State v. Allen

599 S.W.2d 782, 1980 Mo. App. LEXIS 3118
CourtMissouri Court of Appeals
DecidedMay 20, 1980
DocketNo. 41277
StatusPublished
Cited by5 cases

This text of 599 S.W.2d 782 (State v. Allen) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Allen, 599 S.W.2d 782, 1980 Mo. App. LEXIS 3118 (Mo. Ct. App. 1980).

Opinion

SNYDER, Judge.

Christine Allen appeals from her conviction of first degree robbery, § 560.120, RSMo 1969, and common assault, § 559.220, RSMo 1969, and a sentence of five years’ imprisonment on the robbery count and three months sentence on the assault count. The trial court suspended imposition of the three month assault sentence.

Defendant alleges the trial court erred because it: (1) failed to declare a mistrial when the prosecutor informed the jury that Tyrone Hoye, who was jointly accused with appellant, had pleaded guilty to the offense of accessory after the fact to robbery and when a police officer later testified Tyrone Hoye had been identified by the victim, implying that he was an accomplice to the robbery and not merely an accessory after the fact; (2) failed to declare a mistrial when the state did not call Hoye as a witness after having outlined his anticipated testimony in its opening statement, denying appellant her right to confrontation; (3) overruled her motion to suppress a digital watch and six dollars in currency taken from her, as these items were wrongfully seized pursuant to an unlawful detention; (4) overruled appellant’s motion to suppress, and admitted identification testimony based on an unduly suggestive confrontation; and (5) allowed the six dollars allegedly taken from the victim as evidence, since the victim testified that the money was returned to him.

According to the state’s evidence, on July 19, 1977, three persons knocked on the door to Herz Buchbleter’s jewelry shop on Sixth Street in downtown St. Louis. Both Mr. Buchbleter and his assistant, Elizabeth Merkel, were in the shop at the time. Mr. Buchbleter allowed two of the individuals to enter but refused admittance to the third. One person, later identified as appellant, showed Mr. Buchbleter her watch and requested that he lengthen the band by adding links. Mr. Buchbleter noted that the lady’s digital watch was unusual. He told the person that an adjustment was all that was needed. As he escorted the two to the door, they struck him and began beating on him. Mrs. Merkel, who had been in the back, came into the shop, grabbed a metal ring sizer and tried to help Mr. Buch-bleter. The ring sizer was taken from her by defendant’s companion and both Mrs. Merkel and Mr. Buchbleter were beaten with the ring sizer. Both suffered lacerations that required stitches. Although Mr. Buchbleter had originally believed that his attackers were men, during the attack he pushed up a large Panama hat on one of the attackers and saw braided hair and bobby pins. The two took Mr. Buchbleter’s wallet and continued beating him until Mrs. Merk-el told them she had notified the police, and then they fled.

Within a short time appellant and two others, Oliver Webster and Tyrone Hoye, were seen walking in the Stix Baer & Fuller store across the street from the jewelry shop by Hermena Doyle, a security officer at the store. Mrs. Doyle noticed they were walking very quickly and continually looking back, became suspicious, and followed them as they got on the escalator. On the second floor, she motioned to Ron Griffin, another security guard, who also followed them. Appellant, Webster and Hoye got off the escalator on the fourth floor and looked into the wallet that appellant had been carrying. Doyle and Griffin saw appellant take two bills out of the wallet, which Webster then discarded in a waste can. Griffin retrieved the wallet, and it was found to belong to Herz Buchbleter. Hoye and Webster then changed hats while appellant went to the men’s restroom. Griffin followed her there and found her washing what appeared to be blood from her face and neck. Griffin identified him[785]*785self, asked about the wallet, and then escorted her back to join the others.

The three were taken to the security office where a security guard learned of the robbery when he telephoned Mr. Buchbleter. The guards requested that appellant empty her pockets, which contained six dollars and a wristwatch. The police came to the store, arrested appellant, Webster and Hoye, and conveyed them to Mr. Buchbleter’s shop, where Mr. Buchbleter identified appellant as one of his assailants.

Appellant first charges the trial court erred in failing to declare a mistrial when the prosecutor in his opening statement told the jury that Hoye had pleaded guilty to the offense of accessory after the fact to robbery. She concedes that no proper objection was made at trial, and her claim must be considered under the plain error rule, Rule 29.12(b).

A defendant is entitled to have his case based solely on the merits of the charge against him, and therefore it is error to introduce evidence to the effect that a codefendant has pleaded guilty or been convicted of the same crime. State v. Minor, 556 S.W.2d 35, 38[4] (Mo. banc 1977), vacated on other grounds, Lee v. Missouri, 439 U.S. 461, 99 S.Ct. 710, 58 L.Ed.2d 736 (1978); State v. Fenton, 499 S.W.2d 813, 816[4-7] (Mo.App.1973).

Respondent contends that this situation is distinguishable from that in the Minor, Lee and Fenton cases because in the case under review the plea was that of an accessory after the fact, and not a eodefendant. In any event, according to respondent, any error was not plain error in view of the cautionary instructions given the jury and the overwhelming evidence of appellant’s guilt.

This court need not determine the merits of respondent’s attempt to distinguish, however, for in this case, as in State v. Minor, supra and State v. Browner, 587 S.W.2d 948 (Mo.App.1979), any error was minimal in effect. The jury was instructed at the outset that the opening statements were not to be considered as evidence, and the prosecutor alluded only briefly to the guilty plea. No objection was made, and the court’s only alternative was to declare a mistrial, a drastic remedy which necessarily must be subject to its discretion. State v. Camper, 391 S.W.2d 926, 928[2-4] (Mo.1965). Furthermore, the guilty plea was that of accessory after the fact, which would be less prejudicial than that of the codefend-ants in the Browner and Minor cases. In addition, the evidence against appellant was very strong. The brief mention of Hoye’s plea did not amount to a miscarriage of justice.

Appellant also claims that the court erred in failing to declare a mistrial when, during the course of the trial, Officer Hurst, one of the police officers who took custody of appellant at the store and took her to the jewelry shop, stated that Mr. Buchbleter identified appellant, Webster and Hoye. She argues that this statement left no doubt that Hoye was an accomplice and a codefendant, and thus respondent could not claim that the statement as to Hoye’s guilty plea was proper. Again, appellant has not preserved this alleged error for appellate review. No objection was made to Officer Hurst’s testimony about Mr. Buchbleter’s identification of Hoye, nor was this claim of error presented to the trial court in appellant’s motion for a new trial.

Appellant’s claim has no merit in view of the Browner and Minor cases, both of which affirmed convictions in cases where the jury was told about the guilty plea of a codefendant.

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Bluebook (online)
599 S.W.2d 782, 1980 Mo. App. LEXIS 3118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-allen-moctapp-1980.