State v. Cummings, 15144

CourtCourt of Appeal of Missouri (US)
Citation765 S.W.2d 366
Docket NumberNo. 15144,15144
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Freddie CUMMINGS, Defendant-Appellant.
Decision Date08 February 1989

Page 366

765 S.W.2d 366
STATE of Missouri, Plaintiff-Respondent,
Freddie CUMMINGS, Defendant-Appellant.
No. 15144.
Missouri Court of Appeals,
Southern District,
Division Two.
Feb. 8, 1989.

Page 367

Scott B. Tinsley, Springfield, for defendant-appellant.

William L. Webster, Atty. Gen., Christopher M. Kehr, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

HOGAN, Judge.

A jury has found defendant Freddie Cummings guilty of receiving stolen property, more specifically, retaining stolen property, in violation of § 570.080, RSMo 1978. Defendant was found to be a persistent offender and his punishment was assessed at imprisonment for a term of seven (7) years. The defendant appeals. We affirm.

The sufficiency of the evidence to support the judgment of conviction is not at issue, although the sufficiency question was carefully preserved upon trial. Inasmuch as this appeal is the defendant's appeal of constitutional right, Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), we shall consider the sufficiency of the evidence sua sponte. The State presented evidence from which a jury could have found beyond a reasonable doubt that on the first or second day of April 1984, automotive repair machines and tools were stolen from a business known as the Motor Transportation Company. Some of the property taken belonged to Raymond Bryant, manager of the Motor Transportation Company; some of it was the property of the business. Bryant testified as a witness for the State. He identified: 1) a tool cabinet and its contents, received as State's exhibit 1; 2) an "analyzer," described as an instrument for "charging systems and testing batteries" which was received as State's exhibit 2; 3) a "vacuum" used for cleaning air conditioning systems, received as State's exhibit 3; 4) battery crimping tools, received as State's exhibit 4; 5) a welder, received as State's exhibit 5. Mr. Bryant testified the value of the tool cabinet and the tools it contained was "over

Page 368

five thousand dollars." The "analyzer" was valued at $889; the vacuum pump was valued at $201; the battery crimper was worth $217; the welder was valued at $167. The total value of the items identified by Mr. Bryant was therefore about $6,500.00.

The State further had evidence that Ivan Johnson, a deputy sheriff of Greene County, found the property we have described in a shop or garage occupied by the defendant. Deputy Johnson recovered the property in the execution of a search warrant which we shall presently discuss. Johnson also testified that he had recovered stolen property from the defendant's premises in January 1984. In January 1984, this officer had recovered the motor and transmission of a 1982 Peterbilt truck which was stolen in Oklahoma, a 1984 Peterbilt truck which had been stolen in Texas, and a grain trailer which had been stolen in Missouri. Such is the substance of the State's case.

The elements of the offense charged in this case, generally stated, are: 1) retaining the property of another; 2) for the purpose of depriving the owner of a lawful interest therein, 3) knowing the property has been stolen. The New Missouri Criminal Code: A Manual for Court Related Personnel, § 15.6, p. 15-9 (1978). The State had evidence that on April 1 or 2, 1984, property was stolen from Motor Transportation Company in Jasper County; on the 4th of April the stolen property was found in a metal building at the rear of defendant's residence in Greene County. There was direct evidence from Deputy Johnson that the defendant had received other stolen property in another transaction within the year preceding the transaction charged. The evidence and the inferences reasonably to be drawn therefrom were sufficient to support the judgment of conviction.

Two points have been briefed in this court. The first point as stated, is:

"The trial court erred in overruling appellant's request for a mistrial and in failing to take any corrective action, where appellant made said request when the prosecutor stated during closing argument, 'Ladies and gentlemen, ask yourselves, how can the defendant explain the theft of the tools on ...', because said comment was a direct reference to appellant's failure to testify, or an indirect reference drawing the jury's attention to same, thereby denying appellant the right to a fair trial." (Emphasis added)

The error alleged arose in the following context. The defendant called one Lloyd Allen Mackin as a witness. Mackin testified that a tool box and various tools introduced in evidence by the State were stolen items which he had had in his possession. Mackin further testified the defendant gave him permission to store the tools in a shed located on the defendant's property. Additionally, Mackin testified that although he stored the stolen property at the defendant's residence, he did not tell the defendant the property was stolen. Mackin also stated the defendant was not present on the date he delivered the tools. On cross-examination, Mackin admitted he had five felony convictions and considered himself a friend of the defendant. At the time of trial, Mackin was in custody of the Department of Corrections.

During closing arguments the prosecutor, commenting on the defendant's evidence, made the following statements:

"Let's look at the defendant's case. What was the defendant's evidence? Well, it's the testimony of a five-time felon. It's the testimony of a man currently residing in prison. It's the testimony of a self-admitted friend of the defendant. It's the testimony of a man who has nothing to lose by coming back from prison and helping his friend. It's the testimony of a man who has been convicted ... for the crime, felony, hindering prosecution.

Think about that. Hindering prosecution. Should this convict be believed?

Ladies and Gentlemen, ask yourselves, how can the defendant explain the theft of the tools on --." (Our emphasis)

At this point defendant's counsel objected, out of the hearing of the jury, as follows:

"Your Honor, that's the most direct uncertain [sic] reference of failure--of

Page 369

the defendant's failure to testify I have ever heard in a closing argument. The defendant doesn't have to explain or testify. He can't make a direct comment upon the defendant explaining anything. Now, that is a--not an implied--direct reference the defendant explained--the defendant doesn't have to explain anything. I will request a mistrial, Your Honor.

THE COURT: Be overruled. Do you have any other--

[THE PROSECUTOR]: Your Honor, if it would help, that wasn't the intent. I will explain to the jury the defendant does not have to testify. I will stop any further statements like that.

[DEFENSE COUNSEL]: Just have him stop, Your Honor. I don't want him to explain anything about it.

THE COURT: No, I will overrule the motion for mistrial. I will sustain--do you--you have not objected to--

[DEFENSE COUNSEL]: I object to his referring to--

THE COURT: And I'm sustaining the objection to any further...

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7 cases
  • State v. Duckett, s. 16395
    • United States
    • Missouri Court of Appeals
    • March 17, 1993
    ...Ms. Cole's remarks, hence any error by the trial court in failing to do so has not been preserved for review. Cf. State v. Cummings, 765 S.W.2d 366, 369 (Mo.App.1989). See also: State v. Cheatham, 340 S.W.2d 16, 20 Furthermore, when the motion for mistrial was denied, Appellant's lawyer may......
  • Bates v. Webber
    • United States
    • Missouri Court of Appeals
    • June 26, 2008
    ... ... 3. We note Counts III and IV were voluntarily dismissed by Appellants ... 4. See also Albrecht v. State Hwy. Comm'n, 363 S.W.2d 643, 646 (Mo. 1962) (holding that a highway did not violate a covenant which provided that "`no ... building on any residence ... ...
  • State v. Norfolk, s. 54407
    • United States
    • Missouri Court of Appeals
    • November 20, 1990
    ...Declaration of a mistrial is a drastic remedy and should be exercised only in extraordinary circumstances. State v. Cummings, 765 S.W.2d 366, 370 (Mo.App.1989). The declaration of a mistrial rests largely in the discretion of the trial court since the trial court observes the incident which......
  • State v. Hudson, s. 58389
    • United States
    • Missouri Court of Appeals
    • December 10, 1991
    ...complain the court erred in failing to grant further relief on these matters. He received all the relief he requested. State v. Cummings, 765 S.W.2d 366, 370 (Mo.App.1989). This rule of law also disposes of defendant's complaint regarding the prosecutor's reference to a variance between def......
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