657 S.W.2d 44 | Mo. Ct. App. | 1983
Defendant was convicted of robbery in the first degree as a prior offender, and the court assessed the punishment of thirty years on the jury verdict. Defendant raises issues concerning a ruling on a motion to suppress identification evidence and a refusal to grant a mistrial for volunteered information concerning a prior conviction.
There is no claim of insufficiency of the evidence and for the purposes of this case, it is sufficient to say that the robbery victim identified the defendant as the man who entered a liquor store and robbed him.
The issue of the suppression of the identification testimony of the robbery victim is a matter raised only under plain error because the defendant failed to object to the in-court identification by the victim at
The issue with respect to the volunteering of information as to a prior offense arose in rebuttal testimony. The victim had identified the defendant, in part, by means of a mustache, shoulder length hair, and a scab over his right eye. At the time of trial, the hair style and mustache were different from the description given, and there was no evidence of a recent injury causing a scab. The state called the bailiff of the municipal court to testify that he saw the defendant on an occasion four days before the robbery. The bailiff identified the defendant as being the person he saw four days before the robbery. When asked to tell the jury how the defendant “appeared” on the occasion of his having seen him four days before the offense, the witness volunteered the response that the defendant had appeared in the municipal court to ask for a stay of payment on a stealing conviction, apparently referring to a fine. This was objected to by the defense, and a motion to strike was made, as well as a request for a mistrial. The court, in clear and uncertain terms, labelled the answer as nonresponsive, ordered it stricken, and directed the jury to disregard. The court then directed the witness to describe the defendant. The motion for mistrial was overruled.
The state cites a plethora of cases where the witness has alluded to facts inferentially indicating a prior separate offense. Typical of those cases is State v. Walker, 531 S.W.2d 55 (Mo.App.1975). In determining the prejudicial effect of such volunteered statements, unresponsive to the question, the promptness of the trial court’s action in directing the jury to disregard, the offensiveness of the conduct referred to, and the isolated nature of the statement, as well as the lack of any evidence that the state connived in any fashion to permit the testimony to come in are considered in weighing the effect of the evidence. Examining the claim of error in the light of those factors, it does not appear that this evidence was prejudicial in all the circumstances so as to require the grant of a mistrial. Here the statement was with respect to a municipal court violation. It was very brief. The trial court acted promptly in directing the jury to disregard, and the state made no attempt to utilize or emphasize the inadvertent response.
The defendant argues that there is evidence that the state connived in some fashion to put the evidence before the jury. The record does not support that assertion. It is true that the state knew that the defendant was in municipal court for a specific purpose, but the state, confronted with the necessity for using the bailiff of the municipal court and specifying the date and
Under similar circumstances, mistrial was not required. State v. Crawford, 619 S.W.2d 735 (Mo.1981). “The officer’s statement was volunteered, and there is nothing to indicate that the answer constituted a conscious effort on the part of the prosecutor or of the witness to inject a prejudicial inference, or that it was anything but an innocent and unintentional revelation.” Id. at 740.
The judgment of conviction is affirmed.
All concur.