STATE of Missouri, Respondent, v. Amanda N. BAZELL, Appellant.
No. SC 95318
Supreme Court of Missouri, en banc.
August 23, 2016
Rehearing Denied September 20, 2016. Modified on the Court‘s Own Motion September 20, 2016.
497 S.W.3d 263
The state was represented by Richard A. Starnes of the attorney general‘s оffice in Jefferson City.
Amanda Bazell (Defendant) was convicted of burglary and four counts of stealing for breaking into two residences and stealing numerous items of property from each. On appeal, she challenges her convictions for two counts of felony stealing that аrose from the theft of two firearms, which she stole in the course of one burglary, as a violation of her right to be free from double jeopardy. Defendant also claims that the trial court abused its discretion in failing to grant a mistrial due to testimony regarding the composition of a рhotograph lineup, which she claims constituted inadmissible evidence of other crimes.
Under
This Court finds no abuse of discretion in thе trial court‘s failure to grant a mistrial due to the admission of testimony concerning the composition of a photograph lineup. The testimony did not establish that Defendant‘s photograph was retrieved from the jail system, nor did it clearly associate Defendant with other crimes.
The trial court‘s judgment is affirmed in part and reversed in part. The case is remanded for proceedings consistent with this opinion.
Factual Background
Viewing the evidence in the light most favorable to the verdict, Defendant broke into a home and stole a .40-caliber pistol, a .22-caliber rifle, a laptop computer, a jewelry box, a suitcase, and two pairs of tennis shoes. Later the same day, she broke into a second home where she stole three rings with a value of $8,000. Defendant was charged as a prior and persistent offender with two counts of first-degree burglary and four total counts of stealing under
This Court granted transfer after opinion by the court of appeals.
Section 570.030.3 Does Not Apply to Defendant‘s Convictions for Stealing The Firearms
Defendant argues that the trial court violated her right to be free from double jeopardy by convicting and sentencing her on two counts of stealing firearms in the course of one burglary. The Fifth
Double jeopardy analysis regarding multiple punishments is limited to determining whether the legislature intended cumulative punishments. State v. McTush, 827 S.W.2d 184, 186 (Mo. banc 1992). Legislative intent is ascertained by looking to the unit of prosecution allowed by the statute under which the defendant was convicted. Liberty, 370 S.W.3d at 546. The relevant statute here is
3. Notwithstanding any other provision of law, any offense in which the valuе of property or services is an element is a class C felony if:
(1) The value of the property or services appropriated is five hundred dollars or more but less than twenty-five thousand dollars; or
(2) The actor physically takes the property appropriated from the person of the victim; or
(3) The property appropriated consists of:
...
(d) Any firearms.
This reading of
In ascertaining what the phrase “in which the value of property or services is an element” means, this Court employs the primary rule of statutory interpretation, which is to give effect to the plain and ordinary meaning of the statutory language. State ex rel. Valentine v. Orr, 366 S.W.3d 534, 540 (Mo. banc 2012). If the words are сlear, the Court must apply the plain meaning of the law. Id. When the meaning of a statute is clear, the Court should not employ canons of construction to achieve a desired result. Goerlitz v. City of Maryville, 333 S.W.3d 450, 455 (Mo. banc 2011).
Here, there is no need to resort to tools of interpretation because the language of
Because
Evidence Regarding the Method of Composing a Photograph Lineup Was Admissible
Defendant argues that the trial court abused its discretion by denying her request for a mistrial after a detective testified that he compiled a photo lineup from jail photos. She argues that the testimony constituted inadmissible evidence of other crimes in violation оf her right to be tried only for the offense charged.
The decision to declare a mistrial is within the discretion of the trial court because it is in the best position to determine whether the alleged incident had a prejudicial effect on the jury. State v. Blurton, 484 S.W.3d 758, 779 (Mo. banc 2016). A trial court abuses that discretion only whеn its ruling is “clearly against the
Evidence of the commission of separate and distinct crimes is inadmissible unless it has some legitimate tendency to establish the defendant‘s guilt of the charged сrime. State v. McFadden, 369 S.W.3d 727, 741 (Mo. banc 2012).5 Proffered evidence violates this rule when the evidence shows that the defendant committed, was accused of, was convicted of, or was definitely associated with the other crimes or misconduct. State v. Hornbuckle, 769 S.W.2d 89, 96 (Mo. banc 1989). Vague or speculative references to the defendant‘s invоlvement in other crimes do not constitute inadmissible evidence of the commission of other crimes. Id.; State v. Sheridan, 486 S.W.3d 358, 362 (Mo. App. 2015). The defendant has the burden to show that the challenged testimony constituted inadmissible evidence of other crimes. State v. Hawkins, 328 S.W.3d 799, 812 (Mo. App. 2010).
The detective testified as follows regarding a photo lineup shown to a witness:
Q: And so you prepared a photo lineup in this case; right?
A: That‘s correct.
Q: And you said it included [Defendant]?
A: Yes, it did.
Q: How do you typically prepare a photo lineup? Where do you draw photos from?
A: I draw them either from jail photographs or through Department of Revenue driver‘s license photos.
Q: And in this case you pulled them from the Department of Revenue; isn‘t that right?
A: That‘s true.
Q: And how many photos did you pull?
A: Six.
Q: You mentioned that in a photo lineup you want the individuals to have similar features?
A: Yes, they did.
Q: Is there any sort of program that does that for you?
A: I just essentially go through our jail system and locate the number of individuals that have similar characteristics to the one that I am looking for.
Q: But from the Department of Revenue, you said these were pulled?
A: These were pulled from the Department of Revenue. The initial—the initial information afforded to the photographs was drawn from previous jail photos.
Following the detective‘s testimony, defense counsel requested a mistrial on grounds that the detective‘s testimony suggested that Defendant‘s photo was a jail photo which implied that she had committed other crimes. The trial court overruled the request for mistrial. The prosecutor then offered the photo lineup into evidence and continued to question the detective regarding Defendant‘s photo. After the prosecutor established which photo was Defendant‘s, the prosecutor asked:
A: Yes, I did.
Q: And all of these other photos, did you pull those from the Department of Revenue rеcords?
A: Yes, I did.
Defendant failed to show that the detective‘s testimony was evidence of the commission of other crimes by Defendant. The detective repeatedly explained that he obtained the photos, including Defendant‘s, from Department of Revenue records. The detective explained that he used the jail photo system to find other people with similar characteristics to Defendant to fill out the rest of the lineup. The detective‘s testimony did not establish that Defendant‘s photo was in the jail system or that he used the jail system to find her photо. Moreover, an implication that the photograph may have originally been taken by police does not “lead to the inference that the defendant has committed prior crimes.” State v. Wright, 978 S.W.2d 495, 498-99 (Mo. App. 1998). While testimony concerning the use of jail photos that discloses that a defendant has committed other crimes is improper, when, as here, the photograph is discussed in the context of identification and no testimony of prior crimes committed by Defendant was presented in connection with the photograph, the testimony is admissible. Id. The detective‘s testimоny did not clearly associate Defendant with other crimes. The trial court did not abuse its discretion by denying Defendant‘s request for a mistrial.
Conclusion
The trial court‘s judgment is affirmed in part and reversed in part. The case is remanded to the trial court for proceedings consistent with this opinion.
All concur.
Notes
3. Stealing is a class C felony if:
(1) The value of the property or services appropriated is seven hundred fifty dollars or more; or
(2) The actor physically takes the property appropriated from the person of the victim; or
(3) The property appropriated consists of:
...
(d) Any firearms.
5. The offense of stealing is a class D felony if:
(1) The value of the property or services appropriated is seven hundred fifty dollars or more;
(2) The offender physically takes the property appropriated from the person of the victim; or
(3) The property appropriated consists of:
...
(d) Any firearms.