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June 14, 1983


From the Circuit Court of Franklin County; Criminal Appeal; Judge Jack Edwards.

Motion for Rehearing Overruled, Transfer Denied July 15, 1983. Application Denied August 16, 1983.

Before Snyder, P.j., Dowd, Karohl, JJ.

The opinion of the court was delivered by: Snyder

Defendant was found guilty by a jury and convicted of assault in the first degree and possession of a bomb in violation of §§ 565.050 and 571.100 RSMo. 1978. He was sentenced to ten years on the assault count and five years on the possession count, the sentences to be served consecutively. The judgment is affirmed.

Appellant raises six points of error. He contends the trial court erred in (1) admitting double hearsay testimony; (2) failing to instruct the jury on alibi; (3) failing to give a jury instruction based on MAI-CR2d 2.12; (4) failing to grant a new trial based on gross prosecutorial misconduct in the cross examination of a defense witness; (5) permitting evidence of crimes other than the ones for which appellant was charged; and (6) permitting prosecutorial misconduct and "gross improprieties" by the prosecutor throughout the trial.

On the morning of July 8, 1980, Paul J. Mertens, a plainclothes investigator for the Missouri State Highway Patrol in Rolla, Missouri, drove an unmarked, blue and white 1980 Buick highway patrol vehicle to the scene of a reported burglary at the west end of Rolla. After arriving at the scene of the burglary, a Rolla deputy sheriff who had ridden along with Mertens, noticed something attached by a pair of visegrips to the frame of the Buick beneath the front passenger position.

Closer investigation revealed that an explosive device, a bomb, had been attached to the car. The bomb was a well made, sophisticated device, designed to be detonated when the car's engine warmed up to between 125 degrees and 130 degrees fahrenheit. Attached to the catalytic converter of the Buick was a thermostat which would close the circuit between a nine volt battery and a blasting cap, activating the blasting cap, which in turn would detonate the bomb's explosive gel. Fortunately for Mertens the bomb was inoperative because the wires from the blasting cap were unconnected.

The device was sent to the FBI laboratory in Washington, D.C., along with some items seized from appellant's auto body shop. Tests run by the FBI laboratory proved that the bomb was made with appellant's tools and from materials found in appellant's workshop.

Furthermore, some of the components of the bomb had been purchased by appellant. The thermostat was purchased at an electrical supply company. Tarp straps used to hold the bomb on the automobile were purchased from a Rolla hardware store. Appellant also instructed Warren "Sam" Fish to purchase explosives for him.

In addition, appellant's auto body shop was under surveillance by Mertens because personnel of the highway patrol suspected appellant of being involved with stolen cars.

Appellant, however, was out of town from July 4, when he left on a vacation, until July 17, 1980, when he was extradited from Minnesota. A Missouri highway patrol officer testified that he saw appellant on the morning of July 8, 1980, the day the bomb was found, on a boat dock in Ludington, Michigan.

James Murphy admitted that he put the bomb on Mertens' patrol car. Roger Wagoner paid Murphy $1,000 to kill Mertens by placing the bomb on the car. Murphy also testified that Wagoner had said Reagan had built the bomb and wanted the bombing to take place while Reagan was out of town.

Additional facts will be recited when needed in the Discussion of the appellant's points relied on.

Appellant first contends that the trial court erred when it admitted some of the testimony of witness Murphy, who testified that one Wagoner had told him certain things about Reagan and the bomb. Wagoner did not testify. Appellant's objection was that the testimony was hearsay or double hearsay and that no conspiracy was proved. The point is without merit.

Although Murphy's testimony could be characterized as simple hearsay, with Murphy relating that Wagoner had named the defendant as the man who wanted the bombing device planted on Merten's patrol car, this court believes it is more appropriate to label the testimony as double hearsay. *fn1 In effect, Murphy was testifying that Wagoner had said that defendant Reagan had said he, Reagan, wanted the bomb installed after he was out of town.

The common law rule is that "ultiple hearsay is, of course, even more vulnerable to all the objections which attach to simple hearsay, and it seems that if it is to come in at all, each of the out-of-court statements must satisfy the requirements of some exceptions to the hearsay rule." McCormick on Evidence § 246 (2d Ed. 1972); see also Gennari v. Prudential Ins Co. of America, 335 S.W.2d 55, 62-63[8] (Mo. 1960).

The federal rules of evidence also embody the common law analysis of multiple hearsay problems. See Fed. R. Ev. 805. " . . . Rule 805 paves the way for receipt of double or multiple hearsay if each hearsay element, standing alone, would be admissible despite its hearsay nature." 4 ...

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