State v. O'Neal, 62075

• Decision Date: 08 June 1981
• Docket Number: No. 62075,No. 2,62075,2
• Parties: STATE of Missouri, Respondent, v. Robert Earl O'NEAL, Jr., Appellant
• Court: Missouri Supreme Court

Page 31

618 S.W.2d 31

STATE of Missouri, Respondent, v. Robert Earl O'NEAL, Jr., Appellant.

No. 62075.

Supreme Court of Missouri, Division No. 2.

June 8, 1981.

Rehearing Denied July 14, 1981.

Robert W. Stillings, Springfield, for appellant.

John Ashcroft, Atty. Gen., Jerry Short, Asst. Atty. Gen., Jefferson City, for respondent.

STOCKARD, Commissioner.

Robert Earl O'Neal, Jr., appellant herein, was charged with murder in the first degree (a killing in the perpetration of burglary), § 565.003 (all statutory references are to RSMo 1978), and armed criminal action (stealing a firearm, § 570.030.2(3)(d) committed separate and apart from the burglary, by use of a dangerous or deadly weapon) RSMo 571.015, both offenses arising out of an occurrence near Stafford, Missouri involving appellant and John Boggs.

Appellant does not challenge the sufficiency of the evidence as to either charge. It will be helpful, however, to relate rather briefly the circumstances giving rise to the charges.

On July 6, 1979, appellant and John Boggs entered a trailer-home owned by Ralph Mayberry and took a .22 caliber pistol and a holster. They then went to the nearby trailer-home of Mr. and Mrs. Ralph Sharick intending to burglarize it if there was no one at home. Mr. Sharick was at home, but when they learned that he was alone they threatened him with the pistol obtained from the Mayberry trailer, and took a shotgun and a .22 caliber rifle from him. After appellant disabled an automobile at the Sharick trailer-home he then broke out a window of a nearby house belonging to Dr. Dowell and took a saxaphone and a guitar. While appellant was searching that house for other valuables, John Boggs brought Mr. Sharick to the house. Mr. Sharick was placed in a small closet. According to appellant, Boggs then shot through the closet door three times. One of the wounds so inflicted caused the death of Mr. Sharick.

In his first point appellant asserts the trial court erred in permitting the State to show that appellant and John Boggs had burglarized the trailer-home of Ralph Mayberry and had stolen a pistol therefrom. He asserts that this was "irrelevant to prove any fact in issue and was intended only to show (appellant's) bad character, and thus, that he was guilty of the offenses of which he was charged." He cites and relies only on State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (banc 1954).

It has repeatedly been stated that reference to other crimes unrelated to the case on trial violates a defendant's right to be tried for the offense with which he is charged unless such proof has some legitimate tendency to establish defendant's guilt of the crime charged. State v. Reese, supra; State v. McRoberts, 485 S.W.2d 70 (Mo.1972); State v. Wing, 455 S.W.2d 457 (Mo.1970); State v. Hicks, 591 S.W.2d 184 (Mo.App.1979). In State v. Wing, supra, several exceptions to the general rule are set forth, one of which is that proof which tends to show the commission of a separate crime is admissible if it tends to establish a common scheme or plan embracing two or more crimes so related that proof of one tends to establish the other. It is clear that appellant and Boggs were engaged in a scheme or plan to burglarize several places, and the .22 caliber pistol taken by them in the burglary of the Mayberry trailer-home was the weapon used in the robbery and murder of Mr. Sharick. In State v. Kerr, 531 S.W.2d 536, 542 (Mo.App.1975), the defendant was charged with murder by use of a .22 caliber pistol. During the trial the State introduced evidence that the murder weapon had been stolen from the defendant's brother-in-law a short time before the murder. On appeal the defendant contended that proof of the theft "constituted evidence of another crime" and tended to prove no issue in the case. After making reference to the general rule stated above the court held that "proof tending to show that defendant stole the murder weapon from his brother-in-law was legitimate proof of his preparations to commit the crime." See also, Hess v. United States, 254 F.2d 585 (8th Cir. 1958), where it was ruled proper to introduce evidence that the shotgun used by defendants in a kidnapping had previously been stolen by them in a robbery. We find no merit to appellant's first point.

During rebuttal testimony by the State, Charles Whitlow, Captain of Detectives for the Sheriff's office of Greene County, testified that he talked to appellant while he was in jail at Enid, Oklahoma, and that before he obtained a tape recorder to use during the questioning, appellant asked him whether John Boggs had made a statement. The following then occurred:

"Q. What did you tell him?

A. I told him yes, that he had.

Q. What did he say in response to that?

A. He said, 'What did he say about the murder?'

Q. What did you tell him?

A. I said he said that you pulled the trigger."

Appellant objected to the last answer, asked the court to instruct the jury to disregard the answer, and asked for a mistrial.

At the time of the occurrence and on this appeal the State proposed to justify this rebuttal testimony on the basis that appellant had opened up the subject by testifying concerning statements made by him to Captain Whitlow concerning Boggs' statement to the police. We need not determine whether this was permissible rebuttal testimony under the circumstances. We shall assume it was not, but we expressly do not so rule. The trial court sustained appellant's objection and instructed the jury as follows:

"Members of the jury, the objection to the last answer is sustained. The court now instructs the jury very strongly not to give any weight to that last answer. You are to totally disregard it and give it no weight and give it no consideration."

Every error which might occur in the trial of a case does not necessarily require the granting upon request of a mistrial. State v. Camper, 391 S.W.2d 926 (Mo.1965). A declaration of a mistrial is a drastic remedy, State v. Smith, 431 S.W.2d 74 (Mo.1968), and the authority of a trial court in this respect "should be exercised only in extraordinary circumstances." State v. James, 347 S.W.2d 211, 214 (Mo.1961). As stated in State v. Camper, supra, "a mistrial should be granted only when the incident is so grievous that the prejudicial effect can be removed no other way." See also State v. James, supra. The declaration of a mistrial necessarily and properly rests largely in the discretion of the trial court who has observed the incident giving rise to the request for a mistrial, and who is in a better position than an appellate court to evaluate the prejudicial effect, and the possibility of its removal by some action short of a mistrial. State v. Camper, supra; State v. Smith, supra; State v. Raspberry, 452 S.W.2d 169 (Mo.1970). The function of this court in the circumstances is to determine whether as a matter of law the trial court abused its discretion in refusing to declare a mistrial. For the reasons we now set out we rule that it did not.

During his testimony appellant had testified that two police officers talked to him, one being Captain Whitlow who read to him parts of a statement previously made by Boggs, and that in doing so he told appellant that "(t)his John (Boggs) is up here * * * selling * * * (you) out * * *." Therefore, the substance of the objected-to statement on rebuttal was what the jury had already been told by appellant. Appellant admitted participation in the burglaries, and that he and John Boggs were engaged in a joint enterprise of robbery and burglary. In such situation it was immaterial, assuming appellant had not withdrawn from the criminal mission and we subsequently rule that he had not, who actually pulled the trigger. In these circumstances it cannot be said as a matter of law that the trial court abused its discretion in not declaring a mistrial instead of sustaining the objection and instructing the jury to disregard the answer of Captain Whitlow.

Appellant next asserts prejudicial error resulted from an incident occurring during oral argument.

Appellant's counsel stated:

"You have a very heavy burden ahead of you and I don't intend to make light of it, because it's a very important decision to make, and it's very important to Robert (appellant) because if you find him guilty he's going to jail for the rest of his life."

During the closing oral argument by the State the prosecutor stated:

"If you find him guilty of murder in the first degree he is sentenced to life, he gets life, not that he will spend the rest of his life in the penitentiary __."

Appellant interrupted and objected for the reason that "that's contrary to the law as the Court has given it." The objection was overruled. There was no request for a mistrial.

Appellant now contends on this appeal that it was error for the State to argue that while the jury might sentence him to life in the penitentiary, he would not actually spend the rest of his life in the penitentiary and in this way cause the jury to believe that the sentence imposed by their verdict might be diminished by parole or some other procedure. Appellant contends that this argument influenced "the jurors to shift the burden of their responsibility for finding the defendant guilty or innocent."

The only permissible punishment of persons found guilty of murder in the first degree (felony murder) is "imprisonment by the division of corrections during (their) natural (lives)." §§ 565.003 and 565.008 RSMo 1978. Appellant relies primarily on State v. Lewis, 443 S.W.2d 186 (Mo.1969). There the defendant was charged with robbery in the first degree, and the permissible punishment varied from imprisonment for five years to life. The improper argument was to the effect that a severe punishment should be imposed, and "(o)ur parole system will take care of him if he's a person who should be released to society." It was held that the purpose and effect of the prosecutor's argument "was to...