State v. Henderson, s. 57925

• Decision Date: 17 March 1992
• Docket Number: Nos. 57925,60252,s. 57925
• Citation: 826 S.W.2d 371
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Vaughn HENDERSON, Defendant/Appellant. Vaughn HENDERSON, Movant/Appellant, v. STATE of Missouri, Defendant/Respondent.
• Court: Missouri Court of Appeals

Page 371

826 S.W.2d 371

STATE of Missouri, Plaintiff/Respondent, v. Vaughn HENDERSON, Defendant/Appellant.

Vaughn HENDERSON, Movant/Appellant, v. STATE of Missouri, Defendant/Respondent.

Nos. 57925, 60252.

Missouri Court of Appeals,

Eastern District,

Division One.

March 17, 1992.

Emily Blood, Public Defender, Kathleen Green, St. Louis, for defendant/appellant.

John Munson Morris, III, Millie Aulbur, Rudolph Rhodes, Asst. Attys. Gen., Atty. Gens. Office, Jefferson City, for plaintiff/respondent.

CRANE, Judge.

A jury found Vaughn Henderson guilty of unlawful use of a weapon by carrying a concealed weapon in violation of § 571.030.1 RSMo 1986. The trial court found Henderson to be a prior and persistent offender and sentenced him to ten years imprisonment. Henderson filed a Rule 29.15 motion for post-conviction relief which was denied after an evidentiary hearing. Henderson appeals both the judgment of the trial court and the order of the motion court.

On his direct appeal Henderson contends that the trial court erred in overruling his motion to exclude evidence of a robbery investigation and of another weapon and Henderson's statement that he was represented by a certain attorney. He further contends the trial court erred in giving a "reasonable doubt" instruction patterned after MAI-CR3d 302.04. On appeal from the order of the motion court, Henderson asserts that he was denied his right to effective assistance of counsel in that his attorney failed to call his brother as a witness. We affirm both the judgment of the trial court and the order of the motion court.

DIRECT APPEAL

The sufficiency of evidence to sustain Henderson's conviction is not in dispute. The evidence at trial reveals that on June 25, 1989, Detectives Craig Longworth and Ralph Campbell of the St. Louis City Police Department were conducting a robbery investigation at an address in the City of St. Louis where they came in contact with the informant in this case. The informant accompanied the detectives to the Fourth District Bureau for questioning. At approximately 2:30 p.m., as Detective Longworth and the informant were in an unmarked police car en route to an address where Henderson was said to be located, the informant pointed to a brown Ford Maverick and said, "There is Moonie's car. There they are there." "Moonie" is Henderson's nickname. Detective Longworth notified the dispatcher that he was following Henderson's car and that he would soon make a stop.

Within a minute or two, Detective Longworth's partner, Detective Campbell, joined him. The brown Maverick stopped at the mouth of an alley. The informant identified Henderson as the occupant of the front passenger seat. Detective Longworth approached the driver and ordered him to exit the car. He also ordered Henderson and Henderson's brother, Dudley Henderson, who was seated in the rear seat, to exit the car.

Another officer who responded to the scene looked into the Maverick and found a fully loaded .38 caliber revolver wrapped in a child's tan car coat in the front seat, and a fully loaded .357 caliber magnum wrapped in a blue jean jacket in the rear seat of the automobile. After the weapons were found, Detective Longworth placed all three occupants under arrest and individually advised them of their constitutional rights. Henderson said he understood his rights and then said, "Look man. Art Margulis is my attorney. You ain't got nothing. The other gun is mine. And please don't give my brother a case." Detective Longworth testified that Henderson was referring to the .38 caliber revolver found in the front seat.

For his first point Henderson contends that the trial court erred in overruling his motion in limine to exclude evidence of the robbery investigation, the second weapon, and the statement concerning Art Margulis because this evidence constituted evidence of other crimes. At trial Henderson's counsel renewed her objection to the evidence.

A trial court's ruling on a motion in limine is interlocutory and is thus not appealable. State v. Hart, 805 S.W.2d 234, 237 (Mo.App.1991). A ruling on evidence will only be preserved when it is made at trial at the time the evidence is offered. Id. In order for the issues raised in a motion in limine to be preserved for appeal they must be raised at trial. State v. Wolfe, 793 S.W.2d 580, 586 (Mo.App.1990). Since defendant did renew his objection at trial, we will treat his point on appeal as challenging the ruling of the court at trial rather than on the pretrial motion.

A trial court enjoys broad discretion in ruling on whether to exclude or admit evidence adduced by the parties at trial. State v. Urban, 798 S.W.2d 507, 516 (Mo.App.1990). We do not interfere with a trial court's ruling on the admission or exclusion of evidence absent a clear abuse of that trial court's discretion. Id.

Henderson claims that the admitted evidence should have been excluded because it constituted evidence of other crimes. Evidence of separate, distinct and unrelated crimes is generally inadmissible unless the evidence has a legitimate tendency to establish a defendant's guilt of the crime charged. State v. Kenley, 693 S.W.2d 79, 81 (Mo. banc 1985), cert. denied, 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 900 (1986). However, there are many exceptions to this principal. If the separate and distinct crimes tend to establish motive, intent, absence of mistake or accident, a common scheme or plan, identity, or the res gestae, evidence of the separate offenses is admissible. State v. Whitman, 788 S.W.2d 328, 336-37 (Mo.App.1990). Evidence of separate crimes is admissible if it is relevant to prove a defendant's guilt of the particular crime with which he is charged and not merely to show a defendant's bad character or his disposition to commit the crime. Id. at 337. It is also well established that when admissible evidence is inseparable from evidence which implicates defendant in another crime, the evidence is usually admissible in its entirety. Whether evidence is inseparable is left to the sound discretion of the trial court. State v. Hampton, 648 S.W.2d 162, 166 (Mo.App.1983). The state may paint a complete picture of the crime charged and need not sift and separate the evidence. Whitman, 788 S.W.2d at 337.

Whether evidence of other crimes is admissible turns on whether the evidence is relevant and that determination is made by the trial court which is in the best position to evaluate whether the potential prejudice of relevant evidence outweighs the relevance. Kenley, 693 S.W.2d at 81. A trial court's admission of irrelevant and immaterial evidence, even of other crimes, will not be reversed on appeal absent a showing of prejudice. Hampton, 648 S.W.2d at 166.

Henderson first attacks the admission of the testimony of both Detective Longworth and Detective Campbell that they met the informant while engaged in a robbery investigation. A robbery was mentioned in evidence solely in the context of what the police were doing when they met the informant and was not in evidence again. No details of the robbery were brought out, nor did the evidence indicate what, if any, Henderson's connection to the robbery was. The informant testified, but did not mention a robbery or a robbery investigation. There was no evidence that Henderson had ever engaged in, been arrested for or charged with a robbery.

We have held that the mention that defendant was "wanted" or the subject of an "arrest warrant" for an unrelated offense may be admissible to provide a clear and coherent narrative of the circumstances preceding the arrest. State v. Sanders, 761 S.W.2d 191, 192 (Mo.App.1988). In Sanders the defendant was tried for illegal possession of PCP. One of the police officers testified that he learned defendant was staying at a motel in the City of St. Louis. After determining that there were outstanding warrants for defendant's arrest, he and other officers went to the motel, arrested defendant and found PCP in his jacket pocket. No specific details concerning the arrest warrants, such as the nature of the charges or the jurisdiction from which they were issued, were disclosed. We found that the vague mention of outstanding warrants was not prejudicial since the number of warrants, the nature and severity of the offense, or the close connection between the charged and uncharged offense was not disclosed. We further held the testimony in Sanders not only explained the legality of defendant's arrest but helped explain why two detectives had entered his home uninvited and were taking him away in handcuffs. Id. at 193.

In Sanders, we relied on State v. West, 743 S.W.2d 592 (Mo.App.1988), State v. Churchir, 658 S.W.2d 35 (Mo.App.1983), Hampton, 648 S.W.2d at 166, and State v. Jones, 578 S.W.2d 286 (Mo.App.1979) for the rules that evidence of a defendant's arrest on other charges or the existence of outstanding warrants may be admissible to provide a clear and coherent narrative of the circumstances preceding the arrest and that vague references to uncharged offenses are not sufficiently prejudicial to warrant a reversal.

In West, we held that the defendant was not prejudiced in a prosecution for carrying a concealed weapon by the testimony of the arresting officer that prior to arresting defendant for carrying a concealed weapon, and while she was en route to the scene of a shooting, she had learned defendant was wanted for assault. Such testimony was "related to a chain of events occurring minutes prior to the arrest, provided an explanation for [the officer's] arrival on the scene and her actions upon arrival. As such, the testimony was so closely intertwined with the crime in question as to be virtually an integral part of it." 743 S.W.2d at 593.

In Churchir the defendant was on trial for murder. The evidence which was used to prove he committed murder was discovered when defendant had been arrested for a burglary. The trial court allowed into evidence testimony...