State v. Sidebottom, No. 69247

CourtMissouri Supreme Court
Writing for the CourtDONNELLY
Citation753 S.W.2d 915
Docket NumberNo. 69247
Decision Date14 June 1988
PartiesSTATE of Missouri, Respondent, v. Robert T. SIDEBOTTOM, Appellant.

Page 915

753 S.W.2d 915
STATE of Missouri, Respondent,
v.
Robert T. SIDEBOTTOM, Appellant.
No. 69247.
Supreme Court of Missouri,
En Banc.
June 14, 1988.
Rehearing Denied July 26, 1988.

Page 918

Dan J. Pingelton, Columbia, for appellant.

William L. Webster, Atty. Gen., Jared Richard Cone, Asst. Atty. Gen., Jefferson City, for respondent.

DONNELLY, Judge.

Appellant Robert T. Sidebottom was convicted in a jury trial of first degree murder, § 565.020, RSMo 1986. The jury found aggravating circumstances, § 565.032, RSMo 1986, and imposed a sentence of death. Appellant claims the following points constitute reversible error: the inadvertent submission of evidence of prior crimes to the jury during their deliberations; comments made by the prosecutor in closing argument; the trial court's refusal to allow certain questions during cross-examination of a State witness; the submission of certain statements made by defendant to the police; the trial court's refusal to allow defense counsel to describe the nature of execution to the jury; the sufficiency of the evidence; proportionality of the punishment in this case to that in similar cases; and the constitutionality of the death penalty. We have exclusive appellate jurisdiction, Mo. Const. art. V, § 3. We also review the sentence as mandated by § 565.035, RSMo 1986. Affirmed.

Appellant was charged with the murder of his 74-year-old grandmother, May Sidebottom. She was found beaten near death in her burning home in Independence, Missouri, in the early morning hours of October 4, 1985. We present the facts in evidence and all favorable inferences that can reasonably be drawn therefrom in the light most favorable to the State, disregarding evidence and inferences to the contrary. State v. Goddard, 649 S.W.2d 882, 884 (Mo. banc 1983), cert. denied, 464 U.S. 997, 104 S.Ct. 495, 78 L.Ed.2d 689 (1983); State v. Franco, 544 S.W.2d 533, 534 (Mo. banc 1976), cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977).

The evidence establishes that at approximately 4:00 p.m. on October 3, 1985, appellant and a co-worker, Tom Shier, went out for some drinks after work. They stayed out drinking until approximately 1:30 a.m., on October 4, 1985. Appellant estimated that he had ten to fifteen beers and about ten caffeine tablets called "mini-whites" during that time. Sometime during the evening defendant and Shier stopped at appellant's grandmother's house so appellant could get some money from her. Shier waited in appellant's car while appellant went into the house. Shier testified that appellant was upset when he came back to the car because his grandmother had given him only five dollars. Appellant intended to get twenty dollars from her. Appellant indicated that she could have given him more money, telling Shier that his grandmother had "lots" of money, referring to $14,000 that his grandmother received in insurance proceeds when his grandfather died.

Appellant and Shier made several other stops that evening, buying beer by the six-pack early in the evening and stopping at several taverns later that evening. Sometime after 1:00 a.m., appellant and Shier left the Class Reunion Bar in Blue Springs, Missouri. Appellant asked Shier to drive because appellant said he had too much to drink. Appellant told Shier to drop him off at his grandmother's house. During the ride appellant talked about needing money and kept saying that he

Page 919

was going to rob somebody. He said that he knew where he could get several thousand dollars and told Shier that he would give Shier $14,000 "to cover for him if anything went wrong." They arrived at May Sidebottom's house at approximately 1:45 a.m. Appellant got out of the car and told Shier not to wait for him. Shier left with appellant's car as instructed.

At trial, witnesses testified that appellant had often bragged that he would inherit his grandmother's money when she died. May Sidebottom's close friend, LaVerne Willis, testified that appellant's relationship with his grandmother "was bad." Several months before her murder, May Sidebottom destroyed her will in which appellant was named beneficiary. Appellant's neighbor, Rick Alcorn, testified that appellant said he would kill his grandmother if this would get him into the Mafia.

The evidence indicates that May Sidebottom's assailant broke into the house by breaking the back door window and letting himself in. In his statement to the police, appellant stated that he entered his grandmother's house after Shier dropped him off but did not remember how he got in. Once inside, he confronted his grandmother with the fact that he wanted more money. She became angry with appellant and denied his request. Appellant stated that he lost his temper and began beating his grandmother. He struck her in the head and back with his fists and a chair until she stopped moving. He then started a fire in a bedroom and left.

Police arrived at the burning house at approximately 2:35 a.m. They found May Sidebottom lying unconscious, but still alive, in a pool of blood in the kitchen of her house. The evidence reveals that she was brutally beaten. Blood was splattered on the floor, walls, and ceiling in the kitchen, dining room, and living room. Pieces of a broken chair were scattered about the floor. An autopsy revealed that May Sidebottom died of multiple injuries, particularly blunt force injury to the head and neck. She suffered a fractured cervical spine, fractured jaw, broken nose, five frontal rib fractures and three back rib fractures.

Appellant's first point on appeal is that the trial court erred in not declaring a mistrial when it discovered that evidence of prior crimes was inadvertently sent into the jury during deliberations. During the first hour of the jury's deliberations, the jury requested pictures, statements, and graphs that had been submitted as exhibits. Among those exhibits was a "Prisoner Data Form" stating that appellant had either been charged with or committed the crimes of rape and burglary. Shortly after receiving these exhibits, the jury sent a note to the trial judge asking if appellant "had been convicted of rape + burglary or had just been charged which does not constitute guilt." This was the first instance at which the court and attorneys realized that this information was in evidence. The exhibit had been stipulated into evidence but the parties did not realize that it contained evidence of other offenses.

In a conference between the attorneys and the trial judge, appellant's trial counsel looked at the data form and stated: " 'Charges known to have committed.' It says rape. It's a wonder they didn't accept that." Appellant's counsel agreed that the proper remedy was to instruct the jury not to consider these entries in arriving at their verdict. Appellant's counsel did not request a mistrial nor did he raise the issue in his motion for new trial. Under the guidance of new counsel on appeal, appellant requests that we review this issue for plain error.

It is well established that evidence of other crimes unrelated to the case at trial is inadmissible unless such evidence has some legitimate tendency to establish the defendant's guilt of the crime charged. State v. Williams, 652 S.W.2d 102, 110 (Mo. banc 1983). In this case, there is no contention that the information regarding the rape and burglary was related to the crime charged. However, the declaration of a mistrial is a drastic remedy and should only be employed in the most extraordinary

Page 920

circumstances. State v. Young, 701 S.W.2d 429, 434 (Mo. banc 1985), cert. denied, 476 U.S. 1109, 106 S.Ct. 1959, 90 L.Ed.2d 367 (1986); State v. Gilmore, 681 S.W.2d 934, 943 (Mo. banc 1984). Relief will be granted under the plain error rule only when the error "so substantially affects the rights of the accused that a 'manifest injustice or miscarriage of justice inexorably results if left uncorrected.' " State v. Valentine, 646 S.W.2d 729, 731 (Mo.1983). We do not find that defense counsel's failure to request, and the trial court's failure to grant sua sponte, a mistrial resulted in manifest injustice.

The situation before the Court is similar to that discussed in State v. Gilmore, 681 S.W.2d at 942-43, in which a State's witness volunteers an unresponsive reference to the defendant's involvement in an unrelated and distinct crime. Factors considered in such cases in determining the prejudicial effect of these statements include "the promptness of the trial court's action in directing the jury to disregard, the offensiveness of the conduct referred to, and the isolated nature of the statement, as well as the lack of any evidence that the state connived in any fashion to permit the testimony to come in." State v. Jackson, 657 S.W.2d 44, 46 (Mo.App.1983). In this case, the trial court acted promptly, the prosecutor made no attempt to utilize or emphasize the references on the data form, and there is no indication that the prosecutor made a conscious effort to inject these inferences into evidence. See State v. Crawford, 619 S.W.2d 735, 740 (Mo.1981). Although the offensiveness of the crimes referred to on the data sheet is of serious gravity, the case law supports denial of a mistrial in such cases when in the discretion of the trial court a curative instruction was sufficient in light of the other factors considered, e.g., State v. Williams, 573 S.W.2d 75, 76 (Mo.App.1978); State v. Walker, 531 S.W.2d 55, 56-57 (Mo.App.1975), or under the plain error rule, manifest injustice did not result. E.g., Gilmore, 681 S.W.2d at 943; State v. Escoe, 548 S.W.2d 568 (Mo. banc 1977). Appellant's point is denied.

Appellant's next contention is that the trial court erred in failing to instruct the prosecuting attorney not to comment on appellant's failure to testify and in failing to order a new trial when the prosecutor allegedly made reference to appellant's failure to testify. Defense counsel made no objection...

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121 practice notes
  • State v. Deck, No. 80821
    • United States
    • United States State Supreme Court of Missouri
    • 1 Giugno 1999
    ...mind. See, e.g., State v. Kinder, 942 S.W.2d 313 (Mo. banc 1996); State v. McMillin, 783 S.W.2d 82 (Mo. banc 1990); State v. Sidebottom, 753 S.W.2d 915 (Mo. banc 1988); State v. Walls, 744 S.W.2d 791 (Mo. banc 1988); State v. Lingar, 726 S.W.2d 728 (Mo. banc 1987); State v. Roberts, 709 S.W......
  • State v. Kinder, No. 75082
    • United States
    • United States State Supreme Court of Missouri
    • 17 Dicembre 1996
    ...the witness will provide some legitimate testimony in addition to invoking his privilege against self-incrimination. State v. Sidebottom, 753 S.W.2d 915, 922 (Mo. banc), cert. denied, 488 U.S. 975, 109 S.Ct. 515, 102 L.Ed.2d 550 (1988). Once a witness refuses to answer a question because of......
  • State v. Feltrop, No. 70896
    • United States
    • United States State Supreme Court of Missouri
    • 9 Gennaio 1991
    ...a defendant's failure to testify, but a prosecutor may make reference to the defendant's failure to offer evidence. State v. Sidebottom, 753 S.W.2d 915, 920 (Mo. banc), cert. denied, 488 U.S. 975, 109 S.Ct. 515, 102 L.Ed.2d 550 (1988). The prosecutor's statement here is a comment on appella......
  • State v. Chambers, No. 74525
    • United States
    • United States State Supreme Court of Missouri
    • 20 Dicembre 1994
    ...506 U.S. 837, 113 S.Ct. 114, 121 L.Ed.2d 71 (1992) (prior convictions for sodomy, felonious restraint, and assault); State v. Sidebottom, 753 S.W.2d 915 (Mo. banc), cert. denied, 488 U.S. 975, 109 S.Ct. 515, 102 L.Ed.2d 550 (1988) (prior conviction for sexual assault); State v. Parkus, 753 ......
  • Request a trial to view additional results
121 cases
  • State v. Deck, No. 80821
    • United States
    • United States State Supreme Court of Missouri
    • 1 Giugno 1999
    ...mind. See, e.g., State v. Kinder, 942 S.W.2d 313 (Mo. banc 1996); State v. McMillin, 783 S.W.2d 82 (Mo. banc 1990); State v. Sidebottom, 753 S.W.2d 915 (Mo. banc 1988); State v. Walls, 744 S.W.2d 791 (Mo. banc 1988); State v. Lingar, 726 S.W.2d 728 (Mo. banc 1987); State v. Roberts, 709 S.W......
  • State v. Kinder, No. 75082
    • United States
    • United States State Supreme Court of Missouri
    • 17 Dicembre 1996
    ...the witness will provide some legitimate testimony in addition to invoking his privilege against self-incrimination. State v. Sidebottom, 753 S.W.2d 915, 922 (Mo. banc), cert. denied, 488 U.S. 975, 109 S.Ct. 515, 102 L.Ed.2d 550 (1988). Once a witness refuses to answer a question because of......
  • State v. Feltrop, No. 70896
    • United States
    • United States State Supreme Court of Missouri
    • 9 Gennaio 1991
    ...a defendant's failure to testify, but a prosecutor may make reference to the defendant's failure to offer evidence. State v. Sidebottom, 753 S.W.2d 915, 920 (Mo. banc), cert. denied, 488 U.S. 975, 109 S.Ct. 515, 102 L.Ed.2d 550 (1988). The prosecutor's statement here is a comment on appella......
  • State v. Chambers, No. 74525
    • United States
    • United States State Supreme Court of Missouri
    • 20 Dicembre 1994
    ...506 U.S. 837, 113 S.Ct. 114, 121 L.Ed.2d 71 (1992) (prior convictions for sodomy, felonious restraint, and assault); State v. Sidebottom, 753 S.W.2d 915 (Mo. banc), cert. denied, 488 U.S. 975, 109 S.Ct. 515, 102 L.Ed.2d 550 (1988) (prior conviction for sexual assault); State v. Parkus, 753 ......
  • Request a trial to view additional results

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