State v. Ballard
| Decision Date | 22 November 1999 |
| Docket Number | No. 22744.,22744. |
| Citation | 6 S.W.3d 210 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Gary BALLARD, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Craig A. Johnston, Asst. Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Stacy L. Anderson, Jefferson City, for respondent.
A jury convicted Gary Ballard (Defendant) of stealing, a class C felony, § 570.030, RSMo Cum.Supp.1996, after which the trial court sentenced him to five years' imprisonment.1 Defendant's appeal presents a single question: Did the trial court abuse its discretion in denying Defendant's request for a mistrial after a police officer testified that he did not conduct a photo lineup with an eyewitness because the witness told him he "was familiar with Defendant from a previous incident?" Defendant contends that this testimony was irrelevant and prejudicial evidence of his involvement in an unrelated crime of the same nature as the crime charged and that, as a result, reversal is mandated. We disagree. We affirm the judgment of conviction.
At trial, a Wal-Mart loss prevention employee, Morton, identified Defendant as the person he saw take a VCR out of the store without paying for it. Morton testified that at the time of the theft, he followed Defendant out of the store but could not apprehend him before he got into a car and drove away. Morton noted the license plate number of the car and provided it to police. Officer Schwartz of the Springfield Police Department investigated the matter and learned that the car was registered to Defendant. Ultimately, the State charged Defendant with stealing the VCR.
As a pre-trial matter, Defendant asked the court to preclude the State from bringing to the jury's attention any of Defendant's "separate or distinct crimes or prior bad acts." Among his specific requests, Defendant asked that the State not mention a February 6, 1996, incident in which Defendant had been caught stealing from Wal-Mart. The prosecutor replied that he did not "intend to get into that." However, the prosecutor also stated that identification was an issue and that Morton's acquaintanceship with Defendant arising out of the February 1996 stealing incident enabled Morton to identify Defendant on this occasion. The prosecutor explained that he intended to ask Morton if he had had previous contact with Defendant and, if so, when and how long. Defense counsel voiced no objection to the inquiries as the prosecutor outlined them. The court nevertheless cautioned the prosecutor to speak with his witnesses and remind them not to mention Defendant's prior criminal history.
During the State's case, Morton's testimony regarding his prior contact with Defendant closely followed the outline the prosecutor announced at the pre-trial conference. Specifically, Morton testified that on January 10, 1997, he knew Defendant by name because they had had face-to-face contact for about an hour on February 6, 1996. Defense counsel did not object to this evidence. On cross-examination, defense counsel asked Morton if the police ever showed him a photo lineup. Morton answered, "No."
The State later called officer Schwartz to testify. Officer Schwartz's testimony included the following:
Other than defense counsel's hearsay complaint, she made no objection to Schwartz's "previous incident" testimony until after the State rested its case. Only then did she move for a mistrial based on Schwartz's testimony "about the prior incident." Defense counsel explained her delay as follows: "I feel like if I would have objected exactly at that time, it would have highlighted it even more for the jury." In response, the trial court expressed its opinion that the use of the word "incident" was an "unfortunate characterization ... because that probably carries a little more of a negative connotation than simply saying they met or something like that." However, the court found that since Schwartz did not go into more detail, the comment was not "sufficient to justify a new trial." Continuing, the trial court addressed defense counsel as follows:
Defense counsel then presented and argued a motion for acquittal. The trial court overruled the motion, whereupon Defendant presented his defense, which consisted of one alibi witness.
Later, while in deliberation, the jury sent written questions to the trial court. One of the questions asked, "What was the reason Mr. Morton had an hour-long encounter with Defendant on 2/96?" The trial court advised the jury that it had given all the instruction it could and that the jury "must decide the case on the evidence presented at trial." After further deliberation, the jury asked to see certain documentary exhibits. The trial court granted this request. Ultimately, the jury returned a guilty verdict. The trial court entered judgment in accordance with the jury's verdict. This appeal followed.
Defendant's only point maintains that officer Schwartz's reference to Defendant's "previous incident" with Morton violated his rights to due process, a fair trial, and to be tried for the offense with which he was charged because this was evidence that he had been involved in an a separate, unrelated crime. He insists that such testimony runs afoul of the general rule that evidence of other crimes "is inadmissible and constitutes error unless it has some legitimate tendency to establish that defendant is guilty of the crime with which he is charged" because such evidence "may result in a conviction based upon crimes for which the defendant is presently not being tried." State v. Brooks, 675 S.W.2d 53, 5912, 13 (Mo.App.1984). Defendant characterizes Schwartz's "previous incident" testimony as irrelevant and argues that its probative value was outweighed by its prejudicial nature. He contends that Schwartz's remark diverted the jury's attention away from the charged offense, as evidenced by the jury's note asking, "What was the reason Mr. Morton had an hour-long encounter with Defendant on 2/96?"
Preliminarily, we consider the State's claim that Defendant failed to properly preserve this point for our review. The State correctly points out that "in order to preserve an evidentiary question for appellate review, an objection needs to be made at the first opportunity." State v. Manes, 961 S.W.2d 889, 8902 (Mo.App.1998). This so-called "contemporaneous objection" rule exists to insure the integrity of Missouri's criminal trial process. See Parton v. Wyrick, 704 F.2d 415, 4175 (8th Cir.1983); State v. Finster, 985 S.W.2d 881, 888 (Mo.App.1999).
Defendant concedes in his brief that he did not object at the time Schwartz made the "other incident" statement. Even so, Defendant asks this court to "treat this issue as properly preserved for appeal since he requested the mistrial as soon as possible, in a manner so as to not exacerbate prejudice."
To support his argument, Defendant points to the trial judge's comment that he could not "picture any other relief that would be helpful to you." We view this comment as a mere expression of the trial judge's opinion that defense counsel was correct in her trial strategy, i.e., her decision not to timely object or seek additional relief.2 In any criminal trial, strategy can account for a party not objecting to proffered testimony. Finster, 985 S.W.2d at 888. However, when an accused opts not to object to inadmissible testimony for strategic reasons, any alleged error in its admission is waived. State v. Vivone, 998 S.W.2d 146, 156-57 (Mo.App.1999). See McMillin v. Union Elec. Co., 820 S.W.2d 352, 355 (Mo.App.1991).
The case of State v. Jackson, 500 S.W.2d 306 (Mo.App.1973), is particularly instructive on this issue. In Jackson, the defendant's Muslim religion was interjected during cross-examination of a defense witness. Defense counsel objected to the reference to the defendant's religion, and the trial court sustained the objection. Almost immediately, defense counsel lodged a second objection. However, the trial court never ruled on the second objection and was not asked to do so anytime after the objection was made. As the trial progressed, additional testimony regarding the defendant's religion was adduced, during which time the defense did not object, move for mistrial, or request that the jury be instructed to disregard the evidence. On appeal, the defendant argued that no further objections were made because they would have been "futile" and would have "further inflamed the jury and called attention to the matter." Id. at 314. The western district rejected the defendant's argument as follows:
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