State v. Goodson

• Decision Date: 13 February 1985
• Docket Number: No. 48449,48449
• Parties: STATE of Missouri, Plaintiff-Respondent v. Charles GOODSON a/k/a Donnie Goodson, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 155

690 S.W.2d 155

STATE of Missouri, Plaintiff-Respondent v. Charles GOODSON a/k/a Donnie Goodson, Defendant-Appellant.

No. 48449.

Missouri Court of Appeals,

Eastern District,

Division One.

Feb. 13, 1985.

Motion for Rehearing and/or Transfer to

Supreme Court Denied April 26, 1985.

Application to Transfer Denied

May 29, 1985.

David N. Morgan, St. Louis, for defendant-appellant.

John Munson Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

KAROHL, Judge.

Defendant appeals conviction and ten-year sentence on the charge that he knowingly carried concealed upon or about his person a .32 caliber revolver in violation of § 571.030.1(1) RSMo Supp.1983. Appellant here contends that the trial court erred in not granting a requested mistrial when the circuit attorney elicited from appellant on cross-examination testimony concerning a crime for which appellant was not charged and not relevant to the crime charged. The charge was carrying a concealed weapon. The contested cross-examination question and answer related to possession of a marijuana cigarette.

At 3:39 a.m. on August 16, 1983 while operating an automobile northbound on Kingshighway appellant violated a steady red electric signal. Officer Davidson pursued and stopped appellant. Both exited their vehicles and as appellant walked back to Officer Davidson the officer noticed a bulge in appellant's trousers. The officer took charge of appellant and removed a .32 caliber revolver from appellant's trousers. During direct examination Officer Davidson gave no testimony about a search of the vehicle. However, on cross-examination Officer Davidson was asked and he acknowledged going to defendant's automobile to retrieve some money.

The owner of the vehicle testified on behalf of defendant. She testified that she had placed the .32 caliber revolver under the front seat of her car and that she loaned her car to appellant without informing him of the presence of the weapon.

Defendant testified. He admitted running the red light and that the license plates on the borrowed vehicle were those of his brother for a different automobile and that he had made the transfer. He admitted a number of prior felony convictions. He also admitted that he was convicted on August 11, 1983 of the misdemeanor of possession of marijuana.

Appellant maintained that he borrowed the automobile and had no knowledge of the presence of the weapon under the seat of the car. Defendant denied possessing the weapon on his person. He testified that Officer Davidson made the arrest and handcuffed the appellant and while waiting for police assistance Officer Davidson carefully searched the inside and trunk of the automobile. Defendant argues that the weapon was found under the seat and $27.00 was found over the visor.

During defendant's cross-examination the circuit attorney asked:

Q. Did you have anything else up over the visor?

(Defense Counsel): I'm going to object, Your Honor--

(Circuit Attorney): Circumstance of the arrest.

THE COURT: What's the objection.

(Defense Counsel): He's trying to bring in some side offense, that's he's not charged with.

THE COURT: So far as I know it isn't yet, overruled.

Q. (Circuit Attorney): What else did you have over the visor?

A. I had about a half a joint.

Q. Of what?

A. Marijuana.

Q. That's illegal, isn't it?

A. Yeah.

Q. Okay. No further questions.

(Defense Counsel): Based on the last thing, Your Honor, ruling, Your Honor, I'd ask for a mistrial.

THE COURT: It's denied. You have anything else?

The defendant requested a mistrial due to the admission of evidence of other crimes and asked no further relief.

"The function of an appellate court on a denial of mistrial is to determine, as a matter of law, whether the trial court abused its discretion in refusing to declare a mistrial." State v. Cook, 676 S.W.2d 915, 917 (Mo.App.1984). We must first determine whether the prosecutor's cross-examination question elicited evidence of an independent and unconnected crime which was inadmissible to prove the crime charged. If so, we must decide if it was an abuse of discretion to deny the requested mistrial.

'The well established general rule is that proof of the commission of separate and distinct crimes is not admissible, unless such proof has some legitimate tendency to directly establish the defendant's guilt of the charge for which he is on trial.... Evidence of other crimes, when not properly related to the cause on trial, violates defendant's right to be tried for the offense for which he is indicted.' State v. Shilkett, 356 Mo. 1081, 204 S.W.2d 920, 922-923. Exceptions to this general rule of exclusion are as well established as the rule itself.... 'Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial.' The test of whether evidence of other distinct crimes falls within any of these exceptions has been aptly stated as follows: 'The acid test is its logical relevancy to the particular excepted purpose or purposes for which it is sought to be introduced. If it is logically pertinent in that it reasonably tends to prove a material fact in issue, it is not to be rejected merely because it incidentally proves the defendant guilty of another crime. But the dangerous tendency and misleading probative force of this class of evidence require that its admission should be subjected by the courts to rigid scrutiny. Whether the requisite degree of relevancy exists is a judicial question to be resolved in the light of the consideration that the inevitable tendency of such evidence is to raise a legally spurious presumption of guilt in the minds of the jurors. Hence, if the court does not clearly perceive the connection between the extraneous criminal transaction and the crime charged, that is, its logical relevancy, the accused should be given the benefit of the doubt, and the evidence should be rejected.' State v. Lyle, 125 S.C. 406, 118 S.E. 803, 807; ...

State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307 (banc 1954). The Reese court reversed and remanded for a new trial defendant Reese's conviction of murder in the first degree because evidence of a robbery subsequent to the killing and at a different location was erroneously admitted.

Our research indicates additional exceptions to the rule. In State v. King, 588 S.W.2d 147, 150 (Mo.App.1979) we recognized an exception

which permits proof of another crime, if the other crime is so linked together in point of time and circumstances with the crime charged that one cannot be fully shown without proving the other, [citations omitted]. Under this latter exception, the state is permitted to paint a complete and coherent picture of the crime charged and it is not required to sift and separate the evidence and exclude the testimony tending to prove the crime for which the defendant is not on trial....

Id. at 150. We there affirmed a conviction for sodomy even though there was evidence of other illegal sexual acts which also occurred as a part of a single continuing transaction because of the "complete and coherent picture" exception. In State v. Lue, 598 S.W.2d 133 (Mo. banc 1980) the Supreme Court combined the common scheme or plan exception with the complete and coherent picture exception. It said, "[t]he more modern statement of this definition as quoted in State v. Griffin, 497 S.W.2d 133, 135 (Mo.1973) is 'where two distinct offenses are so inseparably connected that proof of one necessarily involves proving the other ...' " Id. at 137.

In State v. Buckles, 636 S.W.2d 914 (Mo. banc 1982) the Supreme Court considered admission of evidence relating to a bank robbery on the day after the homicide for which defendant Buckles was on trial. The court there said

The test of admissibility is whether the logical relevancy of the separate crime to a particular exception tends to prove a material fact in issue, a judicial question. If this requisite degree of relevancy cannot be clearly perceived, the accused should enjoy the benefit of the doubt and the evidence of a separate crime rejected. State v. Tillman, 454 S.W.2d 923, 926 (Mo.1970) ...

Buckles, 636 S.W.2d at 918. In Buckles the supreme court found no error in the admission of evidence of the subsequent bank robbery because the homicide and robbery were linked together by evidence that defendant intended to obtain a car to facilitate the bank robbery and that he killed the car owner to get the car used in the robbery. The exceptions of related crime, intent, and motive were held to apply.

State v. Tillman, 454 S.W.2d 923 (Mo.1970) involves facts similar to the present case. Defendant was convicted of carrying a concealed weapon. The arresting officer testified that he found two weapons concealed in a folded jacket on the rear seat of an automobile where defendant and others had been. Over objection the court permitted the officer to testify on direct examination that the occupants of the automobile were arrested for murder and robbery. The state attempted to justify the testimony on the grounds that the jury was entitled to know the circumstances of the arrest. The court rejected that position and refused to recognize "circumstance of arrest" as an exception to the general rule. Tillman, 454 S.W.2d at 926.

We find that the circumstances of arrest justification is not an exception to the general rule and the court erred in permitting the testimony of defendant's present possession of marijuana. The facts of the crime of carrying a concealed weapon had been fully presented prior to the testimony concerning the officer's search of the car. There was no evidence that the defendant was under...