State v. Cook, 47144

• Decision Date: 22 May 1984
• Docket Number: No. 47144,47144
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Roy Russell COOK, Jr., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 469

673 S.W.2d 469

STATE of Missouri, Plaintiff-Respondent, v. Roy Russell COOK, Jr., Defendant-Appellant.

No. 47144.

Missouri Court of Appeals,

Eastern District,

Division Four.

May 22, 1984.

Motion For Rehearing and/or Transfer to

Supreme Court Denied

July 9, 1984.

Arthur S. Margulis, Margulis & Grant, P.C., St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., Jefferson City, Janet E. Papageorge, Asst. Atty. Gen., for plaintiff-respondent.

GAERTNER, Presiding Judge.

Defendant appeals from the judgment of convictions entered pursuant to a jury's finding of guilt for robbery in the first degree, burglary in the first degree, unlawful use of a weapon (flourishing), and unlawful possession of a concealable firearm by one convicted of a dangerous felony. After finding defendant to be a persistent offender, the trial court sentenced him to a term of life imprisonment for the robbery, a consecutive term of 30 years imprisonment for the burglary, and 10 years each on the two other charges, concurrent with the life sentence.

Defendant does not challenge the sufficiency of the evidence which amply supports the finding of guilt on all four counts. Dispositive of this appeal is the procedural problem created by the joinder of the charge of possession of a concealable firearm under § 571.070.1(1), RSMo 1981 (amended 1982) with the other charges. One of the elements of the crime of unlawful possession of a concealable firearm is that defendant has pled guilty to or has been convicted of a dangerous felony, as defined in § 556.061, RSMo 1978, or of an attempt to commit a dangerous felony or of a crime under the law of any state or of the United States which, if committed in this state, would be a dangerous felony. Here, Counts I, II, and III charge defendant with robbery, burglary and flourishing, respectively. Count IV charged that defendant, having been convicted of attempted bank robbery, was in possession of a concealable firearm in violation of § 571.070. This charge requires the state to prove and the jury to find both the possession of the firearm and the conviction of attempted bank robbery. MAI-CR2d 31.28.

Prior to trial defendant moved for a severance of Count IV. His argument that evidence before the jury of his prior conviction would have a prejudicial affect upon their consideration of his guilt or innocence on the other three charges was countered by the prosecutor's observation that the joinder was proper under Rule 23.05. The trial court denied the motion for severance.

The propriety of the joinder of multiple offenses is a question separate and distinct from that of possible prejudice to a defendant resulting from the trial of all such offenses before the same jury. State v. McCrary, 621 S.W.2d 266, 271 (Mo. banc 1981). The former, a procedural matter of pleading, is governed by Rule 23.05. The latter is a matter of fundamental fairness arising under the due process clauses of the Fourteenth Amendment to the United States Constitution and Article I, § 10 of the Missouri Constitution. Thus, even though the joinder of multiple offenses in a single indictment or information may comply with the requirements of Rule 23.05 "[t]he court remains under a continuing duty during trial to counter prejudice and order severance if necessary to achieve the fair result intended." Id. at 272, citing, with emphasis added, State v. Duren, 556 S.W.2d 11, 20 (Mo. banc 1977), rev'd on other grounds sub nom. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).

Relying on State v. Williams, 603 S.W.2d 562, 567 (Mo.1980), the State maintains that defendant failed to prove the evidence of his prior conviction was prejudicial. The prejudicial effect of permitting a jury to discover that a defendant has been guilty of other crimes is manifest. "It is aphoristic that reference to other crimes unrelated to the case on trial violates a defendant's right to be tried for the offense with which he is charged unless such proof has some legitimate tendency to establish defendant's guilt of the crime charged." State v. Williams, 652 S.W.2d 102, 110 (Mo. banc 1983). Any reference to a defendant's involvement in unrelated crimes, except for the purpose of direct impeachment of the defendant, has been characterized as having a "dangerous tendency and misleading probative force." State v. Tillman, 454 S.W.2d 923, 926 (Mo.1970). Such references have uniformly warranted the declaration of mistrial. The potential for one or more jurors, imbued with the commonly held but illogical notion, "once a crook, always a crook" to find a defendant guilty of a crime charged because of his guilt of separate and unrelated crimes is readily discerned. An often-quoted single sentence demonstrates the long standing condemnation of such a practice:

The practice of seeking to obtain an advantage in a trial of a case by injecting therein unfair insinuations should have the severest condemnation and suffer the most disastrous result permissible under the law.

State v. Lee, 486 S.W.2d 412, 415 (Mo.1972), quoting from State v. Jones, 306 Mo. 437, 268 S.W. 83, 87 (1924), quoting in turn from Parris v. Crutcher, 180 Mo.App. 150, 173 S.W. 1080, 1081 (1915).

Nor can we accept the respondent's argument that giving MAI-CR2d 2.70 cured any prejudice defendant may have suffered. This instruction directs the jury to consider each count separately and not to consider evidence limited to one offense in connection with any other offense. In permitting the prosecutor to read to the jury a certified copy of the defendant's prior conviction, over the objection of defense counsel, the court did not advise the jury that this evidence was limited to Count IV. Nor did the prosecutor advise the jury that he was reading the certified copy in connection with Count IV alone. Thus, the jury was totally uninformed of the restricted purpose for the prior conviction's introduction. The State cites State v. McCrary, 621 S.W.2d at 272 and State v. Mack, 576 S.W.2d 550, 552 (Mo.App.1978) as authority for the curative effect of MAI-CR2d 2.70. These cases are factually distinguishable because they concern the ability of jurors to consider separately a series of related offenses charged in multiple counts and being tried simultaneously. Here, the issue concerns the prejudicial effect upon the jury of evidence of a conviction for a totally unrelated offense committed many years before the offenses charged.

In Vazquez v. State, 405 So.2d 177 (Fla.App.1981) aff'd in State v. Vazquez, 419 So.2d 1088 (Fla.1982), a case virtually identical to the instant case, the Florida Court of Appeals held a severance of the charge of the possession of a concealable weapon by a convicted felon from other charges arising out of the same transaction to be mandatory. Describing the prejudice resulting from reference to a prior conviction as so overwhelming as to deprive a defendant of the presumption of innocence and to render a fair trial impossible, the Florida court held that a specific jury instruction that the prior conviction had no bearing on the other charges did not cure the error.

"As ... common sense confirms, the above inadmissible evidence was too powerful, too damning, and too prejudicial for any conscientious jury to disregard pursuant to the above jury charge. Cautionary instructions of this sort have their place in our law, but are utterly ineffective when applied, as here, to such powerful prejudicial evidence." 405 So.2d at 180.

Of other jurisdictions which have addressed this issue, the majority have determined that, although evidence of a prior conviction is admissible on a charge of...