State v. Irving

• Decision Date: 15 November 1977
• Docket Number: No. 38117,38117
• Citation: 559 S.W.2d 301
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Arondo IRVING, Defendant-Appellant. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 301

559 S.W.2d 301

STATE of Missouri, Plaintiff-Respondent, v. Arondo IRVING, Defendant-Appellant.

No. 38117.

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

Nov. 15, 1977.

William Shaw, Public Defender, Dennis N. Smith, Asst. Public Defender, St. Louis, for defendant-appellant.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Richard S. McConnell, Asst. Pros. Atty., Clayton, for plaintiff-respondent.

SIMEONE, Chief Judge.

I.

This case may be referred to as the "triple jeopardy case."

This is an appeal by the defendant-appellant, Arondo Irving (sometimes referred to as Ron), from a judgment of conviction entered on April 29, 1976 by the circuit court of St. Louis County wherein the defendant was sentenced upon a jury verdict to a term of six months in the custody of the St. Louis County Department of Welfare for the offense of stealing a motor vehicle in violation of § 560.161, subsection 2, RSMo Supp.1975. He appealed. We reverse the judgment and discharge the defendant.

The defendant-appellant does not question the sufficiency of the evidence to make a submissible case. Appellant's only point is that the trial court erred in overruling his motion to dismiss the case prior to the start of a third trial for the reason that he had been placed in jeopardy previously for the same crime and that any further proceedings were barred by the United States and Missouri Constitutions. U.S.Const., Amend. V and XIV; Mo.Const., Art. I, Sec. 19.

II.

The facts giving rise to the conviction are as follows.

On July 4, 1975, John Lawrence Winston, age 30, attended a party at a friend's house at the Village Apartments in Ferguson, Missouri. The next day, July 5, 1975, at about 2:15 p. m. he returned to the apartment complex to recover his glasses which he thought he had lost there the night before. He drove his 1971 black Chevrolet Camaro to the apartment complex and parked it on a nearby parking lot. When Winston got out of his automobile he thought he would be gone a very short time and left his keys in the ignition. On the way to the friend's apartment he was "confronted by someone across the street and just got into a casual conversation." About twenty minutes later he returned to the place where he parked his car. The car was gone. He had not given anyone permission to take the car. Upon discovering that the vehicle was missing he called the Ferguson police and an officer came out to take a statement. The automobile was eventually recovered in Brooklyn, Illinois. When it was recovered there were "several small things wrong such as . . . the gearshift lever, . . . the light switch . . . (and) a tear in the headliner . . . ." The license plates on the automobile were not Winston's. Papers and the registration (pink slip) were also missing.

On July 8, 1975, Detective Edward Robertson and his partner Detective Donald Bortz had a conversation with the appellant, Irving, after advising him of his Miranda rights, concerning the theft of the vehicle at the police department. Detective Robertson earlier met appellant at his home and advised him he would "like to talk to him in reference to a theft that had occurred in Ferguson on Saturday." They went to the police station. Irving was quite cooperative. At the station he made two oral statements and one written one. The thrust of these statements was that the appellant, on July 5, 1975, drove to the apartment complex with Earl Ganaway, Christine James and Harold Bradshaw. The purpose of the trip was to take Ganaway there. Appellant parked alongside the Camaro. Bradshaw noticed the keys in the Winston automobile, said he was going to "snatch" it and, according to Detective Robertson, made arrangements between himself and Irving to meet each other later on Wells Avenue in the City. The statement of appellant indicated that he drove his car to Earl Ganaway's mother's house in Ferguson together with Christine James and Harold Bradshaw. Bradshaw noticed some keys in the car and drove the vehicle away. Bradshaw asked appellant to meet him at Wells and Stewart where "they" changed plates. Later at Christine James' house Irving's statement was that "we took the plates off of my car and put them on the Camaro." But later appellant became afraid "and took my plates off the Camaro and put them back on my car." ¹

On October 20, 1975, appellant was charged by information with stealing the Winston vehicle. Trial began on January 27, 1976 in the circuit court of St. Louis County. After the jury was empaneled and sworn and preliminary instructions read, the prosecutor made an opening statement. During the opening statement the prosecutor stated:

"(Prosecutor):

At the Ferguson Police Department Detective Robertson will testify that he interviewed Miss James. And he will tell you her version of the story indicates that the defendant was present, but that another person who was present took the car. And that the defendant and this other person met later after the car was stolen, that the defendant put his license plates on the stolen car and that she was with the defendant "

The defense attorney objected "to this form of opening statement" because "he is talking about hearsay testimony at this point, and it would be inadmissible at trial . . . ." Defense counsel did not, however, move for a mistrial. After a short colloquy the court said, "That's hearsay. Wouldn't that be hearsay?" The prosecutor replied, "If objected to I think it would be hearsay." At that point the court, without a request and in the presence of the jury, declared a mistrial:

"THE COURT: Members of the jury, I am going to declare a mistrial. What (the prosecutor) told you is hearsay. And if objected to during the trial, as I think it could have been anticipated, it would be wholly improper to get before a jury. This is hearsay. It's the unsworn statement of somebody made to somebody else outside the courtroom.

So that terminates your services in the case. . . ."

Later that same day a new jury was empaneled. During this second trial and during the reading of MAI-CR 1.02, defense counsel asked leave to approach the bench and informed the judge that

". . . it's my feeling that since a mistrial was declared after the jury had been sworn that my client has been placed in jeopardy and, therefore, . . . I would move that he be discharged and the case be dismissed at this time."

The court overruled the motion and continued reading MAI-CR 1.02. At the completion of the voir dire examination, defense counsel again moved to dismiss the case

". . . for the reason of double jeopardy. . . . And I would like to make the motion prior to the jury being sworn in and indicate on the record at this time that I am proceeding to trial with this case, but I wish in no way to waive that objection."

This second trial proceeded. The first witness, John Lawrence Winston, testified. The second witness to testify for the State was Detective Robertson. During his testimony the prosecutor asked:

"Q. (Prosecutor): Do you recall the conversation that took place then?

A. (Detective Robertson): Yes. Well, I did not talk to Mr. Irving first. I talked to Miss James first and then I came back and talked to Mr. Irving after advising him his rights. He stated that on the date the automobile was stolen he had driven a subject by the name of Ganaway, Miss James, Mr. Bradshaw "

At that point defense counsel objected on the grounds of hearsay. The court overruled the objection. The detective then related the conversation he had with appellant in which Irving stated that Bradshaw "took the car and he had not seen him since." The prosecutor then asked if the Detective had a conversation with Christine James. The Detective replied that he had. The prosecutor then asked, "Would you relate to the Court the conversation you had with her." An objection was made by defense counsel and sustained. The very next question by the prosecutor was: "After your conversation with Detective Bortz what then took place?" (emphasis added). The answer was: "Mr. Irving was placed under arrest for suspicion of auto theft." At that point defense counsel approached the bench and moved for a mistrial.

"(Defense Counsel) . . . Once again (the prosecutor) is interjecting this theory of what Miss James said at the time to the police at the police station. Now, he has left the inference in the jury's mind that she said something implicates (sic) Arondo Irving in the crime. . . ." (emphasis added).

Out of the hearing of the jury the following occurred "THE COURT: On the record. We had a situation that occurred this morning, and I think the record ought to show it. We had one jury and in the opening statement counsel for the state told the jury about what this woman said to the police by way of hearsay, which would implicate or tend to implicate the defendant. Is that right, gentlemen? (emphasis added).

(Defense Counsel): Yes, your Honor.

THE COURT: I declared a mistrial on motion of the defendant because of this hearsay statement.

(Defense Counsel): Your Honor, . . . I did not move for a mistrial this morning. I merely objected to the evidence at that time.

THE COURT: Well, what difference does it make?

THE COURT: I declared the mistrial. . . .

THE COURT: . . . I thought you (defense counsel) moved for a mistrial.

(Defense Counsel): No, I didn't. I don't believe I did, your Honor.

THE COURT: Well, it doesn't make any difference in my opinion. I think the Court has authority on its own motion to declare a mistrial. . . ."

After the prosecutor attempted to explain his position, the court stated:

"THE COURT: . . . I say that, as far as I am concerned, whether a question is asked like that . . . it's a very questionable practice; no matter what the circumstances are that you have detailed to me, whether you thought (defense counsel) wanted it in or not, whether the witness you thought would be...