State v. Heather, 34528
| Decision Date | 31 July 1973 |
| Docket Number | No. 34528,34528 |
| Citation | 498 S.W.2d 300 |
| Parties | STATE of Missouri, Respondent, v. Gary Lee HEATHER, Appellant. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
Patrick Horner, Auxvasse, for appellant.
John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, Thomas I. Osborne, Pros. Atty., Mexico, for respondent.
This is an appeal by appellant, Gary Lee Heather, from a judgment of conviction in the Circuit Court of Audrain County for tampering with a motor vehicle without the consent of the owner. § 560.175(1). 1 Appellant was found guilty by a jury and sentenced by the court to serve three years in the custody of the Department of Corrections.
Appellant was charged by an amended information with the offense of tampering with a 1962 Chevrolet four-door sedan, the property of Mr. J. W. McCluggage. The amended information charged a prior conviction. § 556.280.
On April 21, 1971, J. W. McCluggage, a resident of Laddonia, Missouri, located in Audrain County, owned a 1962 Bel Air Chevrolet, four-door sedan. On that day McCluggage went to the Mexico Bowling Lanes; he returned to Laddonia at about 9:30 p.m. and went to a tavern. He parked his car near the tavern, and returned to his automobile at about midnight. It would not start. When he lifted the hood of the vehicle, the air breather was lying on the manifold and the 'distributor cap was gone and the coil wire and rotor (were missing).'
On the same day, prior to the time that McCluggage became aware that the parts of his motor were missing, Trooper Gary Phillips, a member of the Missouri Highway Patrol, was on duty patrolling the highways. He was in uniform and in a marked patrol car. Near the corner of Chestnut and Main in Laddonia he observed two men come around the corner; 'when they looked up and saw me, they turned around and went back in the other direction.' The trooper became suspicious of the two men who 'had (run) when they saw me' and he circled the block a couple of times trying to find them. He saw a 1960 Chevrolet parked on Chestnut; he had the license checked and determined that the vehicle was registered in the name of Gary Heather. As he continued cruising, he noticed the two men working on the 1960 Chevrolet. When he got to a place where he intended to watch, the men who 'had been under the hood were gone.' Phillips later saw the defendant with another trooper, Raymond Magruder, who had apprehended appellant. Trooper Magruder had received a call to go to Laddonia about midnight to participate in an investigation of some other matter. Between Third and Fourth Streets Magruder heard something in the bushes and 'advised them (the two men) to come out with their hands up two or three times . . . and after about the third time they both went out the opposite side from which I was on and ran away from me.' He pursued and advised the men to halt. 'Mr. Heather stopped.' Magruder advised him he was under arrest and gave him the Miranda warnings from a card he carried with him. Magruder then turned appellant over to Trooper Phillips.
Phillips talked with McCluggage about the missing parts of his car; with Heather's permission he looked under the hood of the 1960 Chevrolet. He found a broken piece of a distributor cap on the block, a distributor cap in its proper location, and a coil wire and rotor. He placed his initials and the date on the parts, held them overnight, and then turned them in to the evidence technician at Troop F. On September 21, 1971, Trooper Phillips picked up these exhibits and brought them to Audrain County for the preliminary hearing. Since that date, the parts used as the state's exhibits were kept in the prosecutor's office; from there they were brought to court on the morning of the trial, November 30, 1971.
Magruder turned Heather over to Phillips; Heather was then taken to the Audrain County Jail and Phillips read appellant a 'statement of rights and waiver of rights.' After Phillips read the statement to Heather, he questioned the appellant and appellant signed a statement. Trooper Phillips testified that he made no threats or promises to have him sign the waiver or statement. At the time of appellant's arrest and at the time he signed the waiver and gave the statement, appellant's 'face was flushed, his eyes were bloodshot, he had a strong odor of alcoholic beverage on his breath,' his speech was 'slurred,' and he was unsteady in his walk. Both Phillips and Magruder were of the opinion that he was intoxicated, but he gave 'intelligent answers' to Phillips' questions; the answers 'did match up with the questions' that were asked.
At the beginning of the trial and during the opening statement, the prosecutor said the following: 'The defendant, later that evening, shortly after he was advised of his rights at the Jail, I believe is the location--he signed a statement saying that--' Defense counsel objected to any statement that may have been made and urged that if the state intended to introduce such a statement, a voir dire hearing be held on its admissibility. Defense counsel objected to any reference to the statement before the jury; he requested that the jury be instructed to disregard the reference and also requested a mistrial. The court instructed the jury to disregard the reference made by the prosecuting attorney as to any statement that may have been made by the defendant, but denied the request for a mistrial.
The defendant offered no evidence. Instructions were given, the jury found the defendant guilty, the motion for new trial was overruled, allocution was granted, and defendant's sentence was imposed.
Appellant raises three points on appeal. The appellant contends that the court erred for the following reasons: (1) in not declaring a mistrial during the opening statement when the prosecutor made reference to the statement by the defendant, thus violating his right to have the issue of voluntariness of the statement ruled on by the court prior to the jury becoming aware of it; (2) in admitting the waiver and statement made by appellant, over objection, because the evidence establishes that at the time the waiver and statement were given, the appellant was intoxicated 'to such an extent that he was incapable of realizing . . . the import or consequences of his acts and words,' or of understanding his rights or voluntarily, intelligently and knowingly waiving his Miranda rights; and (3) in admitting into evidence the automotive parts because the state failed to show a proper chain of custody of possession from the time of the alleged offense to the date of trial.
Respondent, on the other hand, argues that: (1) the trial court did not abuse its discretion in denying appellant's request for a mistrial; (2) the trial court properly admitted the waiver and statement into evidence because the testimony adduced outside the hearing of the jury supported the conclusion that the waiver and statement were voluntarily made, notwithstanding the appellant's claim of incapacity by reason of intoxication; and (3) the trial court properly admitted the automotive parts into evidence because the testimony produced by the state established reasonable assurance that the evidence presented was the same and in the same condition as when initially seized.
Appellant first contends that the court should have declared a mistrial because the minds of the jurors had been 'poisoned' by the mention of the fact that defendant had made a statement, and the admonition to disregard the remark did not remove the fact from their minds. It is contended that the statement was already before the jury before a voir dire hearing on the voluntariness of the statement was held so that the jury was incapable of affording the defendant a fair and impartial trial, hence the request for mistrial should have been sustained.
The declaration of a mistrial is a drastic remedy and should be exercised only in extraordinary circumstances where the prejudicial effect can be removed in no other way, State v. Raspberry, 452 S.W.2d 169, 173 (Mo.1970), or where the incident is so grievous that the prejudicial effect can be removed in no other way, State v. Camper, 391 S.W.2d 926, 928 (Mo.1965). For these reasons, whether the remarks of counsel require a mistrial and the discharge of the jury rest largely in the discretion of the trial court which has observed the incident giving rise to the request for mistrial and is in a better position than an appellate court to evaluate the prejudicial effect and possibility of its removal by action short of a mistrial. State v. Camper, supra at 928; State v. Tate, 468 S.W.2d 646, 650 (Mo.1971). Our function is to determine whether, as a matter of law, the trial court abused its discretion to the prejudice of the appellant in refusing to declare a mistrial. State v. Chester, 445 S.W.2d 393, 399 (Mo.App.1969). When an improper incident occurs during trial and the jury is instructed to disregard it, '. . . the reviewing court, in order to hold that the failure to grant a mistrial was reversible error, must determine and conclude as a matter of law from the entire record that the error was prejudicial and so impressive that its effect was not removed by the action of the trial court.' State v. Dennison, 428 S.W.2d 573, 577 (Mo.1968).
We cannot conclude from the entire record that the trial court abused its discretion in overruling the request for mistrial because of the reference to the statement by the prosecutor. The court sustained the objection to the reference and instructed the jury to disregard the statement. The prosecutor did not reveal the contents of the appellant's statement; a hearing on the voluntariness was later held and the court submitted the issue of voluntariness to the jury in Instruction No. 4 and the jury found the statement to be voluntary.
Appellant relies on a number of decisions which hold that if the defendant requests a preliminary...
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State v. Gullett
...and intelligently. Rather, the fact of intoxication goes to the weight and credibility to be accorded the statement. State v. Heather, 498 S.W.2d 300, 304 (Mo.App.1973). Also see State v. Trask, 581 S.W.2d 417 (Mo.App.1979); State v. Easley, 515 S.W.2d 600 (Mo.App.1974). The trial court fou......
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