State v. Guernsey, 10394

Decision Date06 February 1979
Docket NumberNo. 10394,10394
Citation577 S.W.2d 432
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Jacquelin GUERNSEY, Defendant-Appellant.
CourtMissouri Court of Appeals

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Daniel F. Lyman, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

Tyce S. Smith, Waynesville, for defendant-appellant.

WILLIAM L. RAGLAND, Special Judge.

Defendant Jacquelin Guernsey appeals from her conviction by a jury of stealing a motor vehicle, § 560.156, RSMo 1969, and the resultant five year sentence.

In August 1975 defendant drove an automobile owned by one David Scott from Pulaski County, Missouri to Romoland, California. She remained in California for approximately four months before returning to Pulaski County where she was arrested, with the automobile in her possession, charged and subsequently convicted. Although admitting that she did not have the express permission of Scott to take the automobile to California, she defends on the grounds that she maintained contact with Scott, discussed the return of the automobile and at no time claimed ownership of the automobile. She therefore asserts that she did not intend to permanently deprive the owner of the use of his property, which is one of the essential elements of the State's case. With this defense injected into the case and to properly dispose of her assignment of error, a more detailed statement of the facts is required.

Defendant, a native of Massachusetts, arrived in Pulaski County with her husband, a serviceman, in December 1973. She apparently experienced marital difficulties, separated from her husband in February 1975 and, without obtaining a dissolution, began residing with Scott, also a serviceman. During this adulterous relationship Scott assisted in her support although she was receiving welfare benefits for herself and her children. They lived as if they were husband and wife and it is presumed that Scott received the usual marital benefits while her reward was the full use of the automobile while Scott was on duty at Fort Leonard Wood. This relationship was scheduled to terminate in August 1975 when Scott was to be sent to duty overseas.

On August 5, 1975, defendant took Scott to Fort Leonard Wood, returned to their trailer, "packed a few things", left him a note "explaining everything" and drove to Fort Worth, Texas where she remained overnight. Defendant then drove to El Paso, Texas where she remained for several days, then to Romoland, California where she obtained employment and remained until December 14, 1975 when she returned to Pulaski County. The record in this case suggests that while in California the defendant gave birth to a child. Although not properly preserved for review, defendant unsuccessfully sought to prove that Scott was the father of this child. Considering the time element when the parties lived together, it must be observed that Scott certainly could have been the father of the child and in fact may have owed some duty to the defendant.

On August 19, 1975, Scott reported to his insurance company and the Prosecuting Attorney of Pulaski County that his automobile had been stolen and obtained a warrant for the arrest of the defendant.

The defendant, although unsuccessful on numerous instances, did make frequent contacts with Scott after August 5, 1975 and most if not all were admitted by the State's witnesses. On August 6, 1975 defendant called Scott from Fort Worth, Texas advising him of her location and destination. Defendant's girlfriend in El Paso, Texas, later advised Scott that defendant was en route to California.

Upon her arrival in California, defendant, learning that Scott was no longer at Fort Leonard Wood, began calling for him at his parents' home in Marshall, Missouri, finally talking to him on August 11, 1975. In this conversation Scott admits that he made no demand for the return of the automobile nor did he advise defendant that he had reported his automobile stolen and obtained a warrant for her arrest. Her suggestion to him that he fly to California to return the automobile was declined because of lack of finances, although he apparently experienced no difficulty in flying from Mannheim, Germany to prosecute his former lover.

Following this conversation, defendant wrote several letters to Scott in Germany and in November, defendant sent a telegram to Scott offering to pay his expenses for a return trip to the United States.

Of interest is the fact that Scott's step-father was the agent for the insurance company having theft coverage on the automobile and he processed the claim, resulting in a payment to Scott in the amount of three thousand seven hundred dollars ($3,700.00).

Curiously, the record fails to show any attempt by the authorities in Pulaski County to have the warrant executed in California although the defendant's location was well known by the State's principal witness, David Scott; nor does the record show any attempt by the insurance company to recover this automobile although its location was well known by their insured, David Scott.

Inasmuch as the point defendant raises on appeal was not raised in her motion for a new trial, we hold that the error claimed is not preserved for review. Rule 27.20(a), V.A.M.R., and State v. Gomillia, 529 S.W.2d 892 (Mo.App.1975). Recognizing this shortcoming, defendant seeks review under our "plain error" rule. Rule 27.20(c), V.A.M.R. This concession we will grant. State v. Stewart, 566 S.W.2d 264 (Mo.App.1978); State v. Beasley, 404 S.W.2d 689, 690 (Mo.1966).

Defendant raises only one point in her appeal. She complains that the prosecutor made a prejudicial argument by indicating to the jury that a prior misdemeanor theft conviction adduced into evidence for impeachment of the defendant's credibility could be utilized by the jury to establish the mental intent which is an element of the charged offense. She contends that this argument is erroneous to an extent requiring the trial court to declare a mistrial sua sponte. We are constrained to agree with defendant.

The alleged prejudicial argument occurred in the rebuttal portion of the State's summation when the prosecutor stated:

"I suggest to you that on the basis of that and on the inclination the Court gives an instruction to that there is a certain ring of truth to that 'once a thief, always a thief.' I think you can take that into consideration. If she can shoplift, she can take a car. I think common sense people would take that into consideration."

It is a correct statement of the law that every error which might occur in the trial of a case does not necessarily require the granting of a mistrial, State v. Camper, 391 S.W.2d 926 (Mo.1965), and "The granting or refusal of a mistrial for improper argument lies largely within the discretion of the trial court." State v. King, 334 S.W.2d 34, 40 (Mo.1960); State v. Smith, 431 S.W.2d 74, 83 (Mo.1968). The authority of a court to grant a mistrial "should be exercised only in extraordinary circumstances," State v. James, 347 S.W.2d 211, 214 (Mo.1961), which is another way of saying that "a mistrial should be granted only when the incident is so grievous that the prejudicial effect can be removed no other way." State v. Camper, supra, at 928.

We believe the argument in this case falls within the latter classification in that it overstepped the permissible bounds of legitimate argument and, as such, was "plain error" affecting substantial rights from which we should find that manifest injustice resulted. State v. Stewart, supra.

The law is well settled that the only legitimate purpose of an argument concerning prior conviction lies in its bearing upon the credibility of the defendant. State v. Jones, 221 S.W.2d 137 (Mo.1949); State v. Jones, 249 Mo. 80, 155 S.W. 33 (1913); State v. Jackson, 336 Mo. 1069, 83 S.W.2d 87, 103 A.L.R. 339 (1935); State v. Baber, 297 S.W.2d 439 (Mo.1956); State v. Reagan, 108 S.W.2d 391 (Mo.1937); State v. Mitchell, 86 S.W.2d 185 (Mo.1935); State v. Cook, 282 S.W.2d 533 (Mo.1955); State v. Wellman, 253 Mo. 302, 161 S.W. 795 (1913). It is improper to argue prior unconnected crimes as reflecting upon the defendant's character or as a basis for conviction in the case on trial. See the cases just cited. State v. Mobley, 369 S.W.2d 576 (Mo.1963). Also in State v. Mobley, supra, at 581, the following language, quoted with approval in State v. Scott, 459 S.W.2d 321 (Mo.1970), is pertinent to the issues in this case:

"All lawyers and judges know that a jury's knowledge of prior convictions is, in itself, a most damning thing in the trial of a criminal case. When used for legitimate purposes, the defendant must take his chances on this. But prosecutors should not seize upon such an opportunity to further prejudice the defendant by undue repetition and insinuations, Or to convey the idea of guilt by reason of the prior offenses." (emphasis ours)

The effect of prejudicial argument concerning prior convictions was...

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7 cases
  • State v. Strubberg, 62104
    • United States
    • Missouri Supreme Court
    • May 11, 1981
    ...211, 214 (Mo.1961); State v. King, 334 S.W.2d 34, 40 (Mo.1960); State v. Decker, 591 S.W.2d 7, 11 (Mo.App.1979); State v. Guernsey, 577 S.W.2d 432, 435 (Mo.App.1979); State v. Brunson, 559 S.W.2d 60, 62 (Mo.App.1977). We find no such abuse of The second remark that appellant protests is the......
  • State v. Wilkerson, 44352
    • United States
    • Missouri Court of Appeals
    • August 17, 1982
    ...overruled unless there is a clear abuse of that discretion. State v. Carlos, 549 S.W.2d 330, 332[1, 2] (Mo.banc 1977); State v. Guernsey, 577 S.W.2d 432, 435 (Mo.App.1979). There was no abuse of discretion Appellant cites two cases to support his contention that a mistrial should have been ......
  • State v. Nolen, 19005
    • United States
    • Missouri Court of Appeals
    • March 22, 1994
    ...unconnected crimes as reflecting upon the defendant's character or as a basis for conviction in the case on trial." State v. Guernsey, 577 S.W.2d 432, 435 (Mo.App.1979). The only legitimate purpose for which prior convictions may be used is to impeach the defendant's credibility. State v. M......
  • State v. Reagan
    • United States
    • Missouri Court of Appeals
    • June 14, 1983
    ...point is denied. Little need be said about this point. The only case cited by appellant in support of his argument is State v. Guernsey, 577 S.W.2d 432, 435 (Mo.App.1979). That case is not apposite. It concerns an allegedly prejudicial argument in the rebuttal portion of the state's summati......
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