State v. McCaw

753 S.W.2d 57, 1988 Mo. App. LEXIS 696, 1988 WL 48457
CourtMissouri Court of Appeals
DecidedMay 17, 1988
DocketNo. 52210
StatusPublished
Cited by2 cases

This text of 753 S.W.2d 57 (State v. McCaw) 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. McCaw, 753 S.W.2d 57, 1988 Mo. App. LEXIS 696, 1988 WL 48457 (Mo. Ct. App. 1988).

Opinion

SIMON, Presiding Judge.

Appellant, James McCaw, Jr., appeals his conviction by a jury in the Circuit Court of St. Louis County for stealing in violation of § 570.030 RSMo (1986). On appeal, appellant contends the trial court erred: (1) in overruling his objection when a police officer testified that he had seen appellant on more than one occasion because the testimony injected appellant’s character into evidence and was evidence of other crimes; and, (2) in overruling his motion for mistrial when a police officer testified at trial that he had searched and seized keys from appellant when said evidence had not been disclosed to appellant’s counsel pursuant to his timely Motion for Discovery. We affirm.

Appellant does not contest the sufficiency of the evidence. The facts elicited at trial are as follows: The victim left his house in St. Louis County at approximately 7:00 a.m. on October 1, 1985. He returned home from work sometime between 3:30 and 4:00 p.m. that same day after receiving a call from his brother that the victim’s garage door was open and his 1981 Corvette was missing. Upon arriving at home, the victim discovered that two video cassette recorders, a fox jacket, a jewelry box, a set of silverware, and a cassette tape deck were taken.

That same day, a woman who lives nearby the victim returned to her house at approximately 12:30 to 1:00 p.m. The woman noticed that her front gate, which was closed when she left, was open and that a green Buick Electra with a cream-colored top was in her driveway. She observed [58]*58three black males inside the automobile. The driver told her that they needed water and got it. The woman reported the incident to the police. She later identified the Buick Electra on a police lot.

Shortly after midnight on October 2, 1985, police officer John Rice found the victim’s Corvette in an alley in the City of St. Louis. All four wheels were gone, the dashboard was destroyed, and the radio was missing. A few lug nuts were found nearby. Police investigators were able to lift a palm print from the roof of the vehicle which was later identified to be that of appellant.

As a result of the palm print analysis, Detectives Robert Dougherty and David Glenn of the St. Louis County Police Department, attempted to locate appellant on October 2, 1985. Approximately two blocks away from appellant’s home in Well-ston, the detectives saw appellant driving the Buick Electra which had been observed the previous day by the woman witness. Both detectives testified that they were previously familiar with appellant. They pursued appellant at a high speed. Finally, the Buick stopped and appellant jumped out and ran away. The detectives gave chase on foot, but were unable to apprehend appellant at that time.

Officer Andre Denham of the City of St. Louis Police Department was called to stake out the abandoned Buick. While Officer Denham waited, appellant drove up in a car, clad in different clothing. Officer Denham asked appellant who was the owner of the Buick. Appellant responded that the owner was “a guy named Ricky.” The owner of the Buick was later found to be Ricky McCaw, appellant’s brother. Officer Denham searched appellant, recovered keys from him and checked to see if the keys fitted the Buick; they did.

Following appellant’s arrest, a search of the Buick yielded the following: the Delco AM-FM stereo radio taken from the Corvette in the Buick’s trunk, and knobs from the radio and Corvette lug nuts inside the Buick’s passenger compartment. The wires from the radio matched the wires remaining under the dash of the Corvette.

In his first point on appeal, appellant maintains that the trial court erred in overruling his objection to testimony from Detective David Glenn during his direct examination in which he stated that he had seen appellant on more than one occasion. Appellant contends that this testimony injected the appellant’s character into evidence because the testimony constituted inadmissible evidence of other criminal behavior of the appellant.

' We note that Detective Robert Dougherty testified at trial prior to Det. Glenn. Det. Dougherty testified not once, but twice, without objection, that he had seen appellant previously. Thus, appellant waived his right to have Det. Glenn’s testimony excluded. State v. Patterson, 516 S.W.2d 571, 574[5] (Mo.App.1974). Even if the testimony was incorrectly admitted, we find it is harmless error as, “[i]t is well known that most police officers have a wide acquaintance among the citizenry in géneral and the fact that a person is known to a police officer does not necessarily convey the impression that he has a criminal record.” State v. Pitchford, 324 S.W.2d 684, 688[4] (Mo.1959).

Appellant’s attempt to distinguish the instant case from the Pitchford line of cases is not well taken. Neither Det. Dougherty nor Det. Glenn testified that they had known appellant from previous criminal activity. Failing to find prejudice, appellant’s first point is not meritorious.

In his final point on appeal, appellant contends that the trial court erred in overruling his objection and motion for mistrial when Officer Denham testified that he searched and seized keys from the appellant that fit the Buick Electra. Since appellant’s attorney had filed a timely request for discovery and a motion to suppress evidence, and since appellant’s counsel was surprised by the testimony surrounding the search and seizure of the keys, appellant claims he was unfairly prejudiced.

The testimony concerning the keys is as follows:

[59]*59Q. (By Prosecutor): Now, relative to the car that was stopped, Officer, the Buick vehicle, the one that you staked out, did you have any conversation with [appellant] with regard to that car?
A. We searched him and we had found keys and asked him whose keys they were and they fit that Buick that was stopped.
Q. Did you, yourself, place the keys in the Buick that was stopped?
A. Yes, sir.
Q. Did they fit the Buick?
A. Yes, sir.
PROSECUTOR: I have nothing further.
CROSS EXAMINATION
BY DEFENSE ATTORNEY:
Q. You have those keys here?
A. No, sir.
Q. You don’t have these keys here?
A. No, sir.
Q. Did you ever — what did you do with them?
A. Turned them over to the officers.
Q. To Detective Dougherty and Detective Glenn?
A. Yes, sir.

Appellant’s counsel did not raise his objection regarding the keys until after Officer Denham completed his testimony. Although appellant’s counsel could not have possibly anticipated Officer Denham’s reply in advance, counsel could have moved for a motion to strike and raised his objection immediately following the keys comment. In the absence of a motion to strike, the point is not preserved for review. State v. Worthan, 632 S.W.2d 19, 22[4] (Mo.App.1982).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Wyman
945 S.W.2d 74 (Missouri Court of Appeals, 1997)
State v. Sanders
761 S.W.2d 191 (Missouri Court of Appeals, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
753 S.W.2d 57, 1988 Mo. App. LEXIS 696, 1988 WL 48457, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mccaw-moctapp-1988.