State v. Anderson

• Court: Missouri Supreme Court
• Writing for the Court: Duane Benton
• Citation: State v. Anderson, 76 S.W.3d 275 (Mo. 2002)
• Decision Date: 28 May 2002
• Docket Number: No. SC 84035.,SC 84035.
• Parties: STATE of Missouri, Respondent, v. Cornealious M. ANDERSON, Appellant.

76 S.W.3d 275

STATE of Missouri, Respondent, v. Cornealious M. ANDERSON, Appellant.

No. SC 84035.

Supreme Court of Missouri, En Banc.

May 28, 2002.

Alan G. Kimbrell, Chesterfield, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, for Respondent.

DUANE BENTON, Judge.

Cornealious M. Anderson was convicted of robbery in the first degree and armed criminal action, and sentenced to consecutive terms of ten and three years, respectively. He argues that the circuit court erred in admitting a "Beretta magazine brochure for semi-automatic handguns." After opinion by the Court of Appeals, this Court granted transfer. Mo. Const. art. V, sec. 10. Affirmed.

I.

Defendant and his step-brother robbed the victim as he was making a night deposit. The victim testified that he was robbed by two men, both with guns—"the kind where the clip goes in the handle." A police officer later testified that in his initial statement to police, the victim indicated that one of the perpetrators had a handgun. No gun was ever recovered.

Although called a "brochure" by the parties, the exhibit is actually one letter-sized (8.5" × 11"), glossy advertisement of Beretta semi-automatic pistols—with 7 on one side, and 11 on the reverse. The issues are whether the brochure should have been admitted, and if not, whether its admission was so prejudicial that it deprived Defendant of a fair trial.

II.

The trial court's admission of evidence is not disturbed, absent an abuse of discretion. State v. Simmons, 955 S.W.2d 729, 737 (Mo. banc 1997).

Admissibility requires relevance. The general rule in Missouri is that relevance is two-tier: logical and legal. State v. Smith, 32 S.W.3d 532, 546 (Mo. banc 2000); State v. Sladek, 835 S.W.2d 308, 314 (Mo. banc 1992) (Thomas, J., concurring). Evidence is logically relevant if it tends to make the existence of a material fact more or less probable. Smith, 32 S.W.3d at 546. Logically relevant evidence is admissible only if legally relevant. Legal relevance weighs the probative value of the evidence against its costs—unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or cumulativeness. Sladek, 835 S.W.2d at 314. Thus, logically relevant evidence is excluded if its costs outweigh its benefits.

Here, Defendant's possession of the brochure tends to make more probable that he was familiar with a handgun like that described by the victim. This connection is tenuous, but logical relevance has a very low threshold. Id.

Defendant objects that this finding of logical relevance is an inference on an inference, which is impermissible. See State v. Ring, 346 Mo. 290, 141 S.W.2d 57, 64-65 (banc 1940). The brochure need not address the ultimate fact that Defendant used a handgun (with a clip) to commit the robbery, but rather may make more probable that Defendant is familiar with such a gun. See New Jersey v. Koskovich, 168 N.J. 448, 776 A.2d 144, 162-63 (2001) (gun-magazine covers corroborate defendant's familiarity with guns). Thus, the brochure is logically relevant to a material fact.

Because the brochure has logical relevance, its legal relevance—probative value versus costs—must be determined. The brochure's probative value is minimal. The victim described only the manner of loading the gun. This description is so general that it includes many other handguns, besides Berettas.

The first type of cost of evidence is "unfair prejudice." Sladek, 835 S.W.2d at 314. This Court has long identified the unfair prejudice of introducing weapons not connected to the defendant or the crime. State v. Wynne, 353 Mo. 276, 182 S.W.2d 294, 299-300 (1944). "First, there is a natural tendency to infer from the mere production of any material object, and without further evidence, the truth of all that is predicated of it. Secondly, the sight of deadly weapons or of cruel injuries tends to overwhelm reason and to associate the accused with the atrocity without sufficient evidence." Id.

Although the brochure is not as overwhelming to the jury as introduction of a gun itself, it risks similar (but lesser) unfair prejudice. Compared to its minimal probative value, the brochure unfairly prejudiced Defendant. The trial court erred in admitting the Beretta brochure because it was not legally relevant.

III.

In matters involving the admission of evidence, this Court "reviews for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial." See, e.g., State v. Johns, 34 S.W.3d 93, 103 (Mo. banc 2000), cert. denied, 532 U.S. 1012, 121 S.Ct. 1745, 149 L.Ed.2d 668 (2001).

Although the brochure was improperly admitted, it did not deprive Defendant of a fair trial. Defendant admitted guilt to the police and at trial, confessing to participating in the robbery. Defendant testified that his stepbrother had a "BB pistol," but denied having a gun himself.

The brochure was inconsequential at trial. It was admitted, during a detective's testimony, over Defendant's objection. The detective found the brochure—with various other papers—in the apartment where Defendant lived on the day of the robbery (although he had moved before the search occurred). When admitted, the brochure was mentioned only once, in six words, as part of a package of papers.

Later, during cross-examination of the Defendant, the State asked about the brochure, immediately after questions about the BB gun. Defendant testified that the brochure was in his apartment, but belonged to his neighbor who got it at a gun show. He acknowledged it depicted Berettas, but stated he was not familiar with them. He further testified that he never went to a gun show.

Other than the seven questions of Defendant and the brief identification by the detective, there was no reference at trial to the brochure. Defendant did not include the opening statements and closing arguments in the record, which apparently did not mention the brochure. On this record, the admission of the brochure did not deprive Defendant of a fair trial.

Defendant cites cases where this Court reversed convictions due to admission of weapons wholly unconnected to the offense or the offender. See Wynne, 182 S.W.2d at 298-300; State v. Richards, 334 Mo. 485, 67 S.W.2d 58, 61 (1933); State v. Krebs, 341 Mo. 58, 106 S.W.2d 428, 429 (1937); State v. Smith, 357 Mo. 467, 209 S.W.2d 138, 141-43 (1948); State v. Holbert, 416 S.W.2d 129, 132-33 (Mo.1967); State v. Baker, 434 S.W.2d 583, 587 (Mo. 1968); State v. Merritt, 460 S.W.2d 591, 595-96 (Mo.1970). The incidental references in this case to a one-page brochure are not nearly as prejudicial as the display of a weapon itself.

IV.

The judgment is affirmed.

LIMBAUGH, C.J, and PRICE, J., concur.

KENNETH W. SHRUM, Sp. J., concurs in separate opinion filed.

WOLFF, J., concurs in part and dissents in part, in separate opinion filed. WHITE and LAURA DENVIR STITH, JJ., concur in separate opinion of WOLFF, J.

RICHARD B. TEITELMAN, J. not participating.

KENNETH W. SHRUM, Special Judge, concurring.

I concur in the principal opinion in all respects, including its analysis and holding. For the reasons stated there, I agree it was error to admit the gun brochure, but also agree that its admission did not deprive Defendant of a fair trial.

I write separately to express my disaffection for the phrase "unfair prejudice." Previous usage of this phrase by this Court, its presence in Mo. Evidence Restated, and its inclusion in FED. R. Evid. 403, do not alter my view that it is a confusing, meaningless phrase offering no help or guidance to trial judges, appellate courts, or anyone else in weighing the "cost" of evidence.

MICHAEL A. WOLFF, Judge,

Concurring in Part and Dissenting in Part.

I concur that the trial court erred in admitting the Beretta gun brochure into evidence, but dissent from the conclusion that the evidentiary error, properly preserved for review, was not prejudicial.

When determining legal relevancy, the principal opinion finds that the prejudicial effect of admitting the gun brochure outweighs its probative value. I agree with the majority's analysis up to this point. Because it does not matter whether the gun used was real, I also concur with the majority with respect to the first degree robbery conviction.

As to the armed criminal action, however, the principal opinion ignores a critical point. The error was preserved by proper objection and where error is preserved, the error is presumed to be prejudicial and the state bears the burden of showing the error to be harmless. State v. Taylor, 739 S.W.2d 220, 223-24 (Mo.App.1987); State v. Miller, 650 S.W.2d 619, 621 (Mo. banc 1983); State v. Rhodes, 988 S.W.2d 521, 529 (Mo. banc 1999); Burton v. State, 641 S.W.2d 95, 99 (Mo. banc 1982); State v. Grant, 784 S.W.2d 831, 834 (Mo.App.1990). The standard for the state varies in the case law from showing beyond a reasonable doubt that the error was harmless,¹ to presuming prejudice unless the error is "harmless ... without question."²

Regardless of how the standard is described, the primary method to show harmless error is to show that the result, without the erroneous evidence, would have been the same because evidence of guilt was overwhelming. State v. Ford, 639 S.W.2d 573, 576 (Mo. banc 1982); State v. Sykes, 628 S.W.2d 653, 657 (Mo. banc 1982); State v. Degraffenreid, 477 S.W.2d 57, 65 (Mo. banc 1972), State v. Rush, 949 S.W.2d 251, 256 (Mo.App.1997); State v. Davidson, 947 S.W.2d 87, 89 (Mo.App. 1997). Or, as other cases hold, the presumption of prejudice is rebuttable by facts and circumstances of the particular case. Burton, 641 S.W.2d at 99; Grant, 784 S.W.2d at 834; State v. Walker, 484 S.W.2d 284, 286 (Mo. banc 1972); Ford, 639 S.W.2d. at 575.

Other than the improperly admitted gun brochure, the only evidence that a real gun was used in committing the crime was the testimony of the victim. The victim...