State v. Hurley
| Decision Date | 08 July 1980 |
| Docket Number | No. WD,WD |
| Citation | 602 S.W.2d 838 |
| Parties | STATE of Missouri, Respondent, v. Maynard HURLEY, a/k/a Donzell Biggs, Appellant. 31013. |
| Court | Missouri Court of Appeals |
Clifford A. Cohen, Public Defender, Gary L. Gardner and Kevin R. Locke, Asst. Public Defenders, Kansas City, for appellant.
John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before TURNAGE, P. J., and SHANGLER and MANFORD, JJ.
Maynard Hurley was convicted after jury trial of murder in the second degree and the jury assessed punishment at 150 years imprisonment. Sections 559.020 and 559.030, RSMo 1969.
On this appeal Hurley contends the court erred in admitting certain pictures in evidence which had been referred to as "mug shots" because this was evidence of unrelated crimes, and in allowing the jury to assess punishment after the jury first returned with a verdict for an indeterminate sentence. Affirmed.
Hurley does not question the sufficiency of the evidence. Briefly stated, Hurley and Michael Nunn went to Sam Aaron's store in Kansas City to sell some stained glass. While there Aaron offered Hurley a job which he accepted. Hurley worked that day and returned to work the following day. Nunn testified that Hurley told him that Aaron had a lot of money and could easily be set up for a robbery. Aaron was found dead in his store on the second day Hurley worked there. Nunn testified that Hurley told him that he had killed Aaron after Aaron had put up a fight. Nunn further testified that Hurley had a large amount of cash and caught a bus to California the next day.
The State presented an investigator from the prosecutor's office as one of its witnesses. This witness stated that he had shown some witnesses eight "mug shots" which he had picked out of his file. Hurley's counsel immediately objected and moved for a mistrial. The court instructed the witness not to use the term "mug shots," found no prejudice had resulted, and overruled the motion for a mistrial. At that time counsel agreed that his objection might have been premature because no mention was made of Hurley being in any of the pictures. Later, eight pictures were marked and introduced in evidence. It may be fairly inferred from the record that the particular pictures introduced in evidence were the same eight pictures which the investigator had referred to as "mug shots." Hurley was later identified as being in two of the pictures.
In his first point Hurley contends the court erred in refusing to declare a mistrial when the investigator referred to the pictures as "mug shots" and in admitting these pictures in evidence without the information shown thereon having been obliterated. The pictures contained dates and information indicating they were taken by the Kansas City Police Department.
The pictures were not again referred to as "mug shots" after the first mention and the court's instruction to the witness, and when the pictures were introduced in evidence the prosecutor stated that he did not intend to show the pictures to the jury. However, the pictures were shown to a witness and Hurley's counsel objected that the jury could see the pictures but the court observed that because of the distance the pictures were from the jury and their size, the court did not find any prejudice could result because all the jury could tell was that there were pictures being examined. The record does not show that the pictures were ever shown to the jury.
Hurley's objection to the investigator characterizing the pictures as "mug shots" is on the basis that this conveyed the information to the jury of previous criminal activity on the part of Hurley. Likewise, his objection to the introduction of the pictures in evidence is that information on the pictures would convey to the jury that Hurley had previous arrests or convictions.
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