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October 5, 1993



Before Ulrich, P.j., Berrey & Smart, JJ.

The opinion of the court was delivered by: Berrey

Appellant appeals his conviction of first degree murder and sentence of life imprisonment without parole. Appellant also appeals the denial of his Rule 29.15 post conviction motion. We consolidate both appeals herein.

The appellant was an escapee from Fordland Missouri Correctional Center, where he was serving time for burglary. He escaped on June 1, 1984. On July 9, 1984, several guns were stolen in a burglary from Shoppers World in Osage Beach, Missouri owned by Richard Brown. The next day, Richard Brown was robbed. At the time of the robbery, the robber was armed with a "stainless steel revolver." The weapon looked similar to Mr. Brown's Ruger .357 "Security 6" that had been taken in the burglary from his store on July 9, 1984. Brown also had 3 long guns and a camouflage outfit stolen from his trailer home on July 9. The robber wore camouflage clothing that was similar to the outfit stolen on July 9. The robber also wore black plastic rimmed glasses and demanded money from Brown. The robber took Brown's "wallet" which contained Brown's driver's license, money and credit cards. Brown positively identified appellant in court as the person who robbed him on July 10, 1984. Brown further testified that during the robbery he asked appellant "if that is one of the pistols that he stole the other night." Brown stated appellant did not reply but looked to be smiling.

On March 28, 1987, appellant checked into the Howard Johnson Motel in Rolla, Missouri under the name of Bill Swentz. He was driving a stolen pick up with stolen license plates. The Rolla police investigated the stolen pick up and went to room 147 on March 29. In response to their knock they heard appellant say "just a minute." This room had two exits - one opening into a hall corridor and the other into a balcony. Subsequent to the knock, appellant exited to the balcony, saw Officer James Horn of the Rolla Police Department standing in the parking lot, shot him with a 30-30 rifle and escaped.

On April 1, 1987, Claude Long, a member of the New Apostolic Church in rural Phelps County was shot and killed as he was making preparations for Wednesday evening services. The bullet that killed Mr. Long was later identified by ballistic experts as having been fired from the .357 hand gun taken from appellant when he was arrested in the stairwell of a motel in Ada, Oklahoma on May 27, 1987. In addition to removing the .357 stainless steel revolver from his waist band the police also seized from Brown a wallet which contained the driver's license of Robert Lee Leiblie. Appellant had $4,510 cash in the wallet, cartridges and miscellaneous cash in his pants pocket.

The appellant raises numerous points of "trial" court error, some of which are properly assigned to the "motion" court and will thus be addressed. Points of error alleged are 1) the trial court erred in admitting substantial evidence of other crimes over objection of appellant; 2) the trial court erred in admitting over objection the copper bullet that killed Claude Long because there was no foundation as to proper chain of custody; 3) the trial court erred in submitting the case to the jury and in overruling appellant's motion for new trial as there was insufficient evidence to show appellant deliberated on the killing of Mr. Long; 4) the trial court erred in overruling appellant's challenge for cause to venireman 65, Roger Smith because Smith indicated the appellant should produce evidence of his innocence; 5) the motion court erred by overruling appellant's motion for post conviction relief because his counsel was ineffective in (a) failing to preserve the motion to support identification of appellant by deputy sheriff Horn, (b) failing to preserve the motion to suppress evidence seized in the motel room occupied by appellant and (c) failing to preserve the motion to suppress the evidence seized from the pick up truck driven by appellant; 6) the motion court erred in overruling appellant's post conviction relief due to ineffective assistance of counsel because appellant's counsel adopted a theory that Mr. Long was inadvertently shot by police looking for appellant; and 7) the trial court erred by following procedure set forth in § 494.505 RSMo. 1992 pertaining to venue as such statute was enacted subsequent to the commission of the alleged offense.

For Point I, the appellant relies on State v. Bernard, 849 S.W.2d 10 (Mo. banc 1993) as grounds for reversal. Bernard stands for the general principle that evidence of prior uncharged misconduct is not admissible to show the defendant's propensity to commit crimes. Id . at 13. However, such evidence is admissible if it is logically relevant, that it has a legitimate tendency to establish directly the accused's guilt of the charges for which he is on trial and it is legally relevant, in that its provative value outweighs its prejudicial effect. Id .; 13. State v. Mallett , 732 S.W.2d 527, 534 (Mo. banc) cert. denied , 484 U.S. 933, 108 S. Ct. 909, 98 L. Ed. 2d 267 (1987). The decision to admit such evidence rests in the sound discretion of the trial court after it has balanced the effect and value of the evidence sought to be introduced.

The prosecution introduced evidence of the defendant's uncharged misconduct. Robert Leiblie testified that appellant robbed him at gun point on July 22, 1986, and stole his wallet containing his driver's license, social security card, credit cards and $400-440 in cash. The appellant also robbed the store safe where Lieblie was working. Lieblie testified that the robber was dressed in camouflage clothing including a camouflage cap but with a hard bill. Lieblie identified appellant in court as the man who robbed him. He also identified his driver's license and his billfold which was found on the appellant when appellant was arrested in Ada, Oklahoma. Lieblie also identified the hat which police recovered from the pick up truck parked at the Howard Johnson Motel in Rolla, Missouri as being the hat appellant was wearing when Lieblie was robbed. Lieblie identified his address on the registration card from the Raintree Inn at Ada which appellant had written when he checked into the motel. Lieblie testified that the gun appellant used to rob him was a revolver, and he could see cartridges in the cylinders.

Sgt. Robert North of the Missouri Highway Patrol testified that on March 29, 1987, pursuant to a search warrant, he searched a green pick up found in the parking lot at Howard Johnson in Rolla. He found a binocular case in the truck and the binoculars in Room 147. The binoculars and case had been taken in the burglary from Shoppers Watch World along with the fire arms on July 9, 1984. Also seized during the search of the pick up truck was an assortment of ammunition including 30.30 rifle cartridges that matched the spent 30.30 cartridge case found on the porch outside room 147 after Officer Horn was shot. The live 30.30 shells were copper jacketed. The spent bullet retrieved from under the pick up was a 30.30 copper jacketed slug. Other ammunition found were .22 rifle cartridges, 12 gauge shotgun shells, 12 gauge rifle slugs, ".357 magnum super ww, game brand" ammunition, .223 remmington ammo, and .38 special ammo.

Evidence more directly related to the murder for which Brown was charged, which included items found near the scene of the crime, was introduced at trial. After the body of Mr. Long was recovered, an extensive man hunt took place. During this exercise, a camp site was located near the location where Mr. Long was shot. Located in the camp site was a tool box containing a telescope which had appellant's fingerprints on it. The tool box contained a .22 caliber rifle. The tool box had been buried. Also located at the camp site was a Ruger .223 caliber rifle and a Remmington 30.06 rifle. A number of other pistols were recovered at the camp site along with ammunition and a knife. Several of the weapons had been stolen in the burglary of the Shoppers World in Osage Beach. The evidence related to "other crimes" was inseparably tied to the evidence necessary to establish appellant's guilt of murdering Claude Long. Because the evidence of Brown's guilt was circumstantial, evidence that Brown acquired and possessed the murder weapon before and after the crime was essential to prove Brown's guilt. The prosecution sought to establish appellant's possession of the murder weapon both before and after the murder, and to establish his state of mind as an escapee seeking to avoid capture, the motive for his crime.

Generally, evidence of other uncharged bad acts may be received if it tends to establish motive, intent, absence of mistake or accident, the identity of the person charged with the crime, or a common scheme or plan embracing the commission of two or more crimes so related that proof of one tends to establish proof of the other. Id . However, even evidence that does not fall within one of the five enumerated exceptions may be admissible if the evidence is logically and legally relevant. Id . The evidence of Brown's prior uncharged bad acts tended to establish the identity of the murderer and the motive for the crime. The evidence was logically relevant because it tended to establish directly that Brown murdered Mr. Long to prevent Mr. Long from informing authorities where he was. Without the logical, sequential presentation of the evidence of Brown's acquisition of the murder weapon, his identification with the weapon after the burglary by the weapons owner (the robbery) and Brown's possession of the weapon when he was arrested, the state would not have been able to establish sufficient evidence to identify Brown as the murderer. Evidence of Brown's escape from the motel in Rolla and his shooting officer Horn demonstrated Brown's determination not to be caught and his motive for murdering Mr. Long. It also was logically relevant to the issue of whether Brown deliberated before shooting Mr. Long.

The evidence of Brown's uncharged prior misconduct was logically ...

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