State v. Harris

534 S.W.2d 516

• Court: Missouri Court of Appeals
• Decided: January 20, 1976
• Docket: 36099
• Status: Published

Opinions

STEWART, Judge.

Defendant was charged with and convicted of first-degree robbery by means of a dangerous and deadly weapon. The court sentenced him to 35 years’ imprisonment.

Defendant’s allegations of error focus upon photographs used for purposes of identification. He contends that comments of the prosecution in opening statement, the answers to questions propounded to witnesses, and an offer by the prosecution to display one of the photographs to the jury, erroneously injected evidence of a prior crime into the case.

Defendant does not question the sufficiency of the evidence to warrant a conviction. At about noon, Donald Bledsoe, who was home on leave from the Marine Corps, was returning to his home from the store. He had turned into an alley when he was approached by defendant and two other men. One of them asked for a cigarette. When Bledsoe removed a cigarette from his pocket his wallet fell to the ground. As he reached for the wallet one of the men put a gun to his head and the defendant grabbed the wallet. The three men then ordered Bledsoe into the basement of a vacant house, struck him and forced him to strip to his underwear. They .discussed among themselves which one would kill him. They finally returned the wallet after removing the cash and told Bledsoe to leave. Bledsoe then ran up the alley to his home and called the police. Mr. Bledsoe identified a photograph of defendant as one of his assailants. He also identified defendant in a line-up. At the trial the victim made a positive in-court identification and also identified defendant from a photograph of the lineup. It was also developed on cross-examination of the victim that he had seen the defendant in the neighborhood some 3 or 4 months before the robbery.

Defendant did not testify but offered two alibi witnesses. The manager of the apartment where he lived testified that defendant was washing clothes on that day. Defendant’s wife said that she noticed freshly washed clothes when she returned home from work that evening.

The facts giving rise to the issues raised will be set out where indicated.

The defendant specifically contends that the court erred in not granting the defendant’s motions for mistrial when the court admitted “evidence of prior crimes of the defendant” in the following respects:

“A) . . . the Circuit Attorney’s statement in the course of his opening statement that two detectives took ‘so-called mug shots of people on file with that division’ to the victim, from which the victim identified the photograph of the defendant, after which the detectives returned to the office where ‘they found out where this man was.’ ”

“B) . . . the statement of the victim, Donald Bledsoe, on direct examination that ‘they came about twice, to show me mug shots.’ ”

“C) . . . the statement of Detective Donnell Whitfield on direct examination that he took ‘photographs of subjects on file in our department’ to the home of the victim.”

“D) . . . the request by the Circuit Attorney made at the close of his case in chief, within the hearing of the jury, whereby he requested permission to pass to the jury ‘State’s Exhibit No. 2, a photograph, a smaller photograph, which is (sic) likewise, been admitted into evidence.’ ”

We confine our discussion to those incidents specifically designated in defendant’s brief.¹

The prosecutor in his opening statement told the jury that the proof would be that detectives of the “Burglary and Robbery Division” would tell them that “they brought out several photographs of so called mug shots of people on file with that division, with the Burglary and Robbery Division,” to the victim. No objection was made to the remarks of the prosecutor when made. He continued his statement for another eleven lines in the transcript. At that time defense counsel approached the bench and informed the court that the State had “introduced evidence, information about defendant ... in the police files. It is an indication of another offense . . .” His only request was for a mistrial.

As in the case of improper argument, objections to statements of the prosecutor must “be made at the time the objectionable statement is made or nothing is preserved for review.” State v. Turley, 518 S.W.2d 207, 211[3] (Mo.App.1974). This incident is not properly before us.

The second occasion was a purely voluntary response by the victim on direct examination as follows:

“Q. Okay, now. How many days after you were robbed, did the detective come out to your house?

A. They came that next day. They came about twice, to show me mug shots. Then the next day, they picked me up.”

The defendant asked for a mistrial on the ground that the Circuit Attorney’s question was so framed as to call for “the answer mug shot”.² The court refused to declare a mistrial. The court, however, interposed and sustained its own objection to the term “mug shot”.³ In the Motion for New Trial defendant alleged that the question was erroneous. He now complains of the answer, not the question. He contends that the court erred in not declaring a mistrial when the victim said, “They came about twice to show me mug shots.” An appellant may not, on appeal, change or broaden the scope of the assignment of error in his motion for new trial. The present contention was not preserved in the Motion for New Trial, and is not now reviewable. State v. Larkins, 518 S.W.2d 131, 135[6] (Mo.App.1974); State v. Kinder, 496 S.W.2d 335, 339 (Mo.App.1973).

If these incidents were properly before us we would find no prejudicial error. Much interest was evidenced in the substance of these issues, by our brethren who would dissent, and for that reason we shall discuss them along with others properly raised.

The defendant’s principal contentions center around the term “mug shot”.⁴ Defendant, as noted above, also complains of the incident when Detective Whitfield testified that he went to see the victim and brought “Photographs of subjects on file in our department.” (emphasis added)

Preliminary to discussion of the issues it is appropriate to restate an old principle. On appeal we should indulge the presumption that the trial court ruled properly. The burden of showing erroneous action on the part of the court is upon the appellant. “. . . error must be affirmatively shown, or appear by necessary implication. Conjectures and inferences will not subserve such a purpose.” State v. Taylor, 134 Mo. 109, 35 S.W. 92, 98 (1896).

That evidence of a defendant’s prior crimes is generally inadmissible, is axiomatic. The jury heard no direct evidence that defendant had previously committed a crime. The primary issue here is whether the use of the term “mug shots” on the two occasions mentioned and one reference to photographs on file with the police department, within the context of this case, necessarily referred to prior criminal activity on the part of the defendant and was prejudi-cially erroneous.

The burden was upon defendant to show that the use of the term “mug shots” and the phrase “pictures on file with our department” [the police department] constituted “evidence of prior crimes”. To reach this conclusion he would have two alternative avenues open to him.

First he would have the burden of proving that all mug shots or photographs on file with the police department are photographs of persons who had committed prior crimes. This he has not attempted to do and it was not incumbent upon the State to prove the contrary.⁵

Alternatively the defendant would have to prove that the average juror erroneously believes that persons whose photographs are on file with the police department have committed other crimes. We cannot infer that the jury inferred that defendant had committed prior crimes because the police department has a photograph of defendant. The defendant has failed to carry the burden of showing that the court erred. See State v. Carson, 501 S.W.2d 503, 506 (Mo. App.1973).

This is not to say that in another case the defendant may not be able to prove that the term “mug shot” connotes prior criminal activity to the average juror.

It is noted that the term “mug shot” was first used by defendant. In the hearing on the Motion to Suppress, immediately before the trial, counsel for defendant, in referring to a picture of defendant, asked of a detective, “Was that a mug shot?” Subsequently Mr. Bledsoe was asked if he talked to the detective. In reply Mr. Bledsoe said, “They brought mug shots.” If defendant had not encouraged or condoned the use of the term, he at least could reasonably have anticipated its use in the trial before the jury. If he felt that the use of the term was objectionable, preventative action could have been taken.

After the defendant objected to the State’s reference to “mug shots” in the opening statement the term was not used again by the prosecutor. The question he asked of the victim was not a leading question and was not so framed as to elicit any reference to mug shots.⁶ When Detective Whitfield testified that he showed the victim pictures on “file with our department” he merely referred to photographs in the files of the St. Louis Police Department. He did not make reference to the files of the Burglary and Robbery Division. There was no inference of prior crimes in this reference.

On the three occasions of which defendant now complains he sought only a mistrial. The court offered to take corrective action by instructing the jury with respect to the term “mug shot”. This offer was refused by the defendant.

As has been well said recently by this court, “The declaration of a mistrial necessarily and properly rests largely in the discretion of the trial court who observed the incident giving rise to the request. The trial court weighs the prejudicial effect and determines, in the exercise of a sound discretion, whether to grant or deny the request. An appellate court will not reverse on such a ground unless it finds this discretion was abused.” State v. Franklin, 526 5.W.2d 86, 90[8, 9] (Mo.App.1975).

State v. Rutledge, 524 S.W.2d 449 (Mo. App.1975) presented practically the same issue. In the first half of the State’s closing argument the prosecutor referred to photographs shown to the witness as “mug shots”. No objection was made and the statement stood unretracted. In the closing half of the argument the prosecutor on two occasions made use of the term “mug shots”. Objections were sustained and the jury was ordered to disregard the statement. The court did not instruct the jury as to the term. The request for mistrial was denied. This court held' that it was “not convinced that a reference to ‘mug shots’ indicates the commission of separate crimes.” We can say here along with Rutledge that “the context in which the term was used was in the identification from photographs and not that the defendant had committed other offenses.”

Other jurisdictions have also faced the same problem. In U. S. v. Robinson, 406 F.2d 64 (7th Cir. 1969), the prosecutor in opening statement said that the witnesses went to the police station where they “looked at what the Police Department calls mug shots [and] picked out [defendant’s] picture . . . .” The court denied the motion for mistrial and took corrective action in the nature of that offered by the trial court in this case. Thereafter, during the trial, witnesses, on numerous occasions, referred to having looked at “a mug file”, “picture file”, “photographs of suspects” or “photographs” at the police station. The court pointed out that there was no direct mention of prior criminal activities and said 1. c. 66:

“The ‘mug shots’ in the case at bar were identified as being at the police station, not at a penal institution, . . ”

". . •. mere reference to ‘mug shots’ unaccompanied by anything suggesting past criminal activities, and where the trial judge gave a comprehensive instruction to the jury cautioning them not to draw any inference of criminality from the term ‘mug shots’ [was not erroneous].”

In Valley v. People, 165 Colo. 555, 441 P.2d 14 (banc 1968) it was held that the court did not abuse its discretion in not declaring a mistrial when an investigator volunteered on direct examination that he had “presented a number of ‘mug shots which are pictures taken in the . jail when a person is booked into jail.’ ”

State v. Clancy, 225 Mo. 654,125 S.W. 458 (1910) is cited as closely akin to this case. In that case the prosecutor not only referred to the defendant as a “police character” but he explained what he meant by the term.⁷ The Supreme Court reversed because the trial court did not take corrective action.⁸ In the present case no direct reference was made to defendant’s character or criminal activity and defendant refused to permit the court to take corrective action. In all the other cases cited by defendant direct references were made to other specific crimes or criminal activity.

The specific references to the term “mug shots” in this case were not preserved for our appellate review. If they had been preserved the trial court cannot be said to have abused its discretion in failing to declare a mistrial.

Another incident of which defendant complains concerns a photograph of defendant which was marked Exhibit 2 and accepted into evidence, but which the court would not permit the State to show to the jury. This exhibit has not been made available to us. From the transcript we learn that it is a likeness of defendant. Counsel for defendant advised the court that it contained a notation: “St. Louis Metropolitan Police Department No. 97950 dated 9/27/72.”

The State did not make use of this photograph during the direct examination of the victim. It was only after defendant, on two occasions in cross-examination, questioned the victim concerning the quality of the picture that the State had the picture marked and introduced into evidence. Upon admonishment of the court the prosecutor placed the exhibit under his file so as not to be in view of the jury. Later the State asked that the jury be permitted to see the picture but only after the notations had been covered up. The State offered to let defendant’s counsel cover any objectionable matter as he desired. The request to show the photograph to the jury was denied.

Thereafter defendant cross-examined Detective Bell with respect to the victim’s statement as to the quality of Exhibit 2. At the close of the State’s case permission to pass Exhibit 1, a photograph of the lineup, was requested and granted. The prosecutor stated, “Your Honor, for the record, State’s Exhibit No. 2, a photograph, a smaller photograph, which is (sic) likewise, been admitted into evidence, for the record; I would ask permission to pass this to the jury.” The court immediately denied the request. Defendant objected on the ground that counsel had been admonished not to show the picture to the jury and asked for a mistrial. The court in denying the request for a mistrial took note of the fact that Exhibit 2 was held in such a manner as not to be discernible to the jury, and thus had not been displayed to the jury. The order of the court had not been disobeyed; there was no basis for the objection.

In view of the fact that defendant questioned the victim’s characterization of Exhibit 2 as hazy, the court in its discretion could have permitted the State to show the picture to the jury. Such a photograph was properly shown to the jury in State v. Childers, 313 S.W.2d 728, 731[5] (Mo.1958). Failure to permit the jury to view the photograph permitted defendant the opportunity to adroitly argue to the jury that he had seen the questioned picture and that “it’s not a hazy picture.”

In oral argument reference was made to the abundance of State’s evidence with respect to the identity of defendant. However, this is a one issue case. As defense counsel phrased it in closing argument, “The only question in this case, or the issue . . .is, was Pat Harris the man who robbed Donald Bledsoe, on Labor Day?” The issue of identity of defendant was in the case from the Motion to Suppress Identification, which was heard on the day the trial began, through final argument.

Defendant’s skillful cross-examination of all of the State’s witnesses was directed exclusively to the question of identification. The memory of the victim was questioned as it affected his identification of the defendant. Defendant’s attack upon the identification was supported by alibi witnesses.

The State had the burden of proving, beyond a reasonable doubt, the principal element at issue in this ease, the identity of defendant as one of the persons who robbed Mr. Bledsoe. State v. Hubbard, 351 Mo. 143, 171 S.W.2d 701, 707 (1943). It was the duty of the State to present as strong a case on identification as it could fairly present.

Although, there was an abundance of State’s evidence to identify defendant, the State “should not be unduly limited as to the quantum of its proof.” State v. Moore, 303 S.W.2d 60, 66 (Mo.1957).

Finding no prejudicial error the judgment of the trial court is affirmed.

SMITH, C. J., and SIMEONE and GUNN, JJ., concur. CLEMENS, J., dissents in separate opinion. KELLY and McMILLIAN, JJ., concur in Judge CLEMENS’ dissent.

1 . At argument on re-hearing mention was made of an indirect reference to the photograph and a comment made in final argument with respect to the “smaller picture”. The term “mug shot” was not used. No objection was made at trial, in the motion for new trial, or in the briefs of the parties with respect to these matters.

2 . “The Court erred by its refusal to grant the defendant’s request for a mistrial following the question asked Donald Bledsoe by the Assistant Circuit Attorney on direct examination, pertaining to whether or not the police took a ‘mug shot’ of the defendant to Bledsoe’s house. This question was clearly inadmissible as evidence of a prior offense and past police history, was highly prejudicial, was clearly irrelevant, immaterial and incompetent, and was offered solely for the purpose of inflaming the passions and emotions of the jury.”

3 . “Mr. Burns: Judge, the Circuit Attorney has asked questions calling for the answer, mug shot. He specifically referred to mug shot again. He is referring to another

crime. As to prevent an unbiased trial, I request a mistrial.

The Court: He is objecting to the word mug.

Mr. Bums: I am objecting.

The Court: I • will sustain it, as to the word, mug shot. Use pictures; and your request for a mistrial is denied.”

4 .“Mug shot ... (6) Slang, to take a photograph of (a person) esp. in compliance with an official or legal requirement.” The American College Dictionary (C. L. Barn-hard, Ed. 1970).

“Mug shot. A photograph of a person’s face — usu. used of official police photographs.” Webster’s Unabridged Dictionary, Third Edition.

5 . If called upon the State could have shown that all cab drivers in St. Louis are required to file their photographs with the police department; that the department has on file photographs of all licensed watchmen, all reserve officers, all police officers, all civilian employees of the department, all police commissioners and all applicants for positions with the police department.

6 . “Okay, now. How many days after you were robbed, did the detective come out to your house?”

7 . “ ‘I mean a man who was under the surveillance and under the suspicion of the police; a man that was liable to be picked up by the police, or arrested by the police.’ ” (125 S.W. 458 at 459).

8 . “Upon objection made by the defendant, the court should have promptly rebuked counsel for the state for his unwarranted remarks, and directed the jury to disregard them. Failure to do so was error.” (125 S.W. 458 at 460).