State v. Bogard, No. 17919
| Court | Court of Appeal of Missouri (US) |
| Writing for the Court | SHRUM; PARRISH |
| Citation | 836 S.W.2d 87 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Robert BOGARD, Defendant-Appellant. |
| Decision Date | 04 August 1992 |
| Docket Number | No. 17919 |
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v.
Robert BOGARD, Defendant-Appellant.
Southern District,
Division One.
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Judith C. LaRose, Columbia, for defendant-appellant.
William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
SHRUM, Judge.
A jury found the defendant, Robert Bogard, guilty of the class A felony of robbery in the first degree, § 569.020, RSMo 1986. The trial court sentenced the defendant as a prior offender to a term of 15 years' imprisonment. The defendant appeals; we affirm.
The defendant raises two issues on appeal: (1) Whether the trial court committed plain error in failing sua sponte to admonish the prosecutor about his alleged improper remark during closing argument, and (2) whether a jury instruction defining "proof beyond a reasonable doubt" allowed the jury to convict the defendant on a degree of proof below that required by due process.
Around 6:15 p.m. on October 30, 1990, Julia Mitchell was on duty as a clerk at a convenience store in Kennett, Missouri, when two men entered the store. One of the men, later identified by Mitchell as the defendant, approached the counter. He had one hand under his jacket and "there was something poking the jacket" that Mitchell believed to be a gun. The defendant, who was not masked, told Mitchell to "give me all the money you've got right now and don't do nothing else." Mitchell placed the money drawer, which had been behind her, in front of the two men who took all the bills and ran from the store.
Mitchell said that during the robbery "for about 45 seconds [the defendant] was no more than a foot and a half from my face." During that time, Mitchell was looking at the defendant "directly in the eye." Approximately two weeks later, Mitchell identified the defendant in a four-man line-up.
At trial, the defendant's attorney objected to the giving of Instruction No. 4, patterned after MAI-CR3d 302.04, which defines the term "proof beyond a reasonable doubt." During closing argument, defense counsel lodged no objection to any of the prosecutor's comments to the jury, and the alleged error in the state's closing argument was not raised in the defendant's motion for new trial.
Because the alleged error on the part of the prosecutor in closing argument was not subject to contemporaneous objection and was not raised in the defendant's motion for new trial, it can be examined only under the plain error standard of Rule 30.20. 1 State v. Roberts, 709 S.W.2d 857, 864 (Mo.banc), cert. denied, 479 U.S. 946, 107 S.Ct. 427, 93 L.Ed.2d 378 (1986).
The defendant requests plain error review by this court, arguing that the trial court's failure to admonish, sua sponte, the prosecutor following a remark in closing argument resulted in a manifest injustice. 2 Specifically, the defendant charges that a
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portion of the prosecutor's argument amounted to a personal attack on defense counsel when the prosecutor said, "It's [defense counsel's] job to try to point that way and point that way and point over there and make you look at everything except the real issues in this case." Citing State v....To continue reading
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State v. Williams
...App. 1995), that Rule 30.20 controlled. Likewise, in the Southern District, the court cited Rule 30.20 as controlling in State v. Bogard, 836 S.W.2d 87, 88 (Mo. App. 1992), but relied on Rule 29.12(b) in State v. Phelps, 816 S.W.2d 227, 229 (Mo. App. 1991). In the Western District, this cou......
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State v. Chowning, Nos. 17392
...Page 171 State v. Antwine, 743 S.W.2d 51, 62-63 (Mo. banc 1987); State v. Johnson, 851 S.W.2d 547, 551 (Mo.App.1993); State v. Bogard, 836 S.W.2d 87, 89 (Mo.App.1992). This point, therefore, is CASE NO. 18461 Defendant appeals from the denial of his postconviction motion filed pursuant to R......
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State v. Weicht
...to contemporaneous objection; consequently, they can be examined only under the plain error standard of Rule 30.20.6 State v. Bogard, 836 S.W.2d 87, 88[1] (Mo.App. 1992) (citing State v. Roberts, 709 S.W.2d 857, 864[6] (Mo.banc In requesting plain error review by this court, Defendant asser......
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State v. Vivone, No. 17355
...are narrowed to uninvited interference with summation and a corresponding increase of error by such intervention.' " State v. Bogard, 836 S.W.2d 87, 89 (Mo.App.1992) (quoting State v. Clemmons, 753 S.W.2d 901, 907-08 (Mo.banc Trial strategy looms as an important consideration in any trial; ......
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State v. Williams
...App. 1995), that Rule 30.20 controlled. Likewise, in the Southern District, the court cited Rule 30.20 as controlling in State v. Bogard, 836 S.W.2d 87, 88 (Mo. App. 1992), but relied on Rule 29.12(b) in State v. Phelps, 816 S.W.2d 227, 229 (Mo. App. 1991). In the Western District, this cou......
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State v. Chowning, Nos. 17392
...Page 171 State v. Antwine, 743 S.W.2d 51, 62-63 (Mo. banc 1987); State v. Johnson, 851 S.W.2d 547, 551 (Mo.App.1993); State v. Bogard, 836 S.W.2d 87, 89 (Mo.App.1992). This point, therefore, is CASE NO. 18461 Defendant appeals from the denial of his postconviction motion filed pursuant to R......
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State v. Weicht
...to contemporaneous objection; consequently, they can be examined only under the plain error standard of Rule 30.20.6 State v. Bogard, 836 S.W.2d 87, 88[1] (Mo.App. 1992) (citing State v. Roberts, 709 S.W.2d 857, 864[6] (Mo.banc In requesting plain error review by this court, Defendant asser......
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State v. Vivone, No. 17355
...are narrowed to uninvited interference with summation and a corresponding increase of error by such intervention.' " State v. Bogard, 836 S.W.2d 87, 89 (Mo.App.1992) (quoting State v. Clemmons, 753 S.W.2d 901, 907-08 (Mo.banc Trial strategy looms as an important consideration in any trial; ......