State v. Sutton, 47925

• Decision Date: 22 October 1985
• Docket Number: No. 47925,47925
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Larry SUTTON, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 783

699 S.W.2d 783

STATE of Missouri, Plaintiff-Respondent, v. Larry SUTTON, Defendant-Appellant.

No. 47925.

Missouri Court of Appeals,

Eastern District,

Division Seven.

Oct. 22, 1985.

Cornelius T. Lane, St. Louis, for defendant-appellant.

John Munson Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

DONALD E. DALTON, Special Judge.

Defendant was convicted by a jury of stealing by deceit, a Class C Felony. On finding a prior felony conviction, the court sentenced defendant to serve three years. Defendant appeals and we affirm.

Defendant raises three claims of error:

1) The state failed to make a submissible case of stealing over $150 by deceit because they failed to prove that the insurance check was cashed;

2) A mistrial should have been declared when the prosecutor asked defendant on cross-examination whether after his arrest he made a statement to the police; and

3) The giving of the "hammer" instruction over defendant's objection.

Prior to January 8, 1981, defendant and Michael Jett reached an agreement whereby Jett was to burn defendant's 1975 Ford pickup truck and receive $200.00 for his efforts. Jett was to be paid when defendant received the insurance proceeds. On January 8, 1981, defendant and a woman named Melissa met Jett at a service station in St. Louis County. Defendant remained at the service station while Jett drove an automobile and Melissa drove defendant's truck to Mullins Cave. Jett set fire to defendant's truck. He and Melissa then returned to the service station in the automobile and met defendant. Jett drove defendant to a shopping center where defendant made a stolen vehicle report to the St. Ann Police Department.

Defendant reported his vehicle stolen to his insurance company on January 9, 1981. The theft claim was settled on January 20, 1981. On January 22, 1981, the insurance company gave defendant a company draft in the amount of $2,950.00.

Some week to ten days after setting fire to the truck Jett had asked defendant about his $200.00. Defendant replied that he was waiting for his insurance claim "to come in" before he could pay off Jett. Approximately three weeks after the truck was burned defendant paid Jett $200.00.

Appellant was charged with stealing over $150 by deceit by making a false insurance claim and recovering a company draft in excess of $2,950.00. Defendant testified he had no involvement with Jett with regard to the truck burning or payment for such. He claimed he had driven his truck to the shopping center and gone shopping. He reported to the St. Ann's Police that his truck was missing from the parking lot. Both defendant and his wife acknowledged receiving the $2,950.00 proceeds from the insurance company check for the truck loss.

In reviewing a jury tried case we view all the evidence tending to support the verdict as true, disregard all contrary evidence and indulge every inference that supports the verdict. State v. Beedle, 619 S.W.2d 334, 335 (Mo.App.1981).

Defendant contends that the state failed to prove that the insurance company draft was cashed or endorsed and therefore failed to prove stealing over $150.00. The state proved receipt of a draft given in the ordinary course of commerce, in an amount in excess of $150.00 and payable to an individual. There is no authority to support defendant's theory that this is not receipt by that individual of a thing of value over $150.00.

Furthermore, even if it is necessary to prove that the draft was cashed there is circumstantial evidence from which the jury could conclude that it was. The defendant said he would not pay Jett until he received the insurance proceeds. Jett was paid the $200.00 at a time subsequent to defendant's receipt of the draft. In addition defendant and his wife testified to receipt of the money. Defendant's first point is without merit.

Defendant next contends error in the trial court's failing to declare a mistrial when the prosecutor questioned him concerning post-arrest statements. Mistrial is a drastic remedy. State v. Lee, 654 S.W.2d 876, 879 (Mo. banc 1983). It should only be used to prevent obvious injustice where no other action would remove the prejudice claimed. State v. Morris, 639 S.W.2d 589, 593 (Mo. banc 1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983). The trial court shall only be held to err upon a showing of clear abuse of discretion and prejudice to the defendant. State v. Mensah, 625 S.W.2d 135, 136 (Mo.1981). The claimed error arises from the following discourse during the prosecutor's cross-examination of defendant:

Q Shortly after your arrest, you found out that, basically, Jett was going to turn State's evidence against you, I assume; is that correct?

A I didn't really understand this situation until Mr. Lane had explained it all to me.

Q That was shortly after you were arrested; correct?

A At the time I was arrested, even the arresting officer didn't know what it was for.

Q And, after that, you never told the police anything about Jett, did you?

MR. LANE: I will object and approach the bench, at this time.

(The following was heard at the bench, out of hearing of the jury)

MR. LANE: Your Honor, I will object, at this time, for the reason the question calls for--violates the man's right not to make a statement and his right against self-incrimination. There was no need for the appellant to--when he was arrested, making a statement to the police officer. I object to that. It is highly prejudicial and I ask a mistrial to be declared.

MR. BURNS: I am not asking him to make a statement. I am asking whether or not he went to the police after this information--after he knew about it. I think we have a right to bring it out.

MR. LANE: It is my understanding my Motion for a Mistrial and Discharge of the Jury, is overruled?

THE COURT: That is correct.

(The following was heard in open court, within hearing of the jury)

Q (By Mr. Burns) The only person you have ever told this story about--

MR. LANE: I object and ask to approach the bench.

THE COURT: Objection sustained. Proceed. (emphasis ours)

The defendant was never required to answer a question about statements after arrest. The jury would not know whether or not any statement was made, or, if made, what it might have been. The first brief question was followed by an objection and a discussion at the bench. The request for a mistrial was denied. The second question was incomplete and an interrupting objection was sustained.

Defendant's reliance on State v. Nolan, 595 S.W.2d 54 (Mo.App.1980) is misplaced. Nolan held "that showing defendant's silence after his arrest was not proper to impeach his version of the incident." (emphasis ours). 595 S.W.2d at 56. However, in Nolan the improper questions were in fact answered. Nolan is further distinguished by the number of inquiries. "The prosecutor inquired about defendant's silence numerous times." 595 S.W.2d at 56. During the cross-examination of Sutton there was a single unanswered question and a partial, interrupted question to which objection was sustained. There was no further attempt by the prosecuting attorney to pursue the matter. See also State v. Williams, 652 S.W.2d 102, 110 (Mo. banc 1983).

"Generally, when an improper question is asked but not answered, there is no prejudicial error." State v. Harvey, 625 S.W.2d 198, 201 (Mo.App.1981). In Harvey the court set forth the ultimate test to determine if the defendant's right against self-incrimination was violated: "Were the challenged remarks reasonably apt to direct the jury's attention to the fact that the defendant refused to...