State v. Jones
| Decision Date | 14 February 1979 |
| Docket Number | No. 39923,39923 |
| Citation | 578 S.W.2d 286 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Farrell Dean JONES, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Joseph Webb, Asst. Public Defender, St. Louis, for defendant-appellant.
John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Defendant appeals from a conviction of Forcible Rape, Robbery First Degree and Armed Criminal Action. The jury assessed punishment at ten years, five years, and five years respectively, the sentences to run consecutively. Defendant assigns error in the trial court's denial of a mistrial after the testimony of one of the investigating policemen allegedly containing prejudicial evidence of another crime. We affirm.
The prosecutrix testified that while walking home on November 16, 1976, a man approached her, put a screw driver to her side, and told her to walk with him. He said he "had just robbed somebody and the policemen wouldn't mess with him if he had a girl with him." He took her to a dark house, drew a gun, forced her to disrobe partially and have sexual intercourse with him. Thereafter, he took her purse, threw the contents on the floor and confiscated approximately two dollars. He told her that he was going to kill her because she would tell what happened, then said he would kill her if she told. The prosecutrix identified defendant from police photographs, in a line-up, and at the trial.
The prosecutrix first reported the crime to police officer Dennis Crowe. Crowe called a female officer with whom the prosecutrix conferred and to whom the prosecutrix gave a description of her assailant. Another police officer, Samuel Dean, testified that he conducted the investigation of the rape and robbery in question. He stated that the day after the incident he and two other officers interviewed the prosecutrix and showed her 30 to 35 photos of suspects from which she tentatively identified the defendant as her assailant. On that same say, the three officers talked to people on the streets, looking for witnesses and informants. Two days after the incident, Officer Dean and one other officer took the prosecutrix back to the scene of the crime. Officer Dean testified that the police thereafter continued their investigation. When asked what the investigation lead to, Officer Dean testified Well, after we had showed the victim the photos she had tentatively identified the defendant and we were more or less looking to find him on the street because he had already been wanted.
Contending the statement "had already been wanted" referred to another crime, the defense attorney moved for a mistrial. The trial court denied the request for a mistrial.
Appellate review of refusal to grant a mistrial is limited to a determination of whether, as a matter of law, the trial court abused its discretion in refusing to grant the mistrial. State v. Nolan, 423 S.W.2d 815, 819 (Mo.1968). The granting of a mistrial is a drastic remedy which "should be exercised only in extraordinary circumstances." State v. James, 347 S.W.2d 211, 214 (Mo.1961). We necessarily defer to the trial court's discretion because it is in a better position to observe and evaluate the incident...
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...Gunn, J.) (twenty-five years for armed criminal action to run consecutively to seventy-five years for rape); State v. Jones, 578 S.W.2d 286 (Mo.App.1979) (per Reinhard, P. J.) (underlying felony unspecified; five years for armed criminal action to run consecutively to consecutive sentences ......
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