State v. Berry, 19931

• Decision Date: 26 January 1996
• Docket Number: No. 19931,19931
• Citation: 916 S.W.2d 389
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Virgil L. BERRY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 389

916 S.W.2d 389

STATE of Missouri, Plaintiff-Respondent, v. Virgil L. BERRY, Defendant-Appellant.

No. 19931.

Missouri Court of Appeals,

Southern District,

Division One.

Jan. 26, 1996.

Motion for Rehearing or

Transfer to Supreme Court

Denied Feb. 16, 1996.

Application to Transfer Denied

March 26, 1996.

Appeal from Circuit Court, Camden County; John M. Yeaman, Judge.

James B. Chancellor, Kansas City, for defendant-appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Hugh L. Marshall, Asst. Attorney General, Jefferson City, for plaintiff-respondent.

GARRISON, Judge.

Virgil L. Berry (Defendant) appeals his jury conviction for first degree sexual assault and deviate sexual assault in violation of §§ 566.040 and 566.070. ¹ He was sentenced as a prior offender to consecutive terms of six years' imprisonment on each count.

On this appeal, Defendant alleges trial court error in not granting a mistrial because the State referred to the fact that he had a prior conviction; in giving an instruction on verdict possibilities; in permitting the State to file an amended information without arraigning him and giving him an opportunity for a preliminary hearing on the new charges; and in overruling his motion for judgment of acquittal.

The facts, viewed in the light most favorable to the jury verdict, are as follows: In January, 1990, Defendant, age thirty-six, and three other men went to the apartment building where fourteen-year-old K.B. lived. At the request of one of the men, K.B. joined them in a car driven by Defendant to "party" and "cruise[ ] town a little bit." Defendant and the four passengers were all drinking alcohol as they drove around and later searched for a party in another town. As Defendant drove, he began talking to one of the male passengers about "getting some p____." K.B., who did not know Defendant well, began crying but was assured by another passenger that Defendant was "just joking."

Shortly thereafter, Defendant pulled the car off the road and ordered the two men who were in the backseat with K.B. to get out of the car. Although K.B. attempted to stop them from leaving, they claimed that the other men were "bigger" and got out as instructed. The third man, who would periodically "pass out," remained in the passenger side of the front seat. K.B. testified that Defendant produced an open pocket knife and told her to take her clothes off. When K.B. removed her pants, Defendant got into the backseat and had sexual intercourse with her. Following Defendant's commands, K.B. then positioned herself so that she was facing the backseat while kneeling between the two front seats. K.B. then testified that she complied with Defendant's order to put his penis in her mouth. After approximately five to ten minutes, Defendant allowed K.B. to stop and put her clothes back on.

When the other two passengers returned to the car, Defendant drove to a trailer in the town where the trip commenced. At the trailer, K.B. again performed oral sex on Defendant, pursuant to his demand, while he simultaneously did the same to her.

Later the same night, Defendant took the group to a motel where K.B. spent the night with one of the other men. Before leaving the motel, Defendant asked K.B., "You know, if you report this, you know what will happen if I go to the pen and I get out?" K.B. replied, "Yeah. You'll kill me." Defendant said, "Right."

K.B. walked to her sister's home the next morning and told her that Defendant had raped her. K.B.'s sister then reported the incident to their mother, who tried unsuccessfully to convince K.B. to go to a hospital or doctor. K.B. refused, saying she had been threatened if she told. In October, 1990, however, K.B. was sent to a rehabilitation center for delinquent girls where she revealed the incident during a "sex abuse workshop." The staff supervisor reported the incident to the sex abuse hotline, after which K.B. discussed it with police.

Defendant was charged by information on July 8, 1991 with rape and sodomy in violation of §§ 566.030 and 566.060. On June 15, 1992, an amended information was filed adding the alternative counts of first degree sexual assault (Count II) and deviate sexual assault (Count IV), as well as charging Defendant as a prior and persistent offender. The jury found Defendant guilty on Counts II and IV, and he was sentenced as a prior and persistent offender to two consecutive fifteen-year sentences. On November 18, 1994, Defendant was re-sentenced as a prior offender to two consecutive six-year terms. ²

In his first point on appeal, Defendant claims that the trial court erred in not granting his request for a mistrial after the Prosecutor made an improper reference to his commission of a separate crime. The incident, which occurred during the State's direct examination of a witness who was one of the backseat passengers in the vehicle on the night in question, was as follows:

Q: Did you ever talk to the Defendant about ... these charges, Virgil Berry?

A: No.

Q: Have you ever talked to Virgil Berry's father about this?

A: Yeah.

Q: When?

A: When I was in the county jail.

....

Q: Did they ever tell you that perhaps it would be in your best interest not to remember what happened?

A: No.

Q: I think you testified earlier you don't know how long you are going to be in the pen?

A: No, I don't.

....

Q: I am sure you realize that if the Defendant is convicted in this case, there is a very real possibility of him going back to the pen? You are aware of that?

A: Yes, sir, I am.

At this point defense counsel asked to approach the bench where he objected to the reference to "going back to the pen" because "[i]t is not in evidence; the Defendant has not testified, and it is improper." The Prosecutor agreed that the question was improper and apologized. The only relief sought by defense counsel, however, was a mistrial. The following then occurred:

[The Court]: Of course, if you will remember the instructions, we give an instruction on that. If I would tell them to disregard it, the last question, then, of course, they can't consider the question, so you can--I will instruct the jury to disregard that last question.

And your request for a mistrial is denied.

[Defense Counsel]: Okay

The trial court then instructed the jurors to disregard the last question and reminded them of Instruction No. 2 requiring them not to speculate about the answer. When the Prosecutor informed the trial court of his intent to rephrase the question, another conference was held outside the hearing of the jury. At that time, the Prosecutor told the court that his intent was to establish the witness's bias based on fear of Defendant if he were also incarcerated in the penitentiary. The trial court, however, refused to allow him to rephrase or continue that line of questioning.

Although the specific basis of the objection made by Defendant at trial is less than clear, the State does not contend that it was insufficient to preserve the issue now argued by Defendant. We also note the general rule that a ruling on an objection is not preserved for appellate review where, as here, an objection is not made until after the question is answered and there is no motion to strike. State v. Moss, 700 S.W.2d 501, 503 (Mo.App.S.D.1985). In the instant case, however, the matter complained of by Defendant was contained in the question and not the answer. Therefore, an objection before the answer was given would not have protected against its disclosure.

We begin our analysis of this point with the well-known principle that evidence that a defendant has committed, been accused of, been convicted of or definitely associated with another crime or crimes violates the rule that a criminal defendant has the right to be tried only for the offense with which he is charged. State v. Hornbuckle, 769 S.W.2d 89, 96 (Mo.banc), cert. denied, 493 U.S. 860, 110 S.Ct. 171, 107 L.Ed.2d 128 (1989); State v. Garrett, 813 S.W.2d 879, 881 (Mo.App.E.D.1991).

Declaration of a mistrial, however, is a drastic remedy which should be granted only in extraordinary circumstances where the prejudice to the defendant cannot be removed by any other means. State v. Thurlo, 830 S.W.2d 891, 893 (Mo.App.S.D.1992); State v. Sims, 764 S.W.2d 692, 695 (Mo.App.E.D.1988). Whether to grant a mistrial is a matter resting initially in the broad discretion of the trial court. State v. Richardson, 810 S.W.2d 78, 79 (Mo.App.W.D.1990). The trial court is usually in the best position to determine the necessity of a mistrial. State v. Pendleton, 860 S.W.2d 807, 812 (Mo.App.E.D.1993); State v. Lumpkin, 850 S.W.2d 388, 393 (Mo.App.W.D.1993). Review on appeal is to determine if that discretion was abused. State v. Richardson, 810 S.W.2d at 79; State v. Sims, 764 S.W.2d at 695. It has been said that an appellate court will only review the denial of a mistrial to determine whether the trial court abused its discretion as a matter of law. State v. Pendleton, 860 S.W.2d at 812. To constitute reversible error, there must be both an abuse of discretion by the trial court and prejudice to the defendant as a result. State v. Lumpkin, 850 S.W.2d at 393.

When considered in the limited context of a single question on one page of a trial transcript, the use of the word "back" in the Prosecutor's question could be construed as indicating a prior conviction and incarceration. The questions immediately preceding that question, however, were directed to the expected length of the witness's current incarceration, as well as whether anyone had suggested it was in his best interest not to remember what happened on the night in question.

We do not condone or excuse an improper reference to a defendant's prior criminal conviction when the defendant has not testified. "[P]rosecutors should refrain in their ardor for victory from straying into the forbidden territory of comment on separate crimes unless related to the crime charged or pertaining to the...