State v. Bohlen

• Decision Date: 17 April 1984
• Docket Number: No. 46436,46436
• Citation: State v. Bohlen, 670 S.W.2d 119 (Mo. App. 1984)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Christopher Xavier BOHLEN, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 119

670 S.W.2d 119

STATE of Missouri, Plaintiff-Respondent, v.Christopher Xavier BOHLEN, Defendant-Appellant.

No. 46436.

Missouri Court of Appeals,

Eastern District,

Division Three.

April 17, 1984.

Motion For Rehearing and/or Transfer to

Supreme Court Denied May 17, 1984.

Application to Transfer Denied

June 19, 1984.

Frank A. Anzalone, Clayton, for defendant-appellant.

John Ashcroft, Atty. Gen., Kristie Lynne Green, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

KAROHL, Presiding Judge.

Defendant-appellant was found guilty by a jury of three counts, each charging robbery in the first degree, § 569.020, RSMo 1978.He was sentenced by the court as a persistent offender, § 558.016.2, RSMo 1978, to serve consecutive fifteen-year sentences on each count.

The state charged that the defendant, acting with others, on April 17, 1981 entered a jewelry store in St. Louis County, Missouri, and took currency and jewelry from the store, Count I, a wristwatch from the manager of the store, Count II, and a wristwatch from the female employee, Count III.The manager of the store, a female employee and two customers were forced at gunpoint to a back room and ordered to lie on the floor.Witnesses saw four black males and two black females run from the store.

Identification was the central issue.Two witnesses were able to identify the defendant as being one of the robbers.There was evidence connecting the defendant with a cigarette lighter of the type of some lighters taken in the robbery.The defendant called three witnesses all of whom were in the vicinity of the robbery at the time of the occurrence and all of whom were unable to identify him as one of the robbers.

Appellant challenges the convictions on three grounds.First, he contends that the court erred in failing to dismiss Count III at the close of the state's case because the state failed to call the female employee whose wristwatch was taken in the robbery.Defendant maintains that he was thereby denied his constitutional right to confrontation and cross-examination guaranteed under the Sixth Amendment of the Federal Constitution and applicable in this state under the Fourteenth Amendment.Second, defendant contends that the court lacked jurisdiction to complete the trial because the judge granted a motion for mistrial during the state's closing argument.In the alternative, defendant contends that the requested mistrial was required by timely objection to the prosecutor's prejudicial closing argument.Third, the defendant contends the punishment should have been imposed by a jury as the state failed to prove that he was a persistent offender.

Appellant's first point is without merit.The Sixth Amendment guarantees a defendant in a criminal case the right "to be confronted with the witnesses against him" but it does not require the state to produce each and every witness who might present relevant testimony at trial.United States v. Polisi, 416 F.2d 573, 579(2nd Cir.1969).SeeState v. Smith, 632 S.W.2d 3, 5(Mo.App.1982).The constitutional guarantee of the Sixth Amendment is one of exclusion rather than mandatory inclusion.Invocation of the Sixth Amendment requires that evidence offered be excluded absent an opportunity by the defendant to test its credibility and probability by cross-examination.Ohio v. Roberts, 448 U.S. 56, 64, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597(1980).In this case, no such evidence was offered.The store manager testified that when threatened at gunpoint, he gave his wristwatch to one of the robbers and he helped remove the female employee's wristwatch and handed it to the same person.By this testimony alone the state made a submissible case on Count III.It was not necessary to have the testimony of the owner of the wristwatch.Defendant's right to confrontation was not violated by her absence at trial.Turnbough v. Wyrick, 420 F.Supp. 588(E.D.Mo.1976)aff'd551 F.2d 202(8th Cir., 1977).

An understanding of the defendant's contention of error directed to his request for a mistrial requires additional facts.The store manager testified that a surveillance system camera was operating during the robbery and that after the robbery he gave the film to a police officer.The manager later viewed the film at a police station but the film was not offered in evidence.

In the opening portion of the state's closing argument the state argued "I believe the state has given you all the evidence you need to convict in this case."The defendant responded by arguing, "perhaps the most significant item in this whole case is something that you haven't seen, something that I haven't seen, something that none of us will ever see ... Cameras are not like the human mind; they record exactly what they see."Thereafter, in the final portion of the state's closing argument the prosecutor told the jury, "The law obligates me, absolutely obligates me, to provide the defense with any information I have that will either condemn or exculpate the defendant."Defendant's objection that the state was arguing law and not evidence was properly sustained.State v. Holzwarth, 520 S.W.2d 17, 22(Mo. banc 1975).Immediately thereafter, the prosecutor told the jury, "I assure you if I had a film that showed him, I'd show it to you.He knows that there was a film taken.He also knows that it didn't show a darn thing."The court sustained a general objection to that statement and the prosecutor thereafter immediately said, "There is no film."

Outside of the hearing of the jury the defendant requested a mistrial and the court said, "I'll grant it."In an effort to save the proceeding the prosecutor explained that he thought that the court's rulings referred only to not arguing the law, offered an apology, and urged the court not to grant the mistrial.The prosecutor then suggested that "the jury be instructed to disregard what I have just argued, that you personally reprimand me for arguing before the jury....Reprimand me and instruct the jury that they must disregard what I have just said."Defense counsel suggested that if the judge was inclined to rule in favor of the prosecutor then "I would only request the court to make a statement that there was a film, to counteract the statement of counsel."Following a discussion off the record the court overruled the defendant's request for a mistrial.The court then announced to the jury, "Ladies and gentlemen of the jury, the court warns you to disregard the last statement of counsel."The court neither reprimanded the prosecutor nor did he make a statement...