State v. Harris

CLEMENS, Judge

(dissenting).

Am compelled to dissent — on the ground the trial court permitted the State to deliberately and persistently portray defendant Pat Harris as a “police character” whose “mug shot” was in police files. In the jury’s eyes, this could well have demolished defendant’s right to a fair trial under a presumption of innocence. As said by Judge Hollingsworth in State v. Barton, 361 Mo. 780 , 236 S.W.2d 596 [1, 2] (banc 1951), and repeated in State v. Reese, 481 S.W.2d 497 , l. c. 499 (Mo. banc 1972): “This is no mere procedural presumption. It is substantive, basic; there is no exception.”

*523 Defendant contends on appeal “the court erred in denying defendant’s repeated motions for mistrial following the repeated admission of evidence of prior crimes of the defendant.” This point relied on is followed by sub-paragraphs specifying prose-cutorial references to “mug shots” and “photographs of subjects on file in our [police] department. The sole issue on appeal is whether these references to police department photographs or mug shots 1 throughout the trial prejudiced defendant’s right to a fair trial.

The first reference to photo identification at trial came in the State’s opening statement. The prosecutor stated: “Officers Whitfield and Bell, who are Detectives assigned to the Burglary and Robbery Division, of the St. Louis Metropolitan Police Department, will tell you that they brought out several photographs or so-called mug shots of people on file with that division, with the burglary and robbery division, and I suppose, set them on a table or whatever, and asked him, if any of these were one of the people that held him up in that vacant house or in that alley.” The prosecutor noted the victim chose defendant’s photograph from those shown him.

Defense counsel at that point stated at the bench, “Your Honor, Mr. Kavanaugh just introduced evidence, information about the defendant, Pat Harris, in the police files. It is an indication of another offense, which is totally inadmissible and highly prejudicial, and I will request a mistrial for that reason.” The court denied a mistrial.

A second incident arose during the State’s questioning of the robbery victim:

“Q: How many days after you were robbed did the detective come out to your house?

A: They came that next day. They came about twice, to show me mug shots.” 2 Defense counsel immediately told the court at the bench, “The Circuit Attorney . specifically referred to mug shot again. He is referring to another crime.” The court denied counsel’s request for mistrial but belatedly sustained his objection to the words “mug shot” and cautioned, “Use ‘pictures.’ ” The prosecutor continued questioning the victim about the photographs the detective brought — how many there were, the race and sex of those depicted, and whether one was clear or blurry.

At that point the State had the mug shot photograph marked “State’s Exhibit No. 2.” The court called both attorneys to the bench, where defense counsel stated the pictures had the notation, “St. Louis Metropolitan Police Department # 97950, 9/27/72.” Counsel added he considered the marked picture an indication of prior crime “highly prejudicial” to defendant. The court stated it would not permit the picture to be shown, but would allow questioning about it and cautioned the State to refer to it “as just a picture.” Defense counsel refused the court’s offer of a curative instruction as “too late . . . they already have the inference of another crime.” The court again stated, “We will use the word, picture.”

During further questioning about the picture, the trial court admonished the prosecutor to put it “under your file, so that it won’t be lying on the desk . . . .” When defense counsel objected to admitting the picture into evidence, the court stated it should not be shown to the jury.

Immediately thereafter, the State began questioning a witness identified as a detective assigned to the Burglary and Robbery Division: “Q: Where did you talk with him [the victim]? A: I went to his home. Q: Did you bring any materials with you? A: Yes, I did. Q: What were they? A: Photographs of subjects on file in our department.” (Our emphasis). The court denied a request for a mistrial and again cautioned the State to refer to “photographs.”

*524 Another episode occurred when the State’s attorney in the jury’s presence sought leave to pass to the jury the “smaller photograph” to which defendant’s objection had been sustained. The court denied defendant’s motion for a mistrial and stated, “at the time the prosecutor stood up, he held the photograph . . . against his body, and it was not discernible by the jury.”

Finally, in closing argument, the prosecutor again stressed defendant’s photograph, telling the jury, “Two days later, these police officers, these.detectives come out with their pictures they had, from downtown, showed him a series of pictures.” The prosecutor added, “You only saw the one photograph, the photograph of the lineup.” The comment called added attention to the fact the court had refused to let the jury see the mug shot which had previously been referred to. It seems naive to suggest, as does the majority opinion, that the jury might have believed “mug shots” bore no criminal connotation, particularly so when identified by a police officer from the Burglary and Robbery Division as “photographs of subjects on file in our department.” A more logical inference is that the photograph depicted a man who had been previously arrested for if not convicted of burglary or robbery. This basic rule of law prohibiting proof of a defendant’s other criminal acts is violated not only by evidence he did commit a specific crime but by statements of counsel or witnesses implying the defendant’s prior illegal conduct, thereby diluting his presumed innocence of the crime for which he is being tried. Thus, the majority opinion is out of harmony with a long line of Missouri cases.

Prosecutorial reference to a defendant’s other illegal acts has been uniformly condemned by reversals. In State v. Leonard, 182 S.W.2d 548 [4—8] (Mo.1944), defendant was charged with unlawfully selling liquor at her home and in argument the prosecutor referred to defendant’s home as a bawdy house. Reversed. In State v. Ingram, 286 S.W.2d 733 [4—6] (Mo.1956), defendant was charged with a robbery and a policeman testified he had arrested defendant for a homicide. Reversed. In State v. Tillman, 454 S.W.2d 923 [5, 6] (Mo.1970), defendant was charged with carrying concealed weapons in his car. In opening statement the prosecutor said the weapons were found when highway patrolmen encountered defendant and arrested him for a murder and robbery. Reversed. In State v. Hancock, 451 S.W.2d 6 [1—3] (Mo.1970), defendant was charged with burglary of a clothing store. The State showed the stolen articles were found in defendant’s car, but over objection also identified other objects found in the car as the fruits of other burglaries; despite the trial court’s oral and written instructions to the jury to disregard the extraneous evidence the Supreme Court reversed. In State v. Clancy, 225 Mo. 654 , 125 S.W. 458 [4] (1910), a case closely akin to ours, the court applied the rule excluding reference to other offenses. There, in closing argument, the prosecutor referred • to defendant as a “police character.” Although defendant’s objection was sustained the Supreme Court reversed the conviction and declared, “the court should have promptly rebuked counsel for the state for the unwarranted remarks, and directed the jury to disregard them.”

Even more akin to our case, in State v. Baldwin, 317 Mo. 759 , 297 S.W. 10 [10] (banc 1927), 3 a police witness identified a photograph of defendant as one “kept in the Bertillon room, police headquarters.” Reversing, the court held: “This made this evidence highly prejudicial. The place where the picture was kept was utterly immaterial upon the question as to whether or not it was the picture of defendant. Nor did it tend to prove defendant committed the crime. It could be relevant to no issue in the case, and the court should have promptly sustained the objection that the evidence was irrelevant and immaterial. *525 Its failure to do so was prejudicial and reversible error.” Here, the effect of repeated references to mug shots and photographs in police department files was no less prejudicial since they permitted an inference of past crime. Our courts rigidly scrutinize any such evidence, since it has a dangerous tendency to raise a spurious inference of guilt in the minds of jurors. State v. McElroy, 518 S.W.2d 459 [6] (Mo. App.1975). See also State v. Holbert, 416 S.W.2d 129 [6] (Mo.1967), and State v. Carter, 475 S.W.2d 85, 88 (Mo.1972), citing State y. Reese, supra.

The record in this case should convince us the repeated references to police photographs did inform the jury of defendant’s prior criminal involvement with police and rendered improbable a fair trial for the robbery charged. The jury’s awareness of defendant’s prior criminal involvement clouded the single issue of his guilt or innocence of the robbery charge for which he was being tried. We should not say the jury’s verdict was not influenced by its awareness that this defendant was a police character. In the words of Chief Justice Warren in Spencer v. Texas, 385 U.S. 554 , l. c. 575, 87 S.Ct. 648 , l. c. 659, 17 L.Ed.2d 606 (1967): “Of course it flouts human nature to suppose that a jury would not consider a defendant’s previous trouble with the law in deciding whether he has committed the crime currently charged against him.”

We need not decide whether any one of the four “police character” references, standing alone, warranted a mistrial. As the State layered each one atop another, it should have become apparent to the trial court that an indelible brand had been placed upon defendant that could be erased only by granting a mistrial.

Earlier Missouri “mug shot” cases have dealt with facts not quite akin to our case. In State v. Rima, 395 S.W.2d 102 [3] (Mo. banc 1965), a witness testified he based in-court identification on his observations at the crime scene, and added that he had chosen defendant’s photograph from “ ‘mug books’ at the police station.” Defense counsel did not object, and his later requests for a curative instruction or a mistrial were denied. But Rima is factually distinguishable from this case. In that case, there was an uninvited mention of police photographs to which there was no timely objection. Here, there were repeated references to such photographs and timely objections. In Rima the only person who referred to police “mug” photos was one witness, the victim of the crime; in our case, the prosecutor made direct and indirect references to defendant’s police pictures and so framed questions to the victim and a police officer as to elicit a similar reference from them. Had there been in our case merely one such reference, made during a witness’ testimony relating the process by which he identified the defendant, any prejudice ensuing therefrom would have been minimal and would not have mandated reversal. State v. Rima, supra; State v. Donnell, 430 S.W.2d 297 [16,17] (Mo.1968); State v. Daegele, 302 S.W.2d 20 [6] (Mo.1957); State v. Childers, 313 S.W.2d 728 [5] (Mo.1958).

We have also considered our decision in the recent case of State v. Rutledge, 524 S.W.2d 449 [l. c. 457—458] (Mo.App.1975). There, in closing argument the prosecuting attorney used the term “mug shot.” On defense objection, “the prosecutor quickly corrected himself” and the trial judge instructed the jury to disregard the prosecutor’s comments. We held that while we did not condone the mug shot reference it did not rise to the level of trial error requiring a mistrial. Here, the volume of the prosecuting attorney’s persistent mug shot references, direct and implied, was greater than in Rutledge , and here no corrective action was taken. Both Rima and Rutledge are distinguishable.

Where, as here, there are repeated references to the presence of defendant’s photograph in files of the robbery division of the police department, the cumulative effect of such references in view of their number and the context in which they occurred could hardly have failed to prejudice defendant.

*526 We think the caution uttered by the court in State v. Tyler, 454 S.W.2d 564 [7] (Mo. 1970) warrants repetition: “So long as the testimony or photograph does not identify the party thus pictured as a criminal there can be no valid objection to an identification based on such a picture.” The implication is that there is a valid objection to “such a picture” if the testimony concerning it implies defendant is a criminal. Because of the prosecutor’s opening remarks, his leading questions to two witnesses, and his effort to pass the picture to the jury despite the judge’s admonitions to hide the picture, the jury reasonably could infer defendant was a criminal even though not shown the mug shot with its police department identification numbers.

The majority opinion faults defense counsel for tardiness and inexactness in objections in the trial court and in the points briefed here.' These are arguable, but even so, defendant’s complaints concern “substantial rights resulting in manifest injustice,” and therefore cognizable by us under the plain error rule, Rule 27.20.

This conclusion is not based on any one of defendant’s complaints. The State’s trial conduct led the jury down the mental path of trying a criminal, not a presumptively innocent citizen. So tarnishing defendant cannot be said to be harmless in its cumulative effect. As said in Faught v. Washam, 329 S.W.2d 588 [30] (Mo.1959): “Without undertaking to determine whether any single matter of which we have treated, standing alone, would constitute reversible error . we are firmly of the opinion that, in their totality, they do. . ” Appellate consideration of the cumulative effect of trial errors is particularly appropriate in criminal cases. See State v. Tiedt, 357 Mo. 115 , 206 S.W.2d 524 [5] (banc 1947), and State v. Webb, 254 Mo. 414 , 162 S.W. 622 [7—8] (1914).

The State’s challenged conduct went beyond the defendant’s identification; it portrayed him as a “police character,” thereby demolishing the mantle of innocence to which he was constitutionally entitled.

We should grant defendant a new trial.

. “Mug shot. A photograph of a person’s face, usually used of official police photographs.” Webster’s Unabridged Dictionary, Third Edition.

. We cannot presume State’s counsel did not know what its principal witness would answer.

. Overruled on other grounds; State v. Rima, 395 S.W.2d 102 [3] (Mo. banc 1965).