State v. Cobb

920 S.W.2d 136, 1996 Mo. App. LEXIS 626, 1996 WL 174791
CourtMissouri Court of Appeals
DecidedApril 16, 1996
DocketNos. 67162, 68518
StatusPublished

This text of 920 S.W.2d 136 (State v. Cobb) 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. Cobb, 920 S.W.2d 136, 1996 Mo. App. LEXIS 626, 1996 WL 174791 (Mo. Ct. App. 1996).

Opinion

KAROHL, Judge.

Derrick Cobb, defendant, appeals after the court imposed a thirty year sentence for second degree murder. He claims plain error in the court’s allowing a witness to testify he and defendant used cocaine together. He argues the testimony was totally irrelevant and prejudicial. He also appeals for relief under Rule 29.15 for his counsel’s failure to call witnesses who could provide him with a defense. We affirm.

A jury found defendant guilty of second degree murder in the death of Thomas Crimi. Defendant contends the trial court plainly erred in allowing Michael Harris to testify he and defendant used cocaine together several hours after Tom Crimi was murdered and his car stolen by the murderer. Hams testified as follows about events which occurred several hours after Tom Crimi was killed:

Q. Now, after you and Derrick — after you purchased the tires from Derrick and you put them in your basement you stated that you drove around with Derrick?
A. Uh-huh.
Q. Did you and Derrick discuss anything at that time?
A. No. At that time we went and got some coke, and we rode around and got high.
Q. And by coke you don’t mean Coca Cola?
A. Crack Cocaine.
Q. And was this crack cocaine?
A. Yes.
Q. And how do you use that? Do you smoke it?
A. Smoke it.
Q. After you purchased the tires, then you drove around and you got high on crack cocaine with Derrick Cobb; is that correct?
A. Yes.
Q. And who purchased that cocaine, do you know; do you remember?
A. Derrick.
Q. And after that, what, if anything, did you do?
A. Well, after that we basically rode around the neighborhood getting high. We would stop and park and eat. Then we would get a hit and ride around some more. And just more so like stop, get a hit, and'move around.
Q. And at some point did you go back and put those tires that you had purchased from Derrick on your car?
A. Yes. Yes, I did. About the time we had finished that we went back and put the tires on my ear, and the two tires that I had we took and we sold to another guy that had a green pickup truck.
Q. And you got some money from him?
A. No, we didn’t. We went up to — I think at the time was it Mobile? (sic). No it was a Sinclair or a Fina gas station. And about that time or a little while later the guy came by and gave Derrick some weed, and we took the weed and exchanged it for some more crack.
Q. Again, for somebody who might not know, by “weed” you mean marijuana?
A. Yes.
Q. Did you purchase the marijuana with the tires, and then you traded the marijuana for some crack?
A. Yes.
Q. Now, Mr. Harris, at some point after this transaction occurred, did you and Mr. Cobb then drive around in the car with the new wheels on it?
A. Yes.
Q. Are you the one driving your wife’s car?
A. Yes.
Q. And at some point did you begin discussing your activities from the evening before?
A. Yes.
[139]*139Q. That is the Saturday night before?
A. Yes.
Q. What did you tell Mr. Cobb then?
A. I told him that I had went to a friend named Keith’s wedding reception or wedding—he had like a wedding party.
Q. This is what you told Mr. Cobb you had done?
A. Yes.
Q. Did you ask Mr. Cobb what he had done that night before?
A. He said he had f_up. He, you know, ripped off, you know, a guy, a white guy.
Q. I don’t want to embarrass you, but can you state it again a little more loudly.
A. He said that he had f_ up. I tripped—he ripped off a white guy.
Q. And for the people who don’t know what the expression tripped means, what did that mean to you?
A. Something unusual or dumb.
Q. I mean, the expression tripped means something unusual?
A. Yeah, made a mistake. I tripped, you know.
Q. It means he made a mistake?
A. Yeah.
Q. After he said that to you, did you ask him for any further explanation?
A. No.
Q. Did that make you feel uncomfortable that he had said that?
A. No.
Q. What did you do after he told you that?
A. After that we just drove around some more and finished getting high.
Q. And then you went home?
A. Well, we drove around for a little while longer, and it was about this time that I—it started getting dark, and I was beginning to get paranoid about my wife looking for her car, so I was getting ready to go home....

Under the plain error rule relief will be granted only when the error “so substantially affects the rights of the accused that a ‘manifest injustice or miscarriage of justice inexorably results if left uncorrected.’ ” State v. Sidebottom, 753 S.W.2d 915, 920 (Mo. banc 1988).

The rule regarding admission of evidence of uncharged crimes is:

Ordinarily, the State may not introduce evidence of the accused’s other criminal acts to show a probability that he committed the crime in question. When such evidence is relevant for some other purpose, however, it should not be rejected merely because it incidentally proves the defendant guilty of another crime.

State v. Churchir, 658 S.W.2d 35, 37 (Mo.App 1983).

The following exceptions were noted in State v. Wilson, 755 S.W.2d 707, 709-710 (Mo.App.1988) while discussing State v. Mantia, 748 S.W.2d 785 (Mo.App.1988):

[T]he seminal case of State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (1954), established criteria for the admission of evidence of separate and distinct crimes.

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Related

State v. Blankenship
830 S.W.2d 1 (Supreme Court of Missouri, 1992)
State v. Churchir
658 S.W.2d 35 (Missouri Court of Appeals, 1983)
State v. Wilson
755 S.W.2d 707 (Missouri Court of Appeals, 1988)
State v. Sidebottom
753 S.W.2d 915 (Supreme Court of Missouri, 1988)
State v. Twenter
818 S.W.2d 628 (Supreme Court of Missouri, 1991)
State v. Reese
274 S.W.2d 304 (Supreme Court of Missouri, 1954)
State v. Mantia
748 S.W.2d 785 (Missouri Court of Appeals, 1988)

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Bluebook (online)
920 S.W.2d 136, 1996 Mo. App. LEXIS 626, 1996 WL 174791, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cobb-moctapp-1996.