State v. Coleman

• Decision Date: 20 May 1975
• Docket Number: No. 36301,36301
• Citation: 524 S.W.2d 27
• Parties: STATE of Missouri, Respondent, v. Willie COLEMAN, Appellant. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 27

524 S.W.2d 27

STATE of Missouri, Respondent, v. Willie COLEMAN, Appellant.

No. 36301.

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

May 20, 1975.

Charles D. Kitchin, Public Defender, Thomas J. Prebil, James C. Jones, Asst. Public Defenders, St. Louis, for appellant.

John C. Danforth, Atty. Gen., K. Preston Dean, II, Scott A. Raisher, Asst. Attys. Gen., Jefferson City, for respondent.

NORWIN D. HOUSER, Special Judge.

Willie Coleman, convicted of Burglary Second Degree, § 560.070, RSMo 1969, V.A.M.S., and committed to the department of corrections for a period of 10 years, has appealed from the judgment of conviction.

The State's evidence showed that the building housing Alper's Jobbing Company at 1516 Dr. Martin Luther King Drive in the City of St. Louis was burglarized. The latch on the front door was forced open and part of the wood broken away. Six large cartons of shoes were taken from the building. At 12:40 a.m. two police officers observed appellant and another man exiting from an open door at Alper's, each carrying a large cardboard box. These two proceeded across the street and there placed the boxes in the doorway of a building on the north side of the Drive, directly across from the Alper building. After setting down the box he was carrying appellant turned around and 'headed out back across the street,' walking. There were street lights in the area. The officers were dressed in full police uniform. Evidently the two men saw the police officers, for when appellant was halfway across the street on his way back he began running south, then west on the Drive. The other man set his box down in the doorway and began running west on the north side of the Drive. One of the officers shouted 'Stop, police officer,' but the two continued to flee. One officer pursued the man who was with appellant, and apprehended him. The other officer pursued appellant on foot to 16th Street, then east through the rear alley south of the Drive. There he found appellant crouched down in a small shed in the alley. State's Exhibit 7, a pair of shoes taken from one of the six large boxes, identified as having been taken from Alper's, was introduced in evidence. Mr. Alper testified that he gave neither appellant nor the other man permission to enter the building.

Appellant claims this evidence is circumstantial merely and is consistent with at least one reasonable hypothesis of his innocence; that it evidences nothing more than presence at the scene, opportunity to commit the crime and flight, which merely raises a suspicion of guilt but is insufficient evidence to authorize a conviction. Appellant suggests that the State's evidence is consistent with the following hypothesis of innocence (to which version of the facts appellant testified): that appellant left Bob's Restaurant, walked down the Drive, saw five young male blacks on the sidewalk very near Alper's, and near a number of boxes; that as appellant approached he was seen by the men, who grabbed small shoe boxes and fled; that two more men emerged from Alper's carrying large boxes which they placed in the doorway of the building across the street; that upon the appearance of the two police officers the men carrying the boxes ran and that appellant, frightened by the oncoming police car, also fled the scene.

The State's evidence is not insufficient as a matter of law to prove beyond a reasonable doubt that appellant committed burglary in the second degree. 'This evidence clearly shows that insofar as the criminal agency of appellant is concerned this case was not based upon circumstantial evidence but upon direct eyewitness testimony,' State v. Marler, 453 S.W.2d 953, 956(1) (Mo.1970), appellant having been seen exiting from the door of the store with stolen goods in his possession, and having been immediately pursued and apprehended in flight. Furthermore, evidence of burglary and recent, exclusive and unexplained possession of stolen property is sufficient to submit a burglary case. State v. Miller, 499 S.W.2d 496 (Mo.1973); State v. Robb, 439 S.W.2d 510, 513(3) (Mo.1969). If accused's explanation of such possession is disbelieved by the trier of the fact (as apparently it was in this case) accused's possession stands as if unexplained. State v. Clark, 438 S.W.2d 277 (Mo.1969); State v. Sallee, 436 S.W.2d 246, 250 (Mo.1969); State v. Durham, 367 S.W.2d 619 (Mo.1963). Other cases sustaining convictions of burglary under similar factual situations include State v. Mason, 506 S.W.2d 458 (Mo.App.1974); State v. Hawkins, 491 S.W.2d 342 (Mo.1973); State v. Wheeler, 478 S.W.2d 326 (Mo.1972); State v. Marler, supra. The court did not err in overruling appellant's motion for judgment of acquittal at the close of the case and in submitting the case to the jury.

The trial court was not guilty of an abuse of discretion in denying appellant's motion for a mistrial, following the prosecutor's use of the word 'arrest' during his cross-examination of appellant. The record follows:

'Q (By Mr. Kavanaugh): By the way, sir, in conclusion, you were convicted also were you not, you said you were convicted in 1959 of assault with intent to rob; is that right?

'A That's correct.

'Q And you said that you were convicted in 1965 of three charges of assault with intent to kill; is that right?

'A That's correct.

'Q Is it not also true you were convicted in 1962 of carrying a gun and sentenced to six months in the city workhouse?

'A That's true.

'Q That's true. Is it not also true you were convicted in April of 1964 of assault with intent to kill?

'A that's true.

'Q So it is not just for the six prior felony convictions you have--

'A No, four.

'Q Sir?

'A Four, four.

'Q Well, there is an assault to rob, assault with intent to rob; is that right?

'A Two of those I never had no conviction on it.

'Q I am not talking about arrest I am talking about convictions?

'MR. PREBIL: I am going to object, and request to approach the bench.

'THE COURT: Sustained as to the term arrest.

(Whereupon the following proceedings were held at the bench out of the hearing of the jury):

'MR. PREBIL: This questioning has gotten a little bit out of hand. Now, for the first time he mentioned my client's arrest record. It is completely improper for him to mention that, and the sole intention in my mind is to prejudice the jury against my client. At this time I am going to request a mistrial.

'MR. KAVANAUGH: Before the Court makes any further ruling I would like the record to show, remind the Court rather, that this man said that he was not convicted, and it was at that time and only after that point that I told him I was not referring to arrest I was referring to convictions. This witness has showed some confusion.

'THE COURT: He has admitted it, all of them, so let's leave it at that.'

While the credibility of a witness may not be attacked by showing mere arrests, investigations or criminal charges which have not resulted in convictions, State v. Taylor, 498 S.W.2d 614 (Mo.App.1973); State v. Elbert, 471 S.W.2d 170 (Mo.1971), that rule is inapplicable under these circumstances, where the accused at first admitted that the 1962 and 1964 episodes were convictions and then promptly reversed himself and denied they were convictions. The prosecutor's use of the word 'arrest' under these circumstances was inadvertent, and was invited--brought on by appellant's own testimony, and at most was harmless error. The use of the word in this context did not carry the sting or contaminate the verdict, as in cases where the prosecutor knowingly and intentionally engages in a direct inquiry with reference to a witness' prior arrests.

Appellant's defense (that the offense was not committed by appellant but by several other boys prior to the time appellant came upon the scene) was not a 'special negative defense' within the meaning of the definition of that term in Notes on Use under MAI-CR 2.04, nor was it a 'theory of innocence,' requiring submission to the jury by appropriate instruction, whether requested or not, under the rulings in State v. Tate, 436 S.W.2d 716 (Mo.1969), and State v. Kinard, 245 S.W.2d 890 (Mo.1952). An instruction to acquit upon a finding that appellant was not involved in breaking into the premises of Alper's and that offense was committed by the five boys appellant mentioned was not part of the 'law of the case' within the meaning of Rule 26.02(6), V.A.M.R., requiring instructions upon all questions of law necessary for the guidance of the jury. Appellant's testimony that he innocently came upon the scene of a burglary committed by others constitutes nothing but a 'denial of the charge in its entirety,' fitting precisely within the rule announced in State v. Banks, 491 S.W.2d 247, 248(2) (Mo.1973), that 'A defense bottomed on evidence an accused had nothing whatever to do with the crime charged does not come within the connotation of the 'theory of innocence' principle * * *.' Appellant's denial that he committed the crime 'did not entitle him to a 'theory of innocence' instruction as a special defense to the charge.' State v. Broomfield, 510 S.W.2d 843, 846(2) (Mo.App.1974).

The court gave Instruction No. 7 on flight. Under the law in force at the time of this trial on May 20--22, 1974 it was not error to give an instruction on flight when justified under the evidence. See State v. Ward, 518 S.W.2d 686 (Mo.App.1975), and compare the cognate situation in State v. Martin, 515 S.W.2d 802, 804--805(4) (Mo.App.1974), in which reference is made to the proposition that there was no duty to instruct by MAI prior to the date when the MAI became operative. And see State v. Price, 513 S.W.2d 392, 396(8) (Mo.1974); State v. Durio, 512 S.W.2d 833, 835(4) (Mo.App.1974), and State v. Tindall, 496 S.W.2d 267, 271 (Mo.App.1973). (Since March 1, 1975 no flight instruction may be given, MAI-CR 5.40, but that rule was not in effect at the time this trial took place). Appellant argues that all of the...