State v. Brunson, KCD
Decision Date | 31 October 1977 |
Docket Number | No. KCD,KCD |
Parties | STATE of Missouri, Respondent, v. Eddie BRUNSON, Appellant. 29024. |
Court | Missouri Court of Appeals |
Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
Before SHANGLER, P. J., and WELBORN and HIGGINS, Special Judges.
Appeal from conviction by a jury of burglary, second degree, and stealing. The questions are whether a mistrial should have been declared following mention by a witness that " * * * we have his record * * * "; and whether the court erred in allowing the prosecuting attorney to argue for conviction "on the basis of past convictions." Affirmed.
Appellant does not question the sufficiency of evidence to sustain his conviction. The record shows that a jury reasonably could find that on August 14, 1975, Eddie Brunson broke into the locked dwelling of Ruth E. Gibson, 6400 South Woodland, Kansas City, Missouri, with intent to steal, and took Mrs. Gibson's wedding ring without her consent and with intent permanently to deprive her of it. §§ 560.045, 560.110, 560.156, RSMo 1969.
During defendant's cross-examination of Detective Pete Edlund, the following occurred:
Appellant contends the court erred in its refusal to declare a mistrial asserting that Detective Edlund's answer constituted proof of separate and distinct crimes. See, e. g., State v. Lee, 486 S.W.2d 412 (Mo.1972); State v. Holbert, 416 S.W.2d 129 (Mo.1967); State v. Martin, 506 S.W.2d 473 (Mo.App.1974).
The difficulty in this position is, as recognized by appellant, "that Detective Edlund made no direct reference to any particular crime," as in State v. Lee and State v. Holbert, supra. Nor did he brand defendant a prior offender as did the court in State v. Martin, supra. The reference to "record" in the foregoing context is ambiguous in that it could denote either presence or absence of a criminal past. A mistrial should be granted only when the incident is so grievous that its prejudicial effect can be removed in no other way, State v. Camper, 391 S.W.2d 926, 928 (Mo.1965); State v. Johnson, 504 S.W.2d 23 (Mo.1973); State v. Duncan, 499 S.W.2d 476 (Mo.1973). This is not such a case. The grant or refusal of a mistrial lies within the discretion of the trial court, State v. Phelps, 478 S.W.2d 304, 308 (Mo.1972); and the court granted defendant's alternative request and instructed the jury to disregard the unresponsive answer volunteered by Detective Edlund. Such action was not an abuse of the discretion accorded the trial court in such circumstances. See, e. g., State v. Parker, 476 S.W.2d 513, 515-516...
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