State v. Smith, 13557
| Decision Date | 28 September 1984 |
| Docket Number | No. 13557,13557 |
| Citation | 679 S.W.2d 424 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Bruce Allen SMITH, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
John D. Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Michael Radosevich, Columbia, for defendant-appellant.
Bruce Allen Smith was jury-convicted of burglary in the first degree and sentenced to eight years' imprisonment by the trial court in accordance with the jury verdict.
On appeal, Smith claims the trial court erred in failing to declare a mistrial when 1) the complaining witness stated that Smith had stolen from her before, and 2) the police officer who arrested Smith stated, on cross-examination, in response to a question concerning whether he knew he had to have probable cause to "get into that house," that "[w]e also had a warrant for his arrest out of Douglas County."
Evidence introduced during trial that was sufficient to support the jury verdict was as follows. Clara Slavens, who was 89 years old, testified that she lived alone in a house located at 835 West Nichols, Springfield, Missouri. On August 24, 1983, at approximately 1:30 P.M., Mrs. Slavens was sitting on her front porch sewing when Smith, who was 21 years old, came on the property and told Mrs. Slavens he was going in the back yard "to see what was out there." Smith was wearing blue jeans with no shirt. He acted "drunk or doped up." She told him there was nothing in the back yard that concerned him, but he went anyway.
A short time later, she heard her little dog barking inside the house. She went in and found that Smith had entered her home. He was holding a long stick that was used as a window prop and threatened to kill Mrs. Slavens if she did not get her purse for him. Smith then spied her purse, grabbed it, and left the house. Mrs. Slavens then called the police. The purse contained $7 and some food stamps. Mrs. Slavens had known Smith for about a year, as he had done some yard work for her.
Mrs. Slavens was vigorously questioned on cross-examination in an attempt to question her ability to identify Smith as the person who entered her home and stole her purse. On redirect, while the prosecuting attorney was attempting to rehabilitate the witness, the following colloquy occurred:
"Q. (By Miss Appelquist) Has he ever stolen from you before?
A. Yes.
Q. How many times?
MR. McNABB: Can we approach the bench, Your Honor?
[Counsel approached the bench, and the following proceedings were had outside the hearing of the jury:]
MR. McNABB: Your Honor, I object to the Prosecutor's question on the basis that this is evidence of other crimes and is inadmissible. There's never--the Prosecutor has no convictions to show for this and ask that the jury be admonished to disregard that remark and also ask for a mistrial.
MR. McNABB: For a mistrial, Your Honor?
THE COURT: Oh, no.
MR. McNABB: Well, I do request a mistrial.
THE COURT: Request will be denied.
[The proceedings returned to open court.]
THE COURT: The jury will disregard the last question and answer."
Witness Paula Cooper, who lives across the street from Mrs. Slavens, and who knew Bruce Smith, saw Smith coming out of Mrs. Slavens' house after the burglary carrying a "purse and a long stick." Smith then ran up the street. When the police arrived, in response to the call from Mrs. Slavens, Paula gave them a description of Smith and of the purse. Officer Charles Jerman of the Springfield Police Department found Mrs. Slavens' purse in the alley behind her home.
After receiving information from a City Utilities worker in the area that Smith had entered a house at 942 North Douglas, which was a block and a half east of Mrs. Slavens' home, Jerman and other officers went to that location and arrested Smith who was hiding in the attic.
During cross-examination regarding the search of Smith after his arrest, the following exchange occurred:
"Q. What did you find in your pat-down search?
A. Nothing that I can remember. I was searching for weapons at the time.
Q. Well, did you find any money?
A. I didn't search for money at the time. Was just searching for weapons for my own protection.
Q. Did you have him poke his pockets out?
A. Not there.
Q. Okay. Did you, at any time, find any food coupons or dollar bills on his person?
A. I don't remember how much money he had with him. When we put him in the--took him to jail and booked him, he did not have any food coupons with him; I remember that.
Q. Did you look in that house to see if you could find any food coupons, the house where you arrested him?
A. No, and I did not obtain a search warrant to do so.
Q. Well, you knew you would have to have probable cause to get a search warrant, didn't you?
A. Yes.
Q. And you knew that to get into that house, in the first place, you would have to have probable cause to try to get in the house, didn't you?
A. We also had a warrant for his arrest out of Douglas County--
MR. McNABB: May we approach the bench, Your Honor?
THE COURT: Yes.
[Counsel approached the bench, and the following proceedings were had outside the hearing of the jury:]
MR. McNABB: I object to that answer as not being responsive to the question and not in any way indicated by the question. It is prejudicial. It's evidence of other crimes and immaterial and not relevant, and I ask that the jury be instructed to disregard the response and also ask for a mistrial.
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State v. Cooper
...the prejudicial effect of the error and the possibility of removing the prejudice by any action short of a mistrial. State v. Smith, 679 S.W.2d 424, 427 (Mo.App.1984). An appellate court will not interfere with the exercise of that discretion absent a manifest abuse of discretion and a real......
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State v. Holland
...error cannot be predicated upon the admission of evidence which the defendant later confirms by his own testimony. State v. Smith, 679 S.W.2d 424, 427 (Mo.App.1984). Defendant also alleges error in the admission of evidence of the transcript of his taped statement to Deputy Claussen because......