State v. Shive

• Decision Date: 22 September 1981
• Docket Number: No. 11991,11991
• Citation: 624 S.W.2d 136
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Lyndall C. SHIVE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 136

624 S.W.2d 136

STATE of Missouri, Plaintiff-Respondent, v. Lyndall C. SHIVE, Defendant-Appellant.

No. 11991.

Missouri Court of Appeals, Southern District, Division One.

Sept. 22, 1981.

Motion for Rehearing or Transfer Denied Oct. 23, 1981.

Application to Transfer Denied Dec. 14, 1981.

James A. Miller, Springfield, for defendant-appellant.

John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

FLANIGAN, Judge.

A jury in Greene County found defendant guilty of stealing, (Sec. 570.030), ¹ and the trial court, finding defendant to be a persistent offender, imposed a sentence of 15 years. Defendant appeals.

Defendant's first point is that the trial court erred in denying his motion to dismiss for lack of jurisdiction for the reason that other criminal proceedings, instituted against defendant in Lafayette County, were a bar to the Greene County action under the double jeopardy provisions of the U. S. Constitution.

On March 9, 1979, two John Deere tractors, three Yazoo mowers and one edger, owned by City Utilities of Springfield, Missouri, were in a locked warehouse in Greene County. On March 12, 1979, city employees discovered that the warehouse had been forcibly entered and the described equipment stolen.

During 1979 and 1980 undercover officers of the Missouri State Highway Patrol were running a "sting operation" in Lafayette County. Troopers, posing as "fences" for stolen property, conducted this operation in a building, called "H and T Storage," where videotape equipment and microphones were installed.

On March 13, 1979, defendant and one Davis arrived at the storage building with the two John Deere tractors stolen in Greene County. Defendant and Davis sold the tractors to Troopers Hill and Viessman who were acting under cover.

On March 22, 1979, defendant and Davis returned to the building in Lafayette County. On this trip they had with them the three Yazoo mowers and the edger previously stolen. They sold these items to the officers at that time.

In February 1980 criminal charges were filed in Lafayette County against defendant. He was charged with violating Sec. 570.080 ² which deals with receiving stolen property. One of the Lafayette County complaints charged defendant with "disposing" of the tractors on March 13, 1979. A separate complaint charged defendant with "disposing" of the mowers and edger on March 22, 1979. Although both of these Lafayette County cases were dismissed without prejudice on March 5, 1980, on the same date separate indictments were filed against defendant charging the commission of the same "disposing" offenses.

On February 13, 1980, a felony complaint was filed in Greene County charging defendant with the instant offense of stealing. Following a jury trial defendant was convicted and sentenced in the instant proceeding on September 22, 1980. On that date the Lafayette County charges were still pending but there had been no trial, guilty plea or sentence. On October 20, 1980, after defendant had been convicted and sentenced in Greene County, defendant withdrew a plea of not guilty and entered a plea of guilty to the Lafayette County charges and received concurrent six-year sentences.

The state, in response to defendant's first point, takes this position: (a) Under Missouri's Criminal Code, a person may be convicted of both stealing and disposing of the same property and (b) even if double jeopardy prohibited both convictions, this case is unaffected because it is the prior conviction. The validity of (b) makes it unnecessary to consider whether (a) is valid.

The Double Jeopardy Clause of the Fifth Amendment to the U. S. Constitution, ³ providing that no person shall "be subject for the same offense to be twice put in jeopardy of life or liberty," applies to the States through the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969).

"Unless there was former jeopardy, there can be no double jeopardy." People v. Bishop, 38 Misc.2d 106, 238 N.Y.S.2d 107 (1962). The authorities confirm the accuracy of that statement.

"As an aid to the decision of cases in which the prohibition of the Double Jeopardy Clause has been invoked, the courts have found it useful to define a point in criminal proceedings at which the constitutional purposes and policies are implicated by resort to the concept of 'attachment of jeopardy.' ... In the case of a jury trial, jeopardy attaches when a jury is empaneled and sworn.... In a nonjury trial, jeopardy attaches when the court begins to hear evidence.... The Court has consistently adhered to the view that jeopardy does not attach, and the constitutional prohibition can have no application, until a defendant is 'put to trial before the trier of facts, whether the trier be a jury or a judge.' " (Authorities omitted.) Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975).

In Serfass, 95 S.Ct. at 1064, the Court reiterated its comment made in an earlier case that "the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the double jeopardy clause bars retrial." The Court there said that implicit in that statement "is the premise that the constitutional policies underpinning the Fifth Amendment's guarantee are not implicated before that point in the proceedings at which jeopardy attaches." A corollary to the comment in Serfass is the proposition that the conclusion that jeopardy had not attached in the Lafayette County actions ends the inquiry as to whether the double jeopardy clause barred the Greene County trial.

At the time of the Greene County conviction and sentence, the criminal charges in Lafayette County were pending on a plea of not guilty. Jeopardy had not attached to the Lafayette County proceedings. ⁴ It follows that those proceedings do not constitute former jeopardy. ⁵ Defendant's first point has no merit.

Defendant's second point is that the trial court erred in denying his motion to suppress certain portions of two videotapes. One tape (State's Exhibit 5) was made on March 13, 1979, and showed the sale of the tractors by defendant and Davis to the two troopers, and the other tape (State's Exhibit 6) showed the sale of the mowers and edger on March 22, 1979. It is defendant's position that the court should have deleted portions of the two tapes containing these statements by defendant: (a) that he had committed offenses other than that for which he was being tried; (b) that he had served five years in the penitentiary; and (c) that he had witnessed "a risque sexual act," which he described.

Exhibit 5, which runs over 35 minutes, and Exhibit 6, which runs over 25 minutes, showed the activities and recorded the conversations of defendant, Davis and the two troopers on the two occasions. This court has viewed both tapes. The early portion of each tape showed the men engaged in unloading the articles which had been stolen in Greene County. On March 22 the goods which defendant and Davis delivered and sold to the troopers included not only the three Yazoo mowers and edger, but also some Case mowers which, according to defendant's taped statements, he and Davis had recently stolen in Columbia. Details of the Greene County thefts and the Columbia thefts were discussed at length and were interwoven. On one tape defendant mentioned, only briefly, the fact that he had served five years in prison.

The trial court held a hearing on defendant's pretrial motion to suppress the attacked portions of the tapes. At that time the parties agreed that it was unnecessary for the court reporter to make a verbatim transcription of the taped conversations. After viewing the two exhibits, and in denying the motion, the trial court stated that it found "that the evidence of other crimes contained on the tapes is so intertwined with the balance of the tapes that it would not be practical, or possible, to delete those portions, or to edit them out, without rendering the whole tape worthless; that it appears to me it would become just a hodgepodge of seemingly unrelated segments that the jury would not be able to make any sense out of it."

During the presentation of the state's case both tapes were shown to the jury by use of a television set. When the case was submitted to the jury the trial court, at the request of defendant, gave Instruction 12. ⁶

"Evidence of the commission of separate and distinct crimes is not admissible unless it is within one of the exceptions to establish (1) motive, (2) intent, (3) absence of mistake or accident, (4) common plan or scheme embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others, or (5) identity of the person charged.... Such evidence must be subjected to rigid scrutiny because of its tendency 'to raise a legally spurious presumption of guilt in the minds of jurors.' ... Evidence of prior crimes is particularly prejudicial in that it 'permit(s) the jury improperly to infer that because there were (other crimes and offenses) appellant must have committed the (specific crime) charged.' ... The trial court must carefully balance 'on the one hand the actual need for such evidence, and on the other the degree to which a jury may be prejudiced against the defendant by hearing such evidence.' " (Authorities omitted.) State v. Hamell, 561 S.W.2d 357, 359-360 (Mo.App.1977).

The Case mowers which had been stolen in Columbia were part of the same shipment which included the Yazoo mowers and edger. The relationship between the Columbia larceny and the Greene County larceny was such that testimony concerning the former may have been admissible under exception (4) set forth in Hamell, supra. Even if exception (4) was inapplicable, there is authority to sustain the action of the trial court in receiving both tapes, in their entirety, into evidence.

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