State v. Powell

595 S.W.2d 13, 1979 Mo. App. LEXIS 3035
Missouri Court of Appeals·Decided December 26, 1979·No. No. 40383·Published·Cited by 4 cases

Opinions

REINHARD, Judge.

Defendant appeals his conviction, by a jury of burglary, first degree and stealing in conjunction with burglary. The court sentenced the defendant under the Second Offender Act to serve ten years on the burglary charge and two years on the stealing charge, these sentences to run concurrently.

On June 29, 1977, Sidney Parker went to bed at approximately 1:30 a. m. Before retiring, he locked his entire house, including the kitchen window. Parker awoke between 2:30 and 3:00 a. m. to the sound of a loose floorboard squeaking. As he sat up in bed, a person appeared in the doorway of his bedroom and shined a light in his face. The man demanded money saying, “I’m going to blow your head off.” Parker told the man that he did not have any money.. After several minutes, the person departed slamming the bedroom door as he left. Approximately five minutes more passed before Parker arose and found the kitchen window and door open. Parker noticed that several items were missing, including an AM/FM stereo clock/radio which was introduced in evidence at trial as State’s Exhibit 1 and identified by Parker as the clock/radio taken from his house.

The State called as a witness Homer Hoffman, an FBI agent, who testified that he set up and operated a “fencing ring” in St. Louis for several months during 1977. Hoffman explained that the fencing operation was a store operated by government agents to which individuals sold stolen goods. The fencing operation was a cooperative effort of the St. Louis Police Department, the Bureau of Alcohol, Tobacco and Firearms, the United States Treasury Department, and the FBI. Further, Hoffman explained that each transaction between the ring operators (government agents) and the individuals who sold goods was photographed and recorded.

The State also called Russell Whitner, the City of St. Louis police officer, who had operated the video and sound recording devices concealed in the building housing the fencing operation about noon on June 29, 1977. The video tape was admitted in evidence and shown to the jury. It revealed that two men, defendant and Hoskins, entered the building carrying various objects. Hoskins carried in the clock/radio identified as State’s Exhibit 1 and placed it on the counter. It remained on the counter during most of the time Hoskins and defendant were in the store. While in the store, the two men made references to other stolen items, although not to others from the Parker home, and also made references to property defendant and Hoskins planned to steal in the future.

Early in the film, one of the agents and the two men discussed the items the men had brought with them:

Hoskins: We just got it last night, this morning while the mother-fuckers in their sleep.
Detective Herbert: While he was in the house!
Michael Powell: Yeah, damn right. Hold up, don’t move or I’ll bust your head, god damn it.
Detective Herbert: Oh, he woke up on you?
Michael Hoskins: Yeah, woke up on the damn bed and he raised up. Bust him across (inaudible).
Michael Powell: Give it up. We got to have it.
Detective Herbert: He didn’t see you or anything, did he?
Michael Powell: No.
Michael Hoskins: No, no. We had all the lights off. We just had a flashlight.

Near the end of the film, the government agent paid Powell sixty-five dollars. After the payment, the two men discussed crimes they had committed in the past and other crimes they planned to commit in the future.

[15] After the film’s showing, Victor J. Herbert, Jr., a special agent of the Bureau of Alcohol, Tobacco, and Firearms, testified. He was one of the countermen in the operation and appeared in the film. He described his part in the operation and certain events that occurred in the film. During cross-examination, defendant had portions of the tape re-played and questioned Herbert extensively to show that it was Hos-kins who brought in the clock/radio and related most of the facts of the break-in the night before.

The other man at the desk, Richard Sisco, a St. Louis police officer, also testified. He described his part in the fencing operation. On cross-examination, portions of the tape were again re-played and Sisco was similarly questioned about Hoskins’ role in the transaction.

On appeal, defendant raises one point of error. He contends that the court erred in admitting in evidence and showing to the jury the tape because it contained evidence of separate and independent crimes not related to the crime for which he was charged. Specifically, he refers to testimony concerning a motor boat and trailer, antique telephones, a digital clock/radio, cars, tires, a television set, a tool box, and a battery charger. Defendant relies principally upon State v. Reese, 364 Mo. 1221, 274 S.W.2d 304 (1954) as authority for his position. There the court stated:

[T]he dangerous tendency and misleading probative force of this class of evidence require that its admission should be subjected by the courts to rigid scrutiny. Whether the requisite degree of relevancy exists is a judicial question to be resolved in the light of the consideration that the inevitable tendency of such evidence is to raise a legally spurious presumption of guilt in the minds of the jurors. Hence, if the court does not clearly perceive the connection between the extraneous criminal transaction and the crime charged, that is, its logical relevancy, the accused should be given the benefit of the doubt, and the evidence should be rejected.

Id. at 307.

Using Reese as authority, defendant claims the evidence of the other crimes contained on the tape was irrelevant and therefore, its admission constituted reversible error. The trial court, in overruling the defendant’s objection to the admission of the tape, determined that the evidence of other crimes was relevant and further found that it would be impossible to separate any objectionable comments contained on the tape from the rest of the exhibit. Although this case was tried prior to our ruling in State v. Brown, 584 S.W.2d 413 (Mo.App.1979) we believe that Brown controls here. Brown sold property to apparently the same fencing operation as did the defendant in this case. In Brown the videotape revealed evidence of other crimes not related to the one for which the defendant was on trial. We held that where the relevant and irrelevant material was inseparable, the entire videotape was admissible. A determination of what is reasonably separable is left to the sound discretion of the trial court. In Brown we found no abuse of discretion.

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State v. Powell, 595 S.W.2d 13, 1979 Mo. App. LEXIS 3035 (Mo. Ct. App. 1979).

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