State v. Blakeburn, No. WD

• Decision Date: 20 July 1993
• Docket Number: No. WD
• Citation: 859 S.W.2d 170
• Parties: STATE of Missouri, Respondent, v. Roger BLAKEBURN, Appellant. 47017.
• Court: Missouri Court of Appeals

Page 170

859 S.W.2d 170

STATE of Missouri, Respondent, v. Roger BLAKEBURN, Appellant.

No. WD 47017.

Missouri Court of Appeals,

Western District.

July 20, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 31, 1993.

Jeffrey M. Estes, Public Defender, Kirksville, for appellant.

Tom Hensley, Pros. Atty., Adair County, Kirksville, for respondent.

Before SPINDEN, P.J., and FENNER and HANNA, JJ.

FENNER, Judge.

Appellant, Roger Blakeburn, appeals his conviction in the Circuit Court of Adair County, Missouri, of the Class A misdemeanor of tampering with a witness in violation of section 575.270, RSMo 1986. ¹

The facts leading up to this appeal are as follows: Blakeburn had been charged with theft of cable services by the City of Kirksville in March of 1992. He was arraigned on March 17, 1992 and the case was ultimately tried on May 26, 1992. Plaintiff in the case was the City of Kirksville. Prior to that trial date, subpoenas were issued for three witnesses for the City, Martin Stitzer, Virginia Childers, and Bobby Garrett. The subpoenas were first issued on April 7, 1992 and then were reissued for Garrett and Childers on April 21, 1992.

Childers testified, at the trial for the case at bar, that late in the evening on April 24, 1992, she and her friends, Bobby Garrett and Lori Perkins, arrived at a bar in Kirksville, Missouri, called Spanky's. Blakeburn came into Spanky's at approximately 12:30 a.m. Upon coming out of the bathroom at Spanky's, Childers noticed Blakeburn standing at her table "mouthing" Garrett. When she walked over to the table, Blakeburn "started in on" her. According to Childers' testimony, Blakeburn said to her, "You better not testify against me for hooking your mom's cable up." Blakeburn also told her that if she testified that he would kill her or beat her up. She said that he was mad when he said these words and that he slammed his beer can down on the table.

Childers further testified that after Blakeburn said this to her, the bartender, Glen Cassidy, came over to their table and told Blakeburn that if he did not calm down, he was going to have to leave. After Cassidy left, Childers said that Blakeburn kept threatening her by saying that he was going to beat her up. Childers stated that even though she was scared of Blakeburn, she testified against him anyway.

Blakeburn claimed that on the night of April 24, 1992, he was working at another bar in Kirksville, approximately 2 1/2 miles from Spanky's. Blakeburn testified that he did not leave work until two o'clock in the morning. He denied going to Spanky's that evening and denied threatening Childers.

Blakeburn was charged by information on May 13, 1992 of committing the Class A misdemeanor of tampering with a witness. The information was amended merely to endorse State's witnesses thereon.

A jury trial took place on September 28, 1992. The jury found Blakeburn guilty of tampering with a witness and assessed punishment at 90 days imprisonment in the county jail and a fine to be determined by the court.

On October 1, 1992, Blakeburn filed a Motion for Judgment of Acquittal Notwithstanding the Verdict or, in the alternative, a New Trial. On October 14, 1992, the trial court overruled Blakeburn's motion and sentenced Blakeburn to 90 days imprisonment. This appeal followed.

In his first and second points on appeal, which will be considered together because they are so similar, appellant argues that the trial court erred in failing to declare a mistrial (Point II), or failing to take any action (Point I), when the prosecutor misstated the law regarding the presumption of innocence during closing argument. Appellant argues that the court should have sustained the objection to the prosecutor's remark, instructed the jury to disregard the remark, and given a curative instruction to the jury properly instructing the jury in the law. Appellant contends that the prosecutor's remark, which led the jury to believe that appellant was no longer presumed innocent once the jury began their deliberations, was prejudicial and violated appellant's due process rights.

The declaration of a mistrial is a drastic remedy, and this power should only be exercised in extraordinary circumstances. State v. Sloan, 786 S.W.2d 919, 922 (Mo.App.1990). The trial court is in a better position than an appellate court to evaluate the prejudicial effect, if any, on the jury of the incident in question. Id. Thus, in determining whether to grant a mistrial, the trial court has broad discretion and will be reversed only for an abuse of that discretion. State v. Roberts, 779 S.W.2d 576, 579 (Mo. banc 1989).

The trial court is in the best position to appraise the consequence of a closing argument, and has broad discretion to determine if the particular line of argument is proper. Titsworth v. Powell, 776 S.W.2d 416, 420 (Mo.App.1989). The appellate court may intervene only if it concludes that the trial court has abused its discretion. Id.

Misstatements of the law are impermissible during closing argument, and a positive and absolute duty rests upon the trial judge to restrain such arguments. Id. at 422. However, it is equally recognized that the permissible field of argument is broad, and so long as counsel does not go beyond the evidence and issues drawn by the instructions or urge prejudicial matters or a claim or defense which the evidence and issues drawn by the instructions do not justify, he is permitted wide latitude in his comments. Id. at 422. In ruling on the propriety of the closing argument, the challenged comment must be interpreted in light of the entire record rather than in isolation. Id. at 422.

It is presumed that the jury will properly follow the instructions as given. State v. Preston, 673 S.W.2d 1, 7 (Mo. banc), cert. denied, 469 U.S. 893, 105 S.Ct. 269, 83 L.Ed.2d 205 (1984). In State v. Gilbert, 636 S.W.2d 940, 944 (Mo. banc 1982), the Missouri Supreme Court found that no prejudicial error resulted from the trial court's overruling defendant's objection to the prosecutor's alleged misstatement of the law concerning entrapment during closing argument. The court characterized the prosecutor's alleged improper comments as "a discussion of defendant's claim of entrapment." Id. The court went on to state:

Additionally, the prosecutor followed his comments by reading the definition of entrapment contained in the verdict director and in the converse instructions. And at other points during closing argument, the prosecutor accurately reiterated a number of the basic elements of entrapment. Thus, we find no prejudicial error resulted from overruling defendant's objection to the argument.

Id.

In State v. Thomas, 820 S.W.2d 538, 543 (Mo.App.1991), the defendant claimed that the prosecutor's repeated references to him as "this murderer," made during closing argument, violated the presumption of innocence and was unduly prejudicial. The court rejected the defendant's claim that the prosecutor completely ignored the presumption of innocence, and explained that the prosecutor followed his allegedly improper comments with the statement that the defendant was presumed innocent. Id. Furthermore, the jury was instructed that the defendant is presumed innocent unless and until, during deliberations, the jury finds him guilty. Id. The court found that, by virtue of the corrective statements made by the prosecutor and the jury instruction that was given, no prejudice occurred. Id. While the prosecutor's comments were not necessary or entirely proper, they were not grounds for reversal. Id.

In the case at bar, instructions were read to the jury before closing arguments, including Instruction Number 4, modeled after MAI-CR3d 302.04, which states, in relevant part, that the "defendant is presumed to be innocent, unless and until, during your deliberations upon your verdict, you find him guilty." During closing argument the prosecutor made the following statement:

And we talked about the presumption of innocence. The man is presumed innocent until you begin deliberations, and then that presumption is then gone.

Defense counsel immediately objected to this statement as a misstatement of the law. Defense counsel then approached the bench, arguing that the presumption of innocence is with the defendant until the jury finds him guilty beyond a reasonable doubt, and requested a mistrial. The court sustained defense counsel's objection, but overruled his motion for a mistrial. The prosecutor then continued his closing argument by reading Instruction Number 4, as stated above, to the jury.

Just prior to making his allegedly improper comment, the prosecutor said to the jury, "There will be two instructions that I'd like you to look at when you go back there. Instruction No. 4 the Judge read to you, two things about that. One, the Defendant is presumed innocent. And I think we talked about this in voir dire.... And we talked about the presumption of innocence." The prosecutor then went on to make the statement of which appellant complains.

Viewing the comment in light of the entire record, we find that the trial court did not abuse its discretion in overruling appellant's motion for a mistrial. While the comment in isolation was an inaccurate statement of the law, we find that no prejudice resulted due to the fact that the prosecutor, after making the comment, read the instruction to the jury which contained a correct statement of the law. Also, the prosecutor, just prior to making the inaccurate statement, stated that the defendant is presumed innocent and referred the jury to Instruction Number 4. Because of the prosecutor's corrective statements, no prejudice occurred. Moreover, the jury is presumed to follow the instructions as given.

As to appellant's contention that if the court did not grant a mistrial it should have given a curative instruction, we first note that the only relief that appellant requested was a mistrial. Appellant...