State v. Jackson, s. 57159

• Decision Date: 09 June 1992
• Docket Number: 59853,Nos. 57159,s. 57159
• Citation: 836 S.W.2d 1
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Cleveland JACKSON, Defendant-Appellant. Cleveland JACKSON, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 1

836 S.W.2d 1

STATE of Missouri, Plaintiff-Respondent, v.Cleveland JACKSON, Defendant-Appellant.

Cleveland JACKSON, Movant-Appellant, v.STATE of Missouri, Respondent-Respondent.

Nos. 57159, 59853.

Missouri Court of Appeals,

Eastern District,

Division Three.

June 9, 1992.

Henry B. Robertson, Brian N. Brown, St. Louis, Beth A. Davis, Union, for appellant.

William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

STEPHAN, Judge.

Cleveland Jackson appeals his conviction, after a three-day jury trial, of one count of illegal possession of a schedule II controlled substance, phencyclidine, Section 195.020, RSMo 1986(repealed 1989).Additionally, Jackson appeals the denial of his Rule 29.15motion for post-conviction relief, after an evidentiary hearing.We have consolidated Jackson's two appeals, pursuant to Rule 29.15(l).We affirm in part, reverse in part and remand for further proceedings consistent with this opinion.

The evidence adduced at trial, in the light most favorable to the verdict, is as follows.On July 23, 1988, at 8:00 p.m., Officer Francis Myers, of the St. Louis City Police Department, answered a telephone call from an unidentified female, who advised Myers that there was a short, heavy man, dressed in black pants and a gray shirt, standing in front of 5551 Cabanne who was in possession of some "water"."Water" is a street term for phencyclidine ("PCP").

Officer Myers, and his partner, Officer Bryan King, responded to the call.First, they drove to Union and Hodiamont to meet Officers Terrance Sloan and Gary Kukla.Myers and King informed Sloan and Kukla about the information that they received.They requested that Sloan and Kukla position themselves in the rear of 5551 Cabanne.On prior occasions, suspects had run into a Cabanne Court gangway to escape from police.Myers and King, therefore, wanted to prevent this suspect from running from police.Second, after Sloan and Kukla communicated that they were in position behind 5551 Cabanne, Myers and King drove west on Cabanne.They observed three subjects standing in front of 5551 Cabanne.One of the subjects, who had his back to the officers, matched the description that the caller had given Officer Myers.

Myers and King drove onto the lot in front of 5551 Cabanne, directed their high beams and spotlight on the three subjects and exited their marked police car.As the officers approached the suspect, the suspect turned, looked in the officers' direction and began walking at a fast pace through the front of the Cabanne Courts.Officer King radioed Sloan and Kukla, advising them that the suspect was coming their way.At that time, the suspect began to quicken his pace and run through the courtyard.The suspect, Jackson, threw a clear glass bottle, with a black cap, over the roof of the apartments.Myers recognized the bottle as one normally used in the carrying of PCP.

After throwing the bottle, Jackson stopped, raised his hands, turned to face the officers and stated: "[y]ou don't have a case on me now."Myers and King detained Jackson and walked him to the back of 5551 Cabanne.Once there, Officers Sloan and Kukla directed their attention to a bottle that they had seen come over the roof and hit a chain link fence.Officer Myers seized the glass bottle with a black cap.Officer Myers observed that the bottle contained an amber colored liquid which had a heavy smell of ether.Since the color and smell of the bottle were consistent with a bottle containing PCP, Officer Myers advised Jackson that he was under arrest for violation of the controlled substance laws.Officer Myers read Jackson his rights.Directly after Myers did so, Jackson made a statement to the effect that all that was in the bottle was a little bit of water and please don't put me away for a little bit of "wack"(another term for PCP).

Jackson did not testify at trial.He did, however, present the testimony of two witnesses to support his defense that he did not possess PCP.

At the close of the evidence, instructions and arguments of counsel, the jury found Jackson guilty of the charge of illegal possession of PCP.Following the verdict, Jackson made a series of grossly obscene comments to both the jurors and the court.As a result, the trial court found Jackson in criminal contempt of court and sentenced him to one year in a Medium Security Institution, consecutive to any sentence imposed in the underlying action.On August 4, 1989, the trial court sentenced Jackson, as a prior offender, to fifteen years imprisonment in the Missouri Department of Corrections and Human Resources.On August 10, 1989, Jackson filed his pro se motion to vacate, set aside, or correct judgment and sentence pursuant to Rule 29.15.The next day, Jackson filed his Notice of Appeal.On August 23, 1989, the trial court appointed the Special Public Defender's office to represent Jackson.On October 5, 1989, the trial court granted Jackson's motion to withdraw his pro se motion.On July 13, 1990, Jackson again filed a pro se motion to vacate, set aside or correct judgment and sentence pursuant to Rule 29.15.On July 15, 1990, the trial court appointed the Public Defender's office to represent Jackson in his post-conviction proceedings.On July 18, 1990, Jackson filed both a request for a hearing and a request for a change of judge.Two days later, the trial court granted Jackson's motion for a change of judge.After one extension of time, Jackson's counsel filed an amended motion on September 13, 1990.On November 15, 1990, the motion court held a hearing on Jackson's Rule 29.15 motion.The motion court resentenced Jackson to six months for the criminal contempt charge since six months is the maximum punishment for criminal contempt, absent a jury trial.On February 4, 1991, the motion court issued Findings of Fact, Conclusions of Law and Order, denying Jackson's motion for post-conviction relief.On March 8, 1991, Jackson filed his second Notice of Appeal.We have consolidated Jackson's two appeals, pursuant to Rule 29.15(l).

Jackson's first point is that the trial court erred in denying his motion for a mistrial during the prosecutor's closing argument since the prosecutor referred to Jackson's prior convictions and/or other crimes.Jackson argues that the prosecutor's arguments undermined his purpose of not testifying--to prevent the jury from finding out about his other convictions.The complained-of argument is as follows:

[THE PROSECUTOR]: Why else would he have thrown the bottle over the building and turned and said, "You ain't got no case on me now"?He knows what's going on.It's a game with him.Let's beat the cops now like I beat the cops before, like other people beat the cops.

[DEFENSE COUNSEL]: Objection, Your Honor.May we approach the bench?

THE COURT: You may sit down.

[DEFENSE COUNSEL]: I want the objection noted for the record for counsel's comments.

[THE PROSECUTOR]: [Defense counsel]--

THE COURT: Wait a moment, counsel.Come on up.

[Counsel approached the bench and the following proceedings were had]

[DEFENSE COUNSEL]: He said I'm going to beat them this time.The--counsel is making mention to prior convictions.That is why the defendant did not testify.That is his right.This jury is not supposed to know of prior convictions unless the defendant himself opens the door under testimony and under cross-examination.Counsel is making elusions [sic] to that, Your Honor.The Court knows that and I know that and the jury has become aware of that.I move for a dismissal.

THE COURT: Okay.You mean a mistrial?

[DEFENSE COUNSEL]: Mistrial.I'm sorry.Unfortunate it may be--

[THE PROSECUTOR]: I wasn't attempting to elude [sic] to this defendant.There's been plenty of evidence that these officers have been over there on numerous prior occasions where the suspects have run through this--the back.

[DEFENSE COUNSEL]: Not on this defendant.And he's talking about this defendant.

[THE PROSECUTOR]: If the Court wants to instruct the jury to disregard the one comment--

[DEFENSE COUNSEL]: Your Honor--

[THE PROSECUTOR]: I don't think it's enough for a mistrial at this point.I think there's been too much evidence about other situations.I think that's what the jury--

[DEFENSE COUNSEL]: Your Honor--

[THE PROSECUTOR]: --understood.

THE COURT: One at a time.Give him a chance to finish.

[DEFENSE COUNSEL]: Are you finished?Your Honor, the testimony that the defendant could have provided could have helped, but also the fact that his prior convictions could have hurt him.Therefore, he opted for not testifying under my advice.

Counsel has defeated everything that I did to keep this jury from finding out about other convictions, which might prejudice against them to the defendant.He has eluded [sic] to other prior crimes that this defendant may have committed, and that, Your Honor, is grounds for dismiss--mistrial.

THE COURT: Are you finished?

[DEFENSE COUNSEL]: Yes, sir.

THE COURT: Are you sure?

[DEFENSE COUNSEL]: Yes.

THE COURT: Are you going to let me talk now?

[DEFENSE COUNSEL]: Yes.

THE COURT: I think in the context of the entire argument, although it certainly was a risky thing for him to do, I don't think it was intentional.I think it was just in the heat of the argument.I don't think the jury picked up on it.I'm going to deny the motion for mistrial.

[DEFENSE COUNSEL]: Okay, Your--

THE COURT: Excuse me, sir.I ruled.I'm not finished.Will you let me finish?

[DEFENSE COUNSEL]: Yes, sir.

THE COURT: Now the question then remains, do you want any further relief?And you have to draw a question and ask yourself, do you want it highlighted by going back after this lengthy conversation and having me tell them to disregard that comment?I don't think they have any idea why we're up here unless I tell them to disregard the comment.

[DEFENSE COUNSEL]: I agree, Your Honor.

THE COURT: Suit yourself.You can stand...