State v. Anderson
76 S.W.3d 275
Mo.
2002
Check Treatment

*1 Missouri, Respondent, STATE of ANDERSON, Appellant. M.

Cornealious No. SC 84035. Missouri, Supreme Court of En Banc. May *2 men,

by two guns both with kind —“the clip goes where the in the handle.” A police officer later that testified in his ini- tial police, statement to the victim indicat- ed that one perpetrators handgun. No was ever recovered. Although called a par- “brochure” ties, actually the exhibit is one letter-sized (8.5" 11"), x glossy of advertisement Be- pistols retta semi-automatic 7 on —with side, one and 11 on the reverse. The issues are whether the brochure should admitted, not, have been and if whether its prejudicial admission was so that it de- prived Defendant of a fair trial.

II. trial court’s admission evi disturbed,

dence is not an absent abuse of Simmons, discretion. State Admissibility requires relevance. Kimbrell, Chesterfield, Alan G. for Ap- general rule in is that ' Missouri rele pellant. vance is logical legal. two-tier: State (Jay) Nixon, Jeremiah Atty. Gen., W. Smith, Buchheim, Gen., Atty. Evan J. Asst. Jef- 2000); Sladek, City, Respondent. ferson 1992) (Thomas, J., concurring). if logically Evidence relevant it tends to BENTON, Judge. DUANE make the existence of a material fact more Comealious M. Anderson was convicted Smith, probable. or less the first and aimed Logically relevant evidence admissible sentenced consecu- only legally Legal if relevant. relevance tive terms ten and three years, respec- weighs value of the evidence tively. argues He that the circuit court against prejudice, its costs—unfair confu in admitting magazine erred a “Beretta issues, sion of misleading the jury, brochure for handguns.” semi-automatic delay, time, undue waste of or cumulative opinion by Appeals, After Court Sladek, Thus, ness. 835 S.W.2d at 314. Const, granted transfer. Mo. art. logically relevant evidence is if excluded its V, sec. 10. Affirmed. outweigh its costs benefits.

I. Here, possession Defendant’s step-brother Defendant and his robbed the brochure tends to probable make more making night depos- victim he was handgun that he was familiar with a like it. The victim testified he was robbed that described the victim. This connec- tenuous, admitting the Beretta brochure logical but relevance has erred tion legally relevant. very Id. because was low threshold. objects finding Defendant that this III. *3 logical is on an of relevance an inference involving the admission In matters inference, impermissible. is See which evidence, preju this “reviews for of 346 Mo. Ring, S.W.2d dice, error, only and will reverse not mere (banc not 64-65 The brochure need it prejudicial that de if the error was so the ultimate address fact Defendant See, the of a fair trial.” prived defendant (with handgun clip) used a a to commit the Johns, 93, 103 e.g., State prob robbery, may but rather make more 1012, 121 denied, cert. 532 U.S. is a that Defendant familiar with such able (2001). 1745, 149 L.Ed.2d 668 S.Ct. Koskovich, Jersey New gun. See (2001) 144, 162-63 (gun- N.J. 776 A.2d im Although the brochure was magazine defendant’s covers corroborate admitted, deprive not properly it did Thus, guns). the brochure ad Defendant of a fair trial. Defendant logically relevant to a material fact. is trial, and at guilt police to the mitted confessing participating the rob to logical Because the brochure has bery. step testified that his Defendant relevance, probative legal its relevance — pistol,” a “BB but denied brother versus costs—must be determined. value having a himself. minimal. probative is brochure’s value at inconsequential tri- The brochure was only The victim described the manner of admitted, a during al. It was detective’s gun. description is so loading This objection. testimony, over Defendant’s general many that it hand includes other The detective found brochure —with guns, Berettas. besides papers apartment various other —in The first of of is cost evidence of the day lived on the where Defendant Sladek, prejudice.” “unfair at robbery (although had moved before long 314. This Court has identified the occurred). admitted, the the search When weapons introducing unfair of once, only in six mentioned brochure was not the defendant or the connected to words, package papers. of part as Wynne, crime. 353 Mo. (1944). Later, “First, during cross-examination there Defendant, tendency a the State asked about bro- natural to infer from the chure, immediately about object, questions after production any mere material evidence, gun. BB Defendant testified that the truth of and without further apartment, in his but be- Secondly, it. predicated all that brochure a longed neighbor got to who it at deadly weapons injuries his sight of or of cruel depicted Be- acknowledged He it associ- show. tends to overwhelm reason and to rettas, he was not familiar with atrocity but stated ate the accused with the without that he them. He further testified never Id. sufficient evidence.” went to show. Although the is not as over- brochure questions De- whelming jury introduction of a Other than the seven to (but lesser) itself, identification similar un- fendant and brief it risks detective, at to Compared its minimal there was no reference trial prejudice. fair value, did not include unfairly the brochure. Defendant the brochure closing argu- opening court statements prejudiced Defendant. The trial record, ments which apparently did also agree that its admission not did de- prive record, mention the brochure. On this Defendant of fair trial. the admission of the brochure did not de- I my separately express write disaf- prive Defendant of a fair trial. phrase fection for the prejudice.” “unfair usage phrase Previous this Defendant cites cases where this Court Court, presence its Re- Mo. Evidence reversed convictions due admission stated, and in Fed. R. its inclusion Evid. weapons wholly unconnected to the offense my do not alter view that or the offender. Wynne, See confusing, meaningless phrase offering no 298-300; Richards, 334 Mo. help guidance appellate judges, to trial *4 485, 58, 67 (1933); S.W.2d 61 v. State courts, anyone weighing else in Krebs, 58, 341 428, Mo. 106 S.W.2d 429 “cost” of evidence. (1937); Smith, 467, State v. 357 Mo. 209 138, (1948); S.W.2d 141-43 State v. Hol WOLFF, Judge, MICHAEL A. bert, 129, (Mo.1967); 416 S.W.2d 132-33 Concurring Dissenting in Part Part. and Baker, 583, (Mo. State v. 434 587 S.W.2d I concur that the trial court erred in 1968); Merritt, 591, State v. 460 S.W.2d admitting into the Beretta brochure (Mo.1970). 595-96 The incidental refer evidence, from the but dissent conclusion ences this case a one-page brochure error, evidentiary properly pre- that the nearly are not prejudicial display as the review, prejudicial. served was not weapon itself. relevancy, legal determining When principal opinion prejudicial that the finds

IV. admitting effect of brochure out- judgment The is affirmed. weighs I agree its value. with majority’s analysis up point. to this LIMBAUGH, C.J, PRICE, J., and Because it does not matter whether the concur. real, gun used was I also concur with the majority respect with to the degree first SHRUM, J, KENNETH Sp. W. robbery conviction. separate concurs in opinion filed. As to the armed criminal howev- er, J., WOLFF, the principal opinion ignores concurs in a critical part and point. preserved The by proper error was in part, separate opinion dissents filed. objection preserved, and is where error STITH, WHITE and LAURA DENVIR presumed prejudicial error to be JJ., WOLFF, separate opinion concur in the state of showing bears the burden J. error to be v. Taylor, harmless. State 739 TEITELMAN, RICHARD B. J. not 220, (Mo.App.1987); S.W.2d State participating. Miller, (Mo. 619, v. 650 621 S.W.2d banc 1983); Rhodes, 521, State v. 988 S.W.2d SHRUM, KENNETH Special W. (Mo. 1999); State, 529 banc Burton v. 641 Judge, concurring. (Mo. 1982); S.W.2d 99 banc State v. I concur in the principal opinion in all Grant, 784 (Mo.App.1990). S.W.2d 834 respects, analysis its including holding. standard in the state varies there, For the reasons agree stated I case law from showing beyond a reason- was brochure, error to admit the gun harmless,1 but able doubt that the error was Miller, Taylor, v. 1987); (Mo. State State (Mo.App. 739 S.W.2d 220 v. 650 S.W.2d 619 this kind presuming prejudice the error show Anderson’s unless was offered brochure gun.3 question.”2 “harmless ... without case, before in the state’s and received de Regardless of the standard is how testified, not of- and thus was Anderson scribed, primary method to show unfa- testimony that was fered to rebut result, that the harmless error to show gun. miliar with evidence, would without erroneous tellingly, the brief submit- Most state’s have been the same because evidence argues that the evidence ted in case Ford, overwhelming. guilt State was guilty that Anderson prove helped 1982); 573, 576 State robbery and armed of first Sykes, S.W.2d in the guns depicted “the action because 1982); guns to the brochure were similar Rush, 949 ” Moreover, victim described at trial .... (Mo.App.1997); argues here that the bro- state Davidson, (Mo.App. testimony the victim’s chure “corroborated 1997). Or, hold, pre as other cases step-brother and his [Anderson] that both *5 sumption is rebuttable guns during robbery the carried particular facts and circumstances of the impeached post-arrest state- [Anderson’s] Grant, Burton, 99; at case. 641 S.W.2d only gun a stepbrother ment that his Walker, 834; at 1972); Ford, instructions, jury in According to the 575. 639 S.W.2d. at guilty of first de- to find Anderson order improperly gun than the Other admitted gree robbery and armed criminal brochure, only gun the that a real evidence jury the did not need to find that the committing was used the crime was possessed a weapon. himself Anderson testimony of the victim. The testi- victim stepbrother’s possession would have The gun fied that the was of the where for first The instruction been sufficient. gun clip goes the into the handle. No was minimum, a robbery requires, at degree ever recovered. or stepbrother “displayed that Anderson’s of the was not gun evidence use appeared to be threatened use what strong overwhelming. and was far from instru- deadly weapon dangerous a or Richardson, To convict Anderson of ment.” 1996). The admission of the gun that the jury not have to find did duration, brochure, contrast, gun while brief gun. By a used was real seems crucial to the state’s case. The for armed criminal action re- instruction not, deadly contrary weapon use a or dan- purpose quires state’s was opinion’s gerous It is unclear whether principal assumption, simply instrument.4 gun denying defendant was not that used felony claiming but was that to commit accidentally. 2. State v. fired The evidence (Mo. banc.1972). shooting defendant’s of the relevant to show knowing purposeful and because victim was majority Jersey opinion proficient weap- cites New experienced 3. The with he was Koskovich, Supreme a case where a state at ons. Id. 163. gun magazines found Court determined that any instru- 4."Dangerous instrument means were admissible to in the defendants bedroom substance, ment, article, which, under the guns. show 168 N.J. used, readily (2001). in which it is In case the circumstances A.2d that by concluding decided the issue jury that BB gun dangerous is a instrument BARTON, Appellant, Walter or by deciding that Anderson or his step- brother used kind pictured

the brochure. Missouri, Respondent. STATE of only The brochure is the corroboration No. SC 83615. of the understandably state’s weak evi- Missouri, Supreme dence. It all cumulative and En Banc. cannot be treated as harmless.5 Without brochure, the evidence supporting June armed criminal action is neither strong nor overwhelming.6

The record shows reason the state offered brochure is to convict Carlyle, Summit, U. Elizabeth Lee’s Anderson of armed criminal action and to Appellant. help convict him robbery— of first Nixon, Gen., (Jay) Atty. Jeremiah W. opposed to second-degree robbery. Morrell, Gen., Stephanie Atty. Asst. Jef- improper state’s appears evidence City, Respondent. ferson have had its intended effect. is no There way reasoning to discern the actual PER CURIAM. circumstances, In jury. these the doubt *6 state, weighs against which has the Findings fact and conclusions of law of overcoming presumption burden upon made a court motion for post- prejudice. Anderson’s admission that his specific conviction relief must be enough to stepbrother gun may had a BB eliminate permit meaningful appellate review. State as to the armed Parker, (Mo. banc conviction, but not as to armed criminal 1994). findings conclusions action. relating this case to disclosure of the dis- pending charge missal The state has not pre- overcome the exchange for testimony witness for sumption prejudice, and I therefore dis- specific enough. the state are not As the sent. judgment The trial court’s as to findings may and conclusions on this issue armed criminal action should be reversed findings cause other and conclusions to be and the case remanded for new trial. changed, judgment in this case is re- entry versed. The cause remanded findings of new and conclusions as to all raised, including issues the issues raised trial, the “motion for new reconsideration denying reopen of order relief or to hearing.” purpose additional For this Ford, capable causing death or other serious 6. See State 1982); Sykes, State v. Jury 628 S.W.2d 653 physical injury.” Instruction No. 1982); State v. Rush, (Mo. Hanway, 5. State v. (Mo.App.1997); 949 S.W.2d 251 App.1998). Davidson, (Mo.App.1997). S.W.2d 87