State v. Hamell

• Citation: 561 S.W.2d 357
• Decision Date: 18 October 1977
• Docket Number: No. 37816,37816
• Parties: STATE of Missouri, Respondent, v. Gary Lee HAMELL, Appellant. . Louis District, Division Two
• Court: Court of Appeal of Missouri (US)

Page 357

561 S.W.2d 357

STATE of Missouri, Respondent, v. Gary Lee HAMELL, Appellant.

No. 37816.

Missouri Court of Appeals, St. Louis District, Division Two.

Oct. 18, 1977.

Motion for Rehearing and/or Transfer Denied Jan. 18, 1978.

Application to Transfer Denied March 13, 1978.

Timothy A. Braun, Public Defender, St. Charles, for appellant.

John D. Ashcroft, Atty. Gen., Paul R. Otto, Philip M. Koppe, Frank Murphy, Asst. Attys. Gen., Jefferson City, Ronald L. Boggs, Pros. Atty., G. Jeffrey Lockett, Asst. Pros. Atty., St. Charles, for respondent.

STEWART, Judge.

Defendant was convicted of robbery in the first degree by means of a dangerous and deadly weapon, § 560.120 RSMo 1969. He was sentenced to twenty-five years imprisonment in accordance with the jury verdict.

Defendant urges for reversal that the court erred: (1) in admitting evidence of the commission of an offense by defendant which was not charged in the information; (2) in failing to suppress defendant's confession because it was the product of police coercion; and (3) in giving a verdict directing instruction which was at variance with the charge of the information.

Defendant does not question the sufficiency of the evidence to sustain the verdict. A brief statement of the facts will suffice. On July 26, 1975, defendant and three other men entered the Burger Chef Restaurant in St. Charles. Defendant, who was wielding a sawed-off shotgun, vaulted the stainless steel serving counter. He shoved the shotgun against the side of the manager's head and ordered the manager toward the rear area. The other employees were herded to the rear, and the manager was then ordered to collect all money and jewelry from the cash register and the persons in the restaurant and put it into paper bags. After the money was collected the victims were ordered to lie on the floor. Defendant and the other robbers bolted the restaurant, entered an automobile and fled.

A patron of the restaurant who was in his vehicle on the parking lot recorded the license number of the getaway car. The license had been issued to defendant. The restaurant manager positively identified defendant. A palm print lifted from the stainless steel counter at the point where the gunman vaulted the counter was identified as that of defendant.

Other facts essential to our discussion of the issues will be set out as the issues arise.

This case comes to the writer on reassignment. Much of the opinion previously written is adopted and quoted herein.

"Appellant's first argument is that he was denied a fair and impartial trial when the trial court overruled his motion for a mistrial after the state presented, in the videotaped confession, evidence of another offense not charged. The part of the videotape at issue was:

"QUESTION: It looks like just one person driving the car? Just one person occupying the car I mean? ANSWER: Yes. QUESTION: Okay. Is this the first time you have ever done anything like this with Ben Davis? ANSWER: This is the second time. QUESTION: This is the second time? When was the first time? ANSWER: The first time was ." (At this point the videotape was stopped.)"

The prosecutor then said that a brief recess was necessary to pass over some portions of the tape not relevant to this case.

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). The declaration of a mistrial has been described as a drastic remedy to be exercised 'only in extraordinary circumstances,' State v. James, 347 S.W.2d 211 (Mo.1961), or 'only when the incident is so grievous that the prejudicial effect can be removed no other way,' State v. Camper, 391 S.W.2d 926 (Mo.1965). Because the declaration of a mistrial necessarily rests largely in the discretion of the trial court who observed the incident giving rise to the request for a mistrial and is in a better position than the appellate court to evaluate any prejudicial effect and the possibility of its removal short of mistrial, State v. Pruitt, 479 S.W.2d 785 (Mo.1972) (En banc); State v. Smith, 431 S.W.2d 74, 83 (Mo.1968), the standard of review on appeal is whether as a matter of law the trial court abused its discretion in refusing to declare a mistrial. State v. Seals, 515 S.W.2d 481 (Mo.1974); State v. Franklin, 526 S.W.2d 86 (Mo.App.1975).

"Evidence of the commission of separate and distinct crimes is not admissible unless it is within one of the exceptions to establish (1) motive, (2) intent, (3) absence of mistake or accident, (4) common plan or scheme embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others, or (5) identity of the person charged. State v. Reese (364 Mo. 1221), 274 S.W.2d 304, 307 (Mo.1954); State v. Diamond, 532 S.W.2d 873, 876 (Mo.App.1976); State v. Fox, 510 S.W.2d 832, 838 (Mo.App.1974). Such evidence must be subjected to rigid scrutiny because of its tendency 'to raise a legally spurious presumption of guilt in the minds of jurors.' State v. Reese, supra. Evidence of prior crimes is particularly prejudicial in that it 'permit(s) the jury improperly to infer that because there were (other crimes and offenses) appellant must have committed the (specific crime) charged.' State v. Hancock, 451 S.W.2d 6, 9 (Mo.1970). The trial court must carefully balance 'on the one hand the actual need for such evidence, and on the other the degree to which a jury may be prejudiced against the defendant by hearing such evidence.' State v. Burr, 542 S.W.2d 527, 531 (Mo.App.1976).

"The challenged portion of the videotaped statement must be analyzed to determine if the prejudicial impact was sufficient to warrant the declaration of a mistrial. From the videotape excerpt in the record it is difficult to determine whether the question referred to another robbery, which would then clearly be inadmissible, or merely to the act itself (of driving so as to make it appear as if only one person was in the car). The context of this portion of the videotape is also impossible to determine from the record. The videotape itself had been identified as a confession. The trial court found the remarks in the videotape to be very generalized and offered to instruct the jury to disregard the remarks. Defense counsel refused the instruction, fearing that any further reference would only serve to accentuate its impact. The tape machine had been stopped as rapidly as possible by the operator and the prosecutor assured the trial court that there had been no deliberate attempt on the part of the state to refer to any unrelated offense.

"In view of the ambiguous context and character of the challenged reference, the decision of the trial court to refuse to declare a mistrial should be affirmed. The trial court was in a superior position to evaluate the prejudicial impact of this reference and determine whether a mistrial was warranted. The cases cited by appellant to support his position are all cases in which the prejudicial evidence admitted was of other crimes or offenses. When compared with these cases the reference in this case does appear generalized. In State v. Lee, 486 S.W.2d 412 (Mo.1972), the Missouri Supreme Court held that denial of a mistrial was reversible error where the prosecutor implicated the defendant in bombings and other criminal activities not charged in the indictment for first degree murder. In State v. Mathis, 375 S.W.2d 196 (Mo.1964), the Missouri Supreme Court held the admission of evidence of a nearby burglary in the trial of defendant for another burglary was prejudicial error and reversed the conviction. In State v. Reese, 274 S.W.2d 304 (Mo.1954), the Missouri Supreme Court reversed defendant's conviction for murder because evidence was admitted of a holdup not alleged in the information and which was not relevant on the issue of defendant's guilt. In State v. Diamond, 532 S.W.2d 873 (Mo.App.1976), admission of evidence concerning an earlier car theft in a trial for tampering with a motor vehicle without the owner's permission was held to be so prejudicial that a mistrial was required. In State v. Burr, 542 S.W.2d 527 (Mo.App.1976), evidence of a sale of speed was held to be prejudicial and reversible error in a conviction for sale of marijuana. Evidence of other crimes or offenses was also held to be erroneously admitted in State v. Tillman, 454 S.W.2d 923 (Mo.1970) (arrest for murder and robbery), State v. Hancock, 451 S.W.2d 6 (Mo.1970) (other thefts), State v. Holbert, 416 S.W.2d 129 (Mo.1967) (possession of other weapons than that charged), and State v. Griffin, 336 S.W.2d 364 (Mo.1960) (other crimes and offenses).

"Appellant also argued that the videotaped statement itself had a prejudicial effect on the jury in that the impact of appellant's adverse statement was magnified by the medium of videotape. While there has been popular recognition of the more powerful emotional impact of television (videotape) as compared with writing, McLuhan, The Medium is the Message, 125-28 (1967) the courts have approved the use of videotaped evidence. Hendricks v. Swenson, 456 F.2d 503 (8th Cir. 1972); State v. Lindsey, 507 S.W.2d 1 (Mo.1974); State v. Hendricks, 456 S.W.2d 11 (Mo.1970); State v. Lusk, 452 S.W.2d 219 (Mo.1970). In State v. Lusk, the Missouri Supreme Court held that the admission of a videotaped confession after proper foundation did not violate defendant's Fifth Amendment privilege against self-incrimination. The court drew an analogy between the use of videotape and the use of tape recordings, State v. Perkins, 355 Mo. 851, 198 S.W.2d 704 (1946), and motion pictures, e. g., People v. Dabb, 32 Cal.2d 491, 197 P.2d 1 (1948); Commonwealth v. Roller, 100 Pa.Super. 125 (1930); Grant v. State, 171 So.2d 361 (Fla.1965), cert. den. 384 U.S. 1014 (,86 S.Ct. 1933, 16 L.Ed.2d 1035) (1966). In State v. Lindsey, the Missouri Supreme Court specifically addressed the issue of the...