State v. Powell , 595 S.W.2d 13 ( 1979 )


Menu:
  • 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.

    *15After 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.

    Here, the trial court and counsel viewed the tape prior to its admission in evidence and showing to the jury. We have viewed the tape as we did in Brown and find that the evidence as to the sale of the clock/radio was relevant. That sale included the showing of the defendant and his cohort coming into the building, Hoskins carrying in the clock/radio and placing it on the counter, the subsequent payment to defendant, and no payment to Hoskins. The cornerstone of defendant’s argument was that Hoskins alone carried in the clock/radio and discussed its theft. Defendant’s counsel implied in cross-examination of Herbert and Sisco that since defendant did not carry the clock into the store, there was no real showing that he was in any way connected with the clock or its burglarious stealing. The entire tape was relevant, including that portion subsequent to the payment of the defendant, to refute defendant’s implied contention that the payment he received was not for the clock. The entire tape revealed only one payment *16which was made to the defendant. The jury could infer from an entire showing of the tape that the sole payment to the defendant must have included payment- for the clock and therefore that he participated in its burglarious stealing. Only by showing the entire tape would the jury be able to discern that no other payment was made to Hoskins. As in Brown, we believe editing the objected to portions of the tape would have left it so fragmented and piecemeal as to render it useless to the prosecution.1 The deletion of any part would have weakened the state’s proof as to the only payment being to defendant. We find no abuse of discretion by the court in the failure to separate evidence of other crimes and the admission of the entire tape.

    Judgment of trial court affirmed.

    DOWD, P. J., concurs. CRIST, J., concurs in separate opinion. JAMES D. CLEMENS, Senior Judge, dissents in separate opinion.

    . While we have viewed the tape, it is impossible to describe all that the exhibit revealed. In fact, even the transcription by the court reporter is inadequate to fully reveal what occurred.

Document Info

Docket Number: No. 40383

Citation Numbers: 595 S.W.2d 13

Judges: Clemens, Crist, Dowd, Reinhard

Filed Date: 12/26/1979

Precedential Status: Precedential

Modified Date: 10/1/2021