State v. Mullen

• Decision Date: 30 September 1975
• Docket Number: No. 35665,35665
• Citation: 528 S.W.2d 517
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Larry MULLEN, Defendant-Appellant. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 517

528 S.W.2d 517

STATE of Missouri, Plaintiff-Respondent, v. Larry MULLEN, Defendant-Appellant.

No. 35665.

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

Sept. 30, 1975.

Henry J. Rieke, Asst. Public Defender, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

McMILLIAN, Judge.

This is an appeal by defendant Larry Mullen from a conviction of Robbery First Degree by means of a Dangerous and Deadly Weapon, a felony, §§ 560.120 and 560.135, RSMo 1969, and Murder First Degree, § 559.010, RSMo 1969. We affirm.

On June 30, 1972, Artie Hall, Benjamin Hall and Leonard Hall were conducting a dice game in the basement of the building located at 2105 Salisbury Street in the City of St. Louis, Missouri. Participants in the game were Gregory Smith (the deceased), Mattie Suttle, Silas Wilson, Daniel Jerrod, William Parker, Carl Hill and others. Play had begun at approximately 3:30 P.M., and continued into the night.

From time to time persons would come and go; one such incident occurred at approximately 11:00 P.M. At that time Roy Watkins arrived with two unknown persons. The lookout would not have allowed these persons to enter except that they were with Roy Watkins, who was known to the Halls. Roy Watkins was obviously intoxicated. The strangers, who were later identified as defendant and Carl Mullen, defendant's brother, walked over to the game. One of them placed a bet which he lost. Then Roy Watkins and the two men left within fifteen (15) minutes of their arrival. After they left, Artie Hall went into the alley to see where the strangers had gone.

At approximately midnight, Artie saw a 1964 Pontiac pull into the alley. Four men emerged from the automobile. Artie recognized defendant and Carl Mullen as the strangers who had been there shortly before. The men questioned Artie as to whether a game was still in progress and he responded in the negative. Indicating that he did not believe Artie's answer, Carl Mullen pulled a pistol and struck him. Artie was then forced at gun point to go into the basement with three of these men. As they reached the inner door of the room where the dice game was being conducted, Artie was struck again and someone took $90 from his person. The lookout, seeing Artie with a pistol to his head, opened the door.

Upon entering the basement, Carl Mullen proceeded to the dice game, announced 'This is a stick-up, . . .' and had everyone put their money on the dice table. The defendant remained at the doorway with a gun. A third man entered, put the money in a pillowcase and ran out the door. Meanwhile, Carl Mullen struck several of the men with his pistol, knocking many of them to the floor. Finally, without provocation of any kind, Carl Mullen approached Gregory Smith, shoved him to the wall, and shot him in the face. Following the shooting, Carl Mullen and the defendant ran out.

The dice players began to get up and leave the basement and Artie Hall and Leonard Hall carried Gregory Smith out to the sidewalk. The police, having been called in the interim, arrived quickly and took Gregory Smith to the City Hospital where he was pronounced dead on arrival.

Other police officers arrived at the scene of the crime. One of these officers was Richard Bequette who observed a 1964 Pontiac car, with the motor running, stopped in the alleyway against the fence. In the glove compartment he found the defendant's wallet which contained his driver's license, social security card and other identification. He also found the body of Michael Cooper, one of the four men who had arrived in the car. Michael Cooper was apparently killed during the getaway, but there is no connection between his death and the instant case. Officer Emil Fiala, a member of the Evidence Technician Unit, photographed the car, 'lifted' fingerprints from the rear view mirror, and removed the rear view mirror and turned it over to the Bureau of Identification. Officer John Salamone of the Bureau of Identification established that the fingerprints taken from the mirror were those of Carl Mullen.

On July 1, 1972, Artie Hall went to Benjamin Hall's home and picked out defendant from some photographs as being a participant in the robbery. On August 2, 1972 Daniel Jerrod viewed the photographs and picked out defendant. On August 4, 1972, Artie Hall and Daniel Jerrod viewed a lineup and identified appellant as a participant and Carl Mullen as the other one of the two and the one who had done the actual killing. Both Artie Hall and Daniel Jerrod also made in-court identifications of defendant. William Parker, Leonard Hall and Benjamin Hall were unable to positively identify defendant.

By way of defense, defendant testified that in late May of 1972 Joyce Payne, Oscar Mullen's girlfriend, drove him to the St. Louis Workhouse to visit his brother Oscar. They went in the 1964 Pontiac car which was owned by his brother Oscar. He claimed that he left his wallet in the glove compartment on that occasion and had not been in the car since. Defendant also testified that on June 30, 1972, he and Charles Reed were at Rip's Lounge from 9:30 P.M. until 1:14 A.M., and then spent the remainder of the night at Charles Reed's house. Defendant produced no witnesses to bolster his testimony. The State called James Cooper as a rebuttal witness, and he testified that on June 29, 1972, he saw the defendant drive up to Cooper's house in a 1964 Pontiac car, which he identified as being the same one found at the scene of the crime.

The case was submitted to the jury on two counts. The jury returned a verdict of guilty on Count One, first degree murder and assessed punishment at imprisonment in the penitentiary for the remainder of defendant's natural life. The jury returned a guilty verdict on Count Two, armed robbery, but was unable to assess the punishment, so the trial court set punishment at twenty-five (25) years. Said sentences were to run concurrently. Defendant was permitted to appeal as a poor person and the St. Louis Public Defender was appointed to represent him on appeal.

At trial, during the presentation of the State's case, there were four incidents that now serve as the basis for defendant's appeal. First, after the jury had been impaneled, one of the jurors informed the sheriff that she recognized the mother of the deceased in the courtroom but that it would not influence her. The trial court on learning this held a meeting during the noon recess at which time the prosecution and counsel for the defense were informed of this. Following an in-depth questioning of the sheriff as to what had occurred, defendant's counsel moved for a mistrial which the court denied. Second, defendant objected to the introduction of certain evidence at trial. He objected to the introduction of his brother's fingerprints taken from the 1964 Pontiac car. The trial court overruled this objection. Third, defendant also objected to the introduction of the bullet which was removed by the Coroner from the brain of the deceased. This objection was overruled. And, finally, defendant objected to a reference by Police Officer De Vere to a certain paper silhouette which showed where the deceased had been found on the sidewalk after having been removed from the basement by Artie and Leonard Hall. He said, 'It depicted one of the victims of a shooting.' The trial court sustained defendant's objection to this reference by Officer De Vere but did not grant a mistrial. Defendant's allegations of error concerning these incidents are discussed in detail below.

Defendant's first contention is that, upon discovering that one of the jurors recognized the deceased's mother in the courtroom the trial court erred in not declaring a mistrial. The alleged grounds for a mistrial are bias and prejudice of the juror. The rule is that, where unpermitted communication or juror misconduct are established in a felony trial, the verdict is set aside unless the State sustains the burden of showing lack of improper influence. Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892); State v. Raspberry, 452 S.W.2d 169 (Mo.1970); State v. Jones, 363 Mo. 998, 255 S.W.2d 801 (1953). Extrapolating from this rule, defendant asserts that the State's burden can be met only by direct communication between the disputed juror and the trial court and therefore, that the questioning of the sheriff was inadequate.

While defendant is correct in his statement of the law, his conclusion is unwarranted. First, most of defendant's cases deal with the receipt of improper communications by the juror during the course of the trial. State v. Raspberry, supra; State v. Murray, 445 S.W.2d 296 (Mo.1969); State v. Jones, 363 Mo. 998, 255 S.W.2d 801 (1953) and State v. Schlie, 350 Mo. 924, 169 S.W.2d 348 (1943). Here we are dealing with a juror's inaccurate answer during voir dire to the question of whether the juror recognized the victim by name, followed by his or her recognition of a relative of the victim in the courtroom. The receipt of potentially prejudicial communications is different in kind from a juror's own realization that he or she made a mistake, especially where the juror voluntarily discloses that mistake to the court. Once a juror has actually heard prejudicial statements, it is reasonable to presume their effect until proven otherwise, whereas mere recognition of a person tangentially involved in the trial does not by itself indicate that the juror is biased either for or against the defendant. Second, none of the cases, whether concerning improper communication or inaccurate answers during voir dire, establishes or even implies that the State's burden can be met only by direct communication between the juror and the trial court. In fact, the cases on inaccurate statements during voir dire establish that the determination of prejudice is within the sound discretion of the trial...