State v. Simmons

939 S.W.2d 487, 1997 Mo. App. LEXIS 64, 1997 WL 17827
CourtMissouri Court of Appeals
DecidedJanuary 21, 1997
DocketNos. WD 51418, WD 52630
StatusPublished
Cited by3 cases

This text of 939 S.W.2d 487 (State v. Simmons) 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. Simmons, 939 S.W.2d 487, 1997 Mo. App. LEXIS 64, 1997 WL 17827 (Mo. Ct. App. 1997).

Opinion

BERREY, Judge.

Marlon Simmons appeals from his convictions following a jury trial on three counts of selling a controlled substance in violation of § 195.211, RSMo Cum.Supp.1993 and from the denial of his Rule 29.15 motion without an evidentiary hearing. Appellant first alleges the trial court plainly erred in failing to declare a mistrial sua sponte after it was stated at trial that a photograph of appellant used in a photo lineup was obtained from the police records unit. Appellant argues that this testimony, together with other police testimony and argument, constituted prejudicial evidence of other crimes. Appellant next argues the motion court erred in denying his Rule 29.15 motion without an evidentiary hearing in that counsel failed to object to testimony relating to the photograph and to appellant’s being tried in jailhouse clothing. Affirmed.

The factual and procedural background is as follows. On three separate occasions in February, 1994, Detective Richards, an undercover officer with the Kansas City Police Department, met with appellant in a parking lot at 1028 Paseo and purchased cocaine from appellant during each encounter. Each time the detective and appellant completed a transaction, appellant was seated in the detective’s car, giving him an unobstructed view of appellant’s face. The three sales took place on clear afternoons with good visibility. In addition to Detective Richards, a police surveillance team was in a position to observe the transactions. Following each of the transactions, the substance purchased by the detective tested positive for cocaine base.

On February 21, 1994, shortly after the final sale, Detective Locke obtained a photograph of appellant from the police records unit and placed it in a photo lineup with five other men with similar characteristics. After viewing the photo lineup, Detective Richards immediately and positively identified appellant. Appellant was later arrested and charged, as a prior and persistent offender, with three counts of sale of a controlled substance. Trial commenced in April, 1995 before a jury. Appellant elected not to testify and called no witnesses. The jury convicted appellant on all three counts and he was later sentenced to five year terms on each count, with the terms on Counts I and II running concurrently and Count III running consecutively, for a total of ten years imprisonment. Appellant filed an appeal and a motion for post-conviction relief under Rule [489]*48929.15. The motion was denied without an evidentiary hearing. We now take up appellant’s direct appeal and his Rule 29.15 appeal.

Appellant alleges the trial court plainly erred by not declaring a mistrial sua sponte after a detective testified that she obtained appellant’s photograph from the police records unit in that the testimony constituted inadmissible evidence of prior criminal activity.1 According to appellant, this testimony, together with additional testimony from other officers that they had had numerous contacts with appellant over the last twenty years and related statements made during the State’s closing argument, prejudiced appellant.

This Point was not preserved for appellate review. We will grant relief under plain error review only when the error so substantially affects a defendant’s rights that manifest injustice or a miscarriage of justice will result if left uncorrected. State v. Hunn, 821 S.W.2d 866, 869-70 (Mo.App.1991); Rule 30.20.

Evidence of prior uncharged crimes is generally inadmissible to show that a defendant has the propensity to commit such crimes. State v. Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993). None of the well-recognized exceptions are applicable in this case. Appellant relies on State v. Quinn, 693 S.W.2d 198 (Mo.App.1985), wherein the defendant’s conviction was reversed after a detective testified that he showed “approximately thirty-six department photographs” to a stealing victim for identification purposes. When asked where he obtained these photographs, the detective replied, “They come from my robbery books and my crime books_” Id. at 199. Defense counsel objected and requested a mistrial. His requests were denied. On appeal, the court found that the description of the photographs as “department” photographs could possibly have tainted the evidence, but, because the photographs could have been unrelated to any prior criminal activity by the defendant, this specific testimony was not dispositive. Id. at 200. Instead, the court concluded that the latter testimony established that he in fact had a criminal record. Id.

Here, as in Quinn, the photograph came from within the police department. The description of the source of the photograph in this ease (“records unit”) is analogous to the description used in Quinn (“department”). Although “records unit” is arguably more specific than “department” because it identifies a particular unit within the police department, we find that it is still sufficiently vague since the record is devoid of any evidence indicating that all photographs in the records unit are of persons with criminal histories. See State v. Harris, 534 S.W.2d 516, 519 (Mo.App.1976). Thus, unlike in Quinn, it was never established before the jury that appellant had a prior criminal record.

The facts here more closely resemble those in State v. Howard, 714 S.W.2d 736 (Mo.App.1986). An officer testified that he had “pulled” a photograph of the defendant and .that a street crew “knew” the defendant. Id. at 738. Although the defendant failed to preserve his claim of error for appellate review, he argued on appeal that the officer’s testimony was inadmissible evidence of other crimes. The court concluded that, even if the claim had been preserved, no error occurred because the facts were distinguishable [490]*490from Quinn where there was “a clear and unmistakable inference that the defendant had previously been arrested or convicted of a crime.” Id. Appellant’s attempt to distinguish Howard is unpersuasive.

The court in Howard also concluded that the fact that some police officers knew the defendant did not necessarily show that he had a criminal record. Id. We agree. Thus, in the instant case, the officers’ testimony that they were familiar with appellant and the State’s multiple reminders regarding the officers’ familiarity during closing argument were not improper, especially since the officers’ recognition and identification of appellant was a critical issue.

A mistrial is a drastic remedy and trial courts have broad discretion in determining whether to declare a mistrial. State v. Washington, 811 S.W.2d 489, 490 (Mo.App. 1991). Under the circumstances of this case, we find no abuse of discretion in the trial court’s decision to not declare a mistrial sua sponte. Although we caution against testimony similar to that challenged here, Detective Locke’s statement, in the context of the entire record, is not worthy of plain error relief. See State v. Motley,

Related

State v. Turner
367 S.W.3d 183 (Missouri Court of Appeals, 2012)
State v. Butler
984 S.W.2d 860 (Missouri Court of Appeals, 1998)
State v. Malone
951 S.W.2d 725 (Missouri Court of Appeals, 1997)

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Bluebook (online)
939 S.W.2d 487, 1997 Mo. App. LEXIS 64, 1997 WL 17827, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-simmons-moctapp-1997.