# State v. Griffin > Supreme Court of Missouri · December 20, 1983 · 662 S.W.2d 854 URL: https://www.frixlaw.com/law-library/cases/9763067 ## Case - **Full name:** STATE of Missouri, Respondent, v. Larry GRIFFIN, Appellant - **Court:** Supreme Court of Missouri - **Decided:** December 20, 1983 - **Citations:** 662 S.W.2d 854; 1983 Mo. LEXIS 456 - **Precedential status:** Published - **Opinion:** Dissent by Blackmar - **Judges:** Billings, Rendlen, Welliver, Higgins, Gunn, Donnelly, Blackmar - **Cited by:** 34 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9763067 ## Opinion text BLACKMAR, Judge, dissenting. Judge Billings’ able opinion deals correct ly with most of the issues in this ease, which was generally well tried. I regret that I cannot join in the affirmance, but I believe that the defendant was improperly burdened by evidence, which should not have been admitted, of the May 13,1980 shooting involving Robert Campbell. The only eyewitness to the murder had a seriously flawed background, and his ability to observe and identify the gunman was also subject to question. The error, then, was prejudicial, and the only solution is a new trial. I. The principal opinion properly observes that, in a capital murder case, evidence of a prior attempt by the defendant on the victim’s life is highly relevant in showing a continuing scheme or plan and in establishing the element of deliberation. By the same token, however, evidence which indicates the defendant’s involvement is highly prejudicial if the defendant is not sufficiently tied into the prior attempt. There have been numerous reversals because the prosecution offered evidence of prior and *861 relevant criminal conduct, without sufficiently tying the defendant into the prior offenses. 1 A lesson from the pages of history should be helpful. The famous case of State v. Hyde, 234 Mo. 200 , 136 S.W. 316 (1911), involved a charge of murder of Colonel Thomas Swope, longtime resident of Jackson County and civic benefactor. The defendant, a physician, was his nephew by marriage. The prosecution claimed that Dr. Hyde had hastened Colonel Swope’s death by deliberately prescribing medication which produced a lethal accumulation of arsenic. In an effort to bolster its case the prosecution tried to show that the defendant had used his medical knowledge in an effort to kill other members of the Swope family, by excessive bleeding of a stroke victim, and by introducing typhoid germs into food or water. The suggested motive was to increase his wife’s inheritance. This Court reversed the conviction because it concluded that the state had not established homicide or attempted homicide in regard to the other members of the family. The defendant, therefore, was burdened by improper innuendo in making his defense. Nobody identified the defendant as the perpetrator of the May 13 shooting. The only link to him is Robert Campbell’s hearsay statement that the gunman was riding in a black-over-brown four-door older Cadillac, and the defendant’s presence as a passenger in a black-over-brown two-door Cadillac. No eyewitness to the May 13 shooting even testified. The state relied entirely on the testimony of a police officer who interviewed Campbell at the scene. Campbell had been wounded in the leg. He lost substantial blood and was in a dazed condition. He described the gunman’s car m response to a police officer’s question. Although the admission of Campbell’s statements as “excited utterances” goes beyond any reported Missouri case applying this particular exception to the hearsay rule, 2 the conclusion is in line with the liberal view of modern authorities such as the Federal Rules of Evidence. 3 The holding will permit the introduction of evidence both in civil and criminal cases which would have been rejected under the prior law. But I do not disagree strongly with the majority on this particular portion of the court’s holding. The problem is that the police officer who interviewed Campbell definitely committed himself to Campbell’s description of a four-door automobile. It makes no difference that the officer did not disclose the number of doors on direct examination. He read from his report, and agreed that he got the number of doors from the witness. It is almost as though the prosecution hoped that the full description of the car would not come out. The problem here is one common to hearsay exceptions. The declar-ant’s statements are immutable. There is no leeway for exploring matters of degree. The car in which the defendant was riding as a passenger was photographed and found to have only two doors. This appears with definiteness and certainty. Even without this discrepancy, one might wonder whether the description by make and color would be sufficient, in the absence of testimony about the number of similar cars. Cf. State v. Greer, 655 S.W.2d 593 (Mo.App.1983). But we need not pursue the point, because the police did not find the same vehicle that the wounded witness described. *862 The principal opinion holds that “the jury” may resolve the discrepancy. How can the jury have any possible basis for saying that Campbell was wrong in the description he gave the police, and really intended to describe a different car? Cases holding that variation in description is not fatal to the existence of possible cause for stopping and searching a vehicle are not sufficient to supply the required connection for evidentiary purposes. 4 The police were undoubtedly justified in stopping the car in which the Griffins were riding, but this does not provide the link required before evidence of another crime can be admitted. The state argued that it is not necessary to prove the required linkage beyond reasonable doubt. I do not disagree. The phrase, “reasonable doubt” is designed to be addressed to juries. The foundation for admission of evidence of other crimes is a question for the trial judge. Some substantial connection is necessary, however, as our cases repeatedly hold. Here the connection is lacking and the evidence should not have been admitted. The prejudice is enhanced by the admission of evidence of threats against the life of Quintín, following the killing of Dennis Griffin. These threats were not tied to the defendant, and there was no occasion for admitting them. Their admission, standing alone, might not be prejudicial, because the jury might be expected to perceive the absence of a link, but here the prosecution was trying to plant in the jury’s mind the suggestion that the defendant sought revenge against his brother’s suspected killer. In contrast to the principal opinion, furthermore, I find the hearsay objection sufficient. The unconnected threats were not admissible for their own sake. State v. Hicks, 535 S.W.2d 308, 312 (Mo.App.1976). The prosecution sought to establish by innuendo the homicidal purpose of the voice on the other end of the line, and to relate it to the killing of the defendant’s brother. The objection sufficiently warned the trial judge of the problem and the prejudices. But the primary error relates to the admission of the events of May 13. They are not relevant, because they were not connected up. The error is prejudicial. II. The defendant challenges the capital murder verdict director, Instruction 6, on grounds, among others, as follows: Under the terms of the verdict directing instruction as given if another person caused the death by shooting him with no act, assistance, or involvement of any kind by the defendant appellant Larry Griffin . .. there could be a conviction. I do not believe that the principal opinion responds fully to this point. This claim is supported by the language of the instruction. Under the instruction the jury could return a verdict of guilty if it were to find as follows: First, that the defendant or A caused the death of Quintín Moss; Second, that the defendant and B intended to take the life of Quintín Moss; Third, that the defendant and B knew they were practically certain to cause the death of Quintín Moss; Fourth, that the defendant and B considered taking the life of Quintín Moss and reflected on the matter coolly; Fifth, that in the commission of such offense the defendant acted with B for the purpose of committing that offense. The complaint about Instruction No. 6 is well taken. There has been a serious problem in getting literate and comprehensible instructions in capital murder cases, especially when more than one defendant is *863 involved, and this Court has sustained instructions which are grammatical and rhetorical monstrosities, in addition to being legally ambiguous. 5 If the instruction here challenged had referred to “defendant and that other person” in the second, third, fourth and fifth hypotheses the fault would have been corrected. The defendant is entitled to instructions which are comprehensible. This error, however, was not pointed out in the motion for new trial. Allegation 15 of that motion refers to a variance between the instruction given and MAI. The principal opinion correctly resolves this issue. It is appropriate to insist on specific objection to instructions. My preference would be for requiring objections before the instructions are given, in the manner of Rule 30 of the Federal Rules of Criminal Procedure. An objection only in the motion for new trial comes too late to do any real good, but it is a firm requirement of our Rule 28.03. After examining the closing arguments, I am confident that the genuine issues were properly presented and that the jury was not misled or confused by the instruction, and so am unable to say that there was plain error in giving it. III. Because of my conclusion that a complete new trial is required I do not reach the question of punishment. I do, however, have some observations. The evidence showed a gangland-type assassination, with two gunmen firing semiautomatic weapons from a moving vehicle. The scene was a public street and the danger to more than one person was patent. I agree with the holding in the principal opinion that the evidence supports the aggravating circumstance found by the jury, that there is no indication that the jury acted out of passion or prejudice, and that the sentence is not out of line with other cases in which the death penalty has been assessed. If one believes in capital punishment, and if the trial were free from error, this case would seem to be a particularly appropriate one. On points not discussed I agree with the principal opinion. For the error described, however, the judgment should be reversed and the case remanded for a new trial. . State v. Hancock, 451 S.W.2d 6 (Mo.1970); State v. Strickland, 530 S.W.2d 736 (Mo.App.1975); State v. Crane, 559 S.W.2d 294 (Mo.App.1977); State v. Lamb, 468 S.W.2d 209 (Mo.1971). State v. Reese, 364 Mo. 1221, 1227 , 274 S.W.2d 304, 307 (1954), mentions the “dangerous tendency” of this kind of evidence. . This descriptive statement goes well beyond those involved in such recent cases as State v. White, 621 S.W.2d 287, 294 (Mo.1981); State v. Rogers, 585 S.W.2d 498, 504 (Mo.App.1979); State v. Jones, 620 S.W.2d 17 (Mo.App.1981); State v. Collins, 607 S.W.2d 712 (Mo.App.1980). .Rule 803(2), F.R.E. See 4 Weinstein’s Evidence ¶ 803.2[4] (1981). . Cited are State v. Carter, 572 S.W.2d 430, 435 (Mo. banc 1978) and State v. Clark, 607 S.W.2d 817, 819-20 (Mo.App.1980), both of which dealt with the lawfulness of searches rather than with admissibility of evidence. . State v. Betts, 646 S.W.2d 94 (Mo. banc 1983); State v. McIlvoy, 629 S.W.2d 333 (Mo. banc 1982); State v. Newlon, 627 S.W.2d 606 (Mo. banc 1982); State v. White, 622 S.W.2d 939 (Mo. banc 1981). It seems that, in an attempt to force instructions into the MAI-CR2d mold, prosecutors and judges have come up with instructions which violate both MAI and rules of ordinary good usage. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9763067. Public record. Not legal advice.