State v. Teegarden

Decision Date05 December 1977
Docket NumberNo. KCD,KCD
Citation559 S.W.2d 618
PartiesSTATE of Missouri, Respondent, v. Mack Henry TEEGARDEN, Appellant. 29142.
CourtMissouri Court of Appeals

David V. Bear, Bear, Hines & Thomas, Columbia, for appellant.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.

Before TURNAGE, P. J., and WASSERSTROM and SOMERVILLE, JJ.

SOMERVILLE, Judge.

The homicidal death of Arlie Everett Whittle (victim) on May 1, 1974, in Miller County, Missouri, resulted in Mack Henry Teegarden (defendant) being charged by information with first degree murder (Section 559.010, RSMo 1969 1). The jury before whom defendant was tried found him guilty of second degree murder (Section 559.020, RSMo 1969) and fixed his punishment at forty years imprisonment in the Missouri Department of Corrections.

On appeal defendant questions (1) the trial court's refusal to declare a mistrial, (2) the trial court's refusal to grant a continuance, (3) the trial court's refusal to quash the information, and (4) the trial court's conduct in permitting the Sheriff of Miller County to sit at the counsel table with the prosecuting attorney throughout the trial.

In view of defendant's tacit acceptance of the evidence as sufficient to support his conviction for second degree murder, only such facts believed necessary to give a broad overview of the case will be set forth. Prior to May 1, 1974, a feud erupted between the defendant and the victim. This feud, whose violent nature was manifested by several preliminary exchanges of violence, culminated in the victim's death. More particularly, defendant accosted the victim outside the latter's house near Eldon, Missouri, during the early morning hours of May 1, 1974, shot him with a shotgun, took him, while still alive, inside the house, and then set the house afire. The fire became such a blazing inferno that it destroyed the house and virtually destroyed the victim's body.

The testimony of one of the state's witnesses on direct examination revealed that defendant was an ex-convict. Defense counsel made no objection thereto, nor did he move to strike the testimony or request a mistrial at the time. Later, during the course of questioning the Sheriff of Miller County on direct examination, the state referred to the testimony just mentioned and asked the sheriff if he was notified when defendant was released from the penitentiary. The sheriff's response was that he thought he had received a "letter" to that effect. Again, defense counsel failed to object or seek affirmative relief of any kind. As a matter of fact, defense counsel extensively cross-examined the sheriff about his present knowledge of defendant's status as an ex-convict. Defense counsel's cross-examination of the sheriff raised a cloud of doubt as to whether the sheriff ever received a "letter" notifying him of defendant's release from the penitentiary. On redirect examination the state attempted to rehabilitate the sheriff by handing him what is surmised to have been an F.B.I. "rap sheet". It is impossible to tell whether the "rap sheet" was handed to the sheriff for the purpose of seeking to have it identified and admitted into evidence or whether it was handed to him for the purpose of refreshing his recollection. Regardless of the purpose sought to be achieved by the state, defense counsel objected to the "rap sheet" on the sole ground that it was not properly authenticated. Whereupon, the prosecuting attorney advised the court, "I'll withdraw it then, Your Honor", and did so. The "rape sheet" was withdrawn over the following protestation of defense counsel, "I want it in if you can get it in, if you'll present it in evidence." This unusual series of evidentiary events occurred toward the end of the second day of the trial. When the court recessed at 6:00 P.M. it appeared that the whole matter had been laid to rest. However, when trial of the case resumed the following morning defense counsel resurrected the matter by moving for a mistrial on the ground that the state had prejudicially injected evidence of defendant's conviction of a prior offense "before defendant's character had been put in issue."

It is important to bear in mind that defendant's request for declaration of a mistrial revolves around certain evidence of the state which was never objected to by defendant, which never became the subject of a motion to strike by defendant, and which was never seized upon as the basis for a mistrial until long after defense counsel had paraded it before the jury by extensively cross-examining the sheriff. To cap the matter, defense counsel stated in open court, with reference to the F.B.I. "rap sheet" supposedly showing defendant's previous conviction, "I want it in if you can get it in, if you'll present it in evidence." This court concludes that defense counsel, by reason of some theory of trial strategy, intentionally refrained from objecting to or seeking to strike the presently complained of evidence. Defendant's belated effort to have a mistrial declared was wholly inconsistent with all related preceding events and militates against his present claim. Closely in point, when a state's witness testifies as to an inadmissible matter without objection and is then extensively cross-examined by defense counsel, a subsequent motion to strike comes too late and no error attaches when it is denied. State v. Young, 24 S.W.2d 1046 (Mo.1930); State v. Lehman, 175 Mo. 619, 75 S.W. 139, 141 (1903). By the same logic, when a state's witness testifies to an inadmissible matter without objection or a motion to strike and is then extensively cross-examined by defense counsel, a subsequent motion for declaration of a mistrial comes too late and no error attaches when it is denied. An additional and equally compelling reason exists for holding the trial court free of error for not having declared a mistrial. Defendant took the stand on his own behalf and candidly admitted on direct examination that he had previously been convicted of a felony (stealing). Doing so, as a practical matter, reached back and wiped the purported basis of his motion for a mistrial clean of any prejudice. State v. James, 194 Mo. 268, 92 S.W. 679, 683 (1906).

Defendant faults the trial court for ruling unfavorably on his motion for a continuance. The original information lodged against defendant, filed June 13, 1974, charged that the victim's death resulted from the infliction of a mortal wound by means of a 12-gauge shotgun. On May 14, 1976, a copy of an amended information was delivered to defense counsel's office, which did not come to his attention until the following day, May 15, 1976. The case was set for trial for May 19, 1976. The state was given leave to file the amended information on May 18, 1976. This prompted the filing of a motion for a continuance by defendant which was denied by the trial court. The only change effected by the amended information charged that the victim's death resulted...

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8 cases
  • Marriage of Amos, In re
    • United States
    • Missouri Court of Appeals
    • December 21, 1992
    ... ... a finding was implicit because the challenged order was issued in conjunction with an order granting permission to remove the children from the state. The court said that the action of the trial court in modifying his right to temporary custody from one day every weekend to two days every other ... ...
  • State v. Rellihan, WD
    • United States
    • Missouri Court of Appeals
    • November 15, 1983
    ...367 (Mo.App.1975), and Sager, supra. Respondent's reliance upon Hurley is misplaced. Hurley relied upon the case of State v. Teegarden, 559 S.W.2d 618, 621 (Mo.App.1977), and addressed the challenge of the accused that he was prejudiced by the admission of a police report which included two......
  • State v. Scrutchfield, 38032
    • United States
    • Missouri Court of Appeals
    • November 25, 1986
    ...convicted of two felonies, robbery and assault, destroyed any prejudice. McMillan, 593 S.W.2d at 633; See also State v. Teegarden, 559 S.W.2d 618, 621 (Mo.App.1977). V. Defendant's fifth point stems from two references by the prosecutor to the fact that defense counsel called Anthony Gomez,......
  • State v. McMillan, 11123
    • United States
    • Missouri Court of Appeals
    • January 22, 1980
    ...of numerous felonies, "reached back and wiped the purported basis of his motion for mistrial clean of any prejudice". State v. Teegarden, 559 S.W.2d 618, 621 (Mo.App.1977). Also, see State v. Jones, 531 S.W.2d 67, 73 (Mo.App.1975). We find no prejudicial error in the trial court's denial of......
  • Request a trial to view additional results
1 books & journal articles
  • Chapter 6 601 Competency of Witnesses
    • United States
    • The Missouri Bar Evidence Guide Deskbook
    • Invalid date
    ...the counsel table with the prosecutor where he was the complaining witness and where exclusion had not been invoked, State v. Teegarden, 559 S.W.2d 618, 622 (Mo. App. W.D. 1977), and to permit an investigating sheriff to remain in the courtroom, State v. Hamilton, 102 S.W.2d 642, 648 (Mo. 1......

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