State v. Payton, 38807
| Decision Date | 15 November 1977 |
| Docket Number | No. 38807,38807 |
| Citation | 559 S.W.2d 551 |
| Parties | STATE of Missouri, Respondent, v. John PAYTON, Appellant. . Louis District, Division Four |
| Court | Missouri Court of Appeals |
Harlan & Harlan, John L. Harlan, Jr., Clayton, for appellant.
John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, Joseph R. Aubuchon, Asst. Pros. Atty., Franklin County, Union, for respondent.
Appellant, John Payton, was charged with burglary, second degree, and stealing in connection with said burglary, and was found guilty by a jury of both offenses. The jury assessed his punishment at imprisonment for two years for each offense, and the court directed the sentences to be served consecutively.
Appellant asserts that the trial court erred in denying his motion for judgment of acquittal because "the only evidence that (he) committed the burglary charged was the uncorroborated hearsay testimony" of an accomplice, and therefore it was insufficient to support a conviction of burglary.
The cabin of Arthur Lentz was broken into and burglarized. The burglary was discovered by Deputy Sheriff James Terry when he noticed the front gate was unlocked and open, and that the window of the door had been broken. Later that day, Deputy Sheriff Zelch responded to a report of the burglary. He saw and followed an automobile, which belonged to David Moss, to a residence in Sullivan, Missouri where David and appellant alighted from the automobile and entered the house. The deputy later saw appellant and David return to the automobile, remove some containers from the trunk, and then conceal the containers between some propane tanks. The two drove away, and Deputy Zelch seized the property which they had concealed. It was identified by Mr. Lentz as property taken from his cabin.
David Moss testified for the State. He stated that appellant came to his apartment and asked him to go riding with him. Following appellant's instructions, David drove on Acid Mine Road and stopped in front of the Lentz cabin. The two of them then got out, picked up two containers which contained property previously taken from the cabin, and placed them in the trunk of the automobile. David asked if "there was anything in the house that was left" and appellant replied, "We will go look." The two entered the house, looked around, and then left. As they drove away, David asked appellant if "anyone had been there (the Lentz cabin) before," and he replied, "I was." David also testified that he asked appellant "who broke in," and that he replied, "I did."
Appellant recognizes in his brief that in State v. Lang, 515 S.W.2d 507, 509 (Mo.1974), it was expressly held that "a defendant may be convicted on the uncorroborated testimony of an accomplice," but he argues that this court "should not extend that rule * * * to the case in which the defendant was convicted on the uncorroborated hearsay testimony of the accomplice alone."
Appellant does not direct our attention to what he contends to have been the hearsay testimony, but we assume it was the statement of David that appellant told him that he previously had broken into the Lentz cabin. Aside from the possibility of the testimony being admissible under a recognized exception to the hearsay rule, there was no objection to the testimony. In addition, there was corroboration of David's testimony. The evidence, other than the testimony of David, authorized a finding that when Mr. Lentz left his cabin it was locked, and that it was subsequently broken into and property therein was stolen. Such evidence also authorized a finding that shortly thereafter appellant was in possession and control of the stolen property. It has long been the rule that an inference that appellant was the one who broke and entered the building is permissible by reason of his recent and unexplained possession of the property which had been stolen from the building during the burglary. State v. Bradley, 485 S.W.2d 408 (Mo.1972); State v. Miller, 499 S.W.2d 496 (Mo.1973); State v. Lewis, 482 S.W.2d 432 (Mo.1972). We find no merit to this contention.
In the opening statement the prosecutor commented: At this point appellant asked for a mistrial. After some discussion out of the hearing of the jury, the court stated that the "statement was improper," and it admonished the prosecutor not to "bring any more outside things in this statement." The request for a mistrial was denied. No other relief was requested.
We need not decide if the ruling of the trial court was a proper exercise of discretion, see State v. Camper, 391 S.W.2d 926 (Mo.1965), because in any event the possibility of any prejudicial effect was removed by appellant. When David Moss testified for the State he was not asked anything concerning the intent to steal gasoline. However, on cross-examination by appellant the following testimony was elicited:
Q. All right. What did you talk about? Tell the jury.
A. About driving around, maybe stealing some gas.
Q. You were going to steal some gas?
A. Yes, sir.
Q. For your car?
A. Yes, sir.
Q. But you didn't do it; is that correct?
A. Yes, sir.
Q. And what is the reason you didn't do it?
A. I didn't have a hose.
Q. All right. Did you customarily steal gas for your automobile?
At this point the court sustained an objection of the prosecutor that this was not "proper cross-examination."
Appellant cannot complain on appeal about the reference in the opening statement to the intent to steal gasoline when he brought forth on cross-examination the only testimony on the matter. Appellant's point is without merit.
Appellant also asserts that prejudicial error resulted when the trial court refused to grant a request for a mistrial "made in response to extremely prejudicial testimony intentionally elicited from the State's witness by the prosecutor relating to a separate and distinct crime of receiving stolen property."
After David Moss testified on direct examination, in which he made no reference whatever to the fact that he was an inmate of the Algoa Reformatory or to his participation in a burglary at the Windmill Restaurant, he testified in response to questions of appellant on cross-examination that he was serving time in the reformatory for the burglary of the Windmill Restaurant and for stealing. He was then asked:
Q. And when was that done, sir?
A. April of '75.
Q. Did you do that alone?
A. No, I didn't.
Q. There were other people with you?
A. Yes.
On redirect examination the following occurred:
A. Now, Mr. Harlan (defense counsel) wanted to know about who was involved in that Windmill burglary. Let me ask you this: Who got the stolen property from the Windmill burglary for which you have been sentenced to five years in the penitentiary?
A. John Payton.
At this point appellant objected on the basis that he was not being tried for receiving stolen property, and he requested a mistrial. The court refused to grant a mistrial, but it stated that the matter was irrelevant to any issue and that counsel should not go into the matter any further. Appellant then asked that the jury be instructed to disregard the answer and the court did so.
Appellant opened up the matter on cross-examination and we doubt that the redirect examination, strictly speaking, was improper. But in any event, it was within the discretion of the court whether to grant a mistrial. State v. Camper, supra. Clearly, there was no abuse of discretion in this case.
Appellant testified in his own behalf, and on direct examination in response to questions by his counsel he testified as follows:
Q. Now, John, have you ever been in any trouble with the law prior to this time?
A. Yes.
Q. All right. Will you tell the jury what that was?
A. Two years ago I was put under arrest for marijuana charge and it was a misdemeanor and I was placed on probation.
Q. All right. Aside from that one incident have you ever been in any other trouble with the law or with the juvenile authorities or with anybody?
A. No, sir.
On cross-examination, appellant again testified that he...
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