State v. Cole, 35889

• Decision Date: 02 September 1975
• Docket Number: No. 35889,35889
• Citation: 527 S.W.2d 646
• Parties: STATE of Missouri, Respondent, v. Bruce Edward COLE, Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 646

527 S.W.2d 646

STATE of Missouri, Respondent, v. Bruce Edward COLE, Appellant.

No. 35889.

Missouri Court of Appeals, St. Louis District, Division One.

Sept. 2, 1975.

Charles D. Kitchin, Public Defender, John E. Bell, Henry J. Rieke, Asst. Public Defenders, St. Louis, for appellant.

John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, J. Brendan Ryan, Circuit Atty., Daniel J. Murphy, Asst. Circuit Atty., St. Louis, for respondent.

RENDLEN, Judge.

Appellant seeks review of the judgment convicting him of carrying a concealed weapon for which he was sentenced under the Second Offender's Act to five years imprisonment. § 564.610, RSMo.1969, V.A.M.S.; § 556.280, RSMo.1969, V.A.M.S. We reverse and remand.

Two issues are raised on this appeal: First, the court improperly permitted comments and direct evidence of other crimes not charged in the indictment; second, the trial court erred in denying appellant's request for further psychiatric examination at state expense or a hearing to determine appellant's fitness to proceed.

Appellant contends the trial court erroneously permitted introduction of evidence showing that he was stopped by police officers because of his resemblance to the broadcast description of a suspected felon and that appellant was in fact arrested for robbery before discovery of the concealed weapon leading to the charge in the case at bar.

The indictment as originally filed charged defendant on two counts--I, robbery first degree, and II, carrying a concealed weapon. Count I was nolle prosequied before trial and only the concealed weapon charge remained. The probable cause for appellant's arrest was tested, prior to selection of the jury, at a hearing of appellant's motion to suppress the gun in question; because of the court's denial of that motion, neither the legality of the arrest nor the seizure was at issue during trial. State v. Tillman, 454 S.W.2d 923, 926(5, 6) (Mo.1970). The concealed weapon charge required proof of only two elements: (1) intention to carry a weapon concealed, (2) concealment on the person or in such close proximity to the accused so as to be under his easy and convenient control. State v. Hall, 508 S.W.2d 200, 206(6) (Mo.App.1974). See also State v. Jordan, 495 S.W.2d 717 (Mo.App.1973).

Defendant was stopped by police while riding in an automobile near the intersection of North Florissant and Hebert in the City of St. Louis on the morning of November 6, 1972. Officers Price and Bonney had stopped another car at the intersection for a traffic violation and while thus involved, Bonney noticed appellant in a passing vehicle who appeared to fit the description of a felony suspect described in an earlier police broadcast. Stopping appellant's car, Bonney asked him to step out; and as he did so, appellant turned his back to the officer, reached in his right front trouser pocket, removed a revolver and dropped it to the floorboard of the car. Bonney retrieved the gun and placed him under arrest. Appellant offered no evidence and the jury returned a guilty verdict.

Notwithstanding the limited scope of the issues, by direct evidence, opening statement and closing argument, reference was made to appellant being stopped by the police while riding in an automobile because he had a strong resemblance to the broadcast description of a suspect in a felony committed earlier that day. Though the precise nature of the other crime was not identified to the jury, in the state's effort to embellish, numerous references were made to the circumstances of appellant's arrest and his involvement in that other 'crime.' Those instances include the following: ¹

1. In opening statement when referring to the concealed weapon charge against appellant, the prosecutor added this gratuitous remark: 'He was arrested on another charge and immediaely after this particular arrest, tried to get rid of this particular gun.' Defense counsel objected on the ground the statement constituted proof or reference to another crime and requested a mistrial. The objection was overruled and mistrial denied.

2. The prosecutor then stated that Officer Tomlinson would testify he had broadcast a radio description of a suspect and within a half an hour the arresting officers saw the defendant who matched the description they heard on the radio.

3. Immediately thereafter (still in opening statement) the prosecutor referred to anticipated testimony of Officer Bonney and stated: 'He will tell you that he retrieved that gun from the floorboard of the automobile, placed this man under arrest for several charges, and then subsequently he took that gun.' Defense counsel's objection to the prosecutor's reference to 'other charges' was overruled. ²

4. Officer Tomlinson was called and from his testimony it became apparent he had no connection or involvement with the arrest or investigation of the concealed weapon's charge for which appellant was being tried. Tomlinson testified that he had been dispatched to the Greyhound Bus Depot some distance from the scene of arrest shortly after midnight on the 6th of November, made an investigation of a crime which had occurred at that location and by police radio, broadcast a description of the suspect. Recounting that broadcast, he testified: 'I said that a subject was wanted for a felony in the Fourth Police District, he was a Negroe, approximately between the ages of twenty to twenty-two . . .' Defense counsel interrupted and out of the jury's presence again objected to the reference to other crimes and pointed out that there was now a reference to the other crime as a felony. He asked that the entire line of testimony be stricken on the basis that it constituted proof of other crimes and was highly prejudicial. The objection was overruled and the renewed motion for mistrial was denied.

5. The following then occurred: (by Mr. Murphy to Officer Tomlinson) 'Q. That description that you placed on the police radio cars was (sic) . . . A. Wanted for a felony in the . . .' Defense counsel again objected and suggested hearsay as an additional ground for his objection. The objection was again overruled and the witness completed his answer. 'Wanted for a felony in the Fourth Police District; was a Negroe, male, twenty to twenty-two red afro hair, wearing a black, leather jacket and gray and white pants with black and red strips and armed with a chrome gun.'

6. Next called was Officer Price who testified he heard the police radio broadcast about one a.m. that morning. The question was asked: 'Q. What was the nature of that broadcast, Officer? A. Subject wanted for a felony in the Fourth District.' A substantial part of Price's subsequent testimony related to clothing seized from defendant and was shown to be similar or the same as that described in the police broadcast. The court inquired of the prosecutor whether he was attempting to prove the robbery or the charge of carrying a concealed weapon. The prosecutor replied it was the latter, to which the court responded: 'What has the evidence got to do with carrying concealed weapon . . . this clothing?' Mr. Murphy--'This gives these two Officers the probable cause to arrest this man . . .' The court then overruled the defense objection and admitted the evidence, apparently for the reason suggested by the prosecutor.

7. Officer Bonney on further direct examination again testified the subject was '. . . wanted for a felony in the Fourth District earlier that date.' The defense again objected to any reference to proof of another crime not charged and the objection was again overruled.

8. During closing argument the prosecutor referring to Officer Tomlinson, who had no connection with the apprehension or arrest, made this statement: 'What did Tomlinson say? He said he gave you a description, he gave it in detail about someone being wanted in the Fourth Police District for a crime. It happened shortly before one o'clock. He told you what time he put that on the A.P.B., the All Points Bulletin, on the police radio. He told you the description that he gave: Negroe male, twenty to twenty-two, five ten , approximately, black, leather jacket, gray and black stripped pants, with a chrome gun with red afro hair. All right.'

9. The prosecutor then made these remarks relative Officer Bonney's testimony: 'He notices this man sitting in a Buick automobile in the same police district twenty-five minutes later and, his broadcast indicated another felony with this man involved.' Though no objection appears to these remarks of the prosecutor, the several prior defense objections adequately preserved the issue for appeal. Defendant had seasonably objected to the evidence of this character in each instance when offered. His objections were overruled and he should not be required or expected to repeat the objection when the prosecutor in closing arguments made reference to those matters which the court...