State v. Johnson, 15092
| Decision Date | 12 May 1988 |
| Docket Number | No. 15092,15092 |
| Citation | 753 S.W.2d 576 |
| Parties | STATE of Missouri, Respondent, v. Michael JOHNSON, Appellant. |
| Court | Missouri Court of Appeals |
Susan L. Hogan, Columbia, for appellant.
William L. Webster, Atty. Gen., Karen A. King, Asst. Atty. Gen., Jefferson City, for respondent.
Michael Johnson ("appellant") was found guilty by a jury of three counts of burglary in the second degree, § 569.170, RSMo 1978, and two counts of stealing property of the value of $150 or more, § 570.030, RSMo Supp.1985. The jury assessed punishment at two years' imprisonment on each count; the trial court specified that the sentences run consecutively. § 558.026.1, RSMo 1986.
Appellant maintains the trial court erred in (1) permitting the prosecutor to adduce from the state's key witness--appellant's accomplice--that the two had met while they were in jail, (2) allowing one of the burglary counts and one of the stealing counts to be joined with the remaining counts, and in failing to sever such counts for trial, (3) proceeding with the trial after the prosecutor used a peremptory challenge to exclude a black venireman from the jury, (4) permitting a police officer to testify as to what one of the victims had said was stolen, and (5) denying appellant's challenge for cause against a venireman.
On October 25, 1985, a break-in occurred at the home of Mary Barton, 1010 Spring, Poplar Bluff. Jewelry and groceries were taken. Count V of the information charged appellant with burglary regarding that incident.
On November 3, 1985, a break-in occurred at the home of Lacy Wright, 950 Hickory, Poplar Bluff. A VHS video recorder, an AM/FM dual cassette player, assorted jewelry, a knife collection, and several watches were taken. Count III of the information charged appellant with burglary regarding that incident; count IV charged him with stealing regarding the incident.
On April 30, 1986, a break-in occurred at Spirit Originals, a jewelry store in the Mansion Mall at Poplar Bluff. Jewelry worth between $6,000 and $7,000 was taken. Count I of the information charged appellant with burglary regarding that incident; count II charged him with stealing regarding the incident.
The only evidence linking appellant to any of the crimes was the testimony of Charles Palmer. During the prosecutor's direct examination of Palmer the following colloquy occurred, which forms the basis of appellant's first assignment of error:
"Q. When did you first meet Michael Johnson?
A. It's been about two years ago. I met him in the Butler County Jail.
....
Q. Charles, while you and Mr. Johnson were in the Butler County Jail did you and he have any discussions about what you all would do when you got out?
A. He said that we would get together and we would pull a couple of good jobs. He had heard quite a bit about what I was doing before I got arrested.
Q. You have committed several burglaries in this county, haven't you?
A. Yes, sir, I have.
Q. I mean that's the way you used to make your living, wasn't it?
A. Yes, sir, it was.
....
Q. Charles, while you all were in jail was there much to do while you all were up there?
A. No, sir, there was not.
Q. Did you and this defendant have time to sit around and discuss your plans for when you got out?
A. Yes, sir, we did.
Q. And at that time you and this defendant entered into an agreement to jointly--
A. Yes, sir, we did.
Q.--form like a partnership--
A. Yes, sir, we did.
Q. --to go out and commit burglaries?
A. Yes, sir."
Prior to trial appellant filed a motion in limine imploring the court to bar the prosecutor from asking Palmer where he had met appellant, as Palmer's answer would constitute evidence of "past convictions" or "bad acts," thereby violating appellant's right to stand trial only for the crime charged. The trial court denied the motion, remarking, "To rule otherwise would create a new type of immunity from prosecution in my estimation for any conspiracy or like activity in a jail cell." Appellant registered the same objection at trial; it was overruled.
Palmer testified without objection that he, appellant, and a third individual broke into the house at 1010 Spring in October, 1985. Palmer explained that he used a screwdriver to pop the bottom board off the trim around a door window, then inserted the screwdriver beneath a corner of the window "which broke it off." He then reached inside and opened the door. According to Palmer, the intruders took "a couple of jewelry boxes, which contained a bunch of Avon jewelry, which wasn't of no value."
Palmer recounted that he and appellant broke into the house at 950 Hickory in early November, 1985. Entry was gained by using a screwdriver to pry out a window frame above the kitchen sink. Palmer and appellant took the items reported supra and divided them. Asked whether any of the loot was subsequently sold or traded, Palmer replied that appellant "found a guy" that was interested in the cassette player.
Palmer revealed that he and appellant broke into the Mansion Mall on April 30, 1986. Asked how entry was made, Palmer narrated that the duo climbed "some gas pipes" to the roof where they used a screwdriver to remove screws from "two or three skylights." They then used a rope Palmer had bought the preceding day to climb down through one of the skylight openings into the Mall. Once inside, they "busted open all the jewelry cabinets" at Spirit Originals and "cleaned out the jewelry and stuff." Asked what was done with the booty, Palmer replied, "[W]e took it home and we divided it up." Palmer added that they subsequently sold "[e]very bit of it that had any kind of market value" to a "fence" found by appellant.
Palmer also testified, without objection:
"Q. But after all these burglaries you all got, you got your share and he got his share?
A. Yes, I did.
....
Q. You and Michael Johnson were partners, weren't you?
A. Yes, sir, we were.
Q. Everything you testified to that you did was done in conjunction with Michael Johnson?
A. Yes, sir.
Q. With his aid and assistance?
A. Yes, sir.
Q. He benefited from these crimes just as you did?
A. Yes, sir.
....
Q. In other words you and Michael Johnson, I think I stated this before or asked you this before, you all were in business to do this sort of thing, weren't you?
A. Yes, sir, we were.
Q. Partnership, in a joint venture?
A. Yes, sir, we were."
Appellant's first point states that allowing Palmer to reveal he met appellant while they were in jail deprived appellant of his constitutional right of due process, as such testimony "constituted evidence of other crimes not related to the cause on trial, and the probative value of such evidence was clearly outweighed by its prejudicial effect." Appellant cites 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), for the proposition that as a general rule, evidence of uncharged crimes is inadmissible unless such evidence has a legitimate tendency to establish the accused's guilt of the crime charged. Appellant acknowledges that under State v. Shaw, 636 S.W.2d 667, 671-72 (Mo. banc 1982), cert. denied, 459 U.S. 928, 103 S.Ct. 239, 74 L.Ed.2d 188 (1982), proof of an accused's commission of separate and distinct crimes is admissible to prove the crime charged when such evidence tends to establish motive, intent, the absence of mistake or accident, a common scheme or plan embracing the commission of two or more crimes so related that proof of one tends to establish the other, or the identity of the person charged with the commission of the crime on trial.
Appellant insists that in the instant case, Palmer's disclosure that he met appellant while they were in jail constituted evidence of other crimes, as the jury would assume appellant had been arrested "apparently for committing some type of crime." According to appellant, no necessity existed to warrant admission of such evidence, and the negligible probative value thereof was far outweighed by its prejudicial effect. Appellant reminds us that under State v. Collins, 669 S.W.2d 933, 936 (Mo. banc 1984), evidence of the accused's commission of other crimes is highly prejudicial, and may be admitted only when there is strict necessity and the probative value outweighs the prejudicial effect.
State v. Laws, 668 S.W.2d 234, 237 (Mo.App.1984), holds that evidence that the accused has been in prison is evidence that he has committed other crimes. For the purpose of appellant's first point we shall assume, without deciding, that evidence that an accused has been in jail is likewise evidence he has committed other crimes.
Appellant does not dispute the admissibility of Palmer's testimony that he and appellant agreed to form a "partnership" for the commission of burglaries and that they sat around and discussed their plans. Appellant complains only about the disclosure that the place where they did so was the county jail.
Had appellant and Palmer met each other and entered into the burglary pact in a public park, a dwelling house, a tavern, or indeed anywhere other than a confinement facility, it is indisputable that the prosecution could have properly shown the jury where the meeting occurred and the plans were formulated. The site of such discussions is an integral part of the chronicle of the crimes, and a fact finder would reasonably expect Palmer's testimony to identify the place where the alleged conferences transpired. The issue, then, is whether the state, in circumstances such as those here, is compelled to conceal that information from the jury merely because the felonious enterprise was planned in jail.
Pertinent to that question, it should be noted that Palmer, in the jury's presence, admitted convictions for possession of a stolen pistol, possession of stolen tools, and stealing...
To continue reading
Request your trial
-
State v. Wright, s. 18197
...State v. Higdon, 844 S.W.2d 99, 102 (Mo.App.1992); State v. Robinson, 834 S.W.2d 246, 249 (Mo.App.1992); State v. Johnson, 753 S.W.2d 576, 581 (Mo.App.1988). The Haddow burglary was part of an ongoing course of conduct that included the Steinert and Kreider burglaries. The course of conduct......
-
Olinger v. General Heating & Cooling Co.
...hearsay evidence will not constitute reversible error if such hearsay was merely cumulative to other evidence. State v. Johnson, 753 S.W.2d 576 (Mo.App.1988). Ms. Olinger testified, without objection, to the ratio of false to legitimate rebate claims. The company's admission that it knowing......
-
State v. Meder
...at 902; Howard, 601 S.W.2d at 310; Buford, 582 S.W.2d at 302. One year after deciding Davis, the Southern District in State v. Johnson, 753 S.W.2d 576, 586 (Mo.App.1988), upheld the denial of a motion to sever. In doing so, the Southern District rejected defendant's contention that "to avoi......
-
State v. Bechhold
...with two crimes than a person charged with one does not call for severance." Spencer, 50 S.W.3d at 879 (quoting State v. Johnson, 753 S.W.2d 576, 586 (Mo.App. S.D.1988)). The general allegation that the jury would likely consider evidence of guilt on one charge as evidence of guilt on charg......