author: BERREY, Judge.

text:
    STATE of Missouri, Respondent, v. Dennis J. DAVIS, Appellant.
    No. WD 35164.
    Missouri Court of Appeals, Western District.
    Nov. 7, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Dec. 26, 1984.
    Application to Transfer Denied Feb. 26, 1985.

      Robert G. Duncan, Gladstone, for appellant.
    John Ashcroft, Atty. Gen., John J. Oldenburg, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
    Before KENNEDY, P.J., and NUGENT and BERREY, JJ.
   BERREY, Judge.

Defendant appeals his conviction of robbery in the first degree and burglary in the first degree, wherein he was sentenced to ten and five years respectively in the Missouri Department of Corrections.

Defendant along with three other persons, broke into the Jackson County residence of Mrs. Geraldine Murry, a widow, seventy-one years old, with fractures in her back, about midnight December 1, 1981. They severed the phone line before entering. Mrs. Murry was asleep; she was awakened by a noise and went to the kitchen where she heard a prying sound at the back door. She shouted for the person to stay out and picked up the phone to summon aid but the line was dead.

A person came through the back door and ordered her to lie down on her stomach. She did. The first person who entered was carrying what appeared to be an iron or metal “long pipe.” According to the victim the first man was joined by another and for two hours they ransacked her house. Part of the time she was gagged and her head was covered with an orange bathrobe obstructing her vision.

One of the participants told her, “We’ll kill you if you don’t do what we want you to,” and said they had a gun. She asked them not to hurt her dog and they replied, “We won’t hurt your dog if you do as we tell you.”

She was moved from the kitchen to the bathroom and then to a small hallway. When they left she was on the floor in the hallway, she was told not to move for one-half hour or they would come back and kill her. She watched a clock and waited. As soon as the one-half hour elapsed, she put on galoshes from her front hall closet and fled to the neighbors across the street. The neighbors called the police. She remained there until the police arrived.

The thieves stole several fur coats, her car, silverware, wedding and engagement rings, some money, travelers’ checks and odds and ends.

The defendant alleges three points of error.

For Point I he alleges that Instruction No. 5 was erroneous as it is at variance with the indictment in that it authorized a finding of guilt if one of the participants was armed with a deadly weapon. The indictment alleged the defendant displayed and threatened the use of what appeared to be a dangerous instrument, (an 18" piece of pipe).

The defendant did not object to this instruction at the time of trial or in his motion for new trial. The defendant is not now alleging that the indictment is insufficient. The alleged error is not preserved, and we are asked to review under Supreme Court Rule 30.20. It is clearly not plain error such as to require reversal.

This court must find that a manifest injustice or a miscarriage of justice has resulted from the alleged error in the trial court before it can be reviewed as “[pjlain error affecting substantial rights.” State v. Lue, 598 S.W.2d 138, 137 (Mo. banc 1980).

“[Tjhere must be sound, substantial manifestation (not perceivable here), a strong, clear showing, that injustice or miscarriage of justice will result if the rule is not invoked.” State v. Meiers, 412 S.W.2d 478, 480-81 (Mo.1967). Such is not the instant case.

Counsel on appeal is different than trial counsel and the “rule sought to be invoked makes it clear it should not be loosely applied irrespective of the fact there has been a change of attorneys.” State v. Macone, 593 S.W.2d 619, 620 (Mo.App.1980). There must be plain error affecting substantial rights; discretion is vested in appellate courts to determine if manifest injustice or a miscarriage of justice has resulted. Macone, supra. “The variance between the information and an instruction, to be fatal and justify reversal, must be material and prejudicial to the rights of the defendant.” Macone, supra, at 621. Here Mrs. Murry was threatened and “there was evidence of both fear of immediate injury, and violence.” Macone, supra.

The variance between the charge and instruction must have resulted in prejudice to the defendant. State v. Collins, 519 S.W.2d 362, 364 (Mo.App.1975). There is no prejudice under the facts herein.

The court in State v. Crossman, 464 S.W.2d 36, 42 (Mo.1971), reviews State v. Lusk, 452 S.W.2d 219 (Mo.1970), cited by defendant herein. The court noted that the defendant in Lusk was charged with murder by beating the deceased. The instruction submitted to the jury questioned whether the deceased died by beating or exposure. Exposure being an entirely different means of dying than that from an assault by beating, the case was reversed.

Apparently the defendant believes his argument follows Lusk, supra. It does not.

Finally, since there was no objection to this instruction at trial or in motion for a new trial, this court is justified in refusing to consider the claimed error. State v. Johnson, 606 S.W.2d 655, 656 (Mo.1980); State v. Mathews, 328 S.W.2d 642, 644-45 (Mo.1959).

The defendant next contends the trial court erred during voir dire by expanding upon MAI-CR 2d 2.20. The events leading to the judge’s comments were at best confusing and deserve discussion.

During voir dire, the defense attorney asked the jury panel, “At this point in time, and by this point I mean in the hearing and trial of this case, right now, at approximately 11:35, would everyone in this jury panel raise their hands if they believe that this defendant is innocent?” From the record, it seems that approximately two panel members responded affirmatively to the question. Defense counsel restated the question in asking, “At this point in time I want to see hands from every man and woman in this panel that believes he is innocent.” Nineteen persons raised their hands while seventeen persons did not. Venireman Nobel stated he believed the defendant to be innocent but did not raise his hand because he did not understand the question.

The state then inquired if any of the panel who did not raise their hands the ■first time had totally prejudged the defendant as guilty and would therefore not make the state prove its case. There was no response to the inquiry.

At the conclusion of the voir dire, the judge made the following comments which defendant alleges are prejudicial:

THE COURT: Ladies and gentlemen of the jury, I am somewhat confused now. I want to see if I can clear up an area that has been gone into. When I read to you from a written instruction that will be given at the close of the case I read this, “The defendant is presumed to be innocent unless and until during your deliberation upon your verdict you find him guilty. This presumption of innocence places upon the State the burden of proving beyond a reasonable doubt that the defendant is guilty.”
And I asked — it was a three paragraph instruction. I have again read to you one of those paragraphs and I asked if all of you would follow that instruction of the Court. And nobody said they wouldn’t, so I assumed that everybody would.
Now Mr. Krenzky asked you how many of you thought the defendant was innocent and by that he meant, “Do you presume him to be innocent until the State proves him guilty beyond a reasonable doubt?” I’m now [sic] sure how well you understood that question. And a number of you raised your hands, starting out with Mr. Richberg and Mr. Brown and so forth and there must be, I don’t know, maybe a dozen people that said that they did not believe the defendant was innocent.
Now, what you really believe is only important if you are a member of the jury and at the close of the evidence, after you have heard all of the evidence and you have heard the Court’s instructions on the law and arguments of counsel and you go into the jury room to deliberate and you arrive at some final belief and that is based on the evidence that you heard, as I said, and the instructions on the law, and your belief has to be founded upon a feeling that the defendant is guilty beyond a reasonable doubt, but until that time according to this instruction on the law and it is given in every criminal case in the State of Missouri, the defendant is presumed to be innocent.
Now, I would like to ask those dozen people or so if they mean that they do not presume the defendant to be innocent now and until such time as the State may prove him guilty beyond a reasonable doubt. Now, the State may not prove him guilty beyond a reasonable doubt and that’s what you’re here to decide and so my question is:
Do those twelve people, maybe there are fourteen of you, I’m not sure, who raised your hand and said that you did not — that you did not believe the defendant to be innocent at this time, do you understand the question, to start with? Let me ask all of you, do you understand the question that is before you? That is, do you presume the defendant to be innocent at this time? Now, is there any of you who does not presume the defendant to be innocent?
(No response.)
THE COURT: Now there is not one hand raised, so what you are telling me is that in accordance with this instruction you do presume the defendant to be innocent unless and until during your deliberations upon your verdict you find him guilty and that this presumption of innocence then accompanies the defendant throughout the trial right up until the time that you go into the jury room to arrive at a verdict.
Do you all understand that and do you agree to that? Is there anybody that doesn’t agree with that or that doesn’t understand that?
(No response.)
THE COURT: Okay. That’s what I wanted to know.

(Emphasized sentence is the crux of defendant’s point of error.)

Following this statement and the cautioning instruction the court gave before the noon recess, several veniremen asked questions which were answered. The following occurred as a result of venirewoman Perkins’s statement:

VENIREWOMAN PERKINS: I wanted to clarify my answer. I was rather taken back by his question because I had not made any presumption of innocence or guilt. I did understand the instructions but I was basing my — I didn’t feel him innocent, I don’t also feel him guilty, so I wanted to make sure that my position was clear on it.
THE COURT: Okay. You understand that you are required to presume him innocent?
VENIREWOMAN PERKINS: Until proven—
THE COURT: Right.
VENIREWOMAN PERKINS: Yes, I do.

After the jury left the courtroom, defense counsel attempted to challenge for cause those who had not raised their hands in response to the second question. The state interjected by asking their reason for striking because it was obvious that the persons were merely confused by defense counsel’s question.

In support of their interjection, the state recalled the scene as follows: “What we could see, those of us who were watching was people half-way raising their hand, not raising their hand, changing their minds when the question was repeated, it was obvious.”

Defense counsel denied confusion and stated the reason for challenging as being that “they don’t have a conviction one way or the other and they are not going to follow the Court’s instructions as the Court has already given the instruction as to the presumption of innocence and they should be removed for cause.”

The following conversation then occurred between defense counsel and the court outside of the hearing of the jury:

THE COURT: Well, this isn’t the first time that has happened in this courtroom within the last month, this is about the third time. This is some new trick question defense lawyers apparently are passing around to each other and I have never, in all the years I have been trying criminal eases, a great many years, I have never heard anybody ask the question that way and these people are confused.
They are all people right off the street. They don’t really understand a lot of these questions that are asked of them. Everyone of them, in response to my initial question that I am required by law to read and which I read to them out of MAI-CR Instruction 1.02, a preliminary instruction, everyone of them said in response to that that he would presume the defendant to be innocent unless and until and so forth, during his deliberations he finds him guilty and they understood about the presumption of innocence business. That would be the indication.
Then you come around and phrase it this way, “Do you think he is innocent,” and they say, “Do you mean we have already made up our minds,” and they don’t really understand what we’re getting at because they’ve already been told there is a presumption that he is innocent and it was obviously at first, only three people responded. And then after you started after them again on a different tack [sic] then more people and pretty soon you had half the people on this panel responding.

Defendant contends that the court told the jury in order to overcome the presumption of innocence, and convict the defendant, all that was necessary was for them to have a “feeling that the defendant was guilty beyond a reasonable doubt” and this statement violated MAI-CR 2d 2.20, Note 3. Note 3 provides that, “No other instruction may be given elaborating further upon or attempting to define the presumption of innocence, reasonable doubt or proof beyond a reasonable doubt.”

However, under these circumstances, the judge’s elaboration on the presumption of innocence may not have been error. “The trial judge necessarily and properly has considerable discretion to exercise in control of the voir dire examination” and a clear indication of the abuse of his discretion must be shown before his ruling will be disturbed. Olsten v. Susman, 391 S.W.2d 331, 335 (Mo.1965); see also State v. Olinghouse, 605 S.W.2d 58, 68 (Mo. banc 1980); State v. Yowell, 513 S.W.2d 397, 403 (Mo. banc 1974); State v. Scott, 515 S.W.2d 524, 527 (Mo.1974). Here, the judge was in a position to observe the confusion which arose from defense counsel’s series of questions and quite artfully defused the situation. The question may not have been improper, but it did invite confusion which the judge had a duty to remedy when he recognized it.

As defendant did not raise this particular point either at trial or in his Motion for New Trial, he requests this court review the point under the plain error doctrine, Rule 30.20. In support, he cites State v. Doebert, 659 S.W.2d 280 (Mo.App.1983), as standing for the proposition that “[failure to follow the Notes on Use applicable to the new instruction is presumptively prejudice.” However, “ ‘[prejudicial error’ and ‘plain error’ are not synonymous terms and ‘prejudicial error’ does not inevitably rise to the level of ‘plain error.’ ” State v. Cass, 614 S.W.2d 784, 786 (Mo.App.1981). This court cannot find that manifest injustice or miscarriage of justice has resulted from the alleged error. State v. Lue, supra, at 137. In State v. Young, 610 S.W.2d 8, 12 (Mo.App.1980), citing State v. Harley, 543 S.W.2d 288, 292 (Mo.App.1976), the court reaffirmed the general rule that “instructional error is not ‘plain error’ unless the trial court has so misdirected or failed to instruct the jury on the law of the case as to cause manifest injustice.” See also Cass, supra.

Even if the trial judge erred in expanding upon the instruction, the overall gist of the statement to the jury was that they abide by the instruction and presume innocence. The instruction was again read to the jury at the close of all the evidence. Any error has been cured. Defendant has not shown the occurrence of a manifest injustice and the burden to do so is on him. Cass, supra. The comments were not plain error but necessary to correct the obviously confusing situation.

Though State ex rel. State Highway Comm’n v. Morganstein, 588 S.W.2d 472, 476 (Mo. banc 1979), is a civil case its note on invited error is worthy of mention. “The error, if any, in giving answer to the second question was invited by appellant who may not now be heard to complain.” While the defendant did not directly request the court’s elucidation, the question asked by defendant’s counsel confused the venire panel and, therefore, his query invited clarification. As the court noted in State v. Byrne, 595 S.W.2d 301, 307-08 (Mo.App.1979), “Thus any error that was committed was invited by defendant and will not be corrected by granting a new trial.” Point II is denied.

Point III raised by appellant claims plain error because the court failed to grant a mistrial sua sponte to remedy the prejudicial effect of the state’s closing argument that the victim did not identify the defendant in court because of a motion to suppress.

The victim identified the defendant from seeing him in court in Liberty, Missouri, and her identification was subsequently suppressed. The state produced Neil Whi-tehurst, “a participant in a robbery and burglary which occurred at the house of Geraldine Murry on December 2, 1981.” He testified that the defendant Dennis Davis and two others were with him and that Davis carried a tire tool and used it to “effect entry into the house.”

Shirley Scoggins had lived there and knew the layout of the place. She helped locate the silverware, diamonds and furs.

Whitehurst also testified Dennis entered first carrying a tire tool then “Chuck [Coff-man] came running around me and I followed him in.” Coffman was armed with a shotgun. When Whitehurst entered, the victim was lying tied up on the floor with something orange over her head.

A motion to suppress the identification was sustained by the court “for all purposes.” The defendant’s counsel in closing pointed out that Mrs. Murry described the man who broke into her home as blond; the defendant was not.

The defendant’s counsel first raised the issue of identification of defendant by the victim despite the trial court’s ruling that the identification of the defendant was suppressed “for all purposes.” The defendant continued his argument by saying that Mrs. Murry did not point out the defendant and say, “That’s him, that’s him.”

Defendant then argued without objection:

The prosecutor can stand up here and point his finger at Dennis Davis, ‘That’s the man,’ but he can’t get the victim to do it. He can’t get a policeman to do it....
... She is not going to send an innocent man to the penitentiary, she’s not going to point her finger at him and say, ‘That’s him, that’s him,’ because she believes in the truth.

The defendant’s counsel raised the issue, and baited the assistant prosecuting attorney, by injecting identification of defendant that he had successfully suppressed.

The argument advances a false reason for the victim’s failure to testify. The state attempted to counter this argument. The prosecutor in his final argument said, “And he tells you that Geraldine Murry couldn’t identify the person who came through the door. Ladies and gentlemen, have you heard of a motion to suppress — .” At this point, the court sustained the defendant’s objection to the state proceeding further along this line of argument.

The defendant seeks a reversal on this self-invited retalitory argument that was not completed and did not prejudice defendant.

The defendant failed to ask for a mistrial, his objection to the argument was sustained and the state shifted its focus to a different argument. The defendant now seeks relief under plain error Rule 30.20. State v. Hammonds, 651 S.W.2d 537, 539 (Mo.App.1983), cited by defendant sets forth the Supreme Court’s pronouncement on the subject as contained in State v. Hurtt, 509 S.W.2d 14, 15 (Mo.1974):

In order to invoke the plain error rule there must be a “sound, substantial manifestation ... a strong, clear showing, that injustice or miscarriage of justice will result if the rule is not invoked.” [citation omitted] ... When guilt is established by such overwhelming evidence no injustice or miscarriage of justice will result from a refusal to invoke the rule.

In Hammonds, supra:

The assistant prosecuting attorney intentionally misrepresented the facts and informed the jury that the witnesses did not testify because he did [sic] want to perjure himself and the jury should consider that in determining the “believability and credibility” of the witnesses. The comment was not accidental, but was deliberate, and cannot be excused.

Such extreme conduct by the assistant prosecuting attorney is not in the instant case.

The assistant prosecuting attorney attempted to retaliate against defendant’s arguments but the court sustained defendant’s objection before the full sentence was uttered. In State v. Hammond, 578 S.W.2d 288, 290 (Mo.App.1979), the court noted that a prosecuting attorney could go further by way of retaliation, in answering argument of defense than he would be permitted to argue in the first instance. See also State v. Tiedt, 229 S.W.2d 582, 588 (Mo. banc 1950).

It is improper for counsel to comment or refer to subject matter not in evidence during closing argument, but if such comment is in retalitation to comment of defendant’s counsel there is no reversible error. State v. Kirksey, 528 S.W.2d 536 (Mo.App.1975). Such is the instant case. There is no plain error and Point III is ruled against defendant.

Judgment affirmed.

All concur.

      . "The law of self-invited error was formerly embodied in Rule 26.06. This rule was in effect at the time defendant was tried. However, former Rule 26 was repealed by order of the Missouri Supreme Court effective January 1, 1980. The new Rules do not provide for a rule similar to former Rule 26.06. See Rule 27. Nevertheless, Rule 19.04 requires this court to follow the applicable case law or statutes where no procedure is specially provided by rule.” State v. Young, supra, at 13, n. 2.


source: Caselaw Access Project

author: LOWENSTEIN, Judge.

license: Public Domain

text:
    The CITY OF BLUE SPRINGS, MISSOURI, Appellant, v. CENTRAL DEVELOPMENT ASSOCIATION, et al., Respondent.
    No. WD 34848.
    Missouri Court of Appeals, Western District.
    Nov. 13, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Dec. 26, 1984.
    Application to Transfer Denied Feb. 26, 1985.

      Tom J. Helms, Kansas City (Collet, Bo-rich & Helms and Russell D. Jacobson, Kansas City, of counsel), Robert H. Mar-key, Edwards & Markey, Blue Springs, for appellant.
    Thomas H. Bennett, Reorganized Church of Jesus Christ of Latter Day Saints, Independence, Dick H. Woods, Michael W. Lerner, Stephen J. Owens, Stinson, Mag & Fizzell, Kansas City, for respondent Central Development Ass’n.
    William A. Piedimonte, Piedimonte & Piedimonte, P.C., Independence, for respondent Community Water Co., Inc.
    C. William Kramer, Cochran, Kramer, Kapke & Willerth, Independence, for respondent Atherton Levee Dist.
    Before CLARK, P.J., and NUGENT and LOWENSTEIN, JJ.
   LOWENSTEIN, Judge.

The City of Blue Springs, a fourth class city, appeals from the trial court’s dismissal of its petition to condemn land owned by respondents, Central Development Association (CDA), Community Water Company (CWC), and the Atherton Levee District (ALD), for the purpose of constructing a municipally owned water system. Blue Springs claimed that in 1979 the Missouri Water Company informed them that it would not renew its 20-year contract to supply water to the city. This contract, from which came the entire supply of city water expires December 6, 1990. After instituting a study of the current situation, future water needs, and several alternative sources, Blue Springs decided on a water source in the Atherton Bottoms, on land in question near the Missouri River which has substantial subsurface aquifer (underground river or reservoir). In essence the city sought to sink wells and extract water from the underground supply and build a treatment plant near the wells. Easements also were to be obtained to drain off the waste from the treatment plant and to pipe the water to the city.

CDA is the real estate title holding corporation for the Reorganized Church of Latter Day Saints (RLDS) and owning 6,000 acres in the Atherton Bottoms, it was the principal entity concerned in the Blue Springs plan. CWC is a corporation which acquired the subsurface water rights to the CDA land and that of some surrounding neighbors. The president of CDA’s farm division was named as the president of CWC. CDA has farmed the land for years and has irrigated those lands from the aquifer. ALD is a Missouri statutory public service corporation whose purpose, since 1923, has been to reclaim land in the Ather-ton Bottoms and protect it from flooding and erosion from the Missouri River.

The following events are not in dispute:

March 18, 1981 Blue Springs first contacted CDA (35 contacts followed over the next 16 months)
March 25, 1981 Blue Springs made only contact with ALD
June 2, 1981 Voters passed a nineteen million dollar bond issue to build the water plant
May 3, 1982 The ordinance in question was filed
May 10, 1982 CWC incorporated
May 17, 1982 Blue Springs passed ordinance declaring a public necessity for the acquisition of land and construction of a water treatment plant on the land in question
June 16, 1982 Blue Springs attorney offered CDA $132,200 for the land (about 60 acres)
June 30, 1982 CWC obtained subsurface water rights from CDA
July 12, 1982 Blue Springs ratified the offer to CDA by resolution
August 6, 1982 Blue Springs filed condemnation petition, defendants were CDA, CWC and ALD

Following three days of receiving evidence on the motion, the trial court said in its order the motion to dismiss was sustained on points 8, 9 and 10 of the Joint Suggestions in Support submitted by CDA, CWC and ALD:

8. Any negotiations held with Defendant CDA were not in good faith.
9. Plaintiff is precluded from condemning the water it seeks because the property is devoted to a public use by the Water Company, (i.e. CWC)
10. Plaintiff is precluded from condemning the rights it seeks in the Levee District’s property because that property is already devoted to a public use.

Included with the order, was the trial court’s three page memorandum which elaborated on its reasons for sustaining the motion to dismiss. These additional reasons elaborated on in the memo, though not included in the formal order are as follows: First, it said Blue Springs’ public use is not superior to the respondents’, and that the proposed use of the land as a water treatment plant would totally destroy or materially impair CDA’s and CWC’s use. Secondly, the trial court said that because the sole purpose of the condemned land was for water extraction, the negotiations should have included a reference to the subsurface water’s value. Blue Springs’ “token offer” implied that they “may have negotiated in less than good faith with those Defendants.” Lastly, the trial court refers to “the numerous undisputed technical deficiencies in Plaintiff’s petition” as another reason for dismissing the petition.

The memorandum contains several matters on which the court appeared to rely that were not directly or indirectly included within the three specific grounds on which the motion was granted.

The scope of review in this case is under Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Under that review the standards of no substantial evidence, being against the weight of the evidence and erroneous application of the law are here applicable to the judgment entered. City of Cape Girardeau v. Robertson, 615 S.W.2d 526, 530 (Mo.App.1981).

As a preliminary matter, there is no dispute the appellant Blue Springs has authority to condemn private property for public use pursuant to § 88.667 and § 79.-380 RSMo 1978. Nor is there a dispute that the building of a water treatment plant is indeed a public use. The respondents argue (albeit in their statement of facts and not as a point relied on) that Blue Springs has shown no true necessity for this plant, that the projections for daily water consumption were overestimated, that the choice of another area would be more economical, and the true purpose for the condemnation was for Blue Springs to make a profit. These arguments are not really germane to this appeal and the specific reasons for dismissal of the condemnation petition. (Failure to negotiate in good faith, and two of the parties being prior public utilities.) However, the question of whether a taking of any given private property is “necessary” for the condemnor’s purpose and the extent and exact location of the property to be taken are matters for political or legislative determination. Mapco, Inc. v. Williams, 581 S.W.2d 402 (Mo.App.1979). As the Missouri Supreme Court held in In the Matter of Proceedings to Grade, etc., 270 S.W.2d 863, 868 (Mo.1954), “the legislative body of the municipality, in the exercise of its powers in matters of the kind here involved, is vested with a discretion not subject to review by the courts, unless it is affirmatively shown to have been exercised arbitrarily, fraudulently, or oppressively.” Parking Systems Inc. v. Kansas City Downtown Redevelopment Corp., 518 S.W.2d 11 (Mo.1974). Whether the city could have sought water elsewhere as opposed to the condemnation of this land and construction of a well and a water works is not a part of this appeal. Although alluded to in the briefs and the order, the issue of necessity and the choice as to filling of those water needs of the city are not relevant in this case.

TECHNICAL DEFICIENCIES ERROR IN LEGAL DESCRIPTION

This court will first address the last point raised in the memorandum. As indicated earlier, the trial court’s order was accompanied by a memo which set out additional reasons for dismissal, including “numerous undisputed technical deficiencies” in the petition. The “deficiencies” must mean an incorrect legal description of the land both in the ordinance and in the petition. In particular, CDA’s real estate was listed as being part of Township 50, when it should have been 51. The Missouri Supreme Court said in State v. Allison, 365 S.W.2d 563, 565 (Mo. banc 1963), that errors in description or a change in plan in a condemnation petition may be taken care of adequately by amendment. See also Jackson County v. Hall, 558 S.W.2d 791, 793 (Mo.App.1977), where this court held it was an abuse of the trial court’s discretion not to permit condemnor to amend its petition on day of trial. Respondents argue that the 1932 appellate decision of Sassman v. State Highway Commission, 45 S.W.2d 1093 (Mo.App.1932), controls this case. But in Sassman the error in the legal description was not raised until after the condemnation proceedings were complete and the condemnee had been paid money for the wrong piece of land. Even the Allison court agrees that after a commissioners’ report has been filed, amendments will generally not be permitted which would include different lands and which would prejudice the rights of the con-demnee, or substantially change the issues. 365 S.W.2d at 565. Likewise, in State ex rel State Highway Commission v. Spell, 665 S.W.2d 650, 652 (Mo.App.1984), a motion to amend a property’s description after the commissioner’s report was filed and the proceedings concluded, was found untimely. In the present case the proceedings have not progressed past the petition stage. No commissioner’s report has been filed, let alone a final determination of value. Therefore, the amendments, which would be so minor so as not to be a substantial change, will not prejudice the rights of the defendants, so a motion to amend would be timely. Despite the error, all concerned appeared to know exactly where the wells would be sunk and the waterworks built.

Respondents also argue that apart from amending the petition, the Blue Springs’ ordinance has the same defect in the legal description. This too can be corrected by amendment as the Missouri Supreme Court held in City of St. Louis v. Senter Commission Co., 84 S.W.2d 133, 141 (Mo.1935). There the ordinance was amended by repealing the original section describing the property and enacting a new section with the correct description. In the Blue Springs’ petition and ordinance the township number was incorrectly given for two of the six tracts. There is no claim that the rest of the metes and bounds given are not correct, so a change of this one number would not amount to a substantial alteration.

GOOD FAITH NEGOTIATIONS BY BLUE SPRINGS

In State ex rel Weatherby Advertising Company v. Conley, 527 S.W.2d 334, 336 (Mo. banc 1975), it was held to be a jurisdictional requirement that the con-demnor and property owner have been unable to agree on the compensation to be paid for the property being taken. This jurisdictional fact must be both pleaded and proved. Contrary to the trial court’s findings, there is substantial evidence to support that Blue Springs accomplished both.

The fee owner of the property here involved is CDA. According to the court in State ex rel State Highway Commission v. Pinkley, 474 S.W.2d 46, 49 (Mo.App.1971) (cited with approval by the Missouri Supreme Court in Conley, supra), to satisfy the statutory requirements of § 523.010 RSMo the condemnors’ evidence must show that a valid offer was made by one party, usually the condemnor, and rejected by the other. The record on appeal includes evidence that on June 16, 1982 Blue Springs unconditionally offered $132,200 to CDA for the six tracts of land. Then on July 12, 1982 CDA rejected this offer. Unlike the Pinkley case where the State Highway Commission had not even approved the conditional offers, Blue Springs’ offer was authorized as passage of the ordinance proved.

The trial court said in its memo that lack of good faith negotiations was indicated by Blue Springs’ “token offer.” Nowhere in respondents’ brief or the trial court’s order is stated what amount of money would have created a bona fide offer. Missouri case law indicates the relationship between the offer and the market value of the property to be condemned is not significant in the determination of good faith. An offer need not be a particular amount — merely sufficient to create a binding contract. See Note, Preliminary Requirements for Condemnation in Missouri: Necessity, Public Use, and Good Faith Negotiations, 44 Mo.L.Rev. 503, 511 (1979).

In School District of Clayton v. Kelsey, 196 S.W.2d 860 (Mo.1946), an offer of $15,-000 met the good faith negotiations requirement even though the actual damages were later assessed at $34,500. In Shelby County R-IV School District v. Herman, 392 S.W.2d 609 (Mo.1965), the State Highway Commission refused to offer any cash payment because the proposed highway improvements supposedly created benefits that exceeded the land owner’s damages. The jury verdict resulted in a $150 award for 2.83 acres, but the court upheld the ruling that the attempt to negotiate was sufficient to comply with the requirement. It was there noted the negotiations must precede the filing of the petition. Thus, in the present case if the $132,200 offer, which was based on an appraisal, turns out to be only half or one-fifth the value finally awarded, that by itself is no indication of bad faith.

The trial court’s memo also suggests that Blue Springs’ offer was not in good faith because it failed to include a reference to the subsurface water value. Had Blue Springs been hiding its purpose of using the land for wells and a water treatment plant, this fact may have had some merit. But here from the very start CDA knew of Blue Springs’ intentions. This court believes there would be no magic in Blue Springs having said the $132,200 was for both the fee and the subsurface water. Clearly CDA’s main complaint is the dollar amount offered, not the language of the offer. As discussed above, even if after the commissioner’s report, and a jury verdict, the value of the land plus water is set at a higher price, this would not defeat the jurisdiction of Blue Springs’ petition.

A final aspect of the good faith negotiations issue is Blue Springs’ failure to negotiate with CWC. Whether Missouri allows subsurface water rights to be separated from the fee, or whether CWC owns a compensable interest in the condemned property need not be addressed for determination of this issue. The question here is whether Blue Springs had a legal obligation to acquire anything but CDA’s fee interest. Analogous situations occured in two Missouri Supreme Court cases. In Western Robidoux Printing & Lithographing Co., Inc. v. Missouri State Highway Commission, 498 S.W.2d 745 (Mo.1973), the plaintiff/appellant was a lessee on the condemned property, and argued a lack of good faith negotiations because the Highway Commission failed to acquire their leasehold interest. The court held that the compensation to be paid is ascertained as though the property belonged to one person, and then the sum is apportioned between the lessee and lessor. There was nothing improper for the Highway Commission to only negotiate with the owner of the fee.

In M & A Electric Power Cooperative v. Georger, 480 S.W.2d 868, 870 (Mo.1972), the condemned land was held in tenancy by the entirety. The condemnor only negotiated with the husband, but the court held that the flat refusal of one party made it unnecessary to tender an offer to the other party, and that the evidence was sufficient to show the inability of the parties to agree upon the compensation to be paid.

In Blue Springs’ situation it was clear that the fee owner, CD A, could not agree on the price to be paid for the six tracts of land. It was unnecessary for Blue Springs to decide how much should be offered for each subsidiary interest. Therefore, Blue Springs did not show a lack of good faith for failing to negotiate with anyone but the fee owner.

Under all the facts here it would be unfair to allow the fee owner, after the intent to condemn for a water supply had been expressed, to then deed to a companion entity the subsurface water rights and then hold the failure of the municipality to negotiate with this entity to be a jurisdictional flaw that defeated the whole petition.

The issue here only deals with negotiations measuring up to good faith to supply jurisdiction. Cases involving who should be made parties or who can file exceptions or actual apportionment of damages between title holder’s and those owning mineral rights do not.appertain. Also inapplicable as authority on the issues here is Higday v. Nickolaus, 469 S.W.2d 859 (Mo.App.1971) where the city had not even commenced condemnation.

EXISTING PUBLIC USE

The final issue concerns the trial court’s finding that both CWC’s and ALD’s use of land fall within the protection of the rule that property already devoted to a public use cannot be taken for another public use which will totally destroy or materially impair or interfere with the former use. State v. Hoester, 362 S.W.2d 519, 522 (Mo. banc 1962), citing 29 C.J.S. Eminent Domain 861.

There was no substantial evidence here as to a present public use by CWC. The trial court’s memo admits that CWC does not “reach the point where they are under a present legal obligation to maintain a public purpose.” As stated in 1 Nichols on Eminent Domain 3rd Ed. § 2.2(5), a mere voluntary assumption of public service which may be abandoned at any time carries with it no such privilege of exemption from condemnation. There is some controversy over what acts subordinates rights — the introduction of Blue Springs’ ordinance, or the filing of the condemnation petition, but that need not be addressed to resolve this issue. At best CWC had incorporated under § 393.010 RSMo 1978, a week prior to the ordinance being passed and about 3 months before the petition was filed, and had timely obtained legitimate deeds to the subsurface water rights, but it simply had not done enough to become a protected entity.

As to the trial court’s ruling CWC had already devoted the property to a public use, the memorandum itself contradicts the order. Such memorandum language that CDA and CWC, “have undertaken certain substantial steps toward a long range plan ...;” that CWC was “cut off at the pass” by the city’s condemnation action, undercuts the sustaining of the motion which stated the “property is devoted to a public use by the water company.”

The evidence was CWC had made a proposal to a water supply district, and as CWC’s letter of October 12, 1982 to the Public Service Commission stated, the proposal was with the “intent” to enter into a contract in 1983, contingent on an agreement on price. The contract was blank as to amount of water to be supplied and price. The order of the commission recited CWC, “proposed to render service to the public.” The commission further noted § 393.170 RSMo which requires application by the company to obtain a certificate of public convenience and necessity to dispense water to the public. As of June 1982 when CWC sought to issue stock, and July 19, 1982 when that attempt was denied because of no certificate, CWC could not dispense water to the public. CWC had no means to either mine or treat water from the aquifer. Presumably the attempt to sell stock was to raise money for that purpose. The requirements, which CWC had not met, for an applicant to construct a facility and to be granted a service area are contained in 4 CSR 24-2.060. As of October 12, 1982 when the blank proposed contract was submitted by CWC to the commission, it had neither the power nor the duty to supply water on a public basis. The granting of a certificate of convenience and necessity is a mandate of the utility’s duty to serve all persons in the franchise area it has undertaken to serve. State ex rel Harline v. Public Service Commission of Missouri, 343 S.W.2d 177, 182 (Mo.App.1960). The timing and the attempts to obtain such authority (that was never obtained) makes certain CWC had no pre-ex-isting public duty. Nothing was in place, or even close to being put in place when the city passed the ordinances to obtain a water supply.

A municipality’s general statutory right to condemn cannot be escaped by anything short of an existing public use, and those facts are simply not present in this case.

Even if this court assumed CWC had established a prior public use, there are exceptions to the rule of exemption. In Illinois Cities Water Company v. City of Mt. Vernon, 11 Ill.2d 547, 144 N.E.2d 729, 733 (1957), the Illinois Supreme Court held that a municipality can acquire the property of an existing public utility devoted to the same use as that contemplated by the condemnor, by eminent domain. Relying on authority from earlier New York and Washington cases, the rationale for this result is that “while the purpose of the water works company was public in its nature, it cannot be said to be strictly identical with the municipal purpose. A municipal corporation is a public and governmental agency. It held property for the general benefit, with a larger scope of use.” Id. Thus, in any event, there is no authority to support the trial court’s contention that CWC’s actions created a “superior” public use to that of Blue Springs.

There is no quarrel as to the trial court’s specific order that ALD’s property was within the domain of public use. Thus, the trial court’s ruling on point 10 of respondent’s motion to dismiss will be affirmed. Blue Springs practically concedes this point — the levee district is and has been in operation under the laws of this state. The net result is Blue Springs cannot condemn any of ALD’s property. But the inability of Blue Springs to condemn ALD’s land does not affect the city’s ability to condemn the interests of CD A and CWC. The city’s problem of disposal, with or without ALD is not such as to now dismiss the city’s petition. A case from the Supreme Court of Colorado aptly describes this situation:

The fact that petitioner has not complied with the law in this respect ... may affect the ability of petitioner to enjoy the lands sought to be condemned, but does not effect its power to condemn such lands as against the respondents. They cannot raise a question which does not concern them, or which rests solely between the petitioner and the government.

Denver Power & Irrigation Co. v. Denver & R.G.R. Co. et al., 30 Colo. 204, 69 P. 568, 570 (1902).

The other grounds mentioned in the motion but not sustained included; failure to mention water or the owner of the water in the ordinance, failure to negotiate with CD A or CWC prior to filing the petition, no statutory authority for the condemnation, and failure to comply with federal law. The trial court was correct in not sustaining a dismissal on these grounds.

The trial court’s judgment as to dismissal on point 8 for failure to negotiate in good faith is reversed as being against the weight of the evidence and as a result of a firm belief that holding is clearly wrong. The judgment relating to point 9, CWC’s being a prior public utility or entity, is reversed because it is not supported by any substantial evidence. The judgment on ALD’s prior public use, point 10, is affirmed. If the judgment of dismissal as to CD A and CWC was predicated upon technical infirmities it was error — the cause is remanded to allow Blue Springs to amend the ordinance and petition to accurately describe the land to be condemned and to then proceed against CD A and CWC. Costs to be assessed equally against Blue Springs, CD A and CWC.

All concur.


author: LOWENSTEIN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Robert E. BULLINGTON, Appellant.
    No. WD 34893.
    Missouri Court of Appeals, Western District.
    Dec. 11, 1984.

      Richard H. Sindel, Clayton, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
    Before LOWENSTEIN, P.J., and SOM-ERVILLE and NUGENT, JJ.
   LOWENSTEIN, Presiding Judge.

This appeal arises from a burglary in St. Louis County on September 3, 1977 in which the defendant Bullington broke into a home with a shotgun, tied up and taped the eyes of two of the residents (mother and son of the victim) then took the victim, Pamela Sue Wright, age 18, with him as a hostage. Other facts will be recounted with the relevant point of error raised on appeal by Bullington. Suffice it to say at this juncture, Bullington, while brandishing the shotgun, told the mother and brother to be quiet or he’d blow their heads off. He told the brother, “Don’t say a word or I’ll split your head open like a watermelon.” The victim’s mother asked him to not take her daughter; his reply was, “Don’t call the police or I’ll kill her.” He also said, “I’m alone and I don’t want to be alone.” The estimated time the two witnesses looked at Bullington was between 20 seconds and five minutes. Bullington was seen in the neighborhood prior to the break-in and kidnapping, leering at several young ladies who were washing cars. A white truck similar to Bullington’s was seen parked in front of the victim’s house on the evening in question. On September 7th he left his truck at work but he departed saying the police were after him. He never returned, but was next seen in Oklahoma on September 12th where he told of being wanted by the police at home, explaining, “I’ve done a terrible thing and I will have to pay with my life.”

After being taken from the house Pamela was not seen alive again. On September 11, 1977 her badly decomposed body was found floating in a creek eight miles from her home. The cause of death was listed as drowning some three to seven days earlier. Crimes involved with the break-in were severed and tried on a change of venue in Jackson County. See 593 S.W.2d 224. This court affirmed those convictions, first degree burglary, flourishing a deadly weapon, and armed criminal action in State v. Bullington, 680 S.W.2d 238, handed down September 18, 1984. The motion for rehearing or transfer was denied October 25, 1984. Many of the facts and the long procedural history of this whole matter are contained in that opinion.

This appeal is from Bullington’s trial in Boone County (on a change of venue) for the capital murder charge stemming from the above facts. A jury found him guilty of murder in the first degree, § 565.003 RSMo 1978 as the killing was committed in the perpetration of kidnapping. On the basis of four prior felony convictions, the court also found Bullington to be a prior, persistent and dangerous offender. Sentence was set at life in prison. In a prior trial involving the homicide Bullington had been convicted and punishment set at life in prison without parole for 50 years. That conviction was overturned because of the application of Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979) which found infirm Jackson County’s allowance of exemptions for jury duty for women. The United States Supreme Court in Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), said he could not upon retrial receive the death penalty.

Bullington here raises some seven points, all of which are denied.

I.

Bullington’s first point is that the identification testimony of the victim’s mother and brother was improperly admitted into evidence because the testimony was the result of unnecessarily suggestive pretrial identification procedures. Assuming this question has been properly preserved, Missouri has adopted a two-step analysis for determining the constitutionality of these procedures: 1) Were the investigative procedures employed by the police impermissibly suggestive? 2) If so, were they so impermissibly suggestive as to create a very substantial likelihood of an irreparable misidentification at trial? State v. Burns, 671 S.W.2d 306, 310 (Mo.App.1984) quoting State v. Higgins, 592 S.W.2d 151, 159 (Mo. banc 1979).

In addressing the first prong of the analysis the defendant relies on Supreme Court cases that can be distinguished. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) held that an accused has a right to his attorney’s presence during a post-indictment lineup. There is no complaint by this defendant on that aspect. The court also gave examples of the potential for improper influence, such as a defendant being the only Oriental in a six-man line-up, or the only tall person, or young person. Id. at 232, 87 S.Ct. at 1934. The facts in Wade revealed the witnesses observed the defendant “within sight of an FBI agent” prior to the line-up. Id. at 234, 87 S.Ct. at 1936. While the court did not assume this was intentionally designed, the prejudicial effect was a result of police procedures. However, in the present case, Bullington points to the mother and brother’s exposure to his picture on television and in the newspaper. In no way can the police be held accountable for media coverage. In fact the mother admitted the police tried to keep the newspaper articles away from her.

The defendant also cites Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The court considered whether the procedure was so “unnecessarily suggestive and conducive to irreparable mistaken identification that [the defendant] was denied due process of law.” Id. at 302, 87 S.Ct. at 1972. Stoval was taken to a hospital to be shown to the victim. He was handcuffed to one of five police officers, and was the only negro in the room, yet this procedure was affirmed when viewed in light of the “totality of the circumstances.” The procedures in this case had far less potential for mistaken identification.

A third case relied on by the defendant is Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). There, besides two line-ups, the only eye-witness was given a one-on-one confrontation with Foster. The witness made no positive identification until the third viewing. This is far different from the present case where the victim’s brother identified the defendant from a photograph the first time it was shown to him. While it is true the mother could not identify the defendant by a photograph, she said from the very start she would need to hear his voice. And in fact when a line-up was finally arranged, the mother made positive voice identification.

Bullington next attacks the dissimilarities among the men in the line-up. This fact alone is insufficient to establish impermissible suggestiveness, for a line-up does not require exact conformity. State v. Taylor, 661 S.W.2d 794, 798 (Mo.App.1983); As stated in State v. Burns, 671 S.W.2d 306, 310 (Mo.App.1984); “[p]olice stations are not theatrical casting offices; a reasonable effort to harmonize the line-up is normally all that is required.” The record is bare as to any error in the line-up to cause it to have been tainted.

Since the investigative procedures employed by the police were not impermissi-bly suggestive, this court need not address the second prong of the analysis, and the cases cited by the parties for that proposition.

II

Bullington’s second point concerns the exclusion of testimony from Dr. Buckh-out, a psychologist and expert in the field of perception. In an offer of proof he indicated Dr. Buckhout would have testified without any reference to specific witnesses as to the results of scientific research regarding (1) the effects of stress on perception; (2) the effects of limited opportunities to observe on the ability to remember and recall accurately what has been observed; (3) the effect of the length of time between the observation and a recall test on the ability to remember and recall accurately what was observed; (4) the effects of group discussion among observers on the ability to remember and recall accurately what has been observed; and, (5) the deficiencies in reliability between various kinds of recall tests.

This very doctor’s testimony has been excluded in the following jurisdictions. See United States v. Thevis, 665 F.2d 616, 641-642 (5th Cir.1982); cert. denied, 456 U.S. 1008, 102 S.Ct. 2300, 73 L.Ed.2d 1303 (1982); United States v. Fosher, 590 F.2d 381, 383-384 (1st Cir.1979); United States v. Brown, 501 F.2d 146, 150-151 (9th Cir.1974); United States v. Collins, 395 F.Supp. 629, 635-637 (M.D.Pa.1975); State v. Wooden, 658 S.W.2d 553, 556-557 (Tenn.Crim.App.1983); State v. Stucke, 419 So.2d 939, 944-945 (La.1982); People v. Valentine, 53 A.D.2d 832, 385 N.Y.S.2d 545, 546 (1976).

For the reasons stated in State v. Bullington, supra, at pages 11 through 13 of the slip opinion, the court on the basis of the nebulous character of the proposed general testimony of an expert on witness perception, as presented here, make the trial judge’s hesitancy to allow this testimony entirely justified. On this record, the court did not abuse its discretion in rejecting the testimony. The point is denied.

III.

The third point on appeal contends the court improperly excluded testimony by defendant’s witness concerning voice comparison. The witness was an assistant public defender who had represented Bull-ington. The defense sought to rebutt the mother’s statement of the perpetrator’s voice being as deep as one of the investigating officers. The point also generally attacks the mother’s in-eourt voice identification. Bullington relies on Eichelberger v. State, 524 S.W.2d 890, 894 (Mo.1975), where the court held a witness need not be qualified as an expert for an in-court voice identification, and that the lack of training merely goes to the weight of the evidence. Eichelburger supports the admission of the mother’s testimony identifying the defendant’s voice but it does not support a witness comparing the defendant’s voice to another man’s.

Bullington is mixing apples and oranges when he says the mother was permitted to make a “comparison” between the voice she heard at the line-up and the voice of the man who broke into her house. The mother was simply testifying that the voice she heard on those two occasions came from one and the same man. This is distinguished from analyzing the similarities and differences between two separate people’s voices.

The facet of the point that the mother testified on cross-examination about a comparison she made between the defendant’s voice and that of Detective Chasteen’s, is without merit. However, the mother never testified that the two voices were definitely the same; she only admitted making an out-of-court statement that “maybe” the defendant’s voice, “was as deep as,” Chasteen’s. Therefore, the trial court did not abuse its discretion in excluding the proffered rebuttal testimony.

IV

In Bullington’s next point he contends the trial judge erred in admitting in evidence a shotgun that was unconnected to him or the crime, and the jury might have been misled into believing the gun was the one used in the commission of the kidnapping. The shotgun used by Bulling-ton when he entered the Wright’s home and to effectuate the kidnapping of the victim was never recovered. The prosecutor was allowed to introduce a Model 1200 Winchester shotgun. The victim’s mother and brother were shown the weapon as well as Gronek who had sold to a man named “Bullington” a similar weapon. The questions to these witnesses clearly showed the exhibit was not the weapon used in the crime. There could have been no misunderstanding on this matter by the jury.

However, the argument of Bullington that the demonstrative value of the shotgun outweighed by the prejudicial effect of introducing a lethal weapon unconnected with the crime presents a closer issue.

Even excluding the matter of the sale of a similar model by Gronek the victim’s mother and brother had testified to and described a weapon used by Bullington in their home. The mother said the exhibit was “similar” to the one she saw — it had a long shiny barrel and had engraving on the wood. The son said the exhibit was generally the same except for length of the barrel.

“As a general rule weapons and objects not connected with the defendant on the crime are not admissible unless they have some probative value.” State v. Wynne, 353 Mo. 276, 182 S.W.2d 294, 299 (1944). This rule was refined in State v. Charles, 572 S.W.2d 193, 198 (Mo.App.1978), by saying lethal weapons, “completely unrelated to and unconnected” with the crime for which the accused is on trial have a “ring of prejudice,” which when used or displayed in evidence result in prejudicial error. The conviction in Charles was reversed when a gun totally foreign to the offense for which the accused was charged was introduced. In State v. Moore, 645 S.W.2d 109 (Mo.App.1982), relied upon by Bullington, a weapon found in the defendant’s path of flight but not identified by the victim as the robbery weapon, injected prejudicial error by its admission. It would seem the state could have made its case as to the use of a weapon by Bullington on the testimony of the mother and son, without producing a replica, or entering into the thicket of tracing, through the cancelled check, the sale of a similar model gun from Gronek to Bullington (whom Gronek could not identify at trial).

The state offers State v. Woods, 637 S.W.2d 113, (Mo.App.1982), as an antidote for Wynne, Charles, and Moore. The defendant in Woods was charged with introducing a weapon into a place of confinement to aid an escape. A model, but not the pistol purchased by the defendant was introduced. The court said a model or replica of an unavailable object is admissible so long as relevant to a material issue. Id. at 117. The Woods court held the replica of the weapon relevant. Here, too, the shotgun was relevant in that Bullington was seen using such a weapon to effectuate the kidnapping, an element of the first degree murder charge under § 565.003. The eye witnesses here had described to police a weapon that was connected to the defendant and the crime. The model introduced in evidence was recognized as being similar to the one Bullington used. The weapon here, though not the one used, was connected to the crime as charged. Cf. State v. Fristoe, 620 S.W.2d 421, 426 (Mo.App.1981).

The admission of the demonstrative evidence was not prejudicial. The weight of its presentation was for the jury. State v. Lawson, 585 S.W.2d 247, 250 (Mo.App.1979). Identification was not insufficient merely because it was described as “similar to or, or looks like”. Id. at 250. State v. Hubbard, 659 S.W.2d 551, 557 (Mo.App.1983).

IV.

The fifth point is whether the state adequately proved the corpus delicti, i.e. the death of a human being, and the criminal agency of another. State v. Priest, 660 S.W.2d 300, 304 (Mo.App.1983). While it is true the defendant’s guilt was established entirely by circumstantial evidence, this is no bar to sustaining the conviction. State v. Tatum, 656 S.W.2d 305, 309 (Mo.App.1983). This court must view the evidence and all of its reasonable inferences in the light most favorable to the state, disregarding any evidence or inferences to the contrary. Id.

Bullington, within this point, argues he was not the criminal agent and the state didn’t make a case. This boils down to whether the jury’s verdict can be justified by utilizing the inference that the defendant was a criminal agent responsible for the victim’s death because he was found to have kidnapped her. The cases cited by Bullington on this point, State v. Lane, 497 S.W.2d 207 (Mo.App.1973) and State v. Morse, 515 S.W.2d 608 (Mo.App.1974), are both burglary cases and do not shed light on the question of murder. They merely state the general proposition that when evidence is entirely circumstantial, the facts relied on by the state must be consistent with each other and the hypothesis of guilt, and be inconsistent with, and exclude every reasonable hypothesis of innocence.

Bullington poses the hypotheses that the victim could have drowned by accident or at the hands of another. However, as this court said in State v. Priest, supra, at 305, the state need not “rule out all possible hypotheses.” The facts in Priest are parallel to the present case. A young girl was last seen in the company of the defendant. Two days later her body was found floating in a pond. Cause of death was drowning, and as with Pamela Wright, the body was too decomposed to determine signs of struggle or molestation. The court admitted the establishment of corpus delicti was marginal, yet held that reasonable minds could exclude the possibility of accident. In the present case the facts are even stronger. Bullington forcibly entered the victim’s house and abducted her at gunpoint. He told the mother if she called the police he would kill the daughter. This plus Bullington’s incriminating statement made some two weeks after the murder that “I’ve done a terrible thing and I will have to pay with my life,” make it abundantly clear that Bullington’s hypotheses do not rise above the level of possibility.

The corpus delicti was established in this case. Bullington’s suggestion of accident, that the victim may have fallen into the creek while walking in the woods topless, is rejected. As to whether the state made a case as to his causing the death, though based on circumstantial evidence, the answer is in the affirmative. The circumstances and facts here were consistent with each other and with guilt, but the burden was not on the state for them to demonstrate the impossibility of innocence. State v. Abbott, 654 S.W.2d 260, 268 (Mo.App.1983). The state made a case, and the facts and circumstances read in a light supporting the verdict. State v. Moss, 622 S.W.2d 292, 296 (Mo.App.1981).

VI

Bullington contends that the trial court abused its discretion in denying his request to individually question the jury panelists or in denying his alternative request of the challenge for cause of all panelists who had heard or seen newscasts concerning his previous trial. A trial court has broad discretion in the conduct of voir dire, and this court will not interfere absent an abuse of discretion. State v. Williams, 659 S.W.2d 298, 300 (Mo.App.1983). Furthermore, individual questioning of potential jurors is not required even in capital murder cases. State v. Jimmerson, 660 S.W.2d 475, 477 (Mo.App.1983). The facts here do not warrant an exception to this rule absent an indication that prejudice likely occurred, the trial court cannot be said to have abused its discretion in this denial. Jimmerson, supra, at 477. There was no evidence that the jurors had heard any more than the fact the case was in Boone County on a change of venue. There was no response to defense counsel’s question whether anyone had heard something about this particular case other than what they’d already told the court.

As to defendant’s blanket challenge for cause, exposure to publicity is not deemed inherently prejudicial. State v. Molasky, 655 S.W.2d 663, 667 (Mo.App.1983). Even if one of the eleven potential jurors had said they had formed an opinion from what they had heard, that juror may be sworn if he is able to set aside any opinion formed from the publicity. Id. Here all the jurors indicated to the court they had heard nothing that would even cause them to form an opinion. The news reports, according to the record, did not go into the details of the case, but that it was being tried in Boone County on a change of venue from St. Louis. The defendant’s sixth point is denied.

The last point on appeal concerns the admissibility of evidence seized from the defendant’s home and truck during a warrantless search. This issue was also addressed in State v. Bullington, supra, at 242, where it was denied. This court reaches the same result.

Of the items seized only three were introduced into evidence: a rug shampoo box, a cancelled check (from Bullington to Gro-nek), and a strand of hair. The defendant did not object to the box being offered, nor did he demonstrate in his appeal any prejudice suffered. As far as the court can determine from the record, this box had no bearing on the case whatsoever. The defendant here has the burden of both error and prejudice. State v. Lantigua, 652 S.W.2d 177 (Mo.App.1983).

When the check was offered into evidence, the defendant’s objection was there was no evidence that the check had been drawn or signed by him; there was no objection to the check being the result of an illegal search. This check was introduced into evidence in connection with state’s witness, Gronek, who testified he had sold a gun to a man whose credentials identified him to be Robert E. Bullington. The weapon itself was not produced (but see point four above concerning the replica of the gun being introduced). Even though Gronek’s testimony and the cancelled check have more bearing on the case than the rug shampoo box, the possible prejudice is de minimus when viewed with the other evidence in the case, including the mother and brother’s identification of the defendant, and their testimony as to his flourishing a shotgun. The attempt to trace the possible sale of such a weapon from Gronek to Bullington was cumulative and any error in its introduction was harmless. U.S. v. Leichtling, 684 F.2d 553, 557 (8th Cir.1983). Cf State v. Maddox, 657 S.W.2d 719 (Mo.App.1983) (where the other evidence supporting the conviction was hazy).

Finally, while the introduction of the strand of hair was rather ineptly objected to, the defendant did not demonstrate how this hair could prejudice him. Even if the jury believed the hair belonged to the victim, at most it indicated she had been in the defendant’s truck. The record has far more inculpatory evidence than this to link defendant to Pamela Wright’s death. Consequently, the validity of (the search and seizure of the defendant’s house and truck are irrelevant.

The judgment is affirmed.

All concur.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. James FULLERTON, Appellant.
    No. WD 35083.
    Missouri Court of Appeals, Western District.
    Dec. 26, 1984.

      David H. Jones, Springfield, for appellant.
    John Ashcroft, Atty. Gen., and Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, for respondent.
    Before KENNEDY, P.J., and DIXON and CLARK, JJ.
   PER CURIAM.

Defendant was convicted upon jury trial of growing and cultivating marijuana, § 195.020.1, RSMo Supp.1982. He was sentenced to 20 years in prison in accordance with the jury verdict, § 195.200.-l(l)(a), RSMo Supp.1982. Defendant has appealed, alleging eight separate instances of trial error which he claims entitle him to a reversal. We affirm the conviction.

The facts are as follows:

Defendant owned a 196-acre farm in Polk County. On August 22, 1982, a Polk County deputy sheriff, in an area two miles from defendant’s farm, came upon an unoccupied parked car whose trunk was open, revealing freshly-cut marijuana plants inside. Two young men returned to the vehicle. The deputy arrested them. They said they had waded across the nearby Pomme de Terre River and had stolen the marijuana from “the old man who owned the farm,” indicating defendant James Fullerton.

A search warrant was obtained on the basis of this information. One of the two young men accompanied law enforcement personnel as they returned to the arrest site and waded across the river, entering defendant’s property in the vicinity the young men had earlier entered. Once across the river, they came upon a field containing 942 well-tended, spiked, fertilized and watered marijuana plants, some of which reached 16 feet in height, 8 feet in diameter of foliage, and 4 inches in diameter of main trunk. The plants were watered by an elaborate irrigation system. A pipe in a nearby stream was connected to a Homelite motor-powered water pump, a muffler on it to lessen the sound and camouflage on it, presumably to disguise it from aerial view. Over 500 feet of two-inch plastic pipe was seized, having been strung out along the neatly-planted rows. A “trip wire” strung six inches above the ground surrounded one field of over 800 plants, and lookout tents had been pitched and attempts made to shield those tents from overhead view. A more detailed recitation of the facts will follow where relevant.

I

Defendant contends the trial court erred in overruling his motion for judgment of acquittal at the close of the state’s evidence because there was insufficient evidence to warrant submission to the jury that defendant “knowingly and intentionally manufactured a controlled substance by cultivating marijuana either actually or constructively.”

In review, we take as true all evidence, whether direct or circumstantial, tending to prove defendant’s guilt, along with all reasonable favorable inferences from the evidence, and we disregard all evidence to the contrary. State v. Reed, 453 S.W.2d 946, 949 (Mo.1970).

Over 942 marijuana plants were found on defendant’s farm, each one staked and carefully tied to six and a half foot tall green steel posts. An irrigation system had been set up, as noted above. A trip wire surrounded one field, and lookout tents had been staked and shielded from aerial view.

Deputy Parson testified without objection that two of the informants said they had seen defendant in the marijuana fields. “When hearsay evidence is admitted without objection, it is in the case for all purposes and may be given its natural and logical probative effect by the trier of facts.” State v. Cannady, 660 S.W.2d 33, 39 (Mo.App.1983).

In April 1982 an alarm in the home was installed, the trigger point or “probe” being buried on the gravel road, the only road leading onto the property, at a distance of 600 to 900 yards from the house; its purpose was to warn defendant of vehicles entering or leaving his property. A well-beaten-down path where vehicles had traveled runs from the house to the marijuana fields. As to access to the fields from across the river to the north, Deputy Sheriff Parson said, “There is no place you can cross the river unless you do it by foot that I am familiar with.”

Seventeen-year-old Tim Skidmore had visited defendant’s farm with his mother and brother about twenty times from late June to mid-September 1982. He regularly mowed defendant’s grass. Skidmore testified that on two occasions he and his brother cut thistles in an area 200 yards north of the house while defendant supervised them. In referring to fields northeast of the house, in the direction of the marijuana fields, the witness said defendant told him, “Back over there there is just trees and stuff,” and “I’ve chopped them [thistles] already and there’s not no [sic] more over there.”

The defendant’s ignorance of this extensive operation on his farm was not credible. The well-worn road on his property, passing by the house where he lived alone, leading to the marijuana field; his extraordinary measures to detect the approach of traffic on the road leading to his house; the obvious activity connected with the cultivation of the marijuana, all militate against his innocence and point to his knowing and intentional participation in the marijuana cultivation.

There was sufficient evidence to submit the case to the jury and enough evidence from which a reasonable jury could have found defendant guilty of knowingly and intentionally growing and cultivating marijuana. The point is denied.

II

The defendant filed a motion for discovery, requesting of the state “[a]ny books, papers, documents, photographs or objects which the State intends to introduce into evidence at the hearing or trial or which were obtained from or belonged to the Defendant.” (Emphasis ours). To that question, the state answered, “None”, and on that basis the defendant challenges the admissibility into evidence of the Ho-melite pump because it says it was not disclosed to the defense in pretrial discovery. In the same motion for disclosure, defendant asked the state to “provide the defense with a list of all items seized at the James Fullerton farm during the week of August 22, 1982”. (Emphasis ours). The state’s answer to that question includes the Homelite pump.

Disclosure of the evidence — the Ho-melite pump — occurred, but disclosure of the state’s intent to introduce the evidence at trial did not. In addition, the defense attorney did not timely advise the court that the pump had not been disclosed to him. Instead, he allowed the prosecutor without objection to elicit oral testimony about the pump from Deputy Parson. The pump had been marked as an exhibit and was before the jury as the witness testified in reference to it. He did not object until the prosecutor sought to have the pump itself admitted as evidence. There could be no possible prejudice in the admission of the pump itself into evidence. There was certainly no surprise to the defendant. State v. Smothers, 605 S.W.2d 128, 131-32 (Mo. banc 1980). The point is denied.

Ill

Defendant contends that “the trial court erred in failing to disclose to the parties that he was related to the prosecuting attorney to the third degree and in failing to recuse himself from the trial as a result of this relationship”. The applicable standard is found in Rule 2 C(4), Canon 3 of the Code of Judicial Conduct:

A judge has a duty to disclose to all parties, or to their attorneys, that any person acting as a lawyer in the proceeding or the spouse of such a person is within the third degree of relationship to the judge or his spouse by blood or marriage. If after such disclosure any party or his attorney requests that the judge disqualify himself by reason of such relationship the judge shall do so.

For purposes of this section the degree of kinship or relationship is calculated according to the civil law system, Rule 2 C(3)(a). See Section 474.010(2)(d), RSMo Supp.1982. In this case the trial judge’s daughter is married to the prosecutor’s brother. They share no common ancestor; the judge is not a relative or kin of his son-in-law’s brother. No disclosure or re-cusal is required. We note that there is no claim of actual partiality on the part of the judge and no claim of prejudice based on partiality. The point is denied.

IV

Defendant claims that the verdict-directing Instruction No. 8, patterned after MAI-CR2d 2.04, “did not accurately and completely instruct the jury to the various punishments that might be assessed and therefore, created confusion in the mind of the jury as to what punishment could be assessed, thus defendant was prejudiced to the extent that he received the maximum sentence.”

Defendant’s criticism of the instruction is that it does not state a minimum term of years in a state correctional institution. The instruction followed the statute, Section 195.200.1(1), which prescribes no minimum term. There is no reason to suppose that the jury was in any way confused or misled. There is no merit to defendant’s argument that the jury should have been told that the minimum term in a state correctional institution was one year.

The point is denied.

V

In two points on appeal, defendant claims the trial court erred (1) in failing to quash an allegedly invalid search warrant and in failing to suppress the evidence obtained as a result of execution of that search warrant, and (2) in failing to suppress evidence obtained by law enforcement personnel who, in an allegedly warrantless search, violated defendant’s “expectation of privacy.” The gist of the second point we take to be a challenge to the technical trespass which may have been committed by the officers in entering defendant’s property under an allegedly invalid warrant and an attempt to argue that the open fields doctrine does not apply.

The marijuana was growing in several patches on the northeasternmost portion of defendant’s farm. The houses and outbuildings were located southwest of the marijuana patches at the closest point one-quarter to one-half mile away from the house. The Pomme de Terre River forms the western and northern boundary of defendant’s farm, flowing in a northerly direction at the western edge of the farm and west of the house, and then flowing northeast forming the northern border of the farm. The record is unclear, but it appears a forest bordered the farm on the east. A gravel road runs east-west along the southern portion of the farm from the house to the county road. Other “roads” or well-trodden paths which showed signs of conti-nous, recent vehicle traffic led from the house to the marijuana fields. Sheriff Charles Simmons and Deputy Sheriff Harold Walker parked in a squad car on the gravel road south and east of the farm with a search warrant and a “walkie-talk-ie”, and kept in radio contact with Deputy Mike Parson who, together with one of the informants and four other officers, entered the defendant’s farm from the north, crossing the Pomme de Terre River at the northeast section of defendant’s farm.

The validity of the search warrant is not at issue in this case because, as will be shown, the open fields doctrine applicable to this case obviates the need for a search warrant.

Several Missouri cases address the open fields exception to the warrant requirement. In State v. Simpson, 639 S.W.2d 230 (Mo.App.1982), defendant was “staying” at the farmhouse when, 100 yards to one-quarter mile away in a wooded area of the farm, a cultivated plot of marijuana was seized without a warrant. The court held the seizure proper under the open fields exception to the Fourth Amendment warrant requirement because the area 100 yards to one-quarter mile away from the farmhouse was not within the curtilage of the farmhouse but was in open fields to which defendant’s legitimate, reasonable expectation of privacy did not extend. More recently, in State v. Fierge, 673 S.W.2d 855 (Mo.App.1984), the court held the curtilage ends with the walls of remote outbuildings, in this case, only 180 feet north of defendant’s house, and beyond that the open fields can be searched without a warrant. Most recently in State v. Seaton, 679 S.W.2d 908 (Mo.App.1984), the court held that a marijuana patch surrounded by woods (and thus not visible from the farmhouse of the same property 100 to 150 yards away) was part of the open fields to which the warrant requirement does not apply.

The United States Supreme Court reaffirmed the viability of the open fields doctrine in Oliver v. U.S., — U.S. -, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984), where Justice Powell, writing for the majority, stated:

[T]he rule of Hester v. United States [265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924) ] ... that we reaffirm today, may be understood as providing that an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home....
[Ojpen fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields.

104 S.Ct. at 1741.

The marijuana patches located one-quarter to one-half mile from defendant Fullerton’s house were outside the cur-tilage of the farmhouse and were open fields to which neither the warrant requirement of Article I, Section 15 of the Missouri Constitution nor of the Fourth Amendment of the United States Constitution applies. The defendant in this case may claim no legitimate expectation of privacy there. The fact that a civil trespass may have occurred does not affect the doctrine’s application to this case. State v. Simpson, 639 S.W.2d at 232. See also Oliver v. U.S., — U.S. at -, 104 S.Ct. at 1743. The seizure of the marijuana and other evidence was proper.

YI

Defendant next claims that the trial court erred in failing sua sponte to order a mistrial “when the prosecuting attorney elicited responses from the Polk County sheriff which indicated the defendant was involved in a possible crime other than the one with which he was charged.”

The testimony in question is the following:

Q. [Prosecuting Attorney Charles G. Ankrom] And for what purpose did you make the trip to this farm?
A. [Polk County Sheriff Charles Simmons] To serve the search warrant in looking for marijuana.
Q. Looking for marijuana? Sheriff, how did you know where you were going?
A. You mean how did I know where Fullerton’s house was or — ?
Q. Yes.
A. Well, I’d been there before.
Q. You had been there before?
A. Yes.
Q. Do you recall how many times you’d been there before?
A. Two or three times before.
Q. And what had you gone there before to do?
A. The last time I’d been there was to look for a stolen hay baler.
Q. Stolen hay baler? Did you find it? A. Yes, sir.
Q. On the Fullerton farm?
A. No, it wasn’t on that farm when I found it. It was up at Pleasant Hope.

Although he raised the point in his motion for new trial, the defendant did not object to this testimony during trial, nor did he request any relief. It is therefore not preserved for appellate review. State v. Evans, 639 S.W.2d 820, 822 (Mo.1982). We cannot say this is plain error. The sheriff's statement actually did not incriminate defendant, and we cannot say with certainty that the jury so understood the somewhat ambiguous testimony of the sheriff. State v. Jones, 523 S.W.2d 152, 155 (Mo.App.1975).

VII

In his next point, defendant contends the trial court erred in allowing the prosecutor to cross-examine defendant about a statement he allegedly made to a fellow inmate while jailed on this charge. He claims it violated his right to confront witnesses against him and asserts the trial court committed plain error in so doing.

The testimony defendant complains of was elicited from the defendant by the prosecutor on cross-examination. We copy from the transcript:

Q. Mr. Fullerton, when you were taken to the jail, did you occupy a cell by yourself?
A. No, sir. I was in with someone else. Q. What was that man’s name?
A. I have no idea.
Q. Did you make a statement to a man named Roger Johnson that the officers would never be able to trace any of that stuff to you?
A. No, I did not. I don’t even know Roger Johnson.

Once again we are asked to reverse this conviction because of the trial court's failure to intervene sua sponte. But we cannot hold this to be plain error, or, for that matter, error of any kind. The defendant’s statement to “Roger Johnson,” if admitted, was not necessarily inculpato-ry. It could have been understood as a protestation of innocence. Defendant supposes that the jury understood the statement as being an expression of confidence that he’had covered his tracks well, but its meaning is not clear enough that we could condemn the court’s inaction as plain error. Furthermore, if defendant had admitted making such a statement, it would have been admissible. Defendant’s “confrontation of witnesses” argument has no relevance. There is nothing in this record to indicate any bad faith on the prosecutor’s part in asking the question.

The point is denied.

We affirm the judgment.

      . Section 195.020.1, RSMo Supp.1980, reads, in pertinent part:
      "It is unlawful for any person to manufacture ... any controlled or counterfeit substance_” “ ‘Manufacture’ means the production ... of a controlled substance,” § 195.010(21), RSMo Supp.1982.
      “ ‘Production’ includes the manufacture, planting, cultivation, growing ... of a controlled substance," § 195.010(30), RSMo Supp. 1982. See also State v. Netzer, 579 S.W.2d 170, 174 (Mo.App.1979).

      . The statute reads in pertinent part:
      [CJollateral relatives, that is, relatives who are neither ancestors nor descendants of the decedent, may not inherit unless they are related to the decedent at least as closely as the ninth degree, the degree of kinship being computed according to the rules of the civil law; that is, by counting upward from the decedent to the nearest common ancestor, and then downward to the relative, the degree of kinship being the sum of these two counts, so that brothers are related in the second degree. [Emphasis ours.]


author: GAERTNER, Judge.

text:
    Barbara J. VARDIMAN, Plaintiff-Appellant, v. Debra Kaye APPLETON, Defendant-Respondent.
    No. 48513.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 31, 1984.

      Edward L. Weiss, St. Louis, for plaintiff-appellant.
    Kenneth K. Vuylsteke, St. Louis, for defendant-respondent.
   GAERTNER, Judge.

Plaintiff brought this action against defendant seeking damages for personal injuries sustained in an automobile accident involving vehicles driven by the parties. Defendant counterclaimed for her personal injuries. Sharon Appleton intervened seeking to recover from plaintiff for the damage to her vehicle; the verdict and judgment in favor of intervenor against plaintiff has not been appealed. The case between plaintiff and defendant was submitted to the jury on the theory of comparative negligence. The jury found for defendant on plaintiff’s claim without assessing a percentage of fault or an amount of damage. The jury also found for the defendant on her counterclaim, assessing the parties relative fault at 90% against plaintiff and 10% against defendant. The jury found defendant’s damages to be in the sum of $3,000.00. The trial court entered judgment for the defendant for $3,000.00 without reducing the jury verdict for the defendant’s share of the relative fault. Both plaintiff and defendant filed motions for new trial asserting the inconsistency of the verdicts. The trial court sustained both motions, specifying the inconsistency of the verdicts are grounds therefor. Each party filed a notice of appeal from the order granting the other a new trial. Defendant has not perfected her appeal but in her brief and oral argument urges affirmance of the new trial order.

In oral argument before this court plaintiff argues for a reversal of the new trial order and a reinstatement of the full $3,000.00 judgment against her. Plaintiff maintains she has been willing to waive the effect of the jury’s assessment of 10% fault against the defendant and is ready to satisfy the full amount of the judgment. Counsel for defendant acknowledges in oral argument that if the full $3,000.00 judgment were permitted to stand, his client would have no claim of aggrievement by the judgment, although she was not happy about the amount.

The only trial court error presented to us is that of ignoring the effect of the jury finding of 10% fault on the part of the defendant. Plaintiff, who is prejudiced by the entry of judgment in the full amount of $3,000.00 is willing to waive this error. Defendant concedes she will sustain no prejudice if the $3,000.00 judgment is permitted to stand. The absence of prejudice to the defendant is fatal to the granting of her motion for a new trial. King v. Davis-Natural Bridge, Inc., 655 S.W.2d 63, 65 (Mo.App.1983).

Therefore, the order sustaining defendant’s motion for new trial is reversed. The order sustaining plaintiff’s motion for new trial is set aside by consent. Cause remanded with directions to reinstate the judgment for $3,000.00 in favor of defendant and against plaintiff.

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

      . Because of this disposition based upon the judicial admissions of the parties, the motion of the defendant to dismiss plaintiff's appeal is denied.


author: CLEMENS, Senior Judge.

text:
    Gerald F. TETTAMBLE, Movant, v. STATE of Missouri, Respondent.
    No. 48562.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 31, 1984.
    Laurence G. Schmidt, Public Defender, Hillsboro, for movant.
    John Ashcroft, Atty. Gen., Thomas Carter, II, Asst. Atty. Gen., Jefferson City, for respondent.
   CLEMENS, Senior Judge.

Appeal from summary dismissal of mov-ant’s 27.26 motion. We reverse and remand.

Movant had been convicted of second degree murder and sentenced to 40 years in prison. We affirmed that judgment on appeal. State v. Tettamble, 517 S.W.2d 732 (Mo.App.1974).

By his Rule 27.26 motion movant raised a host of grounds, some of which if proved might entitle him to a retrial. However the hearing court summarily denied the motion, ruling:

“Cause called; movant appears by [counsel]; state appears [by counsel]; state’s motion to dismiss is presented, argued and submitted to the court; the court being fully advised in the premises does hereby sustain state’s motion to dismiss. It is so ordered.”

Here movant claims error in the motion court’s summary dismissal of his motion under Rule 27.26(i). It requires: “The court shall make findings of fact and conclusions of law on all issues presented, whether or not a hearing is held....” The now challenged summary order failed to comply.

Reversed and remanded with directions either to comply with Rule 27.26(i) or grant an evidentiary hearing.

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


text:
    In the Matter of the ESTATE OF Lillie A. BOLLIER, deceased. Virginia HERMAN, Appellant, v. W. Layton STEWART, Administrator of the Estate of Lillie Bollier, Deceased, et al., Respondents.
    No. 48626.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 31, 1984.

      Thomas M. Gioia, Mary J. Gioia, St. Louis, for appellant.
    D. Jeff Lance, Thomas B. Weaver, Charles A. Redd, St. Louis, for respondents.
   CLEMENS, Senior Judge.

Action by Virginia Herman, nee Virginia Bailey, to determine the heirship of intestate decedent Lillie Bollier. Plaintiff appeals the adverse judgment.

Plaintiff Virginia Bailey Herman claimed and sought a ruling she was the illegitimate daughter and only child of decedent Lillie Bollier. Plaintiff named as defendants the Bollier estate’s administrator and the deceased’s nieces and nephews, the children of deceased’s sister Katherine.

Plaintiff’s evidence: At birth she was named Virginia Bailey and reared as a child of decedent’s sister Katherine Bailey and husband Everett Bailey; that as a child she spent much of her time with decedent Lillie Bollier. During an argument in 1970 Katherine Bailey told her: “You’re no daughter of mine.” In 1977 Lillie Bollier told plaintiff: “I hatched you. No, I borned you. You are my daughter.” Plaintiff’s husband also so testified. This was the core of plaintiff’s claim she was a child of decedent Lillie Bollier, who never again referred to plaintiff as her daughter.

Plaintiff’s only other witness was the family counsel and cousin Laura Andrews. She testified decedent Lillie Bollier had been “very close” to both plaintiff and the other Bailey children; that in family discussions she had never heard plaintiff referred to as a child of testatrix Lillie Bollier, nor did testatrix ever do so.

Plaintiff introduced in evidence a birth certificate. It showed that on the plaintiff’s admitted birthdate she was born to Katherine Bailey and her husband Everett Bailey at their St. Louis home. The conforming certificate of the family physician was appended.

On cross-examination plaintiff acknowledged: She called Katherine Bailey “Mother” and Lillie Bollier “Aunt Lillie”. After Lillie Bollier’s death and before filing this action plaintiff told none of the family of her present claim she was Lillie’s daughter.

This was plaintiff’s evidence and defendants thereupon moved for judgment. The trial court responded that the plaintiff’s only pertinent evidence was the decedent’s ancient and unrepeated statement about having hatched or horned plaintiff, her daughter. The court announced:

“It’s the finding of this Court that I will sustain the motion for a judgment — directed verdict of a judgment in favor of the Respondent in this matter, and it is the finding of this Court that based upon the credible evidence that Virginia Herman is not sole heir of Lillie A. Bollier.”

In court-tried cases conflicts in evidence are for the trial court to resolve and we take the facts in accordance with the results there reached. Trenton Trust Co. v. Western Sur. Co., 599 S.W.2d 481 [1-4] (Mo. banc 1980).

As held in Retirement Bd. of Police Retirement v. Noel, 652 S.W.2d 874 [1-4] the burden of proving illegitimacy is on the party asserting it; that the presumption of legitimacy is overcome only by clear, cogent and convincing proof to the contrary.

Here, the plaintiff faced the statutory presumption of RSMo. Section 193.170 declaring birth certificates “shall be prima facia evidence of the facts therein stated.” That certificate showed plaintiff was not bom illegitimately to Lillie Bollier, as she now contends, but was born legitimately to Everett and Katherine Bailey.

Against this array of unfavorable evidence plaintiff had only her and her husband’s self-serving statements quoting Lillie Bollier’s alleged statement about plaintiff being her daughter. Even this the trial court could and did reject, as was done in plaintiff’s cited case of Brown v. Conway, 598 S.W.2d 549 [3,4] (Mo.App.1980).

The trial court did not err in rejecting plaintiff's petition.

Affirmed.

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


text:
    STATE of Missouri, Plaintiff/Respondent, v. Robert Eugene DOLE, Defendant/Appellant.
    No. 48783.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 31, 1984.
    Jeffrey K. Rath, Asst. Public Defender, Columbia, for defendant/appellant.
    John Ashcroft, Atty. Gen., Thomas Carter, II, Asst. Atty. Gen., Jefferson City, for plaintiff/respondent.
   CLEMENS, Senior Judge.

Arson. A jury found defendant guilty as an accessory to burning his mother’s vacant house trailer. Pursuant to the verdict the trial court sentenced defendant to one year in jail.

The only issue now raised is the trial court’s admitting defendant’s written confession into evidence. This after extensive testimony pro and con as to whether the confession was voluntary.

The state’s evidence was that after extensive questioning and Miranda warnings defendant voluntarily and while not in custody executed a written statement. Thereby he admitted he and his mother saturated her insured house trailer with gasoline, lit it and fled. The fire’s incendiary nature was verified by a certified fire department investigator.

Defendant contends his incriminating statement was involuntary. This because of his limited intellect and after prolonged questioning being induced to make it by promises of freedom.

After extensive testimony about defendant’s written statement the trial court denied defendant’s objection, admitted it into evidence and submitted it to the jury. This is defendant’s sole objection to his conviction.

Admitting the defendant’s challenged confession into evidence; we ruled in State v. Young, 610 S.W.2d 8 [17-19] (Mo.App.1980):

“Where, as in the present case, the testimony conflicts as to whether the confession was voluntary, admission of the confession into evidence by the trial court is a matter of discretion.”

To the same effect see State v. Cleveland, 627 S.W.2d 600[1] (Mo.Sup.1982).

Affirmed.

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