State v. Perry, WD
| Decision Date | 02 April 1985 |
| Docket Number | No. WD,WD |
| Citation | 689 S.W.2d 123 |
| Parties | STATE of Missouri, Respondent, v. Melvin PERRY, Appellant. 35922. |
| Court | Missouri Court of Appeals |
James W. Fletcher, Public Defender, Kent Gipson, Asst. Public Defender, Kansas City, for appellant.
John Ashcroft, Atty. Gen., Leah A. Murray, Asst. Atty. Gen., Jefferson City, for respondent.
Before CLARK, P.J., and SOMERVILLE and KENNEDY, JJ.
Defendant, charged with robbery in the first degree (§ 569.020, RSMo 1978), was found guilty by a jury of robbery in the second degree (§ 569.030, RSMo 1978) and his punishment was assessed at fifteen (15) years imprisonment. Following an unavailing motion for new trial, judgment was entered and sentence pronounced accordingly.
As the sufficiency of the evidence has not been questioned, a brief disclosure of certain basic facts should presently suffice. At approximately 1:30 a.m. on December 17, 1982, the victim of the robbery, a prostitute, was plying her trade at the intersection of Linwood and Main in Kansas City, Missouri. Defendant, riding as a passenger in a "maroon Monte Carlo" driven by an unidentified third person, arrived at the scene. Defendant got out of the vehicle, approached the victim, and sought to engage her services. The victim rebuffed defendant because she didn't "date" blacks. Thereupon, defendant, brandishing a "handgun" or "pistol", robbed the victim of approximately $80.00 in United States currency which she had upon her person. A policeman in the immediate vicinity was alerted by two of the victim's "friends". The policeman drew his weapon and ordered defendant to "halt". Defendant, notwithstanding, jumped back into the maroon Monte Carlo and a high speed chase ensued. The vehicle in which defendant was riding finally came to a stop at 39th and McGee when it struck a "traffic pole". The unidentified third person who was driving the maroon Monte Carlo jumped out and escaped on foot. Defendant, who had been drinking heavily, was apprehended as he sat slumped over in the right front seat of the vehicle. Additional evidence will be forthcoming when and where deemed necessary for ultimate dispositional purposes.
Four points of error are relied on by defendant on appeal, three relating to admissibility or inadmissibility of certain evidence, and one relating to prosecutorial closing argument. Of the four points, one in particular is dispositive of this appeal--admission of a loaded 20-gauge shotgun at the request of the state over vehement objections by defendant and requests for a mistrial that the weapon was irrelevant and highly prejudicial. Failure to explicitly mention or give detailed consideration to the remaining three points relied on by defendant is in no way indicative of their merit or lack of merit. Matters associated with the remaining three points may not occur on retrial as the defendant's brief, and the arguments and authorities cited therein, alert the state to their potential danger in the event they are repeated.
Certain additional facts come to the forefront in addressing and ruling defendant's contention that the trial court erred in admitting the loaded 20-gauge shotgun into evidence. According to the evidence presented by the state, defendant perpetrated the robbery in question by means of a "handgun" or "pistol". Both the victim and the police officer who arrived at the scene positively testified that defendant was brandishing a "handgun" or "pistol" at the time. Defendant, although admitting that he confronted the victim about engaging her services, denied that he robbed her or that he had or owned a "handgun" or "pistol". Defendant also separately accounted for some $85.00 in currency he had on his person when arrested. The loaded 20-gauge shotgun first crept into evidence when a police officer testified on behalf of the state that it was found "wrapped in a blanket" in the back seat of the maroon Monte Carlo after defendant was apprehended at 39th and McGee at the conclusion of the high speed chase. The evidence stands uncontradicted that defendant's mother, rather than defendant, was the owner of the maroon Monte Carlo, and that defendant had temporarily borrowed the vehicle the night in question because his own car "broke down". There was no evidence whatsoever as to who owned the loaded 20-gauge shotgun. More particularly, there was no evidence whatsoever that defendant was even aware of the presence of the loaded 20-gauge shotgun in the back seat of the maroon Monte Carlo. It is made clear by the record that the state's witnesses who testified that defendant perpetrated the robbery by means of a "handgun" or "pistol" were aware of the distinction between such weapons and a shotgun, and neither contended nor implied that defendant perpetrated the robbery by means of a shotgun. There is not so much as a scintilla of evidence that defendant and the unidentified third person who was driving the maroon Monte Carlo were on a criminal spree of any kind before or after the alleged robbery in question. No "handgun" or "pistol" was ever found or retrieved by police authorities on or from defendant's person or in or from the maroon Monte Carlo, or elsewhere, although the vehicle was kept in sight by the pursuing officer during the high speed chase except for several momentary occasions when it went over hills.
The courts of this state, with notable consistency, have recognized that weapons unconnected with either the accused or the offense for which he is standing trial lack any probative value and their admission into evidence is inherently prejudicial and constitutes reversible error. As observed in State v. Charles, 572 S.W.2d 193, 198 (Mo.App.1978), "[l]ethal weapons completely unrelated to and unconnected with the criminal offense for which an accused is standing trial have a ring of prejudice seldom attached to other demonstrative evidence...." The consistency with which the admission of such demonstrative evidence has been branded as reversible error is borne out by the following cases: State v. Holbert, 416 S.W.2d 129 (Mo.1967); State v. Wynne, 353 Mo. 276, 182 S.W.2d 294 (1944); State v. Moore, 645 S.W.2d 109 (Mo.App.1982); State v. Fristoe, 620 S.W.2d 421 (Mo.App....
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State v. Wood
...any probative value and their admission into evidence is inherently prejudicial and constitutes reversible error." State v. Perry, 689 S.W.2d 123, 125 (Mo. App. 1985) . "[T]he sight of deadly weapons or of cruel injuries tends to overwhelm reason and to associate the accused with the atroci......
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...475, 482 (Mo. banc 1988), cert. denied, 490 U.S. 1113, 109 S.Ct. 3175, 104 L.Ed.2d 1036 (1989). Appellant relies on State v. Perry, 689 S.W.2d 123, 124 (Mo.App.1985), where a 20-gauge shotgun was found after a high speed chase of the defendant's mother's car in which defendant was a passeng......
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State v. Ervin
...are to Missouri Revised Statutes 1986 unless otherwise indicated.2 Cases cited by Ervin on this point are inapposite. In State v. Perry, 689 S.W.2d 123 (Mo.App.1985), the court of appeals remanded defendant's conviction for second degree robbery on the basis of an improperly admitted shotgu......
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State v. Hosier
...after the incident). Defendant was the only passenger in the car and did not claim they belonged to someone else. Cf. State v. Perry, 689 S.W.2d 123, 124–25 (Mo.App.1985) (gun was inadmissible when it was unlike the one used in the crime and it was found in a car that defendant borrowed fro......
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Twenty-Nine Photographs and the Deterioration of the Missouri Relevance Rule.
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