State v. Wright

• Decision Date: 19 June 1979
• Docket Number: No. 61045,61045
• Citation: 582 S.W.2d 275
• Parties: STATE of Missouri, Respondent, v. Andre WRIGHT, Appellant.
• Court: Missouri Supreme Court

Page 275

582 S.W.2d 275

STATE of Missouri, Respondent, v.Andre WRIGHT, Appellant.

No. 61045.

Supreme Court of Missouri, En Banc.

June 19, 1979.

Lee M. Nation, Kevin R. Locke, Asst. Public Defenders, Kansas City, for appellant.

John D. Ashcroft, Atty. Gen., Brenda Farr Engel, Asst. Atty. Gen., Jefferson City, for respondent.

BARDGETT, Judge.

Defendant-appellantAndre Wright appeals from a judgment of conviction entered by the Circuit Court of Jackson County whereby the appellant, after having been found guilty of robbery first degree (sec. 560.120, RSMo 1969), by a jury, was sentenced to eighteen years' imprisonment.The Missouri Court of Appeals, Western District, affirmed, after which appellant's motion for transfer to this court was granted to examine the question of whether the court of appeals opinion was in conflict with State v. Nimrod, 559 S.W.2d 592(Mo.App.1977), a companion case, in which an issue on appeal involved the admission of the same evidence, to wit, a wallet of one Wilder, and the prosecutor's jury argument in connection therewith.Art. 5, sec. 10, Mo.Const., as amended1970;Rule 83.03.

Appellant is the third of three defendants involved in the robbery.The first defendant's trial, conviction, and appeal are reported in State v. Nimrod, Supra.The second defendant's trial, conviction, and appeal are reported in State v. Jerome B. Wright, 571 S.W.2d 734(Mo.App.1978).

The victim, Gary Jacobs, testified that he was accosted by three assailants on July 13, 1975, who beat him and took his wallet and watch.He identified the appellant as one of the three.A private security guard who had been fortuitously passing testified that he had come to the aid of the victim.He identified the appellant and another assailant by their clothing, and the third by his face.Police officer Michael Vrentas testified that the appellant was wearing a brown tank-top shirt and brown trousers on the night in question.Officer Daniel A. Krooz also testified to that effect.Appellant moved to dismiss on the basis of destroyed evidence and officer John Rearden testified that he had inadvertently destroyed appellant's clothing.Appellant testified on the motion that he had not been dressed as was described but instead had been wearing a checked shirt.The motion to dismiss was overruled.

Officer Vrentas testified that he and officer Krooz had been dispatched to check on suspicious parties riding in a white 1975Chevrolet Vega.The officers stopped a vehicle answering that description and arrested all four occupants of the automobile, one of whom was the appellant.The officers observed Nimrod placing objects under the vehicle as he stepped from it.The recovered objects were two wallets, one belonging to the victim Jacobs, and one which did not belong to any of the occupants of the automobile.The latter wallet was received in evidence over objection.Although its owner was not affirmatively identified to the jury, the testimony specifically excluded each of the alleged participants and Jacobs as owners.

During the course of appellant's case, his attorney, in chambers, discussed with the court and the prosecuting attorney the fact that the state intended calling Dorothy McKelvey Wright as a rebuttal witness and that Ms. Wright had advised both the appellant's attorney and the prosecuting attorney's office that if she were called to testify regarding her actions on the night in question she intended to avail herself of the Fifth Amendment privilege against self-incrimination.Ms. Wright has invoked the Fifth Amendment in a previous trial on the witness stand in refusing to testify.State v. Wright, supra.Appellant objected to the calling of this witness on a number of grounds, among which was that when she refuses to testify on self-incrimination grounds and because she was arrested with the appellant the jury would infer guilt on the part of the appellant.However, the state called her anyway.She did refuse to testify by invoking the Fifth Amendment, the same as she did in State v. Wright, supra.The state referred to the second wallet in argument as set forth Infra.

On appeal the appellant makes three points.He contends, first, that the trial court erred in overruling appellant's objection to the calling of witness Dorothy McKelvy Wright and in failing to strike said testimony as irrelevant, improper rebuttal, and highly prejudicial.Second, he contends that the court erred in overruling appellant's objections to the admission of the second wallet in that it was evidence of another crime and irrelevant, immaterial, and highly prejudicial.Third, he contends that the court erred in overruling appellant's motion to dismiss or to suppress identification evidence where the state destroyed evidence (certain clothing of appellant) which tended to negate appellant's guilt.He contends the nonproduction of said evidence was in violation of the rule of discovery, denied appellant's right to due process of law, and denied his rights to effectively confront the evidence against him.

I.

Appellant's second point will be taken up first.Appellant contends that the admission into evidence of the wallet belonging to Wilder was error and he was prejudiced thereby.Although the state was not allowed to refer to the owner of the wallet by name, the state was allowed to show in evidence that it did not belong to any of the occupants in the car or to the victim of this robbery, Mr. Jacobs.Appellant contends the Wilder wallet was evidence of another crime, unrelated to the crime for which appellant was on trial, save for the fact that it was found when appellant was apprehended.The state argued the evidence of the Wilder wallet during the trial and in closing argument.

Evidence of other crimes, unrelated to that for which an accused is presently standing trial, violates the defendant's right to be tried only for the offense for which he was indicted and is error.State v. Nimrod, supra;State v. Shilkett, 356 Mo. 1081, 204 S.W.2d 920(1947);State v. Holbert, 416 S.W.2d 129(Mo.1967);State v. Walker, 490 S.W.2d 332(Mo.App.1973).The state contends that, even if admission of the wallet as evidence were error, it was not prejudicial to the appellant because it represented an insignificant part of the state's case in view of the overwhelming nature of the evidence of guilt presented against appellant.The state cites Nimrod as controlling.Nimrod is controlling on the issue that admission of the second wallet was error, but Nimrod is Not controlling with regard to the prejudicial nature of that error and is distinguishable from the case at bar.In Nimrodthe court considered the challenge to the introduction of the Wilder wallet under the plain-error standard of review.Unlike appellant in the present case, the defendant in Nimrod failed to preserve the error for appeal.Therefore, it was defendant's task to convince the court that "manifest injustice" resulted.Rule 27.20(c).Respondent concedes that in this caseappellant has properly preserved the error for review.

Harmless error is not grounds for reversal, State v. Spica, 389 S.W.2d 35, 53(Mo.1965); however, error in the admission of evidence should not be declared harmless unless it is so without question.State v. DeGraffenreid, 477 S.W.2d 57(Mo. banc 1972), citingState v. Wynne, 353 Mo. 276, 182 S.W.2d 294, 300(1944), andState v. Richards, 334 Mo. 485, 67 S.W.2d 58, 61(1933).The Wynne court said, "The record does not demonstrate that the defendant was not injured by the error as by showing that the jury disregarded or could not have been influenced by the evidence."Similarly, in the present case, respondent has failed to show that the jury was not influenced by the introduction and argument of the wallet.If the wallet did enter the jury's deliberation, appellant has been denied his right to stand trial only for the crime with which he is charged and to have the jury determine his guilty with reference only to the evidence presented with regard to that crime.

Respondent contends the Wilder wallet was a rather innocuous item of evidence and was only a small part of the state's case; that any crime the Wilder wallet "may have implied appellant committed was of much less consequence than the brutal crime the evidence showed the appellant had committed"; the wallet was never passed to the jury and "the two small references to this evidence (Wilder wallet) in the transcript were never reinforced by allowing the jury to view the wallet".

Respondent acknowledges that the admission of the Wilder wallet into evidence was error, State v. Nimrod, supra, a companion case to this one so held, and therefore that the burden is upon the respondent-state to show this evidence was harmless error beyond a reasonable doubt.

The Wilder wallet was admitted with the following testimony of officer Kroog:

"Q All right, sir.And after you observed this, what if anything did you do towards recovering those objects?

A I personally recovered them.

Q You personally recovered them?

A Yes.

Q And what were the objects?

A They were two men's billfolds, leather billfolds.

Q All right, sir.I'll hand you what's been marked and received in evidence as State's ExhibitNo. 6 and ask if you can identify that.

A Yes, sir, it's one of the billfolds I found underneath the vehicle.

Q All right, sir.Whose identification did that billfold contain?

A It had the identification belonging to a Mr. Gary Jacobs.

Q All right, sir.And did it have any money in it at the time you recovered it?

A No, sir, it did not.

Q I'll hand you what's been marked as State's ExhibitNo. 7 and ask if you can identify that.

A Yes, sir.This was also recovered in the same location as the first wallet.

Q Now let me ask you, Office Kroog, did that wallet, State's ExhibitNo. 7, contain the identification of Edward Nimrod?

A No, sir.

Q Did it contain the identification of Jerome Wright?

A No, sir.

Q Did it contain the...