State v. Holleran

• Decision Date: 01 August 2006
• Docket Number: No. ED 86074.,ED 86074.
• Citation: State v. Holleran, 197 S.W.3d 603 (Mo. App. 2006)
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Matthew HOLLERAN, Defendant/Appellant.
• Court: Missouri Court of Appeals

197 S.W.3d 603

STATE of Missouri, Plaintiff/Respondent, v.Matthew HOLLERAN, Defendant/Appellant.

No. ED 86074.

Missouri Court of Appeals, Eastern District, Division Three.

August 1, 2006.

Daniel N. McPherson, Assistant Attorney General, Jefferson City, MO, for respondent.

Charles E. Bridges, Bridges & Seibel, P.C., Saint Charles, MO, for appellant.

KATHIANNE KNAUP CRANE, Presiding Judge.

Defendant, Matthew Holleran, appeals from a judgment entered upon a jury verdict finding him guilty of tampering in the first degree, in violation of section 569.080 RSMo (2000), and resisting arrest, in violation of section 575.150 RSMo (2000).The trial court found defendant to be a prior and persistent offender and sentenced him to nine years imprisonment on the tampering count and one year in the custody of the St. Charles County sheriff on the resisting arrest count, to be served concurrently.

Defendant has raised eight claims of error on appeal.We have determined that the state made a submissible case, but that the trial court erred in allowing the prosecutor to read into evidence defendant's guilty pleas to subsequent offenses and the information on which they were based because defendant did not testify and the other crimes evidence did not establish identity.Accordingly, we reverse and remand.We do not reach defendant's remaining claims of error because they were either not preserved or not likely to come up again on retrial.SeeState v. Kinkead,983 S.W.2d 518, 519-20(Mo. banc 1998).

FACTUAL AND PROCEDURAL BACKGROUND

On July 17, 2001, in St. Charles County, Missouri, two citizens directed Missouri State Highway Patrol TrooperJohn Mason to a 2001 green Blazer that had been cutting off other vehicles.After Trooper Mason watched the Blazer make a u-turn and drive by him, he pulled out behind the Blazer with the intention of making a traffic stop.The driver of the Blazer made two turns, pulled into a parking spot near the manager's office in a motel parking lot, and exited the vehicle.Trooper Mason pulled in behind the Blazer.Two passengers, a young woman and a juvenile, remained in the Blazer.

Trooper Mason walked toward the Blazer and met the driver between the Blazer and the patrol car.He informed the driver that he had received a complaint that the driver had almost caused an accident, and asked to see his driver's license and insurance.The driver did not provide either document.The driver responded that he did not have his driver's license with him, but that he could retrieve it from his motel room.Trooper Mason told him that was not necessary, that he could run a check of his driving status if the driver provided his name, date of birth, and Social Security number, and he told the driver to have a seat in the patrol car.The driver walked towards the passenger side of the patrol car, tapped on the hood twice, and then ran away.Trooper Mason chased the driver on foot, but lost sight of him after he entered the heavily wooded area behind the motel.

While Trooper Mason was chasing the driver, the two passengers in the Blazer also fled into the woods.Trooper Mason located the passengers and questioned them about the driver.The juvenile indicated that he was living with the driver of the Blazer, but that he didn't know anything about him except that his name was "Jay."The juvenile pointed to a service station and said that "Jay's"sister, Stephanie Warren, worked there.The other passenger, Cassandra Furlong, initially denied knowing the driver.Later, she told Trooper Mason that she had been dating the driver for about eight months, that his name was James Gegg, that his birthdate was October 9, 1978, and that he had an ex-girlfriend and a newborn child in the Chesterfield area.

Trooper Mason retrieved the keys to the Blazer.The Blazer had a dealer's license plate on the rear and a passenger car license plate on the front.Neither plate was registered to the Blazer.In addition, the Blazer did not contain an insurance card or Department of Revenue papers relating to the Blazer, but contained a Department of Revenue form and miscellaneous papers for other vehicles.

The dealer plate belonged to Feld Chevrolet and had been removed from Feld Chevrolet's premises without authorization.The Blazer was owned by Elco Chevrolet in Ballwin, Missouri.Elco personnel were not aware that the Blazer had been taken from Elco's lot until Trooper Mason contacted them.No one had permission to take the Blazer from the Elco lot in July 2001.Defendant had been employed by Elco from August 23, 1999, until he was involuntarily terminated on September 24, 1999.He had been hired by the new car and truck manager.That manager had the practice of keeping the keys for the vehicles on the lot on a keyboard in his office, and specifically did so in 1999 and in July 2001.

Sergeant Ron Moushey of the Ballwin Police Department investigated the theft of the Blazer.Sgt. Moushey brought Mr. Gegg in for questioning, photographed him, and released him.Mr. Gegg gave defendant's name to Sgt. Moushey.Mr. Gegg said that he knew defendant's brother, and that defendant had used Mr. Gegg's name in the past.After viewing photographs of Mr. Gegg, Trooper Mason confirmed that Mr. Gegg was not the driver of the Blazer.Trooper Mason subsequently identified defendant from photographs as the driver of the Blazer.Defendant was thereafter charged by information in St. Charles County with tampering in the first degree in connection with operating the Blazer, resisting arrest, and receiving stolen property, the dealer license plate.

The primary issue at trial was whether defendant was the driver of the Blazer.Trooper Mason identified defendant as the driver at trial.However, defendant attempted to discredit his identification through cross-examination and the introduction of contrary evidence.

During trial, defense counsel made an oral motion in limine to preventthe state from introducing evidence that defendant had been charged and convicted of felony stealing of items from a Wal-Mart in Camden County, Missouri, on July 24 and 26, 2001, in concert with Cassandra Furlong and Stephanie Warren.At the hearing on the motion, the prosecutor argued that she wanted to introduce a certified copy of those convictions because Ms. Furlong's and Ms. Warren's names had come up in Trooper Mason's investigation, and the convictions were relevant to establish defendant's identity.Defense counsel objected on the grounds that the evidence was hearsay, did not tend to prove identity, did not fall into any of the other recognized exceptions for the admission of other crimes evidence, and was not related to the offenses for which defendant was on trial, but was prejudicial propensity evidence.Defense counsel also objected to the proposed procedure of introducing the convictions by a certified copy without a witness or an opportunity for cross-examination.The court ruled that it would allow the state to read the certified copy of the information and the first paragraph of the plea memorandum in its case, but ordered the paragraphs of the plea memorandum reciting the punishment to be redacted.

When the state formally offered the certified copy of the information and plea memorandum into evidence, the court found, over defendant's objection, that it was "legally and logically relevant to establish the identity of the defendant, and that [its] probative value overcomes the prejudicial effect."The prosecutor obtained permission to read the exhibit, but instead of reading the documents verbatim, recited the following:

MS. MUHM: There is information in which the defendant pled guilty to two counts.The first one is that he committed the Class C felony of stealing on or about Thursday, July 26th, 2001, in the County of Camden, State of Missouri, the defendant, acting in concert with Cassandra L. Furlong and Stephanie Warren, appropriated specific items from Wal-Mart of a value of at least $750, which property was owned by Wal-Mart, and defendant appropriated such property without the consent of Wal-Mart and with the purpose to deprive them thereof.

Count 2 is also the defendant committed the Class C felony of stealing in that on or about Tuesday, July 24th, 2001 in the County of Camden, State of Missouri, the defendant acting in concert with Cassandra L. Furlong and Stephanie Warren, appropriated specific property or specific items from Wal-Mart that had a value of at least $750, which property was owned by Wal-Mart, and defendant appropriated such property without the consent of Wal-Mart and with the purpose to deprive them thereof.

In the plea memorandum the State appears by prosecuting attorney.Defendant appears with attorney, Kyle Wyatt and waives formal arraignment and pleads guilty to Count 1 and Count 2.

The Court finds that defendant's plea of guilty is given voluntarily, understandingly and knowingly, and that plea of guilty is accepted.

DISCUSSION

1.Erroneous Admission of Other Crimes

We begin with defendant's sixth point in which he contends that the trial court erred in allowing the state to read to the jury the information filed against him in Camden County and his guilty plea to both charges.

Evidence that a defendant has committed crimes separate and distinct from the crime for which he or she is standing trial is generally inadmissible.State v. Mallett,732 S.W.2d 527, 534(Mo. banc 1987);State v. Blackman,875 S.W.2d 122, 139(Mo.App.1994).Specifically, evidence of separate and distinct crimes is not admissible to show that a defendant had a tendency to commit such crimes.State v. Clover,924 S.W.2d 853, 855(Mo. banc 1996);State v. Reese,364 Mo. 1221, 274 S.W.2d 304, 307(1954).Evidence of other crimes that are not properly related and logically relevant to the cause on trial violates a defendant's right to be tried for the offense with which he or she has been charged.Clover,924 S.W.2d at 855;Reese,274...