State v. Pierce

595 S.W.2d 748, 1980 Mo. App. LEXIS 3063
CourtMissouri Court of Appeals
DecidedFebruary 26, 1980
DocketNo. 39282
StatusPublished
Cited by10 cases

This text of 595 S.W.2d 748 (State v. Pierce) 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. Pierce, 595 S.W.2d 748, 1980 Mo. App. LEXIS 3063 (Mo. Ct. App. 1980).

Opinion

KELLY, Chief Judge.

John W. Pierce was convicted of a violation of § 560.010 RSMo.1969, Arson of a Dwelling House, and, in accordance with the jury verdict was sentenced to a term of two years and seven months in the custody of the Missouri Department of Corrections. He has appealed. We reverse and remand for a new trial.

Appellant contends the trial court erred in (1) failing to declare a mistrial when the state cross-examined him on whether he had committed another act of arson without showing a conviction of that crime; (2) overruling his oral motion to prohibit the state from interjecting the issue of fire insurance into the case without a showing of overinsurance; (3) allowing the state, over objection, to instruct the jury on the law of general responsibility for the conduct of others during voir dire and to define “reasonable doubt” during a summation; (4) submitting to the jury verdict forms which did not comply with MAI-CR 2.86; and, (5) overruling his motion to suppress statements.

Appellant has not attacked the sufficiency of the state’s evidence to support the verdict of the jury and therefore a brief statement of the facts supporting the jury verdict will be sufficient.

The evidence, viewed in this light, was that the appellant purchased the building at 1912-1914 Senate in the City of St. Louis in June or July, 1975, for $5,000.00. He and his family occupied the first floor apartment as their home and two second-floor apartments were occupied by tenants of the appellant for dwelling purposes. One of these tenants was Cecil Hearn who was. a co-defendant with the appellant and appeared and gave testimony for the state. One Jack Barrack had sub-let the other of the second floor apartments from A1 Jordan, appellant’s tenant, four days prior to December 4, 1975. Appellant, Hearn and Barrack, acting together, conspired to set fire to the building and on December 4, 1975, appellant advised Hearn that the building would be burned that night. Hearn removed some of his possessions from his apartment and Jordan removed some of his possessions from the basement of the building. Hearn observed two gasoline cans sitting by appellant’s truck and also saw appellant with a siphoning hose. Hearn and Barrack carried two cans containing ten gallons of gasoline to the attic of the building and appellant instructed Barrack to burn the attic, the second floor of the building and the roof, but not to burn the first floor.

At approximately 9:30 p. m. Hearn left the premises and when he returned the next day the walls were blown out of the ends of the building and it smelled of fire. The attic, the second floor and the exterior of the building were damaged. The first floor of the building suffered some damage.

Appellant, in a statement made to Thomas O’Connor, a police officer, admitted that he had been contacted on December 4,1975, by either Hearn or Barrack and there was some conversation about the house being burned down that night. He further admitted that he had siphoned five gallons of gas from his truck and it was taken to the second floor of the building. He also told Officer O’Connor that, as the owner of the house, he expected to collect insurance money for heat, smoke and water damage caused by the fire in Hearn’s apartment.

In his statement to Officer O’Connor, appellant said he and his wife and children had left their apartment on the evening of December 4,1975, and gone to the residence [750]*750of his brother-in-law in Imperial, Missouri, and did not return to their home again until approximately 1:00 p. m. on the 5th. The dwelling had been burned when they returned. He knew Hearn wanted to set fire to his second floor apartment because Hearn needed money for past due rent and to post bond and hire an attorney because he had been arrested in Illinois for a burglary, and Hearn intended to collect insurance on the contents of his apartment. He also told the officer he had loaned Hearn the money to purchase this policy of insurance. He told Officer O’Connor that he had consented to Hearn setting fire to his apartment and that his part in this scheme was siphoning the gasoline from his truck.

There was also testimony from other police officers and a criminalist of the Metropolitan St. Louis Police Department that the fire had the characteristics of an explosion caused by gasoline and that a laboratory analysis of debris and other evidence from the scene showed that gasoline was present.

Appellant’s first Point Relied On is directed at a question propounded to him by the Assistant Circuit Attorney during cross-examination, whether, in fact, he had committed the offense of arson of a house located in St. Louis County. After the appellant responded “No” his trial counsel interposed an objection and requested that it be stricken from the record, the jury be instructed to disregard it, and a mistrial be declared. Appellant’s objection to the question was sustained, was ordered stricken from the record, and the jury was instructed to disregard it; his request for mistrial was denied.

This case was tried prior to the decision in State v. Dunn, 577 S.W.2d 649 (Mo. banc 1979) wherein it was held that it was prejudicial error requiring reversal of a conviction and remand to the trial court for a new trial for a prosecutor to inquire on cross-examination of a defendant, over objection, whether the defendant had engaged in criminal misconduct for which he had not been convicted where the state acknowledged that the question was an attempt to elicit evidence of another crime which would have a legitimate tendency to directly establish defendant’s guilt of the charge for which he was on trial.

At trial of this case the prosecutor did not state on what grounds this line of inquiry was admissible. On appeal the state initially contended that the question was proper to test the witness’s credibility, but after the Dunn decision abandoned that argument and took the position that any prejudice resulting from the question was removed by the trial court’s instructions to the jury to disregard the question and answer.

As the court in Dunn recognized, 577 S.W.2d, l.c. 651, “ . . . it is apparent that it is not the answer which prejudices the defendant, it is the question that carries the poison.” Nevertheless, the court recognized that although a general question of whether the witness has ever committed a crime might have little effect on a jury, a question containing detailed information such as date, location, victim, or nature of the crime would reasonably cause the jury to conclude that the question was based upon information known to the questioner which a negative response would not remove, and, therefore, would leave the jury with a belief that the witness had committed the crime inquired about, and was a person of bad character, whether the question had support in fact or not.

The court in Dunn did not adopt an absolute rule forbidding all questions put to any witness, defendant or not, with respect to prior misconduct, other than convictions. It did however, take notice of the fact that a question concerning prior misconduct places a defendant in a more precarious position than any other witness in the case and presents him with two alternatives, either of which is damning.

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Related

State v. Hurst
732 S.W.2d 206 (Missouri Court of Appeals, 1987)
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726 S.W.2d 780 (Missouri Court of Appeals, 1987)
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State v. Freeman
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629 S.W.2d 509 (Missouri Court of Appeals, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
595 S.W.2d 748, 1980 Mo. App. LEXIS 3063, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pierce-moctapp-1980.