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July 19, 1983


From the Circuit Court of Cole County; Criminal Appeal; Judge McCormick Wilson.

Motion for Rehearing Overruled, Transfer Denied August 30, 1983.

Before Clark, P.j., Dixon, Nugent, JJ.

The opinion of the court was delivered by: Clark

James William Gordon was tried before a jury and convicted of the misdemeanor offense of indecent expsure. On this appeal, he presents claims of error (a) in the content of the verdict, (b) in the receipt of identification evidence generated by an illegal arrest, and (c) in the ineffective assistance rendered by appointed trial counsel.

The incident out of which the charge arose was alleged to have occurred in the parking area of a shopping center. According to the prosecuting witness, one Bolton, as she returned to her automobile she was greeted by Gordon who was seated in his car in the next parking space. Bolton did not know Gordon and had not seen him previously. Gordon was naked below the waist engaging in an act of masturbation. Bolton entered her vehicle, but before leaving the parking area, she recorded the license plate number of the car occupied by Gordon. This information she gave to the police and the same evening, Gordon was arrested at his home. Bolton identified Gordon in a show up and the present charge was filed.

The errors contended to have occurred and addressed in each of the points presented by Gordon on this appeal were not preserved at the trial level for review because objections were not lodged in the course of trial and the points were not set out in the motion for new trial. We therefore limit our consideration to the errors in the context of manifest inJustice or miscarriage of Justice. Rule 30.20.

Gordon first asserts that the court should not have accepted the jury verdict which was defective in form. The verdict read as follows:

"We, the jury, find defendant, James William Gordon, guilty of indecent exposure as submitted in instruction no. 6. We assess and declare punishment at 30 days in the county jail subject to probation providing he will agree to seek professional help."

Appellant construes the verdict to evidence an intention on the part of the jury to coerce Gordon into seeking the aid of professional consultation, else he would be obligated to serve the 30 days confinement. From this he argues that if the jury knew the sentence would be imposed irrespective of any consent by Gordon to treatment, the jury may well have agreed upon a lesser sentence or none at all. Cited in support of the rule that the court is under a duty to see that verdicts are in proper form are State v. Wood, 355 Mo. 1008, 199 S.W.2d 396 (1947) and State v. Hurley, 602 S.W.2d 838, (Mo. App. 1980).

Gordon misreads the verdict. Plainly the jury agreed upon a sentence of 30 days but recommended probation, the latter on condition that probation include treatment. This appendage to the verdict was nothing more than a suggestion for probation on condition. The cases have uniformly held that an expression of the jury relative to probation amounts to no more than a recommendation for leniency which, in turn, is to be disregarded as surplusage. State v. Churchill, 299 S.W.2d 475 (Mo. 1957), State v. Keck, 389 S.W.2d 816 (Mo. 1965); State v. Merriett, 564 S.W.2d 559 (Mo. App. 1978).

State v. Wood and State v. Hurley, supra, relied on by Gordon, are of collateral significance but do not require the Conclusion that Gordon suffered prejudice in this case. The verdict in Wood was "2 years with clemency" and in Hurley, "not less than 150 years or more than life imprisonment." In each case, the verdict was not accepted and the jury was returned to the jury room with the instructions and verdict forms. On appeal it was contended the verdict first returned amounted to unauthorized punishment thereby requiring the court to assess punishment. The opinions rejected the contention holding the procedure followed to have been proper on the ground that the court has a duty to see that verdicts returned by juries are in the necessary form.

In the present case, that portion of the jury verdict referring to probation and treatment was not in proper form because probation is not a subject for jury consideration. Had the trial court here have refused to accept the verdict and returned the jury for additional deliberation, a preferable procedure, there would have been no error as Wood and Hurley hold. It doesnot, however, follow that acceptance of an imperfect verdict necessarily results in prejudice to the defendant or in reversable error. If, as the authorities cited hold, a recommendation for leniency may be disregarded as surplusage, that species of imperfection in a verdict engenders no prejudice to the defendant and does not constitute reversable error. Despite Gordon's argument to the contrary, we find no basis here to conclude that the imperfect verdict demonstrated an intention by the jury that Gordon serve no sentence or a sentence of less than 30 days, or that he suffered prejudice when the trial Judge accepted the verdict as returned. It also follows, of course, that neither a manifest inJustice or a miscarriage of Justice occurred.

In two related points, appellant focuses on identification evidence given by the girl, Bolton, and by a police officer, one West. Some facts relative to the arrest of Gordon are necessary to an understanding of the issue. When Bolton furnished the license number of the car in which the partially nude man in the parking lot was seated, a record check supplied Gordon's name and address. The police then went to the residence with Bolton for the purpose of seeking the suspect. They conceived a plan whereby one officer would attempt to have Gordon come outside the house while Bolton, seated in a car some distance away, would make the identification. Action was taken accordingly, but Bolton was uncertain about the identity.

Despite the failure of Bolton to say Gordon was the man she had seen in the parking area of the shopping center, the police arrested Gordon and took hom to the police station. There, they positioned Gordon behind a two-way mirror where Bolton could have a close view of Gordon without being seen herself. Bolton then made a positive identification of Gordon. She also identified him at trial and testified, without objection by the defense, to the details of identification of Gordon in the show ...

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