults began after 7 a.m. and the entire ordeal was over around noon.

The daughter testified that the defendant began “playing with my chest” and began “talking about that he was going to make me have his baby” around 7 a.m. She stated he then got on top of her and raped her. She testified that when he later got off of her, she turned on her side so she could see her mother, and the defendant “inserted his penis again” while lying behind her. She stated this second rape lasted about fifteen minutes. She then testified that the defendant turned her over on her back and got on top of her again and began a third rape. She stated this third attack lasted half an hour. The daughter did not state what amount of time, if any, elapsed between the rapes.

After these acts, the defendant laid his arms and legs across the two women hoping to prevent them from escaping as he began to fall asleep. The mother unsuccessfully tried to get out from underneath him once and was beaten again for trying to escape. She was successful on the second attempt and summoned the police. The ordeal ended around noon.

The defendant denied any sexual contact with the daughter. He testified that she and her mother had been physically attacking him, so he barricaded himself in the master bedroom to keep them out.

“In determining double jeopardy, Missouri follows the separate or several offense rule rather than the same transaction rule.” State v. Treadway, 558 S.W.2d 646, 651 (Mo. banc 1977), cert denied, 439 U.S. 838, 99 S.Ct. 124, 58 L.Ed.2d 135 (1978), meaning a defendant can be convicted of several offenses arising from the same set of facts without violation of double jeopardy. The determining factor as to whether several charges are identical is whether each offense necessitates proof of an essential fact or element not required by the other. State v. Chambers, 524 S.W.2d 826, 829 (Mo. banc 1975), cert. denied, 423 U.S. 1058, 96 S.Ct. 794, 46 L.Ed.2d 649 (1976).

Defendant claims the sexual acts alleged in the three rape counts were one continuing act, but “[generally rape is not a continuing offense, but each act of intercourse constitutes a distinct and separate offense.” State v. Dennis, 537 S.W.2d 652, 654 (Mo.App.1976). In State v. Brown, 547 S.W.2d 217, 219 (Mo.App.1977), the court stated:

The state cannot split a single crime and prosecute it in parts. However, several distinct offenses may be committed in the course of the same general transaction. The fact that two crimes occur at substantially the same time or that substantially the same evidence must be shown to prove both crimes does not require the state to present only one charge. (Citations omitted.)

In Vaughan v. State, 614 S.W.2d 718 (Mo.App.1981), the court listed several factors to consider in determining whether multiple assaults resulting in rape constitute multiple crimes. The factors include “time, place of commission ahd, preeminently, defendant’s intent, as evidenced by his conduct and utterances.” Id. at 722. The defendant in Vaughan was unsuccessful on his double jeopardy claim. The evidence showed two rapes occurred, separated by at least twenty-five minutes and an act of sodomy.

In Dennis, 537 S.W.2d 652, there was no evidence of the precise times involved. The court discussed the likelihood there was a time interval between two separate rapes because they occurred in different counties, but then stated: “But even more germane to the question than the time interval is the fact the defendant formed the intent to again assault the victim_” Id. at 654.

In State v. Davis, 624 S.W.2d 72 (Mo.App.1981), the defendant claimed double jeopardy where various acts of sodomy were committed on the same victim at the same place. The sexual acts differed factually in the method of performance. The court, citing Dennis and Vaughan, concluded that differing acts of sodomy which involve different aspects of the human anatomy and which were separated by a period of time in which the defendant performed natural intercourse, were of sufficient individual identity to warrant conviction on two counts of sodomy.

In the present case we have no specific evidence of time intervals between the three rapes, although it might be inferred there was a lapse of time between them since the sexual assaults began at 7 a.m. and the victims escaped the room around noon. However, the most significant factor is the “defendant’s intent, evidenced by his conduct and utterances.” Vaughan, 614 S.W.2d at 722.

Here, after three hours of physical violence, the defendant held the daughter and her mother captive in one room for five more hours, after telling them to disrobe. He made statements about making whores out of them and about forcing the daughter to have his baby. He got on top of her, raped her once. He raped her again in a different position. He then climbed on top of her and raped her a third time. Finally he committed an act of sodomy on her.

Defendant argues that there was no evidence of multiple ejaculations and makes the allegation the appellant acted upon a single intent — to engage in intercourse until orgasm.

Ejaculation is not a necessary element of the crime of rape. State v. Boyd, 643 S.W.2d 825, 828 (Mo.App.1982). Clearly defendant’s overall intent was one of humiliation and violence to both the daughter and her mother. He accomplished his intent, in part, by separate and distinct acts of sexual depravity on the daughter in the presence of her mother over a period of several hours.

“Repeated acts of forcible sexual intercourse are not to be construed as a roll of thunder, — an echo of a single sound rebounding until attenuated. One should not be allowed to take advantage of the fact he has already committed one sexual assault on the victim and thereby be permitted to commit further assaults on the same person with no risk of further punishment for each assault committed. Each act is a further denigration of the victim’s integrity and further danger to the victim.”

Vaughan, 614 S.W.2d at 722-723, citing Harrell v. State, 88 Wis.2d 546, 277 N.W.2d 462, 469 (Ct.App.1979). “Certainly it cannot be held that a man who has raped a woman once may again assault and ravish her with impunity.” Dennis, 537 S.W.2d at 654.

The judgment is affirmed.

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


author: CRIST, Judge.

text:
    Jack D. & Theresa R. BAYLESS, et al., Appellants, v. William D. & Shirley A. GONZ, et al., Respondents.
    No. 48679.
    Missouri Court of Appeals, Eastern District, Southern Division.
    Dec. 4, 1984.
    Motion For Rehearing and/or Transfer to Supreme Court Denied Jan. 9, 1985.
    Application to Transfer Denied Feb. 26, 1985.
    Ronald E. Pedigo, Farmington, for appellants.
    Charles W. Medley, Farmington, for respondents.
   CRIST, Judge.

This is a quiet title action. The case was submitted on a stipulation of facts. The circuit court found in favor of respondents William D. and Shirley A. Gonz. We affirm.

William and Sara McDowell owned land from which a one hundred foot strip was acquired by condemnation for right-of-way by the St. Louis-Iron Mountain Railroad in an action filed in August of 1868 in St. Francois County. Damages in the sum of fifty dollars were awarded. Before the condemnation proceedings were confirmed, McDowells conveyed by deed to the railroad an additional twenty-five foot strip of land on each side of the original one hundred foot strip. That deed, dated August 14,1869, states that the McDowells “grant, bargain and sell, convey and confirm” to the railroad the two twenty-five foot tracts “for and in consideration of the location of a depot and five dollars.”

Sometime later, the Iron Mountain-St. Louis Railway conveyed all of its interest and assets to the Missouri Pacific Railway. In May of 1983, the Missouri Pacific Railway by Quit Claim Deed, conveyed whatever right, title, or interest it had in the one hundred fifty foot strip of land to respondents William and Shirley Gonz. Appellants Bayless contend they are abutting and contiguous landowners and successors in title to the McDowells in whom the original fee remains, as the railroad has ceased to use the land for railway purposes. At issue is whether the two twenty-five foot strips of land bordering the right-of-way were granted as an easement or conveyed to the railroad in fee simple. If the land was conveyed in fee, respondent Gonz acquired title. If the grant to the railroad was of an easement, the title remains with appellant adjacent owners.

A railroad may hold, purchase, or convey the fee in land when acquired by general warranty deed without restriction on the quantum of title conveyed and for valuable consideration. Coates & Hopkins Realty Co. v. Kansas City Terminal Ry. Co., 328 Mo. 1118, 43 S.W.2d 817, 822 (banc 1931). Quinn v. St. Louis-San Francisco Railway Co., 439 S.W.2d 533, 535 (Mo. banc 1969).

However, where the acquisition is for right-of-way only, whether by condemnation, voluntary grant or conveyance in fee upon a valuable consideration, the railroad takes only an easement over the land and not the fee. Brown v. Weare, 348 Mo. 135, 152 S.W.2d 649, 652 (1941); Schuermann Enterprises, Inc. v. St. Louis County, 436 S.W.2d 666, 668 (Mo.1969); G.M. Morris Boat Company, Inc. v. Bishop, 631 S.W.2d 84, 88 (Mo.App.1982).

We believe the acquisition of the twenty-five foot tracts bordering the condemned right-of-way in this case was by warranty deed for valuable consideration and that the conveyance passed the fee. The acquisition was not by condemnation or voluntary grant.

The deed from McDowells to the railroad grants, bargains and sells two twenty-five foot tracts to the railroad. The deed states, “to have and to hold the same together with all singular rights, immunities, privileges and appurtenances to the same.” This is the language of the fee simple warranty deed. Section 442.420, RSMo. 1978. Allaben v. Shelbourne, 357 Mo. 1205, 212 S.W.2d 719, 720 (1948).

The deed also states the grant was made for valuable consideration, namely: five dollars and the location of a depot. Either of these constitutes valuable consideration. Bagby v. Missouri-Kansas-Texas R. Co., 351 Mo. 79, 171 S.W.2d 673, 676 (banc 1943); Miller v. Atchison, Topeka and Santa Fe Railroad Co., 325 F.Supp. 604, 606-607 (E.D.Mo.1971); See also, Brown v. Weare, supra 152 S.W.2d at 653.

The McDowell deed was for valuable consideration. It did not limit the use of the property conveyed. It contained no rever-sionary clause. And it did not mention the term “right-of-way.” Therefore, the McDowell deed was (a) a general warranty deed, (b) without any restriction on the quantum of title conveyed, (c) issued for a valuable consideration, and (d) not for a right-of-way. We find conveyance to the railroad was in fee.

Judgment affirmed.

REINHARD, C.J., and DOWD and KA-ROHL, JJ., concur.


author: BRUCE NORMILE, Special Judge.

text:
    STATE of Missouri, Respondent, v. Michael POWELL, Appellant.
    No. 46854.
    Missouri Court of Appeals, Eastern District, Division Seven.
    Dec. 4, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 22, 1985.
    Application to Transfer Denied Feb. 26, 1985.

      Douglas L. Levine, Public Defender, Union, for appellant.

      John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   BRUCE NORMILE, Special Judge.

Defendant, Michael W. Powell, appeals from convictions and consecutive seven year sentences on counts of Burglary in the Second degree and Stealing over $150.00.

Appellant was tried jointly with a co-defendant, Mikel Leon Franks, charged with the same offenses. A co-defendant, Marcus Dale Branch, had previously pled guilty and had testified at the defendant’s preliminary hearing. At that time Branch fully implicated defendant in the commission of the crimes. However, when called by the State to testify at appellant’s trial, Branch refused to answer on the grounds of self incrimination. Thereafter the Prosecutor read into evidence portions of Branch’s testimony from the preliminary hearing transcript.

Appellant’s first point asserts error in the reading of the preliminary hearing transcript at trial.

The parties agree that an exception to the confrontation requirement of the Sixth Amendment exists where a witness is unavailable and has given testimony which was subject to cross examination at a previous judicial proceeding against the same defendant. Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); State v. Holt, 592 S.W.2d 759, 765-766 (Mo.Banc 1980). The witness is held to be “unavailable” by reason of asserting his privilege against self incrimination. California v. Green, 399 U.S. 149, 166, 90 S.Ct. 1930, 1939, 26 L.Ed.2d 489, 502 (1970); State v. Phillips, 511 S.W.2d 841, 847 (Mo.1974). State v. Ivicsics, 604 S.W.2d 773 (Mo.App.1980).

Although appellant recognizes these rules he further contends that Branch had waived his fifth amendment rights by previously pleading guilty; and thus Branch was not truly “unavailable” so that the transcript could be read at trial. However: “The privilege applies to the particular proceeding only. Consequently, the fact that the witness previously testified before a grand jury or some other hearing does not effect a waiver for trial at bar.” 8 Wigmore, Evidence Sec. 2276(1) (McNaughton Rev. 1961, Reiser, 1984 Supp. p. 95.) United States v. Trejo-Zambarno, 582 F.2d 460, 464 (9th Cir.1978), cert. denied, 439 U.S. 1005, 99 S.Ct. 618, 58 L.Ed.2d 682 (1978).

Appellant also asserts that Branch was “unavailable” to come within the confrontation exception because the trial court did not compel Branch to offer testimony to the point at least where one could reasonably assume that he might incriminate himself; and that the right to confrontation was thus denied.

In this respect the privilege against self incrimination extends not only to refusing to answer the question asked, but to refusing to explain how the answer might incriminate the witness. Appellant had a burden to rebut the presumption that the answer might tend to incriminate the witness; when in fact, he argued that the privilege should be allowed. He can not now complain in this respect. State ex rel. Lee v. Cavanaugh, 419 S.W.2d 929, 934 (Mo.App.1967).

Appellant finally contends that the exception to the confrontation clause does not apply in this case because he was not effectively represented by counsel at the preliminary hearing and was thus deprived of his right to confrontation and cross examination. Appellant essentially asserts that he was in effect without counsel at preliminary hearing because he was represented by the Assistant Public Defender of Cole County while co-defendant Branch was represented by the Public Defender of Cole County; and that this conflict of interest was so strong that he was without counsel. It may be noted that appellant was represented by other employed counsel subsequent to the preliminary hearing and at time of trial.

Requiring or permitting a single attorney to represent co-defendants is not per se violative of constitutional guarantees of effective assistantance of counsel. Holloway v. Arkansas, 435 U.S. 475, 476, 98 S.Ct. 1173, 1174, 55 L.Ed.2d 426 (1978). “Absent special circumstances, therefore, trial courts may assume either that multiple representation entails no conflict or that the lawyer and his client knowingly accept such risks of conflict as may exist ... In order to establish a violation of the sixth amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyers performance.” Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Dukes v. Warden, 406 U.S. 250, 92 S.Ct. 1551, 32 L.Ed.2d 45 (1972); King v. State, 639 S.W.2d 396, 397 (Mo.App.1982).

In this case, a conflict of interest did not arise until Branch began to implicate the defendant in the commission of the crimes involved. However, the record establishes that Branch did not agree to testify against defendant until the morning of the preliminary hearing. Branch had previously pled guilty. Defendant did secure other counsel after the preliminary hearing. The only specific complaint defendant makes concerning his counsel at the preliminary hearing relates to the failure of his attorney to cross examine Branch. In fact there was very extensive cross examination of Branch at the preliminary by the attorney’s for defendant Franks. Appellant does not demonstrate nor does it appear that any additional cross examination was necessary. There is no showing of any action by counsel which was detrimental to the interest of the defendant and advantageous to the interests of Branch. See State v. Johnson, 549 S.W.2d 348, 350 (Mo.App.1977); State v. Abbott, 654 S.W.2d 260 (Mo.App.1983).

Appellants next point asserts that the trial court erred in allowing proof of the commission of a separate and distinct crime. Branch’s testimony from the transcript indicated that immediately prior to committing the crimes in issue, Branch, Appellant and Franks had planned to commit a similar crime at Branch’s grandparents’ residence. When the three arrived at the grandparents’ house, it was discovered that the grandparents were there. The three then immediately proceeded approximately two miles to the residence of the victims and committed the crimes there only a few minutes later.

The general rule provides that evidence of the commission of separate and distinct crimes is inadmissible unless it has a legitimate tendency to establish that the defendant is guilty of the crime of which he is charged. Such evidence is admissible to prove the crime charged when it tends to establish motive, intent, the absence of mistake or accident, a common scheme or plan embracing the commission of two or more crimes so related that proof of one tends to establish the other, or the identity of the person charged with the commission of the crime on trial. State v. Shaw, 636 S.W.2d 667 (Mo.Banc 1982); State v. Jones, 652 S.W.2d 223 (Mo.App.1983); Missouri Evidence Kestated Sec. 404(b). It has been recognized that caution must be exercised with respect to the admission of this type of evidence and that it should be subjected to rigid scrutiny. State v. Carter, 475 S.W.2d 85 (Mo.1972); State v. Darnell, 639 S.W.2d 869 (Mo.App.1982). However, in the instant case we do not find an abuse in the trial court’s discretion in allowing the evidence to establish motive, intent and a common scheme or plan in view of the evidence as to the immediate transfer of intent to burglarize the grandparents to an intent to burglarize the victims, the close proximity of the victim’s home to that of the grandparents and the very brief time span between the transfer of intent and the burglary. This point is denied.

Appellant next asserts error because the trial court did not dismiss Count II of the information charging appellant with having “appropriated personal property”. Appellant asserts that the information did not state with particularity what property was appropriated, citing State v. Jeffords, 64 S.W.2d 241 (Mo.1933). In Jeffords, an information describing stolen property as “merchandise” was found to be insuffi-dent. However, Jeffords was distinguished in State v. Rose, 428 S.W.2d 737, 741 (Mo.1968). In Rose an information, describing the property as “goods, wares, merchandise or other valuable things ... ”, was found to charge the essential facts of the offense of stealing and was held to be sufficient. Rose held that the defendant should have filed a bill of particulars under the rule if the information was lacking in detail as to the description of the stolen property. See Rule 23.04 V.A.M.R.. It noted that Jeffords had been ruled before the adoption of the criminal rule providing for a bill of particulars.

Section 570.030 RSMo.1979 provides that: “A person commits a crime of stealing if he appropriates property or services of another with a purpose to deprive him thereof ... ”. The information here follows the language of the statute and is sufficient. State v. Pulis, 579 S.W.2d 395 (Mo.App.1979); State v. Davis, 624 S.W.2d 72 (Mo.App.1981); State v. Ridinger, 589 S.W.2d 110 (Mo.App.1979). The failure to request a bill of particulars may waive the failure of an information to give all desired detail. State v. Pulis, supra. The point is denied.

Defendants last point asserts error because Defendants Exhibits D through I were excluded from evidence. Exhibits D through H were letters written by Marcus Branch to his aunt, appellant’s wife, alleged to contain statements inconsistent with his testimony at the preliminary hearing. Exhibit I was a statement which contained the following language: “I, Marcus Branch, under the protection of the Constitution of the United States and of the Due Process of Law would like to withdraw my statements against Mikel Leon Franks and Michael W. Powell for the reason that my statements were made under (Coercion) by the arresting officers.”

Missouri Evidence Restated, Sec. 613(a), page 6-49, (Mo.1984) states the general rule: “Prior statements of a witness, whether written or oral, which are inconsistent with the testimony of that witness at trial are admissible for the purpose of impeaching the credibility of that witness.” Also see State v. Granberry, 491 S.W.2d 528 (Mo.Banc 1973); State v. Davis, 566 S.W.2d 437 (Mo.Banc 1978). Wigmore suggests “... that a prior self-contradiction shows ‘a defect either in the memory or in the honesty’ of the witness ...” 3A Wigmore, Sec. 1017 page 993 (Chadbourn Revision 1970). The rule is applied where the evidence sought to be impeached is a declaration received at trial by the admission of a preliminary hearing transcript of the testimony of a witness claiming the fifth amendment at trial. State v. Ivicsics, 604 S.W.2d 773, 780-81 (Mo.App.1980).

The statements set forth in the letters here are vague and uncertain and would tend to create confusion and speculation. See State v. Umfrees, 433 S.W.2d 284, 286 (Mo.Banc 1968). Isolated words or phrases will not suffice as a basis for the necessary contradiction. State v. Nimrod, 484 S.W.2d 475, 478 (Mo.1972).

Exhibit I presents a somewhat different problem. This statement is not necessarily inconsistent with the truth of Branch’s preliminary hearing testimony; but it could be inconsistent. It can be implied from Exhibit I that Branch’s preliminary hearing statements were true, but they were coerced. If that is the meaning of Exhibit I, it is not inconsistent with Branch’s testimony in the transcript as to the details of the crime and defendant’s participation; and Exhibit I would not be admissible. On the other hand it might be implied from Exhibit I that, because the statements were coerced, they were untrue. If that is the meaning of Exhibit I, it would then be inconsistent with Branch’s testimony at the preliminary hearing; and Exhibit I would be properly admitted. If Branch had testified in person at trial, he could have been cross examined about this statement and its meaning. Exhibit I could then have been received or refused depending upon his answer. However, because Branch was unavailable, the statement in Exhibit I could only be ambiguous, and a “real inconsistency” was not present.

Wigmore suggests that there .. must, of course, be a real inconsistency [emphasis in text] between the two assertions of the witness. The purpose is to induce the tribunal to discard the one statement because the witness has also made another statement which cannot at the same time be true, [emphasis added] ... This inconsistency is to be determined, not by individual words or phrases alone, but by the whole impression or effect [emphasis in text] of what has been said or done.” 3A Wigmore Evidence Sec. 1040 page 1048 (Chadbourn Revision 1970). Under the circumstances of this case, the jury would not have had two statements before it which could not at the same time be true without resorting to speculation as to the meaning of Exhibit I. “To impeach the hearsay must be inconsistent with the whole effect and impression of the witness testimony.” State v. Nimrod, supra; 98 C.J.S. Witnesses, Sec. 583, p. 558. However, there was other evidence at trial about Branch’s statement to another witness to the effect that the statements had been coerced but that defendant and Franks had participated in the crimes in issue. Under all the circumstances the exclusion of this evidence was within the trial court’s discretion. See State v. Jones, 629 S.W.2d 589, 591 (Mo.App.1981). This point is also denied.

Finding no error the judgment is therefore affirmed.

CRIST, C.J., and E. RICHARD WEB-BER, Special Judge, concur.


author: CLEMENS, Senior Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Otis Lee SMITH, Defendant-Appellant.
    No. 47676.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 4, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 22, 1985.
    Application to Transfer Denied Feb. 26, 1985.
    Debra Buie Arnold, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   CLEMENS, Senior Judge.

A jury found defendant Otis Lee Smith guilty of the capital murder of his landlords Pierre Fortson and Bernice King. The trial court sentenced defendant under RSMo. Sect. 565.001 to consecutive term of life imprisonment with eligibility for parole for minimum of 50 years on each count.

Here defendant raises the single point the court erred in denying his exonerating intoxication instructions. (MAI-CR 2nd 3.30.1).

The relevant evidence from defendant’s unchallenged statements to police and his trial testimony: He was a heavy drinker. He had rented a room from the victims for three months but midway they had argued and victims asked him to leave. On October 18-19, 1982 while defendant had been sleeping Mr. Fortson came to defendant’s room, argued and before leaving brandished but did not take defendant’s two knives and two loaded guns. After some sleep defendant took one of his guns “for protection” and went into the victims’ bedroom, saw Mr. Fortson had some object in his hand and then “in defense” shot and killed Mr. Fortson by three shots and Mrs. King by two shots. Defendant then put both bodies in his truck and moved it to an alley. Taking liquor with him defendant then drove Mrs. King’s car to a job.

Upon arresting defendant police repeatedly advised him of his rights. He answered police questions and made lengthy taped statements admitting both killings.

As said, defendant here relies on refusal of his exonerating intoxication instructions.

Both parties cite State v. Gullett, 606 S.W.2d 796 (Mo.App.1980), a comprehensive study on the defense of voluntary intoxication in homicide cases. The court there held defendant’s cited case of State v. Anderson, 515 S.W.2d 534 (Mo. banc 1974) was not controlling on the defense of voluntary intoxication. Instead, GULLETT held the intoxicated condition referred to in Sect. 562.076 means “that degree of complete drunkenness which makes a person incapable of forming intent to perform an act or commit a crime.”

The case of State v. Bienkowski, 624 S.W.2d 107[1-3] (Mo.App.1981) followed GULLETT and upheld the refusal to instruct on the defense of intoxication because that defendant, as here, “testified too much” about details of the offense. We added:

“To support an instruction on this defense, evidence must be presented that tends to show defendant was so intoxicated that he did not know what he was doing. Note on Use 4, MAI-CR2d 3.30.-1.”

And in State v. Cole, 662 S.W.2d 297[9-11] (Mo.App.1983) we held defendant’s conduct is relevant to his claimed intoxication and to excuse a crime “the condition of intoxication must be so extreme as to suspend all reason.”

The defendant’s quoted testimony refutes his claim the trial court erred by refusing his proffered instruction that he was so intoxicated he could not have intended to kill.

Affirmed.

DOWD, P.J., and CRIST and CRAN-DALL, JJ., concur.


author: PUDLOWSKI, Judge.

text:
    Joseph SMITH, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent.
    No. 48413.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 4, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 22, 1985.
    Application to Transfer Denied Feb. 26, 1985.

      David Woods, Poplar Bluff, for plaintiff-appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Larry Ferrell, Cape Girardeau, for defendant-respondent.
   PUDLOWSKI, Judge.

Appellant Joseph Smith was convicted of first degree robbery by a jury in the circuit court of Cape Girardeau County. He was sentenced to thirty years in the Missouri Department of Corrections as a persistent offender. The conviction was affirmed by this court in State v. Smith, 650 S.W.2d 5 (Mo.App.1983).

Appellant filed a pro se motion under Rule 27.26 to vacate the sentence and judgment, and his appointed counsel filed an amended motion. The circuit court entered findings of fact, conclusions of law, and judgment denying appellant’s motion for an evidentiary hearing. Appellant’s Rule 27.-26 motion was denied with prejudice and summary judgment was entered for the state.

In appellant’s first point on appeal, he contends that the circuit court failed to make findings of fact and conclusions of law on appellant’s claim that the jury selection process in Cape Girardeau County excludes negroes in case after case, whatever the circumstances. Rule 27.26(i) requires that the court make findings of fact and conclusions of law on all issues presented. However, improper jury selection is a trial court error that may not be raised for the first time in a Rule 27.26 motion without a showing that the movant had no knowledge of the improper jury selection until after his trial. Worthon v. State, 649 S.W.2d 577, 578-79 (Mo.App.1983), citing Hemphill v. State, 566 S.W.2d 200, 206-07 (Mo. banc 1978). This argument was not raised in appellant’s direct appeal, State v. Smith, supra, and the record in this appeal discloses no suggestion that appellant did not know of the allegedly improper jury selection until after his trial. This issue was not presented to the trial court, and we conclude the trial court’s judgment is proper.

In appellant’s second point on appeal he raises several allegations of ineffective assistance of counsel. To prevail on this theory, appellant must demonstrate that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under similar circumstances, and that he was prejudiced thereby. Love v. State, 670 S.W.2d 499 (Mo. banc 1984). Each of appellant’s allegations will be reviewed under this standard.

Appellant alleges that his trial counsel was ineffective because she failed to move to quash the jury panel on grounds of intentional exclusion of negroes, and that she also failed to object to the jury panel at trial. The record on this appeal confirms the absence of any motion to quash the jury panel or any trial objection to the jury panel. The jury selection method in Cape Girardeau County was discussed in Pride v. State, 615 S.W.2d 445 (Mo.App.1981). In that case, trial counsel moved to quash the jury panel because no blacks were included, although the county population was three percent black. The trial court denied the motion, taking judicial notice of the court’s method of selecting potential jurors. On appeal, the appellant’s counsel conceded in his brief that he did not know whether the jury selection motion was infirm, and was unaware of facts to support his contention of improper jury selection. In the case at bar, appellant’s brief fails to present any facts which support his contention of improper jury selection. There is no allegation that appellant’s trial counsel knew of any such facts. In the absence of any supporting evidence, the possibility of success of a challenge to the jury selection method would appear to be speculative at best. This showing is insufficient to sustain a claim of ineffective assistance of counsel. See Williamson v. State, 628 S.W.2d 895 (Mo.App.1981). There must be a reasonable possibility that competent counsel could have obtained a different result. Love v. State, supra, at 504, citing Holloway v. Arkansas, 435 U.S. 475, 490, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426 (1978).

Appellant’s second claim of ineffective assistance of counsel is based on his attorney’s failure to call certain witnesses to testify. Appellant stated that his attorney prevented his brother, Aaron Smith, from testifying, as well as other witnesses who would have testified that appellant had money and therefore had no reason to commit a robbery. This testimony does not go to the issue of whether the appellant did in fact commit the robbery. See Anthony v. State, 612 S.W.2d 67, 68 (Mo.App.1981). Appellant’s own brief points out that the selection of witnesses is a question of trial strategy. A reasonably competent attorney could have determined that the testimony of these witnesses would not further appellant’s cause. This court recently reaffirmed that which witnesses to call and whether the witnesses would be helpful is a matter of professional judgment and is not an adequate ground to find an appellant’s trial counsel to have been ineffective. State v. Holzer, 680 S.W.2d 764 (Mo.App.1984).

Appellant next claims that his counsel was ineffective in failing to object to the State’s evidence which showed that the appellant was a persistent offender as defined in RSMo § 558.016. After examination of the trial transcript, we agree with the trial court that the statutory requirements were followed. The constitutionality of this statute and the second offender statute (RSMo § 556.280, repealed) upon which it is based has been upheld. State v. Reese, 625 S.W.2d 130 (Mo.1981); State v. Gardner, 600 S.W.2d 614 (Mo.App.1980), cert denied, 449 U.S. 1020, 101 S.Ct. 585, 66 L.Ed.2d 481 (19). Appellant’s brief concedes the constitutionality of the prior law against any constitutional attacks, but still asserts that the trial counsel should have objected to the introduction of the evidence and to the trial court’s findings. Appellant has failed to state what grounds existed for raising such an objection. Since the constitutionality of the statute is not in question and the prescribed procedure was followed, there does not seem to be a reasonable possibility that competent counsel could have obtained a different result.

Appellant alleges that his trial counsel was ineffective in failing to object to a statement made during the prosecution’s closing argument. In appellant’s direct appeal this court held that the reference to appellant’s prior convictions was not a prejudicial error. State v. Smith, supra, at 8. This issue may not be relitigated here.

Appellant next alleges that his trial counsel was ineffective in failing to interview Mark Oberle, the prosecution’s main witness. In Merritt v. State, 650 S.W.2d 21 (Mo.App.1983), this court held that to establish ineffectiveness of counsel in failing to interview a witness, a appellant must show that the witness’s testimony would have proven helpful to the appellant. This appellant has failed to show what the substance of Mr. Oberle’s testimony would have been and how it would have aided his defense. Without that showing, appellant has not alleged enough facts to show that his attorney did not exercise the skill and diligence of a reasonably competent attorney.

Appellant’s final allegation of the ineffectiveness of his trial counsel was her failure to object to the trial court not giving the jury the single instruction that appellant offered. This issue was also litigated in appellant’s direct appeal, and this court found no abuse of the trial court’s discretion and no plain error. State v. Smith, supra, at 8. The issue may not be relitigated in this motion.

Judgment affirmed.

CRIST, P.J., and SIMON, J„ concur.


author: FLANIGAN, Judge.

text:
    Ronda G. JENSEN, Plaintiff-Appellant, v. Tasso PAPPAS, Jim Pappas, and ARA Services, Inc., Defendants-Respondents.
    No. 13403.
    Missouri Court of Appeals, Southern District, Division One.
    Dec. 7, 1984.
    Motion for Rehearing or to Transfer Denied Jan. 2, 1985.
    Application to Transfer Denied Feb. 26, 1985.
    Michael W. Manners, Robert J. Graeff, Paden, Welch, Martin, Albano, & Graeff, P.C., Independence, for plaintiff-appellant.
    Stephen P. Carlton, Johnson & Carlton, Carthage, for defendant-respondent ARA Services, Inc.
    David C. Humphreys, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for defendants-respondents Tasso Pap-pas and Jim Pappas.
   FLANIGAN, Judge.

Plaintiff Ronda Jensen brought this action for the wrongful death of her husband Karl Jensen, who was killed instantly as a result of a collision between the motorcycle he was operating and a truck owned by defendant Jim Pappas. The collision occurred at approximately 8 p.m. on February 24, 1980, on North St. Louis Avenue in Joplin. The other defendants are Tasso Pappas, who was the driver of the truck, and ARA Services, Inc., to whom Tasso Pappas was making a delivery.

The paved portion of North St. Louis Avenue is 20 feet wide and has two lanes, one for northbound and one for southbound traffic. At the time of the collision the Pappas truck was parked partially in the southbound lane, headed south. Tasso Pappas, employee of his brother Jim, was engaged in moving cardboard cartons, containing TV Guide magazines, from the Pap-pas truck to a nearby van which was parked on the west shoulder. The van was owned by one Turnbow, employee of ARA Services, Inc. The collision occurred in front of Turnbow’s house located at 1416 North St. Louis. The southbound motorcycle operated by the decedent struck the left rear portion of the Pappas truck.

The case was tried prior to the decision in Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983), in which the court “supplanted] the doctrines of contributory negligence, last clear chance, and humanitarian negligence, with a comprehensive system of comparative fault.” 661 S.W.2d at 16. A jury returned a verdict in favor of all three defendants. Plaintiff appeals.

The dispositive contention of plaintiff is that the trial court erred in giving Instruction 12, a contributory negligence instruction, at the request of defendant Tasso Pappas. The instruction reads:

“Instruction No. 12
“Your verdict must be for defendant Tas-so Pappas if you believe:
First, either:
decedent failed to keep a careful lookout, or
decedent’s motorcycle came into collision with the rear of defendant Jim Pappas’ truck, or
decedent drove at a speed which made it impossible for him to stop within the range of his visibility, and
Second, decedent, in any one or more of the respects submitted in paragraph First, was thereby negligent, and
Third, such negligence of decedent directly caused or directly contributed to cause the death of decedent.”

Plaintiff also challenges similar but separate instructions which were given on behalf of the other two defendants. No defendant claims that plaintiff’s decedent was guilty of contributory negligence as a matter of law and no defendant questions the submissibility of plaintiff’s case.

Although plaintiff makes several attacks upon Instruction 12, her principal complaint is that the circumstances of the case did not warrant submission of the “rear end collision doctrine” as contributory negligence on the part of Karl Jensen and that the instruction is erroneous in including that doctrine as one of the three alternative submissions in Paragraph First. For the reasons which follow, this court sustains plaintiff’s contention.

The evidence for both sides showed that it was dark at the time of the accident and there were no street lights in the vicinity. Police were summoned to the scene and arrived almost immediately. Police photographs were taken before the vehicles were moved.

The Pappas truck was a “10-wheeler” with a large enclosed bed. It had “two sets of duals in back.” At the time of the collision the left side of the truck was occupying the west 6 feet 3 inches of the 10-foot southbound lane. The truck itself was 8 feet wide, so most of it was on the pavement, while the outside right rear tires, and perhaps a portion of the inside right rear tires, were on the shoulder. The truck was positioned so that the rear of its bed was east of the right hand side door of Turnbow’s van, which was parked on the west shoulder headed north. That door was open to receive the shipment. From the photographs the jury could draw a reasonable inference that there was room on the west shoulder to accommodate the Pap-pas truck.

The primary factual dispute concerned the condition of the lights on the rear of the Pappas truck at the moment of collision. Gladys Albright testified for the plaintiff that, shortly prior to the collision, the only light which was turned on, on the rear of the Pappas truck, was its left tail light which was “very dim.” Jack Bartley testified that none of the lights on the rear of the Pappas truck was on immediately after the accident until one of the police officers “made the left tail light work — it was dirty and did not shine bright.” Police officer Gladfelter, who arrived at the scene shortly after the collision, testified that no lights were then lit on the back of the truck, that the left tail light had been knocked loose by the motorcycle, and that when he reconnected its wires, it flashed “real lightly, not real bright.... There was a lot of mud on the light.” Gladfelter also testified that the motorcycle left no skidmarks.

Tasso Pappas testified that it was dark before he reached Joplin. Although there was no direct evidence as to how long the Pappas truck had been parked on North St. Louis before the collision occurred, it had been there several minutes. Tasso Pappas testified that “it normally takes me thirty minutes to unload the truck,” that he had 85 or 40 boxes to unload, and that each box weighed 40 pounds. He moved the boxes, one by one, from the parked truck into the Turnbow van. At the time of the collision he had almost finished unloading and had four or five boxes left.

Tasso Pappas also testified that when he arrived in front of the Turnbow residence “I pulled over as close as I could get to the van.” He said he turned his headlights off but left his parking lights and flasher lights on. He said the clearance lights, on the front and back of the truck, were left on. He said he turned on the dome light in the van and proceeded to unload. Pappas testified that the right side, or east side, of the van was 3 feet west of the edge of the pavement and that the van was 6V2 or 7 feet wide. He said that “past” the west shoulder of the street, “the ground was grass, dirt, and kind of sloped a little bit.... If I pulled off into the ditch or dirt I would probably get stuck. The side of my truck was about a foot from the van.” Photographs show that the vehicles were perhaps two feet apart.

Although Tasso Pappas heard the approach of the motorcycle while he was standing at the rear of his truck, he did not see the motorcycle. He heard the motorcycle shift gears three times and heard it accelerate. Pappas was standing behind the right side of his truck bed when the motorcycle struck the left side. “When the motorcycle hit I was about a foot and a half away, standing to the side of it.” Pap-pas testified that at the time of the collision the top clearance lights on the rear of the Pappas truck were on but he did not know whether they were on after the accident. He also testified that “my body probably would have covered the right hand tail light.”

Charlie Moore, a defense witness who lived 400 feet north of the accident site, testified that he saw the rear of the Pappas truck before the collision and that “the truck had its blinking lights on, very visible.” He had made this observation while going to and from a Quik Trip store located somewhere south of the scene. The Pap-pas truck was parked on the street while Moore made that trip. At the time of the collision Moore was watching television in his living room and heard, but did not see, the motorcycle pass his house. Moore testified, without objection, that the motorcycle “went by at what I considered a high rate of speed.”

Plaintiff’s verdict-directing instruction against defendant Tasso Pappas, Instruction 11, submitted two alternate assignments of negligence: failing to park the truck with the right side as near to the right side of the road as practicable, (see § 304.015.1), and failing to have the truck equipped with at least two rear lamps which were lit exhibiting a red light plainly visible from a distance of 500 feet to the rear, (see § 307.075.1). Instruction 11, in general, told the jury to find for the plaintiff if they believed that plaintiff was the spouse of Karl Jensen, that Tasso Pappas was negligent in either of the specified respects and that the decedent died as a direct result of such conduct, “unless you believe plaintiff is not entitled to recover by reason of Instruction No. 12.” The latter phrase, or “tail,” of Instruction 11 had to be inserted. See Notes on Use to MAI 20.02 (1981 revision).

Reading Instruction 11 and 12 together, the jury was required to find in favor of Tasso Pappas on the ground of Karl Jensen’s contributory negligence under the rear end collision doctrine (or under the other two grounds submitted in Instruction 12), even if the jury also found that Tasso Pappas violated the statutory requirements with respect to tail lights or with respect to parking. If the Pappas truck was showing no tail lights at all, plaintiff was still denied recovery if the jury found that Jensen’s motorcycle “came into collision with the rear of [the Pappas truck],” (which was, of course, undisputed), and Jensen was thereby negligent and such negligence directly caused or directly contributed to cause his death.

Referring to the rear end collision doctrine our supreme court has said: “This is the rule of law which recognizes that ‘if one person has his vehicle in a portion of the highway where he should have it or is entitled to have it in view of the course in which he is proceeding, and some other person traveling behind him in the same direction overtakes him and permits his vehicle to run into the rear of the one ahead, the proof of a collision under such circumstances makes out a prima facie case of specific negligence against such other person in charge of the overtaking vehicle....’” (Citing authorities) (Emphasis added.) Todd v. Presley, 413 S.W.2d 173, 175 (Mo.1967). In Todd, at p. 175, the court said the facts did not present the “ ‘clear and simple situation of one vehicle being operated for a considerable distance behind another and overtaking it,’ ” (emphasis added), but did present “the situation of an intersectional collision.” The case was held not to be submissible under the rear end collision doctrine.

Again referring to the rear end collision doctrine, the supreme court has said: “It is not recommended that this theory of recovery be employed except where the facts come strictly within the pattern of the typical rear-end collision situation.” Witherspoon v. Guttierez, 327 S.W.2d 874, 878 (Mo.1959). That language was quoted with approval in Clevenger v. Walters, 419 S.W.2d 102 (Mo. banc 1967) and Lichtenberg v. Hug, 481 S.W.2d 527 (Mo.App.1972).

The supreme court has also said: “The rationale of the rear-end ‘doctrine,’ when the evidence taken favorably to its proponent allows its submission, is simply that the party in the vehicle behind has a view of what is in front and can better explain why his vehicle struck the rear of the car ahead....” Mueller v. Storbakken, 583 S.W.2d 179, 182 (Mo. banc 1979).

In Mueller, the court pointed out that the earlier Missouri cases regarded the submission of the rear end doctrine as a submission of specific negligence but that, in recent cases, the doctrine “has been interpreted more broadly.” The court quoted with approval the following language from Barlow v. Thornhill, 537 S.W.2d 412, 421 (Mo. banc 1976): “A rear-end submission may be justified in automobile collision cases under circumstances warranting an inference of defendant’s negligence. As said in Lichtenberg v. Hug, 481 S.W.2d 527, 529 (Mo.App.1972), ‘... the doctrine approaches — if it does not reach — that of res ipsa loquitur in that under the circumstances in Jones [v. Central States Oil Co.] the fact of collision bespeaks the defendant’s negligence.’ ” (Emphasis added.)

The court in Mueller said, at p. 182:

“It follows from the recent developments of the rear-end ‘doctrine’ that its applicability is determined at trial in much the same manner courts approach the use of res ipsa loquitur in other situations. The court determines from all the evidence, taken in the light most favorable to the proponent of the theory, that the collision with the rear of the lead vehicle may be found to have occurred under circumstances which the court believes would permit the jury to draw an inference of negligence without proof of what action or omission comprised the negligence by the driver of the following vehicle. Such negligence can arise in relation to a plethora of duties imposed on a driver as he approaches hills or moves in the same direction as other vehicles; the situation existing from moment to moment determines the nature of those duties, which our law describes simply as the ‘care that a very careful and prudent person would use under the same or similar circumstances.’ ” (Emphasis added.)

That portion of Instruction 12 which submitted the rear end collision doctrine was based on MAI 17.16. The Notes on Use to MAI 17.16 state: “The rear end doctrine is limited in scope and this instruction should not be used except where the facts show the instruction is clearly applicable.” (Emphasis added.)

In Mueller, supra, the court held that MAI 17.16 was not erroneous in failing to contain language requiring an express finding that the driver of the lead vehicle was operating it with the highest degree of care. Further the court held that MAI 17.16 was not erroneous in failing to require an express finding that the lead vehicle was “in a place where it had the right to be.” 583 S.W.2d at 185.

It has been said “not even all rear end collisions fall within the [rear end collision] doctrine.” Clevenger v. Walters, 419 S.W.2d 102, 106 (Mo. banc 1967). See, for example, Todd v. Presley, supra, and Li-chtenberg v. Hug, supra, where the doctrine was held not to be submissible where the lead vehicle, although rear-ended, had failed to yield the right-of-way to the following vehicle and entered the highway ahead of it. Several cases have stated that in order for the doctrine to be invoked, the lead vehicle must have been in a place where it was entitled to be. Coffer v. Paris, 550 S.W.2d 915 (Mo.App.1977); Gaynor v. Horwitz, 464 S.W.2d 537 (Mo.App.1971); Clevenger v. Walters, supra; Todd v. Presley, supra. Although the court in Mueller held that an express finding to the latter effect was not a necessary ingredient in an instruction patterned on MAI 17.16, the court did not eliminate the respective positions and the relative movements of the vehicles as factors to be considered by the trial court in determining whether the doctrine should be submitted at all.

Before the doctrine is submitted there must be a showing of circumstances warranting an inference of negligence on the part of the driver of the following vehicle, Mueller v. Storbakken, supra; Barlow v. Thornhill, supra; Becker v. Finke, 567 S.W.2d 136 (Mo.App.1978); Wagoner v. Hurt, 554 S.W.2d 587 (Mo.App.1977); —circumstances “bespeaking negligence.” Barlow v. Thornhill, supra. Necessary factors to be considered include the time and distance available to the operator of the following vehicle, Schlechta v. Poole Truck Lines, Inc., 678 F.2d 59 (8th Cir.1982), Becker v. Finke, supra, and the respective positions of the vehicles, Schlechta v. Poole Truck Lines, Inc., supra; Martin v. Oliver, 603 S.W.2d 674 (Mo.App.1980); Mueller v. Storbakken, supra.

The fact that the lead vehicle was not in motion at the time of the collision does not per se deprive its operator of the benefit of the rear end collision doctrine. The submission of the doctrine was held proper where the lead vehicle was stopped at an intersection waiting for a traffic light to change, Pitezel v. Danielsen, supra; Moss v. Courtaway, 400 S.W.2d 160 (Mo.1966), where the lead vehicle was stopped at a stop sign, Suchara v. St. Louis Public Service Company, 410 S.W.2d 93 (Mo.App.1966), where the lead vehicle was stopped in the median portion of an interstate highway by reason of involvement in an earlier accident, Barlow v. Thornhill, supra, where the lead vehicle was stopped momentarily on the highway due to traffic conditions ahead, Coffer v. Paris, supra, where the lead vehicle was stopped for 15 to 30 seconds on the order of a flagman, Martin v. Oliver, supra, and where the lead vehicle stopped briefly in the “curb lane” of a highway so the driver could put on his sunglasses, Becker v. Finke, supra.

Counsel have not cited, and the research of this court has not disclosed, any Missouri case permitting submission of the rear end collision doctrine under the circumstances present here. The Pappas truck was parked on a city street, occupying approximately ⅜ of the paved portion of the southbound lane, on a dark night and for a substantial period of time. Under Instruction 12 the jury was permitted to find against the plaintiff on the basis of the rear end doctrine alone even if the jury also found that the Pappas truck was improperly parked and was not displaying lawful tail lights and if the jury also found that Karl Jensen was not negligent in either of the other respects submitted as contributory negligence under Instruction 12.

It cannot properly be said that the circumstances of this case, even when viewed favorably to respondents, justified submission of the rear end collision doctrine. It cannot reasonably be maintained that colliding with the rear of the Pappas truck “bespeaks” negligence any more than colliding with the front of it. When Instructions 11 and 12 are viewed together, submission of the doctrine under the instant facts gave the jury what in effect was a roving commission. This error also afflicted the respective contributory negligence instructions of the other defendants.

The judgment is reversed and the cause is remanded for further proceedings consistent herewith.

TITUS, P.J., and GREENE, J., concur.

      . Instruction 12 was based on MAI 32.01(3), 17.05, 17.16 and 17.19.

        . References to statutes are to RSMo 1978, V.A. M.S.

      . Not only may the rear end doctrine, in an appropriate case, be used as a theory of recovery, it formerly could also be used defensively, if the facts warranted, as contributory negligence of the driver of the following vehicle. See Mueller v. Storbakken, 583 S.W.2d 179 (Mo. banc 1979); Stretch v. State Farm Mutual Automobile Ins. Co., 645 S.W.2d 729 (Mo.App.1983); and Pitezel v. Danielsen, 571 S.W.2d 694 (Mo.App.1978). As indicated previously, however, our supreme court, in Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983), abolished the doctrine of contributory negligence and adopted a system of comparative fault.


text:
    STATE of Missouri, Respondent, v. Ernest ROBINSON, Appellant.
    No. 48253.
    Missouri Court of Appeals, Eastern District, Northern Division.
    Dec. 11, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 22, 1985.
    Application to Transfer Denied Feb. 26, 1985.

      Thomas R. Motley, Public Defender, Hannibal, for appellant.
    John Ashcroft, Atty. Gen., John Munson' Morris, Asst. Atty. Gen., Jefferson City, for respondent.
   CRIST, Judge.

Appeal from a jury conviction on charges of burglary in the second degree and stealing, for which defendant received sentences of fifteen years on each charge to be served concurrently. We modify, and affirm as modified.

Defendant challenges the sufficiency of the evidence in this circumstantial evidence case. See State v. Robinson, 670 S.W.2d 541, 542[2] (Mo.App.1984). At 8:00 p.m. on April 26, 1983, defendant was with Harry Plant when Plant rented a light green 1977 Dodge van from U-Auto-Rent near Floris-sant, Missouri. The next morning between 12:30 and 1:15 a.m. a light green van with out-of-state license plates driven by two black males, was observed proceeding through Center, Missouri, by the police chief of that town. It was noticed because no blacks live in Center. Between 9:00 p.m., April 26 and approximately 7:00 a.m. on April 27, a grocery store in Center was burglarized, and cigarettes and meats were stolen.

At about 4:30 on April 27, a witness saw two black males walk down a street in Clarksville, Missouri. One was later identified as Plant and the other walked with a limp similar or identical to defendant’s. The witness then heard a sound like the crackling of wood, and a short time later saw at least one of the men pushing a grocery cart down the street. When a motorcycle headlight was turned on, the men fled, leaving the carts behind. In the carts were several cartons of cigarettes and two crowbars. A burglary in which cigarettes were stolen was later discovered to have occurred at a grocery store in Clarksville, about one-half block from where the carts were found.

The witness described the men he saw to the police. They were arrested later that morning at about 9:45 a.m., walking on a country road about 2V2 miles out of Clarks-ville. A light green van, with out-of-state license plates, was discovered a short time later about one half block from where the carts were discovered. By looking through the windows of the van, cigarettes and meats were seen, and later that morning were identified through a window of the van by the owner of the Center store as part of the goods stolen in the burglary of his store. A search, pursuant to a warrant, revealed the van contained cigarettes, meats and a rental agreement between U-Auto-Rent and Harry Plant. Analysis of the Center store doors and the crowbars revealed the bars physically fit indentations on the wood of the doors, paint chips on the bars were identical to the paint originally on the door, and paint chips on the door were identical to the paint originally on the bars.

Defendant raises five points on appeal, all of which are meritless and may be summarily answered. First, there was no error in admitting evidence of the Clarks-ville, Missouri burglary. Such evidence was relevant to the burglary in Center because it tended to establish the identity of the defendant, State v. McDaniels, 668 S.W.2d 230, 233-34 (Mo.App.1984), a common scheme or plan, State v. Engleman, 653 S.W.2d 198, 199 (Mo.1983), and because it was necessary to establish a complete, coherent picture of the burglary in Center for which defendant was on trial. State v. Jones, 652 S.W.2d 223, 225[4] (Mo.App.1983).

The evidence, as related above, was sufficient to support the conviction. No improper or impermissible inferences need to be made in this case. See e.g., State v. Sheets, 641 S.W.2d 112, 114 (Mo.App.1982).

The trial court did not abuse its discretion in allowing jurors to serve who had previously stated they would wonder about why defendant would not testify, when no panel member expressed or indicated an inability or unwillingness to hear the evidence and follow the instructions given by the court. State v. Johnson, 670 S.W.2d 882, 886-87 (Mo.App.1984).

It was not plain error under Rule 30.20 to admit evidence defendant was with Plant when they were arrested. State v. Tate, 658 S.W.2d 940, 945-46 (Mo.App.1983).

Finally, admission of the evidence acquired through a search of the van was proper. The van was owned by U-Auto-Rent, and leased to Plant. Defendant, having no property or possessory interest in the van, has no standing to challenge the seizure or the search. State v. Rellihan, 662 S.W.2d 535, 543[5] (Mo.App.1983); State v. May, 613 S.W.2d 877, 880[2] (Mo.App.1981).

The jury verdict was amply supported by the evidence. No error of law appears, and no jurisprudential purpose would be served by an extended opinion. However, the formal sentences and judgments are erroneous, because each refers to the convictions as pursuant to a plea of guilty. The trial court is directed to correct the formal sentences and judgments to conform to the sentences and judgments as reflected in the docket sheet entry of January 11, 1984. The sentences and judgments, as modified, are affirmed in accordance with Rule 30.25.

REINHARD, C.J., and CHANNING D. BLAEUER, Special Judge, concur.


author: PUDLOWSKI, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Danny Ray MADISON, Defendant-Appellant.
    No. 48331.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 11, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 22, 1985.
    Application to Transfer Denied Feb. 26, 1985.

      John Putzel, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Jefferson City, for plaintiff-respondent.
   PUDLOWSKI, Presiding Judge.

The appellant, Danny Ray Madison, was convicted by a jury of two counts of robbery in the first degree and one count of assault in the first degree. On appeal, appellant alleges trial court error in failing to suppress an unrecorded oral confession and a video tape recorded confession and trial court error in failing to submit to the jury an intoxication instruction. We affirm.

The facts are as follows: On April 12, 1982, Raymond Pendleton and Andrei Barnes were returning from a dance in the early morning hours. As they walked in the vicinity of Vernon Avenue in the City of St. Louis, appellant approached the two and asked if they wanted to buy some drugs. Both Pendleton and Barnes declined the offer. Appellant then walked behind the two, displayed a gun and demanded money. Pendleton gave the man two dollars while Barnes gave him twenty dollars.

Appellant then ordered the two into a gangway and ordered them to undress. Pendleton took off his shoes as did Barnes. The three began to walk. Pendleton asked to go back to the gangway to get his gloves. Appellant allowed him to do so. At this point, Pendleton began to run and appellant chased him. Barnes took the opportunity to escape.

Appellant eventually caught Pendleton and the two continued to walk. They stopped at a house where a person inside asked who was outside. Appellant answered “Danny Ray.” Subsequently, appellant and Pendleton went to a playground. Appellant ordered Pendleton to turn around so his back was to appellant’s face. Pen-dleton began to run and was shot eight times.

In determining the voluntariness of a confession the test is “whether the totality of the circumstances deprived appellant of a free choice to admit, to deny, or to refuse to answer, and whether physical or psychological coercion was of such a degree that the appellant’s will was overborne at the time he confessed.” State v. Buckles, 636 S.W.2d 914, 923 (Mo. banc 1982). In regard to the oral confession, the state’s evidence shows the confession was given voluntarily. Appellant was advised of his rights and indicated he understood those rights. Appellant stated that the matter had been weighing on his mind and he knew he was wanted for the incident. Appellate review on a trial court’s ruling on a motion to suppress is limited to a determination of whether the evidence was sufficient to support the trial court’s finding. State v. Baskerville, 616 S.W.2d 839, 843 (Mo.1981). The evidence supports the trial court’s finding.

As pertaining to the video tape, the transcript reveals that appellant expressed a desire not to make a statement. Appellant argues that Miranda mandates that all further questioning cease, and as such, the officer’s failure to terminate appellant’s questioning rendered the video tape confession, per se, inadmissible. Pertinent parts of appellant’s video tape were as follows:

Q .All right. Do you have any statements to make at this time in regards to that incident?
A No, sir.
Q You have no statements to make?
A No, sir.
Q We discussed this matter earlier today and you made a statement to me in reference to the incident. Are you saying at this time you do not wish to make a statement?
A Yes, sir.
Q Pardon?
A Yes, sir.
Q You wish to make a statement— yes or no? Do you wish to make a statement?
A No, I don’t want to make no statement.
Q We discussed this before we came down here and at that time you advised me that you did want to make a video statement.
A What you talking about? What happened?
Q Yes, um-hum. That’s what I’m talking about, about this incident.
A Yeah, I make it.
Q. All right. You want to tell me what happened on that particular day?
A Yes, sir.

Appellant is correct in his argument that if an individual indicates that he wishes to remain silent, the interrogation must cease. Miranda, 384 U.S. at 473-4, 86 S.Ct. at 1627-8. Further, the state has a heavy burden to show waiver of the right to remain silent. State v. Stevenson, 523 S.W.2d 349, 351 (Mo.App.1975).

However, as stated earlier, the test for voluntariness is the totality of the circumstances. In the case at bar, the trial court determined that appellant voluntarily waived his right to remain silent. The evidence supports this conclusion. Appellant’s indication that he did not wish to make a statement was not a refusal to talk but an indication that appellant did not understand the questioning. This is evidenced by the fact that appellant asked the officer if he was inquiring about the incident in question and upon confirmation, proceeded to respond. Additionally, appellant had his rights read to him before the video tape began. Appellant signed a waiver form agreeing to the video statement. The trial court did not err in admitting into evidence appellant’s video tape confession.

Lastly, appellant contends the trial court erred in refusing to give to the jury Missouri Approved Instruction — Criminal (MAI-CR2d) 3.30.1 regarding intoxication as it affected the mental state requisite to the commission of assault in the first degree. To support an instruction on the intoxication defense, evidence must be presented that tends to show the defendant was so intoxicated that he did not know what he was doing. State v. Bienkowski, 624 S.W.2d 107, 108 (Mo.App.1981). No such evidence was produced at trial.

Appellant indicated by his confessions that he was aware of his actions on the night in question. Appellant recounted every detail of his actions. Appellant even confessed that he knew he was wanted. This indicates appellant was aware that his actions on April 12, 1982 were illegal. Appellant produced no testimony pertaining to his state of mind or his intoxication. The only evidence presented at trial was the testimony of Pendleton and Barnes. They testified that appellant’s eyes were bloodshot, that he appeared “kind of high” and that he was acting crazy. This evidence is not enough to support the giving of MAI-CR2d 3.30.

Judgment affirmed.

GAERTNER and KAROHL, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).