State v. Phelps

• Decision Date: 22 February 1972
• Docket Number: No. 56008,No. 2,56008,2
• Citation: 478 S.W.2d 304
• Parties: STATE of Missouri, Respondent, v. Raymond L. PHELPS, Appellant
• Court: Missouri Supreme Court

Page 304

478 S.W.2d 304

STATE of Missouri, Respondent, v. Raymond L. PHELPS, Appellant.

No. 56008.

Supreme Court of Missouri, Division No. 2.

Feb. 22, 1972.

As Modified on Court's Own Motion April 10, 1972.

Motion for Rehearing or to Transfer to Court En Banc Denied

April 10, 1972.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.

Roy W. Brown, Kansas City, for appellant.

STOCKARD, Commissioner.

Defendant has appealed from the judgment of the Circuit Court of Clay County, entered pursuant to jury verdict, whereby he was found guilty of robbery in the first degree, § 560.120, RSMo 1969, V.A.M.S., and sentenced to imprisonment for a term of twenty-five years.

The jury reasonably could find from the evidence that on September 4, 1969, defendant entered the service station of the King Oil Company and by use of a gun took from Harley Simpson, the manager, $170 of his personal money and $100 of the money of the oil company.

Defendant first asserts that the information was defective in that it charged two distinct crimes; assault and robbery. In its material parts, the information was as follows:

Roger G. Burnett, ass't prosecuting attorney * * * informs the court that on or about the 4th day of September A.D.1969, * * * one Raymond L. Phelps did then and there wilfully and feloniously make an assault upon Harley Simpson in the presence of and against the will of said Harley Simpson then and there by force and violence to the person of said Harley Simpson and by holding at and toward the said Harley Simpson a certain pistol, a dangerous and deadly weapon, and then and thereby putting said Harley Simpson in fear of immediate injury to his person, unlawfully and feloniously did rob, steal, take and carry away lawful money of the United States, the property of Harley Simpson and King Oil Company * * *.

While this may not be the most desirable manner in which to allege a charge of robbery, this State was long ago departed from the extremely technical requirements of common law indictments and informations. State v. Brookshire, Mo., 368 S.W.2d 373, 380. The requirements, as set forth in Supreme Court Rule 24.01, V.A.M.R., now are that the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. We conclude the information here meets that test. In State v. Boone, Mo., 289 S.W. 575, an information for all practical purposes identical with the one in this case except for names, dates, and places, was held to be sufficient. This court held in that case: 'Said information embodies every element requisite to be charged * * * and is substantially in the form often approved by this court, * * *. While said information charges an assault upon several persons, it was all part of one and the same act charged, to wit, robbing Mrs. Jetmore of her property. The information does not include more than one charge.'

Assuming, however, that the information alleged an assault and also a robbery, 'the joinder of distinct felonies does not render the indictment or information in which they are joined bad as a matter of law. * * * The cases * * * hold that where two or more felonies are charged in the same indictment or information, the court should require the state to elect at the close of the evidence on which count it will go to the jury. As a general rule the objection that distinct felonies have been improperly joined in the same indictment or information must be raised by the defendant at the trial stage of the prosecution and when this is not done the right to object is waived.' State v. Frankum, Mo., 425 S.W.2d 183, 189. Although defendant moved to dismiss the information on the ground that it 'failed to state a cause of action upon which guilt can be predicated and punishment assessed in that it fails to apprise the defendant of the acts or offenses with which he is charged,' he did not at any time make the contention to the trial court that he now presents on this appeal. We find no merit in defendant's contention.

Defendant, in argument but not as a point in his brief, challenges the form of the verdict. The form used by the jury was the precise form contained in an instruction by the court, and to which defendant expressly stated he had no objection. The verdict meets the minimum requirements, and the contention is without merit.

Defendant next asserts prejudicial error resulted when the prosecuting attorney made this statement in argument to the jury: 'In other words, was he (defendant) telling the truth when he took the stand, and you can consider his past convictions for the unlawful use of firearms in determining whether or not this man committed this crime; in determining whether or not this man came to Harley Simpson's station.'

Section 491.050, RSMo 1969, V.A.M.S., provides that a person who has previously been convicted of a criminal offense is a competent witness, but the conviction may be proved to affect his credibility, that is, as affecting his worthiness of belief. In this case the prosecutor argued to the jury that it could consider defendant's previous conviction of a crime in its determination of whether the defendant was telling the truth when he testified. That was not objectionable. However, it is improper to argue the existence of prior unconnected crimes as a basis for a conviction in the case on trial, State v. Mobley, Mo., 369 S.W.2d 576, 580, and it reasonably could be said, when considered alone, that the words of the prosecutor were to that effect when he said to the jury that it could consider previous conviction of crime 'in determining whether or not this man committed the crime; in determining whether or not this man came to Harley Simpson's station.' But, when the total comment is considered in context it is equivocal and is at least subject to the argument that what the prosecutor said was that a previous conviction of a crime could be considered in determining whether the defendant was telling the truth when he testified that he did not commit the robbery and was not at the service station.

Defendant objected to the comment and requested the court 'to instruct the jury to disregard that as being improper argument.' The court sustained the objection and instructed the jury as follows: '* * * you will disregard the statement that you can consider the fact that he had been committed or had been convicted of committing another crime in considering his guilt in this case.' It was only after the jury had been so instructed that counsel for defendant then moved that the jury be discharged.

Every error which might occur in the trial of a case does not necessarily require the granting of a mistrial, State v. Camper, Mo., 391 S.W.2d 926, and 'The granting or refusal of a mistrial for improper argument lies largely within the discretion of the trial court.' State v. King, Mo., 334 S.W.2d 34, 40; State v. Smith, Mo., 431 S.W.2d 74, 79. The authority of a court to grant a mistrial 'should be exercised only in extraordinary circumstances,' State v. James, Mo., 347 S.W.2d 211, which is another way of saying that 'a mistrial should be granted only when the incident is so grievous that the prejudicial effect can be removed no other way.' State v. Camper, supra. This case does not present the situation of repeated or intentional prejudicial remarks. The trial court immediately gave the requested instruction to disregard the argument. The prosecutor immediately asked to be excused for misstating the rule, and he then correctly stated it.

The proper function of an appellate court in the situation we have is to determine whether as a matter of law the trial court abused its discretion in refusing to declare a mistrial. In view of the action taken, and the trial court's ability and opportunity to view the incident in context, we find no abuse of discretion.

Defendant's third point is that the trial court erred in not sustaining his motion for judgment of acquittal filed at the close of the State's evidence and at the close of all the evidence 'because of an in-court identification following a prior unlawful lineup.'

When defendant was arrested the day following the robbery he was placed in a lineup with three other persons, and Harley Simpson, the victim of the robbery, viewed the lineup and identified defendant as the person who had robbed him. The police officer who conducted the lineup testified that defendant voluntarily agreed to appear...