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August 17, 1993


Appeal from the Circuit Court of the City of St. Louis, Hon. William A. Geary, Jr.

Simon, Gaertner, Crane

The opinion of the court was delivered by: Simon

Appellant, Wendell Simmons, was charged in an amended substitute information, in Count I with sale of a controlled substance, § 195.211 R.S.Mo. 1986 (all further references are to R.S.Mo. 1986 unless otherwise noted), in Count II with escape from custody, § 575.200 and in Count III with assault in the third degree, § 565.070. He was also charged as a prior drug offender under § 558.016 and § 557.036.4, and as a persistent drug offender under § 558.016 and § 557.036.4. After a mistrial where the wrong information was read to the jury, appellant was tried before a new jury. The trial court found him to be a prior drug offender but not a persistent drug offender and the jury returned verdicts of guilty on all three counts. He was sentenced to a term of twelve years on the sale of a controlled substance count, a term of five years on the escape count and a term of one year on the assault count. All sentences were to be served concurrently. Appellant filed a motion for relief under Rule 29.15 which was denied after an evidentiary hearing. We consolidated the appeals of appellant's convictions and the denial of his motion.

Appellant contends that the trial court erred in: 1) refusing his instructions on the defense of justification to the escape and assault charges, 2) permitting an amendment to the substitute information which stated that the sale of a controlled substance charge was a class A felony when it was, in fact, a class B felony, 3) overruling his objection to admission of a Kel device tape recording into evidence, 4) giving the "reasonable doubt" instruction, and 5) excluding photographs which appellant claims depicted injuries inflicted by the arresting officer. We affirm.

At the outset we note that appellant has failed to preserve his appeal for post-conviction relief pursuant to Rule 29.15, because he has not raised a point of error. Therefore, we consider his appeal to have been abandoned. State v. Gaines, 807 S.W.2d 678 (Mo.App. 1991).

Since appellant does not challenge the sufficiency of the evidence we briefly recount the evidence most favorable to the verdicts. On September 17, 1990, at approximately 6:00 p.m., St. Louis City police detective Maurice Jackson was working as an undercover narcotics buy agent with the Street Corner Apprehension Team. Detective Jackson was wearing a Kel unit, which is a device consisting of a hidden microphone and a transmitter that transmits oral communications to a receiver and tape-recorder in a nearby surveillance van. Detective Jackson approached appellant in an unmarked vehicle and inquired if he had any narcotics for sale. Appellant replied that heroin was available. Detective Jackson purchased two capsules from appellant in exchange for twenty dollars. The record reveals that the capsules were subsequently determined to contain heroin. Immediately upon completion of the transaction, the arrest team appeared, and appellant fled on foot and was cornered at the bottom of a stairway at a nearby school. While fleeing from the officers, appellant placed the "buy money" in his mouth and began chewing it. The arresting officer, Detective Thomas Murphy, unsuccessfully attempted to physically restrain appellant from doing so. Appellant was arrested and placed in handcuffs. He was returned to the scene and identified by Detective Jackson, after which he was transported to police headquarters. Later, in a hallway at the police station, appellant kicked Detective Gordon Whitling, knocking him to the floor, and escaped while still wearing handcuffs.

At trial, the mother of appellant's child, and the woman she lived with, who was acquainted with appellant, testified that he was struck in the head with a black object and pushed against a wall by a police officer. The two women lived in a dwelling across the street from the school where appellant was apprehended. The mother of appellant's child testified that when she walked to the school yard, the officer stopped beating appellant and spoke with her. Appellant's wife testified that appellant left home at about 3:30 p.m. on the day of his arrest and that he returned home about 4:00 a.m. the following day. She testified that she took photographs of appellant following his return home. Out of the hearing of the jury, appellant's trial counsel argued that the assault on Detective Whitling and his escape were justified because appellant was beaten during his arrest. In support of this claim appellant offered the photographs which were taken by his wife. These photographs purported to show that appellant had suffered various injuries. The prosecutor objected to these photographs and the trial court admitted a photograph of appellant's wrists, but refused to admit the other photographs. Appellant offered four instructions, all of which were refused without comment by the trial court or objection by his trial counsel.

In his first point, appellant contends that the trial court erred in refusing to submit two of his instructions patterned after MAI-CR 3d 308.20 which submitted the defense of justification by emergency or necessity to the charge of escape and the charge of assault.

Although appellant did not make a record at trial, in his motion for a new trial he contended that the trial court erred in refusing to submit the instructions in that the instructions were a correct statement of the law and supported by the evidence. The claim of error is not stated with sufficient specificity to preserve it for review. State v. Stone, 731 S.W.2d 466, 468 [1] (Mo.App. 1987). Therefore, we review for plain error. Relief is granted under plain error when the error so substantially affects his rights that manifest inJustice or miscarriage of Justice results if left uncorrected. State v. Durbin, 835 S.W.2d 323, 325 [1-2] (Mo.App. 1992).

MAI-CR 3d 308.20 addresses the defense set out in § 563.026 which provides, inter alia, that otherwise criminal conduct is justifiable and not criminal when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur through no fault of the actor. State v. Robinson, 710 S.W.2d 14, 16[1] (Mo.App. 1986).

MAI-CR 3d 308.20 is to be given when the claimed facts and circumstances, if true, are legally sufficient to support the instruction. State v. Owen, 748 S.W.2d 893, 895[3-4] (Mo.App. 1988). On review, we need only look to whether substantial evidence was contained in the record to warrant the instruction. Robinson, 710 S.W.2d at 16[1]. Further, the claimed facts and circumstances upon which appellant relies to support the instruction must not be occasioned through his own fault. Id.

As applied to escape from confinement, there are four elements to the defense of justification or necessity:

1) a present and imminent danger, the definition of danger being based upon the facts of a defendant's confinement and the imminence of the danger not being solely based on a time interval but upon the entire fact situation; 2) exhaustion of remedies or evidence that attempts to do so had been futile and that the imminence of the danger of threatened harm is such that no alternative is available; 3) evidence that the escapee did not use force or violence against innocent persons in perfecting the escape; 4) and a duty on the part of the escapee to surrender when the threatened danger has been avoided. State v. Kirkland 684 S.W.2d 402, 405 [3] (Mo.App. 1984).

We observe that Kirkland notes a conflict between State v. Baker, 598 S.W.2d 540 (Mo.App. 1980) and State v. Daniels, 641 S.W.2d 488 (Mo.App. 1982). In Baker, our colleagues in the Western District expounded the view that factors 2) and 4) bear on the issue of credibility but are not essential elements of the defense of justification. In Daniels, our colleagues in the Southern District ...

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