State v. West, 52881
| Decision Date | 19 January 1988 |
| Docket Number | No. 52881,52881 |
| Citation | 743 S.W.2d 592 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Tommie L. WEST, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Mary Clare McWilliams, Asst. Public Defender, St. Louis, for defendant-appellant.
William L. Webster, Atty. Gen., Robert V. Franson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Defendant appeals from his conviction for carrying a concealed weapon. In his first point, he asserts he was unfairly prejudiced by the admission of, and by the prosecutor's comments on, evidence that suggested he had committed a crime other than the one for which he was being tried. He neglects to state, however, what prejudice he suffered, and we, in our review of the record, have found none.
At trial, St. Louis Police Officer Diana Pate testified that she went to the scene of defendant's arrest in response to a police radio broadcast that shots had been fired in the area. She also testified that, while she was en route to the scene, there was a second radio announcement that a person by the name of Tommie West was wanted for first degree assault in connection with the shooting. No objections were made to this testimony.
Officer Pate continued that, upon her arrival at the scene, she observed a taxi cab with a passenger in the back seat. She stated that "about twenty, twenty-five people out on the street (were) yelling at me and pointing to the cab saying there is a man in the back with a gun." She approached the cab with her gun drawn, and saw that the passenger fit the broadcasted description of Tommie West. She noted that he had a canvas bag on the seat next to him and that his hand was resting on it. She caused the man, identified at trial as defendant, to get out of the cab and handcuffed him. Another police officer arriving on the scene searched the bag and found a loaded gun and ammunition.
Reference to the fact that, just prior to effecting defendant's arrest based on the reports of the bystanders, Officer Pate learned that defendant was wanted for first degree assault, cannot reasonably be argued to be evidence of "other crimes" warranting reversal. Officer Pate's unobjected to testimony, related to a chain of events occurring minutes prior to the arrest, provided an explanation for her arrival on the scene and her actions upon arrival. As such, the testimony was so closely intertwined with the crime in question as to be virtually an integral part of it. Because the testimony is material to the issue in the present case we only consider whether the testimony will establish and prove the facts; it is an incidental matter that it also suggests defendant committed other crimes. State v. McDaniels, 668 S.W.2d 230, 232 (Mo.App.1984).
Even if it were error for the state to elicit the testimony, we cannot see how defendant could have been prejudiced by it. A jury must convict a defendant of carrying a concealed weapon if it finds that, beyond a reasonable doubt, defendant knowingly carried on or about his person a concealed, readily accessible firearm. § 571.030.1(1), RSMo 1986. The state's evidence in this case showed that, incident to what defendant concedes was a lawful arrest, police searched a bag he had been carrying and found a loaded .38 caliber revolver and 23 unexpended rounds of ammunition that had been specially modified to fit the weapon. This evidence establishes the elements of carrying a concealed weapon and was challenged only by the testimony of defendant's wife, which was offered to suggest that the police could have planted the revolver on defendant. Defendant's wife's testimony was itself, however, less than compelling and was impeached by two of the state's rebuttal witnesses who testified defendant's wife was not present when defendant was arrested. Error that in a close case might dictate reversal will be disregarded when evidence of guilt is strong, as it is here. State v. Hampton, 648 S.W.2d 162, 166 (Mo.App.1983).
Nor can we see how defendant could have been prejudiced by the prosecutor's brief reference to this testimony during closing argument. In reviewing the evidence, the prosecutor said:
Now, let's go through the facts of the case. What do we have here? The officers get called out on Claxton. A call for shots fired. There's a...
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