State v. Garrett

• Decision Date: 03 March 1992
• Docket Number: No. 58686,58686
• Citation: 825 S.W.2d 954
• Parties: STATE of Missouri, Respondent, v. Gerald GARRETT, Appellant.
• Court: Missouri Court of Appeals

Page 954

825 S.W.2d 954

STATE of Missouri, Respondent, v. Gerald GARRETT, Appellant.

No. 58686.

Missouri Court of Appeals,

Eastern District,

Division Five.

March 3, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied April 1, 1992.

Judith LaRose, Columbia, for appellant.

William L. Webster, Atty. Gen., Millie Aulbur, Asst. Atty. Gen., Jefferson City, for respondent.

CARL R. GAERTNER, Judge.

On May 20, 1989, a St. Louis County grand jury returned a five-count indictment charging defendant in Count I with first degree burglary, § 569.160, ¹ in Count II with first degree robbery, § 569.020, and in Count III with armed criminal action, § 571.015. These three counts pertained to alleged offenses against William and Muriel Ziskind inside their home on April 14, 1989. In Count IV, defendant was charged with first degree robbery, § 569.020, and in Count V, with armed criminal action. These counts pertained to alleged offenses against Laura Fedder, outside of her apartment on April 7, 1989. Defendant's motion to sever offenses was sustained. On April 11, 1990, a jury found defendant guilty of the lesser offense of second degree robbery in the April 7, 1989 offense against Laura Fedder but not guilty of armed criminal action. On May 31, 1990, another jury found defendant guilty of first degree burglary in the April 14, 1989 offenses against the Ziskinds but not guilty of robbery or armed criminal action. Pursuant to the juries' assessment of punishment, the court sentenced defendant to eight years on the robbery count and five years on the burglary count to be served consecutively. Defendant appeals. We affirm in part and reverse in part.

I.

THE FIRST TRIAL

THE FEDDER ROBBERY

The parties agreed to try the Fedder case first. Prior to trial, defendant moved to exclude all evidence of the Ziskind burglary and the events of April 14. The court denied this motion apparently on the basis of the common scheme or plan exception to the rule against the admission of evidence of other crimes and because the evidence was necessary to connect defendant with the vehicle from which incriminating evidence was subsequently seized. Defendant then modified his motion by seeking to exclude only the testimony of Mr. & Mrs. Ziskind and two neighbors who observed defendant and his automobile on April 14. This motion was also overruled. Defendant maintained his objections to this testimony throughout the trial.

Mrs. Fedder testified that about 10:15 p.m. on April 7, 1989, at the door to her apartment building, she was suddenly knocked down and her purse was taken. Later that night, her husband found a crescent wrench at the scene. ² She reviewed police photographs on two occasions but failed to recognize her assailant. On April 21, police officers showed her six photographs and told her one of them was of a man they had arrested. She selected two of the six as having "characteristics of the man." On April 29, she identified defendant in a line-up. Defendant was the only person in the line-up whose photograph had been previously shown to her. She was assured by police that the man she identified was the man they suspected.

Mrs. Ziskind was permitted to testify over defendant's objections, that on April 14, she was aroused from bed around 10:15 p.m. by loud noises. She went toward her living room and was confronted by a man holding a large screwdriver. In the well-lighted bedroom she "made a very big point" of remembering the man's features. Subsequently, she unequivocally identified defendant in a photographic array and in a line-up.

Jeffrey Clay, the Ziskind's next door neighbor, testified that on April 14, he observed a dark colored Chevette parked in front of his house with the motor running. As he went outside for a closer look, the car drove away. He did not see the driver but was able to describe the car to the police. Another neighbor, Jared Alfend, while walking his dog about 10:30 p.m. on April 14, observed an unoccupied dark colored Chevette automobile with its motor running. He then saw a black man walking past him toward the car. They exchanged greetings and, as he continued on, the car drove away. When the police came to the Ziskind home, Alfend gave them a description of the car and was later shown a Chevette which looked similar to the car he had seen. He was unable to identify the man he had seen from photographs or in a line-up.

About 8:30 p.m. on April 21, a police officer observed a red or rust colored Chevette. He stopped the car, which was being driven by defendant. Defendant voluntarily accompanied the officer to police headquarters and agreed to have his picture taken. This picture, along with five others, was shown to Mrs. Fedder. She paused over one photo and then selected that of defendant, but she said she did not remember a mustache and wanted to see him in person before being sure. She was told the photo she selected was the man under arrest. Another police officer testified about showing the pictures to Mrs. Ziskind who, he said, identified defendant's photograph at first sight.

A tool box was found in the trunk of defendant's car. Paint chips on the 8-inch crescent wrench found near the Fedder apartment building appeared on visual examination to be similar to paint on the tool box, although no laboratory testing for comparison was made.

Rule 23.05 authorizes the joinder of two or more offenses of the same or similar character in a single indictment. The purpose of this rule is the achievement of judicial economy. Rule 24.07(b) provides for a separate trial of offenses joined in a single indictment upon a showing by written motion that substantial prejudice would result from a joint trial. The purpose of this rule is to protect the rights of an accused. In this case, the purpose of both rules was thwarted. Although Judge Kenneth Weinstock granted defendant's motion for severance of offenses, which alleged he would be prejudiced by the evidence of other crimes, Judge Melvyn Weisman permitted the introduction of evidence of the April 14 crime in the trial of the April 7 offense.

The State argues that the evidence of the Ziskind burglary was admissible under three of the well-known exceptions to the rule against the admission of uncharged ³ crimes: 1) to establish identity, 2) to show evidence of a common scheme or plan, and 3) to establish a complete and coherent picture of the investigation leading to the apprehension of defendant or the circumstances of the arrest. We disagree.

Whenever the question of the admissibility of evidence of a defendant's commission of an uncharged crime is at issue, a court is required to balance the prejudicial effect of such evidence against its probative value toward establishing guilt of the charged offense. State v. Mallett 732 S.W.2d 527, 534 (Mo.banc), cert. denied, 484 U.S. 933, 108 S.Ct. 309, 98 L.Ed.2d 267 (1987). Such evidence constitutes an attack upon the character of a defendant and tempts the jury to find the defendant guilty of being a criminal rather than being guilty of the particular crime charged. Thus, the prejudice inherent in evidence of a defendant's commission of some other offense is readily apparent. However, this prejudicial effect may be overcome if the challenged evidence possesses a logical relevance toward proving a disputed issue in the case on trial. We examine the State's contentions in the light of this need to strike a balance between prejudice and probative value.

In its argument, the State has tended to confuse and overlap the common scheme and plan exception with the similarity of conduct exception. The former relates to a series or sequence of criminal acts, each forming a link in the accomplishment of the intended ultimate objective. Thus, in State v. Shaw, 636 S.W.2d 667 (Mo.banc), cert. denied, 459 U.S. 928, 103 S.Ct. 239, 74 L.Ed.2d 188 (1982), a prison inmate was charged with the murder of a prison guard. There was evidence tending to show defendant killed the guard in order to obtain a weapon with which to kill a civilian employee of the prison. Testimony describing his subsequent assault upon the employee was properly admitted in his trial for the earlier murder of the guard as a part of a common scheme or plan. Id. at 672. No ultimate objective links the Ziskind burglary with the Fedder robbery.

We also reject the State's argument that the two crimes possess sufficient similarities as to relevant toward the issue of identifying defendant as the perpetrator of both offenses. The similarities pointed to by the State are that both crimes occurred on Friday nights and that a tool was carried by the perpetrator of each. The similarity of conduct, or modus operandi, exception authorizes the State:

"[T]o prove other crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused. Much more is demanded than the mere repeated commission of crimes of the same class, such as repeated murders, robberies, or rapes. The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature."

McCormick on Evidence, § 190, pp. 559-60 (3rd Ed.1984). See also, State v. Young, 661 S.W.2d 637, 639 (Mo.App.1983).

The evidence that the robber of Mrs. Fedder had a wrench, a tool capable of use to inflict physical force in an assault, and that the Ziskind burglar had a screwdriver, a tool capable of use to pry open locked doors, can hardly be said to earmark the two crimes as the handiwork of the same individual.

We recognize the legitimacy of the State's argument that it is entitled to develop a complete and coherent picture of the investigation leading to...