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07/19/83 STATE MISSOURI v. SAMUEL GRAY

July 19, 1983

STATE OF MISSOURI, PLAINTIFF-RESPONDENT,
v.
SAMUEL GRAY, DEFENDANT-APPELLANT.



From the Circuit Court of St. Louis County; Criminal Appeal; Judge Milton Saitz.

Motion for Rehearing Overruled, Transfer Denied August 29, 1983. Application Denied October 18, 1983.

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

The opinion of the court was delivered by: Snyder

A jury found appellant guilty of first degree assault, § 565.050 RSMo. 1978, and stealing, § 570.030 RSMo. 1978. He appeals from the judgment sentencing him to twenty years on the assault charge and two years on the stealing charge, the sentences to be served concurrently. The judgment is affirmed.

Appellant asserts the trial court erred in: (1) abusing its discretion by failing to excuse venirepersons Zykan and Hecht who indicated they might be prejudiced; (2) failing to give a mandatory definitional instruction on "deadly force;" and (3) submitting to the jury a typed MAI-CR2d instruction containing a handwritten interlineation. Appellant also contends the evidence was insufficient to sustain a conviction for stealing.

The evidence favorable to the verdict proved that on May 30, 1981 Vincent Jablonowsky, the victim, was watching television around midnight in the residence of the Wigglesworths, who were his friends and employers. Appellant arrived at the house after midnight, accosted Jablonowsky and, while threatening him with a butcher knife, demanded that Jablonowsky produce the money box which contained cash receipts from the operations of "The Little Store," a Wigglesworth family enterprise. Jablonowsky eventually revealed the whereabouts of the money box after continuing threats by appellant.

Appellant then informed Jablonowsky that he had the choice of sharing the contents of the money box with appellant or being killed. Jablonowsky chose the former and appellant removed some of the money from the box and stuffed it in Jablonowsky's pockets and his own.

Appellant then led Jablonowsky to the doorway of the residence and told him, "You are going to go your way and I am going to go mine." Jablonowsky then tried to escape by running into the yard, but appellant stabbed him three times as they scuffled.

A neighbor testified she saw the two wrestling out in the street with defendant poised over Jablonowsky as Jablonowsky lay on the ground. The defendant, holding a knife, raised his hand above Jablonowsky as Jablonowsky rolled away.

Defendant then ran off as Jablonowsky, bleeding profusely, stood up and approached the neighbor's house. The police came within minutes and Jablonowsky was taken to the hospital. He was critically wounded, required extensive surgery, and was hospitalized from May 31 to June 11, 1981.

Appellant's theory was that the stabbing took place in self-defense. Although he told the police when he was arrested that he was not at the Wigglesworth residence when the stabbing occurred, he told an entirely different self-defense story at trial which the jury obviously did not believe.

Appellant contends first that the trial court abused its discretion in denying his challenge for cause of prospective jurors Zykan and Hecht. The point is denied.

Venireman Zykan disclosed during voir dire that he was a retired bus driver and had been a victim of three robberies. In response to queries by appellant's counsel Zykan said it would be possible that his experience as a victim would influence him, that it would be difficult for him to follow the court's instructions and that he might possibly be influenced against a person accused of crime.

Zykan subsequently said, in response to the prosecutor's questions, that the state would have to prove appellant guilty beyond a reasonable doubt, that he would not make his decision until he had heard all the evidence, and that, in spite of his having been robbed before, he could set ...


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