State v. Decker

• Decision Date: 11 September 1979
• Docket Number: No. 40011,40011
• Citation: 591 S.W.2d 7
• Parties: STATE of Missouri, Respondent, v. Charles Keith DECKER, Appellant.
• Court: Missouri Court of Appeals

Page 7

591 S.W.2d 7

STATE of Missouri, Respondent, v. Charles Keith DECKER, Appellant.

No. 40011.

Missouri Court of Appeals, Eastern District, Division Two.

Sept. 11, 1979.

Motion for Rehearing or Transfer Denied Nov. 20, 1979.

Application to Transfer Denied Jan. 15, 1980.

Scott Richardson, Clayton, for appellant.

John Ashcroft, Atty. Gen., Richard Thurman, Asst. Atty., Gen., Jefferson City, for respondent.

STEPHAN, Presiding Judge.

Defendant-appellant Charles Decker was indicted for and tried jointly on the charges of first-degree robbery and stealing a motor vehicle. Defendant's motion to sever the offenses was denied. He was convicted on the stealing count and acquitted of the robbery. Having been tried under the Second Offender Act, § 556.280, RSMo 1969, he was sentenced by the trial court to ten years in prison. We affirm.

On June 25, 1976, defendant took a test drive of some fifteen to twenty minutes in a new yellow Toyota Corolla lift-back with salesman Patrick Logue of Placke Toyota. After they returned to the lot, located on South Kingshighway in the City of St. Louis, defendant told Logue that he would have to confer with his wife before making a decision about the car. Defendant departed on foot. Approximately ten minutes later, Logue saw defendant drive off the lot in the same yellow Corolla, without the permission of Logue or any other Placke employee. Logue testified that the theft occurred at approximately 4:00 or 5:00 p. m. That evening, shortly after 9:00 p. m., a Schnuck's grocery store at Gravois and Hampton in the City of St. Louis was robbed at gunpoint. The robber briefly exhibited a small pistol to the employee attending the store's customer service counter and demanded money. The employee later identified defendant as the robber. Two other employees who did not witness the robbery testified that they observed defendant loitering around the service counter between 8:00 and 8:30 p. m.; one had noticed defendant standing around the counter on several prior occasions during the day, as early as 3:00 p. m., for as long as an hour or so. A fourth employee testified that he saw a man, clothed as the robber was described by the other witnesses, running across the Schnuck's parking lot shortly after 9:00 p. m.; he subsequently saw a yellow foreign fast-back sub-compact automobile with dealer stickers in the window, hurriedly leave the lot. However, he could positively identify neither the man nor the vehicle as defendant and the stolen Toyota, respectively. Defendant presented an alibi defense to both charges. As noted, the jury convicted defendant of the theft of the automobile, and acquitted him of the robbery of the store.

In his first assignment of error, defendant contends that the trial court erred in failing to grant his motion to sever the offenses listed in the indictment. Joinder of offenses is governed by Rule 24.04, which, at the time of defendant's trial, provided: ¹

"All offenses which are based on the same act or on two or more acts which are part of the same transaction or on two or more acts or transactions which constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts, or in the same count when authorized by statute. Any indictment or information may contain counts for the different degrees of the same offense or for any one of such degrees."

Defendant disputes the trial court's ruling that the two offenses charged could be found to constitute parts of a common scheme or plan. He argues that there was no evidence to link the stolen car with the robbery; and that, even if there were such evidence, there was no indication that the car was stolen for the purpose of facilitating the robbery, which, according to the evidence adduced at trial, was committed some four to five hours later.

We note initially that the question of whether a motion to sever offenses should be granted is a matter within the discretion of the trial court. State v. Crane, 559 S.W.2d 294, 296 (Mo.App.1977); State v. Duren, 556 S.W.2d 11, 20 (Mo.banc 1977), reversed on other grounds, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). Broad joinder is encouraged in the interest of more efficient administration of criminal justice. State v. Johnson, 505 S.W.2d 11, 12 (Mo.App.1974); State v. Easton, 577 S.W.2d 953, 957 (Mo.App.1979). However, the benefits to be derived from joinder of offenses should be weighed against the potential prejudice to defendant resulting from that joinder. In assessing that prejudice, the court should consider the number of offenses charged, the complexity of the evidence to be offered and the consequent ability of the jury to distinguish the evidence and apply the law intelligently as to each offense. Duren, supra, 20. Although the acquittal of a defendant on one count should make an appellate court sensitive to the possibility of improper joinder, it does not in itself mandate such a finding. United States v. Ragghianti, 527 F.2d 586, 587 (9th Cir. 1976); United States v. Johnson, 462 F.2d 608, 609 (8th Cir. 1972). Reversal of the trial court is proper only upon a clear showing of prejudice and abuse of the trial court's discretion. United States v. Lewis, 547 F.2d 1030, 1033 (8th Cir. 1976), cert. den. 429 U.S. 1111, 97 S.Ct. 1149, 51 L.Ed.2d 566 (1977).

In the instant case, we do not believe that that discretion was abused. The stolen automobile was sufficiently linked to the robbery through the testimony of the Schnuck's employee who, shortly after the time of the robbery, saw a man in the described attire of the robber running across the parking lot from the store and subsequently saw a car matching the description of the Toyota hurriedly leaving the lot. Given that link, and given the testimony that defendant had been loitering around the service counter for some time prior to the theft of the car, we believe it not unreasonable for the trial court to have inferred, before the judgment of acquittal on the robbery count, that the car was stolen for the express purpose of providing a means of flight after the robbery and that the two incidents were therefore part of a common scheme. Upon review of the transcript, we find little chance of confusion of the evidence by the jury. The charges were distinct. Factually, both incidents were relatively simple; they were separated chronologically and spatially. There was no overlap in the testimony: one witness, Logue, testified exclusively in regard to the auto theft; four witnesses, Schnuck's employees, testified exclusively in regard to the robbery. We find no prejudice to defendant and accordingly rule the point against him.

Defendant next contends that the court erred in failing to grant his motion for a mistrial after the court asked one of the state's witnesses a question which, defendant argues, evinced the court's lack of impartiality and constituted an improper comment on defendant's guilt. In cross-examination of Schnuck's employee Rita Leber, defense counsel attempted (as he did with all the store employees who testified) to establish that there were differences between the weight and hair color of the robber on June 25, 1976, and that of defendant as he looked in a lineup picture taken several months thereafter. During that cross-examination the following exchange occurred:

"Q (Defendant's attorney) You also said the man you saw on June 25th was heavier or lighter?

A (Witness Leber) He looked heavier. He looked a little heavier.

Q Which one? I'm sorry. This man looked heavier?

A The man on the far right.

THE COURT: Does he look heavier in the picture or heavier on June 25th?

A He looked heavier in the lineup than he did on the day of the robbery."

Counsel thereafter approached the bench and requested a mistrial on the grounds that the court's question had equated defendant and the robber.

Error, if any, resulting from the court's inquiry was harmless because the question was directed only to the issue of the identity of the robber and defendant was acquitted of the robbery charge. See State v. Turner, 272 S.W.2d 266, 271 (12) (Mo.1954). The jury chose not to believe the state's identification testimony on the sole charge on which Ms. Leber testified. We can perceive no logical basis whatever for defendant's argument that the error was cumulative, affecting the jury's deliberation on the separate and distinct charge of stealing.

Defendant further contends that the trial court erred in failing to grant a mistrial when the prosecutor asked one of defendant's witnesses, Mrs. Juanita Williams, whether she had previously testified on defendant's behalf. Defendant argues that the state was thereby permitted to introduce, indirectly, inadmissible evidence of defendant's commission of other crimes. See, e. g., State v. Lee, 486 S.W.2d 412, 414 (Mo.1972).

We rule the point against defendant for two reasons. Defendant's objection, coming as it did after the witness had answered the question, was not timely. State v. Peterson, 546 S.W.2d 175, 179 (Mo.App.1976); State v. Tibbs, 523 S.W.2d 108, 110 (Mo.App.1974); State v. Phillips, 480 S.W.2d 836, 837 (Mo.1972). An exception to the above principle occurs when a party is not given the opportunity to voice an objection because of a quick response by the witness; however, that party must make an objection at the earliest opportunity and move to strike the...