State v. Phelps

Decision Date24 June 1986
Docket NumberNo. 49668,49668
Citation713 S.W.2d 555
PartiesSTATE of Missouri, Plaintiff-Respondent v. Ernest Lee PHELPS, Defendant-Appellant.
CourtMissouri Court of Appeals

John Munson Morris, Asst. Atty. Gen., Jefferson City, for defendant-appellant.

Lawrence O. Willbrand, St. Louis, for plaintiff-respondent.

PUDLOWSKI, Judge.

On December 12, 1984, appellant, Ernest Lee Phelps, was convicted by a jury of robbery in the first degree in violation of Section 569.020, RSMo (1978). The Circuit Court of St. Louis County entered judgment on the jury's verdict and sentenced the appellant, as a dangerous offender, to twenty-five years imprisonment. We affirm.

The sufficiency of the evidence is not in question, but a brief recital of the facts is in order. On July 20, 1981, two clerks who were working behind the courtesy counter at the Schnucks store in Dellwood, Missouri were robbed at gunpoint. The police were notified and the two women gave independent descriptions of the robber to the responding officer. They both described the robber as being approximately five feet four inches in height and one hundred forty-five pounds in weight.

The following day both clerks identified the appellant from a display of nine photographs provided by the police. One of these identifications occurred at the store and the other took place at the police station. A year later, both employees again identified the appellant in a police line-up.

Appellant had been previously convicted of this crime, but his conviction was reversed because the trial court allowed the state to cross-examine the appellant about the details of a prior robbery conviction. State v. Phelps, 677 S.W.2d 418 (Mo.App.1984). On retrial in the case currently on appeal, the appellant did not testify.

Prior to the commencement of the second trial, the defense attorney made an oral motion in limine concerning the admissibility of copies of the photographs that were displayed to the two clerks the day after the robbery. Additionally, the record indicates that the defense attorney was concerned that a police officer, Captain Chapman, would volunteer during his testimony that the photographs contained an "arrest number" which would be evidence of an inadmissible previous arrest. This concern was based on his testimony in the previous trial. The court overruled the motion but instructed that the arrest numbers be covered with tape before being shown to the jury and that Officer Chapman be cautioned "not to volunteer more than is asked."

During the state's questioning of Officer Chapman at trial about the photographs, the following conversation occurred:

PROSECUTOR: Just for the record which one is Ernest Phelps?

OFFICER CHAPMAN: The one marked number 3C and also has D over to the right dated 12-10-84. The front of the photograph is marked arrest number forty-one.

The defense attorney at the bench after the objection requested a mistrial, and the prosecutor responded he would go along with whatever the court decided. At this point, the defense accused the prosecution of a deliberate attempt to force a mistrial. The court then asked the defense, "You want a mistrial?" and the defense answered, "No."

The court suggested that the jury be instructed to disregard the testimony, and the defense attorney agreed. The trial court then addressed the jury: "Jurors, the last answer will be disregarded.... Please disregard the last answer."

Appellant claims that the trial court erred in failing to grant a mistrial when Officer Chapman volunteered the information about the arrest number on the face of the photograph because evidence of a previous arrest was prejudicial to his defense.

"The declaration of a mistrial is a drastic remedy that should be employed only in those extraordinary circumstances in which prejudice to the defendant can be removed no other way." State v. Davis, 653 S.W.2d 167, 176 (Mo. banc 1983). The declaration of a mistrial is in the discretion of the trial court because that court is in a better position than an appellate court to determine the prejudicial effect of the statement on the jury. Id. We will not disturb the trial court's decision unless there is an abuse of discretion. Id. The record indicates no abuse of discretion in this instance. The statement in question was not unduly prejudicial and did not make reference to any specific crime. State v. Ianniello, 671 S.W.2d 298, 302 (Mo.App.1984). The remark was isolated and not emphasized by the state. See State v. Hill, 614 S.W.2d 744, 752 (Mo.App.1981). The trial court was convinced it was an inadvertent, unresponsive answer. A similar allusion to a prior arrest was made by a police officer in State v. Crawford, 619 S.W.2d 735 (Mo.1981), and no abuse of discretion was found under the circumstances. Furthermore appellant's own witness placed before the jury evidence of his previous arrest when she made reference to his probation officer during her testimony.

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1 cases
  • State v. Jackson
    • United States
    • Missouri Court of Appeals
    • November 24, 1987
    ...is in a better position than the appellate court to determine the prejudicial effect of the statement on the jury. State v. Phelps, 713 S.W.2d 555, 556 (Mo.App.1986). We will not disturb the trial court's decision absent abuse of discretion. Id. The present case indicates no abuse of discre......

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