State v. MacKin

927 S.W.2d 553, 1996 Mo. App. LEXIS 1273, 1996 WL 400008
CourtMissouri Court of Appeals
DecidedJuly 17, 1996
Docket18351, 20574
StatusPublished
Cited by5 cases

This text of 927 S.W.2d 553 (State v. MacKin) 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. MacKin, 927 S.W.2d 553, 1996 Mo. App. LEXIS 1273, 1996 WL 400008 (Mo. Ct. App. 1996).

Opinion

CROW, Presiding Judge.

Appellant, tried as a prior offender and a persistent offender, §§ 558.016 and 558.019, RSMo Cum.Supp.1990, was found guilty by a jury of kidnapping, § 565.110, RSMo 1986, and armed criminal action, § 571.015, RSMo 1986. The trial court sentenced Appellant to thirty years’ imprisonment for kidnapping and life imprisonment for armed criminal action, the latter sentence to run consecutively to the former. Appellant brings appeal 18351 from that judgment.

While that appeal was pending, Appellant commenced a proceeding under Rule 29.15 to vacate the judgment and sentences. 1 The motion court denied relief after an evidentia-ry hearing. Appellant brings appeal 20574 from the motion court’s judgment.

*555 We consolidated the appeals, Rule 29.15(Z), but address them separately in this opinion.

Appeal 18351

The first of Appellant’s two points relied on pertains to this appeal. The other point pertains to appeal 20574, infra.

By his first point, Appellant charges the trial court with error in denying Appellant’s request for a mistrial when a State’s witness “testified that they visited Appellant’s parole officer.” Appellant maintains this testimony violated his rights to a fair trial and due process of law in that it “improperly called [his] prior convictions to the attention of the jury.”

Appellant does not challenge the sufficiency of the proof to support the verdicts, hence we shall set forth only the evidence necessary to address the first point.

The crimes occurred at a park in Cass-ville 2 on the morning of July 8, 1991, when Appellant, armed with a “hunting knife,” seized a 21-year-old woman who was sitting alone at a picnic table. With his arm around her neck, Appellant pulled the victim toward his Ford Maverick, parked nearby. The victim was struggling and screaming. She explained at trial: “I realized that if I got in that car, I ... don’t think I would have got out .of that car alive.”

The victim “struggled away and ... twisted around.” Fearing Appellant would use the knife on her, the victim grabbed the blade, suffering a cut on her left index finger.

The victim continued screaming. Appellant, apparently unnerved by the victim’s courageous resistance, entered the Maverick and started the motor. The victim saw “a Kansas license plate, EXL-756,” on the Maverick.

The victim fled on foot to her home, two blocks away. Her brother telephoned police.

The license number was traced to Appellant, a resident of WaKeeney, Kansas. He was arrested there by Kansas authorities three days after the crimes. At time of arrest, Appellant was driving the Maverick bearing Kansas license EXL-756.

Presenting additional evidence that Appellant was in the Cassville area at the time of the crimes, the prosecutor called Appellant’s sister, Barbara Sue Russell, and her husband, Darrell, as witnesses. Darrell testified that he, Barbara, and their children resided in Collyer, Kansas, in July, 1991. They decided to come to southwest Missouri on a camping trip. They were accompanied by Appellant, who provided his Maverick for transportation.

Recounting the journey, Darrell testified that after leaving Appellant’s residence in WaKeeney, they stopped in Great Bend. Then, this:

“Q. Did you stay there?
A. No. We went — Robert had to get some travel papers from his parole officer.
Q. What happened — Did you stay anywhere in southwest Missouri?
A. Yes.
Q. And what happened then? Where did you stop at in southwest Missouri?
A. When we first got to Missouri, it was dark, and we stopped up by the Pe-tro Truck Stop on 1-44.”

At that point, outside the hearing of the jury, Appellant’s lawyer asked for a mistrial. The transcript does not reveal the reason, apparently because some of what Appellant’s lawyer said was inaudible.

The trial court ruled: “Mistrial denied. I don’t think that there was any real attention being brought to it. And if we say anything more about it, it will cause us some prob-lems_ So let’s go on with the trial[.]”

The prosecutor resumed his questioning of Darrell. Appellant’s parole was unmentioned the rest of the trial.

Appellant emphasizes that but for certain narrow exceptions inapplicable here, evidence that an accused committed a crime other than the one for which he is on trial is inadmissible. Appellant maintains that once Darrell Russell mentioned that Appellant had to get travel papers from his parole officer, thereby revealing to the jury that *556 Appellant “had prior convictions,” nothing short of a mistrial could cure the error.

Appellant’s use of the term “prior convictions” overstates Darrell’s testimony. While the jury could infer Appellant had been convicted in the past for committing some sort of crime, nothing Darrell said indicated Appellant had more than one conviction.

We have studied the four cases cited by Appellant. None involved a situation where, as here, a State’s witness, without prompting by the prosecutor, revealed the accused was on parole.

Unresponsive voluntary testimony indicating an accused was involved in an offense other than the one for which he is being tried does not mandate a mistrial. State v. Varvera, 897 S.W.2d 198, 201[10] (Mo.App. S.D.1995). In State v. Price, 787 S.W.2d 296 (Mo.App. W.D.1990), a prosecution witness was asked on cross-examination why he believed the accused did not have a job. The witness answered: “The parole officer came by and said he wasn’t working. ...” Id. at 301-02. The Western District of this Court held the trial court did not err in denying the accused’s motion for mistrial. Id. at 302. In State v. Sanders, 903 S.W.2d 234 (Mo.App. E.D.1995), a prosecution witness testified on direct examination that the accused’s “parole officer was calling.” Id. at 238. The Eastern District of this Court held the trial court did not err in denying the accused’s motion for mistrial. Id.

Darrell Russell's isolated reference to Appellant’s parole officer in the instant case was no more egregious than the references to the accuseds’ parole officers in Price and Sanders. As explained in Price, when a witness unexpectedly volunteers inadmissible information, the action called for rests in the trial court’s discretion. 787 S.W.2d at 302. An appellate court’s review is limited to determining whether the trial court abused its discretion. Id.

We find no abuse of discretion here. Like Price

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Bluebook (online)
927 S.W.2d 553, 1996 Mo. App. LEXIS 1273, 1996 WL 400008, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mackin-moctapp-1996.