State v. Gatlin, 37518
| Citation | 539 S.W.2d 731 |
| Decision Date | 13 July 1976 |
| Docket Number | No. 37518,37518 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Milton GATLIN, Jr., Defendant-Appellant. (36804). . Louis District, Division One |
| Court | Court of Appeal of Missouri (US) |
James C. Jones, G. Jeffrey Lockett, Asst. Public Defenders, St. Louis, for defendant-appellant.
Preston Dean, Robert H. House, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Nels C. Moss, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
Defendant was convicted of burglary in the first degree, robbery in the first degree, and two counts of assault with intent to main with malice. He was sentenced to fifteen years in the custody of the Department of Corrections on each count, the sentences to run concurrently.
The charges against the defendant arose out of an episode which occurred just after midnight of April 16, 1974, in the very first few minutes of April 17, 1974. Mr. and Mrs. Joseph Lewandoski were awakened at their apartment by a loud voice. Suddenly the door of the apartment was broken open. Mr. and Mrs. Lewandoski were assaulted and some of their money and other possessions were taken from them.
Defendant's first contention is that his opportunity for a fair trial was prejudiced because of surprise which occurred when evidence revealed that the crimes charged were committed at a different time than the defendant had been led to believe. Defendant presented evidence of an alibi for the night of April 17--18, 1974, whereas the crimes had actually occurred on April 17 just after midnight. A review of the evidence and other matters which set the time of the occurrence could leave the impression that the crimes were committed about midnight of April 17, 1974, rather than the early morning hours of that date during the previous night. For instance, in certain grand jury testimony of Joseph Lewandoski which had been furnished to defendant at his request, a leading question had been asked of the witness as to whether the crimes were committed in the early morning of the 18th and the witness responded in the affirmative. One of the investigating officers testified that he went to the Lewandoski apartment on April 17th about midnight. Both Mr. and Mrs. Lewandoski testified at the time of trial that the occurrence was approximately midnight on April 17. Such misinformation or misinterpretation as to the time of day, however, is clearly contradictory to many other sources of information which clearly indicated that the crimes occurred on April 17, 1974. The indictment charged defendant with committing the crimes on April 17, 1974. Defendant's trial attorney was furnished with a copy of the police report which indicated that the crimes occurred on April 17, 1974 at 12:10 a.m. At the time of trial, the court informed the jury panel that the crime was one charged by the state to have occurred on April 17, 1974. The prosecutor in his opening statement informed the jury that the crime occurred shortly after midnight on April 17. Thereafter the first reference to the early morning of the 18th occurred on cross-examination of the investigating officer by defendant's counsel when he was asked the leading question as to whether he arrived at the apartment on the morning of the 18th. On redirect, the officer was redirected to what had occurred on April 17. Another officer testified that he had investigated the crime on April 17, 1974 shortly after midnight. Mr. Lewandoski refers in his testimony to the occurrence as being on April 17, 1974 at approximately midnight. No reference was made to April 18, and he further testified that prior to midnight his door was kicked open. Mrs. Lewandoski, in response to a leading question on direct examination, indicated that she lived at the apartment on the 17th of April at approximately midnight, and further testified that she was attacked by the defendant on a Tuesday, which would have placed it on April 16, 1974. Furthermore, Mrs. Lewandoski was admitted to the hospital following the assault upon her, as shown by the hospital records, at 1:02 a.m. on April 17, 1974.
Later, when defendant put on alibi witnesses, they were accounting for his presence at a place different from the scene of the crime on the night of April 17--18, and when this was brought out upon cross-examination of one of the witnesses, defendant's counsel claimed surprise and asked the court for a mistrial.
As a general rule, surprise is not a ground for a new trial. State v. Henson, 290 Mo. 238, 234 S.W. 832, 834(6) (1921). The declaration of a mistrial has been described as a drastic remedy. The trial court should only exercise this power in...
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State v. Wrice
...the case with prejudice on the grounds that double jeopardy had attached in the earlier proceeding, thus precluding a retrial. 539 S.W.2d 731 (Mo.App.1976). The appellate court in Gatlin found that when surprise occurs in the trial of the case, the proper remedy is a continuance. Id. at 733......
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