State v. Morris

585 S.W.2d 231, 1979 Mo. App. LEXIS 2901
CourtMissouri Court of Appeals
DecidedJuly 17, 1979
DocketNo. 40224
StatusPublished
Cited by9 cases

This text of 585 S.W.2d 231 (State v. Morris) 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. Morris, 585 S.W.2d 231, 1979 Mo. App. LEXIS 2901 (Mo. Ct. App. 1979).

Opinion

PUDLOWSKI, Judge.

Defendant Frank Morris, also known as Castudarrel Cunningham, was found guilty by a jury of stealing from a person. The defendant was sentenced under the Second Offender Act to ten years in the custody of the Department of Corrections. Defendant appeals.

The evidence shows that Eugene and Ca-noy Bueneman resided in the 4900 block of Washington Avenue, City of St. Louis, and operated their home as a boarding house. During the evening of August 6, 1977, Mrs. Bueneman, Mrs. Hays and a third unidentified female resident of the Bueneman home were seated on the front porch. At that time defendant and another man, known to defendant as Bumpy Jay, approached the [233]*233women. The porch was some four feet above the street level. Bumpy Jay walked up the steps from the sidewalk to the porch and engaged the women in conversation. Defendant remained on the sidewalk but within reach of the porch. He said nothing. While Bumpy Jay spoke he seemed to wink and nod to defendant in an effort to signal or communicate surreptitiously. The women were annoyed and frightened by this conduct. Mrs. Bueneman went inside the house and roused her husband who had been sleeping. Mr. Bueneman came to the porch door and asked the two men to leave. As Bumpy Jay departed, walking down the steps from the porch, defendant grabbed Mrs. Hays’ purse and both fled.

Shortly after this occurrence St. Louis Police Department Officers William Abel and Terrance Sloan, who were driving east in the 4900 block of Delmar, observed the defendant and his companion running across a post office parking lot. The parking lot abutted a vacant lot on Washington Avenue which the two men had crossed. Defendant and Bumpy Jay were running together, only a foot to four feet apart. The two ran across the street within twenty feet of the officers’ marked police vehicle. Defendant was carrying Mrs. Hays’ purse.

Officer Abel, who was driving, stopped the police vehicle while Officer Sloan got out. Officer Sloan, who was in uniform, identified himself as a police officer and commanded defendant and his companion to halt. This command was answered by a shot from Bumpy Jay’s revolver, whereupon the two men ran in different directions.

Defendant ran down an alley and into a vacant lot. The lot was covered with weeds and defendant lay among them in an effort to conceal himself. Defendant was quickly apprehended by Officer Sloan. The officer found Mrs. Hays’ purse in the lot three feet from where defendant hid. The purse contained $1.33 and a few of Mrs. Hays’ personal possessions. When asked his name, defendant responded that he was Frank Morris. This name was an alias.

Officer Abel chased Bumpy Jay but was unable to apprehend him.

At trial defendant testified on direct examination that he had been convicted of the fraudulent use of a credit card, burglary and stealing from a dwelling. These convictions resulted in a twenty-five year suspended sentence on condition of five years probation. Defendant also testified that he understood that if he were convicted of another offense his probation would be revoked. However, the trial court precluded defendant from testifying that if his probation were revoked he faced twenty-five years imprisonment because his sentence would be reimposed.

Defendant’s first contention is that the trial court erred by prohibiting admission of the length of his suspended sentence. We do not agree.

Defendant, in maintaining his innocence at trial, testified that his companion took Mrs. Hays’ purse, that he, defendant, fled the Bueneman residence only because he feared his probation would be revoked and that Officer Sloan was mistaken as to where the purse was found. Defendant contends that he had a right to inform the jury that he faced a twenty-five year jail term if his probation were revoked because this bore directly on his state of mind at the time the crime was committed. Defendant also argues that it explains why he fled and accounts for why he gave a false name when arrested. Defendant’s premise is that because he faced the possibility of twenty-five years imprisonment he would not commit another crime and would reasonably fear trouble with the police. Therefore, defendant argues, it was a prejudicial error to exclude evidence of the length of his suspended sentence.

The relevancy of evidence depends on whether the evidence sought to be introduced tends to prove or disprove a fact in issue, or to corroborate evidence which is relevant and which bears on the principal issue. State v. Walden, 490 S.W.2d 291 (Mo.App.1973). It is within the sound discretion of the trial court to exclude evidence when its probative value is substantially outweighed by its prejudicial effect. [234]*234State v. Johnson, 539 S.W.2d 493, 517 (Mo. App.1976); State v. Morrow, 541 S.W.2d 738 (Mo.App.1977). In this context prejudice means more than damage to the opponent’s case. Evidence that the facts are contrary to a party’s contentions is always damaging to his cause; but that cannot be ground for exclusion. “What is meant here is an undue tendency to move the tribunal to decide on an improper basis, commonly, though not always, an emotional one.” McCormick, Evidence 439 (2d ed. 1972). Because of the trial court’s superior vantage for balancing the probative value and prejudical effect, it is vested with broad discretion in admitting or rejecting evidence. State v. Love, 546 S.W.2d 441 (Mo. App.1977).

Wigmore argues that the better rule is to freely admit explanations of flight, leaving to the jury the plausibility of the explanation. Wigmore, Evidence § 276 (3d ed. 1940). In general we agree. However, we cannot say that the trial court abused its discretion in prohibiting defendant from testifying as to the length of his suspended sentence. Defendant was allowed to testify that he had previously been convicted, that he was on probation when the crime was committed and that he knew if he committed another crime his probation would be revoked. Thus, defendant was still able to argue that he never formed the intent to steal, that he fled the scene of the crime and that he gave a false name to the police because he feared his probation would be revoked. In so doing the trial court prohibited admission of the fact that defendant would effectively serve twenty-five years imprisonment for the theft of a purse which contained only $1.33. The prejudicial effect of this evidence could have been considerable. The trial court did not abuse its discretion in determining that the prejudicial effect outweighed the evidence’s probative value. Therefore, excluding its admission into evidence was proper.

The defendant’s second allegation is that the trial court erred by allowing the prosecutor to delve into defendant’s reputation by cross-examining defendant and thereby eliciting testimony concerning his prior convictions. We do not agree.

Defendant has failed to preserve this point for our consideration. There was no objection made by defendant or relief sought at the time the alleged error occurred. Therefore, this point need not be considered. State v. Drake, 514 S.W.2d 653 (Mo.App.1974).

Furthermore, defendant took the witness stand in his own behalf.

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

Related

State of Missouri v. Phelton Johnson
479 S.W.3d 762 (Missouri Court of Appeals, 2016)
State v. Robinson
298 S.W.3d 119 (Missouri Court of Appeals, 2009)
State v. Taylor
929 S.W.2d 925 (Missouri Court of Appeals, 1996)
State v. Daugherty
823 S.W.2d 33 (Missouri Court of Appeals, 1991)
State v. Cummings
765 S.W.2d 366 (Missouri Court of Appeals, 1989)
State v. Tate
637 S.W.2d 67 (Missouri Court of Appeals, 1982)
State v. Sanford
605 S.W.2d 219 (Missouri Court of Appeals, 1980)
State v. Williams
603 S.W.2d 562 (Supreme Court of Missouri, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
585 S.W.2d 231, 1979 Mo. App. LEXIS 2901, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-morris-moctapp-1979.