State v. Blevins

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM
• Citation: State v. Blevins, 427 S.W.2d 367 (Mo. 1968)
• Decision Date: 13 May 1968
• Docket Number: No. 1,No. 52258,52258,1
• Parties: STATE of Missouri, Respondent, v. Larry BLEVINS, Appellant

Page 367

427 S.W.2d 367

STATE of Missouri, Respondent, v. Larry BLEVINS, Appellant.

No. 52258.

Supreme Court of Missouri, Division No. 1.

May 13, 1968.

Norman H. Anderson, Atty. Gen., Jefferson City, Michael P. Riley, Sp. Asst. Atty. Gen., Jefferson City, for respondent.

Ben J. Martin, Springfield, for appellant.

WELBORN, Commissioner.

Larry Blevins, charged with burglary and grand stealing, was found guilty of the latter charge and sentenced, under the second offender act, to three years' imprisonment. He appeals.

At approximately 2:15 A.M., June 16, 1965, a Springfield policeman in the course of his rounds discovered that the rear door of the Martin Brothers Piano Company store was broken and ajar. At least one television set was found by the piano company employees to be missing.

On August 2, 1965, a Kansas City detective found the missing television set, identified by model and serial number, at an apartment in Kansas City. The set had been given to the occupant of the apartment by his daughter who had purchased it for $150 on June 17, 1965 at her apartment, adjoining her father's, from Tom Williams, Larry Blevins and Charles Fox.

Blevins, Williams and Fox were charged jointly by information in the Greene County Circuit Court with burglary and stealing of the television set. Blevins was tried separately. Williams testified on behalf of the state and it is from his testimony that the questions presented on this appeal arise.

After Williams had testified that he, Fox and Blevins had driven to the Martin Brothers store in Fox's Thunderbird, counsel for Blevins objected to his testifying further on the grounds that he was a 'co-conspirator * * * who has been charged jointly with the defendant Blevins * * *.' In discussion at the Bench, the prosecuting attorney stated that Williams had 'pled guilty' and was under 'presentence investigation' in the case. On that basis, the court concluded that the witness should be permitted to testify.

Following the conference and in the presence of the jury, the prosecuting attorney asked Williams whether he had been charged with burglary and grand stealing from the Martin Brothers Piano Company.

'A. Yes, sir.

'Q. Will you tell the jury what the status of that charge is now; have you pled guilty or not guilty, or what?

'A. I pled guilty.

'Q. You have pled guilty to the charge?'

Thereupon, Blevin's attorney objected that evidence that the witness had pled guilty was inadmissible and a mistrial was requested. The court asked 'the jury to disregard that statement, for the present.' The request for a mistrial was overruled.

Williams proceeded to testify to breaking into the store, the taking of television sets and the subsequent sale of one of them in Kansas City. His testimony implicated Blevins in the entire matter.

On this appeal, defendant contends that the trial court should have sustained his motion for a mistrial when Williams, in response to the prosecuting attorney's question, told the jury that he had pled guilty to the offense with which he had defendant had been jointly charged. Our cases have laid down the rule that a defendant jointly charged with others cannot, in a separate trial of one of his codefendants, testify for the state. State v. Chyo Chiagk, 92 Mo. 395, 4 S.W. 704; State v. Reppley, 278 Mo. 333, 213 S.W. 477; State v. McGray, 309 Mo. 59, 273 S.W. 1055; § 546.280, RSMo 1959, V.A.M.S., Criminal Rule 26.07, V.A.M.R. However, when the charge against the codefendant has been disposed of by a plea of guilty by the codefendant offered as a witness, the disqualification no longer exists, although no sentence has been pronounced on the plea. State v. Ford, 346 Mo. 882, 143 S.W.2d 289; State v. Jackson, 106 Mo. 174, 17 S.W. 301. Inasmuch as the question of qualification of a witness is for the court, not the jury (State v. Stidham, Mo.Sup., 305 S.W.2d 7, 58 Am.Jur., Witnesses, § 212, p. 145), there was no necessity for the jury to be informed of the status of the charge against Williams. The question is whether or not the prosecution's eliciting such testimony is prejudicial error.

Appellant relies upon cases such as State v. Aubuchon, Mo.Sup., 381 S.W.2d 807, State v. Castino, Mo.Sup., 264 S.W.2d 372, and State v. Stetson, Mo.Sup., 222 S.W. 425, as authority for the proposition that the admission of the evidence in this case was prejudicial error. Those cases all involved evidence showing that a suspected codefendant of the defendant on trial had been found guilty. However, in none of these cases was the evidence of the disposition of the charge against the codefendant elicited from the codefendant himself. That the question presented in such a case is not the same as that presented in the cases relied upon by defendant is indicated by State v. Turner, Mo.Sup., 272 S.W.2d 266, 48 A.L.R.2d 1008. In that case, the state called as witnesses two persons who had been jointly charged with the same burglary for which the defendant was tried. The prosecuting attorney elicited from the witnesses that they had received tow-year sentences for their participation in the offense with which the defendant on trial was charged. The court held that this testimony was not prejudicial to the defendant. In so concluding the court observed that the defendant's objection at trial was not timely, having come after the question which sought the information had been answered, the same situation here presented. In Turner, the court further stated (272 S.W.2d 270(8)):

'But, assuming otherwise and that it was error to admit the evidence, it is difficult to see how it prejudiced the defendant. The guilt of Estes and Green was conceded by defendant. The fact that they were under sentence had nothing whatever to do with the guilt or innocence of the defendant. He received the minimum sentence under the statute, so it could not have been prejudicial as to the punishment meted out to him.'

We cannot say in the present case that the defendant conceded Williams's guilt. As for the jury's verdict evidencing prejudice, defendant was tried as an habitual criminal and the jury did not fix his punishment. However, the jury made no finding on the charge of burglary, thereby acquitting defendant on that charge. State v. Barbour, 347 Mo. 1033, 151 S.W.2d 1105, 1107(2, 3).

The prejudicial effect of evidence that a codefendant had been convicted would vary, depending largely upon the use made of such evidence. When the state relies upon such information as some evidence of the guilt of the defendant on trial, its use and admission would be prejudicially erroneous. In State v. Auduchon, supra, evidence of the conviction of the alleged accomplice was so used by the prosecuting attorney. Here, the trial judge directed the jury to disregard the testimony about Williams's plea and there is no complaint that the prosecuting attorney pursued the matter further or in any way attempted to make use of such testimony,...