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07/26/83 STATE MISSOURI v. JAMIE LEE CALMESE

July 26, 1983

STATE OF MISSOURI, RESPONDENT,
v.
JAMIE LEE CALMESE, APPELLANT



From the Circuit Court of the City of St. Louis; Criminal Appeal; Judge George Adolf.

Motion for Rehearing Overruled, Transfer Denied September 15, 1983. Application Denied October 18, 1983.

Before Crandall, P.j., Reinhard, Crist, JJ., Clemens, Sr.J.

The opinion of the court was delivered by: Clemens

A jury found defendant Jamie Lee Calmese guilty of second degree robbery; trial court sentenced him as a prior offender to 15 years in prison. He appeals.

Hon. Douglas Levine was appointed counsel for the indigent defendant. He aggressively represented him in pre-trial motions, at trial and on appeal. These voluntary services are a credit to the Bar.

Here, defense counsel makes four challenges: (1) Failure to instruct on stealing, (2) hearsay in permitting arresting officer to relate a radio message from police headquarters, (3) error in finding defendant was dangerous offender and (4) giving the jury the "hammer instruction".

The evidence: Insurance agent Robert Jennings had just made a collection when accosted by defendant and a companion declaring it was a holdup, one ordering him "Give me your money or I will blow your brains out." While one held his arm behind him the other took Jennings' wallet, change and watch. The robbers ran to a car, drove off and were seen by a bystander who noted their license number. Police were notified and they reported the details by radio. Within minutes patrolling officer Broughton stopped the fleeing car; inside were the items reported stolen. Victim Jennings and officer Broughton quickly identified defendant as one of the robbers. Defendant testified to an alibi.

For his initial point defendant challenges the court's refusal of his stealing instruction. Defendant relies on stealing cases where there was no evidence of force. But he concedes defendant's threats to "blow your brains out" showed robbery rather than mere stealing.

So it is here. As we held in State v. Martin, 624 S.W.2d 879 [10-12] (Mo. App. 1981):

"When there is strong and substantial proof of defendant's guilt of the offense charged, however, and the evidence does not reveal a lack of an essential element of this more serious offense, an instruction on the lesser or included offense is unnecessary."

We deny defendant's initial point and take up his hearsay challenge to arresting officer Broughton's report of the message he had received from police headquarters. In denying this the trial court explained to the jury that it was not admitted for its truth but "to explain why the officer did what he did."

As we held in State v. Houston, 607 S.W.2d 183 [3,4] (Mo. App. 1980) where defendant had challenged an arresting officer's statement, the trial court properly denied defendant's hearsay objection holding that is "subject to an exception when the statement is offered not for its truth, but rather to explain the subsequent conduct of the person testifying." Here the trial court had made clear to the jury the limited purpose of the officer's now challenged testimony. Point denied.

Next defendant contends the trial court erred in finding he was a "dangerous ...


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