State v. Harris

• Decision Date: 20 January 1976
• Docket Number: No. 36099,36099
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Pat HARRIS, Defendant-Appellant. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 516

534 S.W.2d 516

STATE of Missouri, Plaintiff-Respondent, v. Pat HARRIS, Defendant-Appellant.

No. 36099.

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

Jan. 20, 1976.

Motion for Rehearing or Transfer Denied Feb. 26, 1976.

Application to Transfer Denied April 14, 1976.

Denis C. Burns, James E. Godfrey, Inc., St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Robert M. Sommers, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Thomas J. Kavanaugh, Jr., Asst. Circuit Atty., St. Louis, for plainiff-respondent.

STEWART, Judge.

Defendant was charged with and convicted of first-degree robbery by means of a dangerous and deadly weapon. The court sentenced him to 35 years' imprisonment.

Defendant's allegations of error focus upon photographs used for purposes of identification. He contends that comments of the prosecution in opening statement, the answers to questions propounded to witnesses, and an offer by the prosecution to display one of the photographs to the jury, erroneously injected evidence of a prior crime into the case.

Defendant does not question the sufficiency of the evidence to warrant a conviction. At about noon, Donald Bledsoe, who was home on leave from the Marine Corps, was returning to his home from the store. He had turned into an alley when he was approached by defendant and two other men. One of them asked for a cigarette. When Bledsoe removed a cigarette from his pocket his wallet fell to the ground. As he reached for the wallet one of the men put a gun to his head and the defendant grabbed the wallet. The three men then ordered Bledsoe into the basement of a vacant house, struck him and forced him to strip to his underwear. They discussed among themselves which one would kill him. They finally returned the wallet after removing the cash and told Bledsoe to leave. Bledsoe then ran up the alley to his home and called the police. Mr. Bledsoe identified a photograph of defendant as one of his assailants. He also identified defendant in a line-up. At the trial the victim made a positive in-court identification and also identified defendant from a photograph of the lineup. It was also developed on cross-examination of the victim that he had seen the defendant in the neighborhood some 3 or 4 months before the robbery.

Defendant did not testify but offered two alibi witnesses. The manager of the apartment where he lived testified that defendant was washing clothes on that day. Defendant's wife said that she noticed freshly washed clothes when she returned home from work that evening.

The facts giving rise to the issues raised will be set out where indicated.

The defendant specifically contends that the court erred in not granting the defendant's motions for mistrial when the court admitted 'evidence of prior crimes of the defendant' in the following respects:

'A) . . . the Circuit Attorney's statement in the course of his opening statement that two detectives took 'so-called mug shots of people on file with that division' to the victim, from which the victim identified the photograph of the defendant, after which the detectives returned to the office where 'they found out where this man was.''

'B) . . . the statement of the victim, Donald Bledsoe, on direct examination that 'they came about twice, to show me mug shots.''

'C) . . . the statement of Detective Donnell Whitfield on direct examination that he took 'photographs of subjects on file in our department' to the home of the victim.'

'D) . . . the request by the Circuit Attorney made at the close of his case in chief, within the hearing of the jury, whereby he requested permission to pass to the jury 'State's Exhibit No. 2, a photograph, a smaller photograph, which is (sic) likewise, been admitted into evidence.''

We confine our discussion to those incidents specifically designated in defendant's brief. ¹

The prosecutor in his opening statement told the jury that the proof would be that detectives of the 'Burglary and Robbery Division' would tell them that 'they brought out several photographs of so called mug shots of people on file with that division, with the Burglary and Robbery Division,' to the victim. No objection was made to the remarks of the prosecutor when made. He continued his statement for another eleven lines in the transcript. At that time defense counsel approached the bench and informed the court that the State had 'introduced evidence, information about defendant . . . in the police files. It is an indication of another offense . . .' His only request was for a mistrial.

As in the case of improper argument, objections to statements of the prosecutor must 'be made at the time the objectionable statement is made or nothing is preserved for review.' State v. Turley, 518 S.W.2d 207, 211(3) (Mo.App.1974). This incident is not properly before us.

The second occasion was a purely voluntary response by the victim on direct examination as follows:

'Q. Okay, now. How many days after you were robbed, did the detective come out to your house?

A. They came that next day. They came about twice, to show me mug shots. Then the next day, they picked me up.'

The defendant asked for a mistrial on the ground that the Circuit Attorney's question was so framed as to call for 'the answer mug shot'. ² The court refused to declare a mistrial. The court, however, interposed and sustained its own objection to the term 'mug shot'. ³ In the Motion for New Trial defendant alleged that the question was erroneous. He now complains of the answer, not the question. He contends that the court erred in not declaring a mistrial when the victim said, 'They came about twice to show me mug shots.' An appellant may not, on appeal, change or broaden the scope of the assignment of error in his motion for new trial. The present contention was not preserved in the Motion for New Trial, and is not now reviewable. State v. Larkins, 518 S.W.2d 131, 135(6) (Mo.App.1974); State v. Kinder, 496 S.W.2d 335, 339 (Mo.App.1973).

If these incidents were properly before us we would find no prejudicial error. Much interest was evidenced in the substance of these issues, by our brethren who would dissent, and for that reason we shall discuss them along with others properly raised.

The defendant's principal contentions center around the term 'mug shot'. ⁴ Defendant, as noted above, also complains of the incident when Detective Whitfield testified that he went to see the victim and brought 'Photographs of subjects on file in our department.' (emphasis added)

Preliminary to discussion of the issues it is appropriate to restate an old principle. On appeal we should indulge the presumption that the trial court ruled properly. The burden of showing erroneous action on the part of the court is upon the appellant. '. . . error must be affirmatively shown, or appear by necessary implication. Conjectures and inferences will not subserve such a purpose.' State v. Taylor, 134 Mo. 109, 35 S.W. 92, 98 (1896).

That evidence of a defendant's prior crimes is generally inadmissible, is axiomatic. The jury heard no direct evidence that defendant had previously committed a crime. The primary issue here is whether the use of the term 'mug shots' on the two occasions mentioned and one reference to photographs on file with the police department, within the context of this case, necessarily referred to prior criminal activity on the part of the defendant and was prejudicially erroneous.

The burden was upon defendant to show that the use of the term 'mug shots' and the phrase 'pictures on file with our department' (the police department) constituted 'evidence of prior crimes'. To reach this conclusion he would have two alternative avenues open to him.

First he would have the burden of proving that all mug shots or photographs on file with the police department are photographs of persons who had committed prior crimes. This he has not attempted to do and it was not incumbent upon the State to prove the contrary. ⁵

Alternatively the defendant would have to prove that the average juror erroneously believes that persons whose photographs are on file with the police department have committed other crimes. We cannot infer that the jury inferred that defendant had committed prior crimes because the police department has a photograph of defendant. The defendant has failed to carry the burden of showing that the court erred. See State v. Carson, 501 S.W.2d 503, 506 (Mo.App.1973).

This is not to say that in another case the defendant may not be able to prove that the term 'mug shot' connotes prior criminal activity to the average juror.

It is noted that the term 'mug shot' was first used by defendant. In the hearing on the Motion to Suppress, immediately before the trial, counsel for defendant, in referring to a picture of defendant, asked of a detective, 'Was that a mug shot?' Subsequently Mr. Bledsoe was aksed if he talked to the detective. In reply Mr. Bledsoe said, 'They brought mug shots.' If defendant had not encouraged or condoned the use of the term, he at least could reasonably have anticipated its use in the trial before the jury. If he felt that the use of the term was objectionable, preventative action could have been taken.

After the defendant objected to the State's reference to 'mug shots' in the opening statement the term was not used again by the prosecutor. The question he asked of the victim was not a leading question and was not so framed as to elicit any reference to mug shots. ⁶ When Detective Whitfield testified that he showed the victim pictures on 'file with our department' he merely referred to photographs in the files of the St. Louis Police Department. He did not make reference to the files of the Burglary and Robbery Division. There was no inference of prior crims in this reference.

On the three occasions of which defendant now complains he sought only a mistrial. The court offered to take...