State v. Wright, s. 20134
| Decision Date | 08 April 1997 |
| Docket Number | Nos. 20134,21007,s. 20134 |
| Citation | 941 S.W.2d 877 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Paul R. WRIGHT, Defendant-Appellant. Paul WRIGHT, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent. |
| Court | Missouri Court of Appeals |
Barbara Hoppe, Asst. Public Defender, Columbia, for defendant-appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Cheryl A. Caponegro, Assistant Attorney General, Jefferson City, for plaintiff-respondent.
Following a jury trial, Paul R. Wright (Defendant) was convicted of robbery in the first degree, § 569.020; 1 assault in the first degree, § 565.050; and armed criminal action, § 571.015. He was sentenced to 17 years on each count, to run concurrently.
Defendant does not challenge the sufficiency of the evidence to support the conviction. We consider the facts and all reasonable inferences therefrom in the light most favorable to the verdict and reject all contrary evidence and inferences. State v. Crews, 923 S.W.2d 477, 478 (Mo.App.1996).
In the early morning hours of Tuesday, September 6, 1994, Defendant entered the Taylor Food Mart in Kennett, Missouri, where Unice Mungle was working as a clerk. As Defendant entered the store, Ms. Mungle went behind the counter. Defendant purchased a package of cigarettes and then inquired about a soda. Ms. Mungle thought that Defendant had left the store so she began to come out from behind the counter to resume her pricing and stocking duties.
Ms. Mungle heard a noise behind her and then something hit her on the back of the head. She fell onto her knees and face and everything went black for a brief moment. When she opened her eyes she saw Defendant leaning over her so she began to kick him. Defendant then began kicking her, grabbed her by the arm and shoved her behind the counter. He then pushed her back against the cash register and stabbed her in the stomach with a Phillips head screwdriver. Although Ms. Mungle could not find the button for the alarm, she was able to open the cash register and then get away from Defendant. Ms. Mungle then ran into the store's office and dialed 911.
Defendant raises two points in his direct appeal. First, he asserts the trial court erred in admitting testimony regarding Defendant's prior bad acts and uncharged crimes. Second, he asserts the trial court erred in overruling Defendant's objection to statements made by the prosecutor during closing argument that referenced additional bad acts and uncharged crimes not in evidence. Defendant also appeals the denial of his Rule 29.15 motion after an evidentiary hearing as trial counsel failed to object to the prosecutor's "send a message" statements made during closing argument. The appeals have been consolidated herein.
In Defendant's first point, he alleges that the trial court erred in admitting evidence of prior bad acts and uncharged crimes. Specifically, Defendant objects to the admission of the testimony of Sara Abraugh and Officer Gordon Crawford.
In response to a motion in limine filed by Defendant, the trial court initially ruled that the State could not introduce any evidence relating to a prior burglary allegation without further proceedings outside the hearing of the jury.
During the trial, Defendant presented the testimony of Flent Swain to establish an alibi defense. Mr. Swain's testimony contained the following statements:
Q [By Defense Counsel]: Do you recall how long Paul stayed with you?
Later, during the State's cross-examination of Mr. Swain, he stated the following:
Q [By the State]: Okay. Now, I believe you already testified that basically from Friday morning until Tuesday morning when you dropped him off down at Blytheville that he was basically never out of your sight; is that correct?
In response to this testimony, out of the hearing of the jury, the State made an offer of proof of the testimony of two rebuttal witnesses, Sara Abraugh and Officer Gordon Crawford.
The State's offer of proof showed that Ms. Abraugh would testify that Defendant had been staying with her neighbor, Christie Sharkey but that on Sunday, September 4, 1994, Defendant stayed with Ms. Abraugh, as Ms. Sharkey and Defendant had a fight. Further, Ms. Abraugh would testify that Defendant returned to Ms. Sharkey's house the following evening, on Monday, September 5, 1994. Ms. Sharkey and Defendant engaged in another argument and Ms. Sharkey called the police. This fight arose because Ms. Sharkey believed that Defendant had stolen from her when he stayed with her the prior week.
Officer Crawford would testify that he responded to a dispatch call on the evening of September 5, 1994, at approximately 8:00 p.m., regarding an argument. He would testify that Ms. Sharkey and Ms. Abraugh reported an argument between Ms. Sharkey and Defendant and that the reason for the argument was because Ms. Sharkey believed Defendant had stolen from her.
Over defense counsel's objection, the testimony of the two witnesses was allowed to be presented to the jury. However, the trial court ordered that there be no mention from either of the witnesses that Ms. Sharkey believed that Defendant had stolen from her.
Defendant contends the testimony of Officer Crawford should not have been presented to the jury even though Officer Crawford made no mention of Ms. Sharkey's allegations of theft. Additionally, Ms. Abraugh should not have been permitted to mention that Ms. Sharkey called the police. Defense counsel made the following, additional objection even after the trial court excluded any mention of the alleged theft perpetrated by Defendant:
But, Your Honor, I don't mean to just keep on with this point, but you have a police officer there, Your Honor. People can recognize that a police officer is there to take a report, usually, on a crime, Your Honor. And that's so blatant for this Court to allow the Prosecutor to bring that in. It just screams a crime. And it will tempt that jury to convict my client of not--of not looking at just this act but looking at him as a criminal. That's why we have these rules of evidence. That's why we're doing this out of the hearing of the jury.
The trial court again overruled the objection and allowed the testimony of both Officer Crawford and Ms. Abraugh.
" 'Generally, evidence of separate and distinct crimes is inadmissable because it breaches defendant's right to be tried only for the crimes with which he is charged.' " State v. Askew, 822 S.W.2d 497, 501 (Mo.App.1991). Also "evidence of prior uncharged misconduct is inadmissible for the purpose of showing the propensity of the defendant to commit such crimes." State v. Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993).
" 'Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; [or] (5) the identity of the person charged with the commission of the crime on trial.' " State v. Sladek, 835 S.W.2d 308, 311 (Mo. banc 1992); see also Bernard, 849 S.W.2d at 13.
"Evidence of prior misconduct that does not fall within one of the five enumerated exceptions may nevertheless be admissible if the evidence is logically and legally relevant." Id.; see also State v. Gateley, 907 S.W.2d 212, 221 (Mo.App.1995). As a general rule, evidence is logically relevant if it has some legitimate tendency to establish directly the accused's guilt of the charges for which he is on trial. Bernard, 849 S.W.2d at 13; State v. Aye, 927 S.W.2d 951, 956 (Mo.App.1996). Evidence is legally relevant if its probative value outweighs its prejudicial effect. Bernard, 849 S.W.2d at 13; Aye, 927 S.W.2d at 956. "The balancing of the effect and value of evidence rests within the sound discretion of the trial court." Bernard, 849 S.W.2d at 13.
Defendant's complaint about the testimony is that the jury would be certain to infer that a crime had occurred because the police were called. The trial court was very careful, however, in that it did not allow the State to make any mention of the fact that Ms. Sharkey believed that Defendant had stolen from her. There was no prior, uncharged bad act or crime even mentioned by the State. It is just as reasonable to assume that the jury would infer the police were called for the very reason that was mentioned in the testimony, that is, the argument that took place between Ms. Sharkey and Defendant.
Even assuming that the testimony of Ms. Abraugh and Officer Crawford inferred a prior, uncharged bad act, the evidence was both logically and legally relevant. It was logically relevant in that it tended to establish Defendant's guilt by discrediting Defendant's alibi defense witness, Flent Swain. Mr. Swain testified that Defendant was not out of his sight from Friday until Tuesday. Ms. Abraugh's testimony directly refutes the credibility of that witness as she testified that he stayed with her on the night of Sunday, September 4, and was there again on the evening of September 5. On that evening, Ms. Sharkey came over to her house, the argument erupted, and the police were called. Officer Crawford's testimony lent additional support to Ms. Abraugh's testimony in that an official report was made about the incident, further supporting the State's contention that Mr. Swain was not credible.
In addition, the probative value of the evidence outweighed its prejudicial effect. As previously mentioned, the testimony established that Defendant's alibi...
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