State v. Boyd, WD

• Decision Date: 14 October 1997
• Docket Number: No. WD,WD
• Citation: 954 S.W.2d 602
• Parties: STATE of Missouri, Respondent, v. Kenneth G. BOYD, Appellant. 53369.
• Court: Missouri Court of Appeals

Page 602

954 S.W.2d 602

STATE of Missouri, Respondent, v. Kenneth G. BOYD, Appellant.

No. WD 53369.

Missouri Court of Appeals,

Western District.

Oct. 14, 1997.

Gary E. Brotherton, Asst. Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Gregory L. Barnes, Asst. Atty. Gen., Jefferson City, for respondent.

Before EDWIN H. SMITH, P.J., ULRICH, C.J., and ELLIS, J.

EDWIN H. SMITH, Presiding Judge.

Kenneth Boyd appeals the judgment of his jury conviction and sentence of twenty years imprisonment as a prior and persistent offender, § 558.016 ¹, and prior drug offender, §§ 195.275 and 195.291, for the class A felony of possession of a controlled substance, methamphetamine, with intent to distribute, deliver or sell, § 195.211. He raises two points on appeal. In both points he contends his right to due process was violated in that he was denied a fair trial by an impartial jury. In his first point, he claims the trial court plainly erred in failing to declare, sua sponte, a mistrial when the prosecutor elicited testimony on direct examination from a co-defendant, James Evans, concerning the disposition of Evans' related charges, and when he commented on this testimony in his closing argument. In his second point, he claims the trial court plainly erred in failing to declare, sua sponte, a mistrial when the prosecutor commented in his closing argument on appellant's postarrest silence and the prosecutor's personal belief appellant was guilty.

We affirm.

Facts

Appellant does not contest the sufficiency of the evidence to convict him. The evidence, viewed in the light most favorable to the verdict, is as follows.

On June 22, 1995, appellant was a passenger in a vehicle driven by James Evans. He had requested a ride "up north" in Platte County from Mr. Evans. When he got into the car, he had a black doctor's bag.

When Deputy Sheriff David Kissee of the Platte County Sheriff's Office first observed the vehicle, it was being driven erratically and was headed north on I-29 at 56th Street. He pulled to the shoulder and let it pass. He ran the license plate and found that the plate belonged to a different vehicle than the one on which it was displayed and belonged to an individual with three outstanding warrants from the Kansas City, Kansas, Police Department.

When Deputy Kissee began to follow the vehicle, it began accelerating. Deputy Kissee gave chase after activating his emergency lights, with speeds reaching 80 miles an hour. During the chase, Deputy Kissee observed items, which appeared to him to be small plastic vials or plastic baggies, being thrown from the passenger window by the passenger. He also observed an object which looked like a brown eyeglass case being thrown out the passenger window by the passenger and what appeared to be a weapon being thrown out the passenger window by the driver.

The vehicle eventually exited I-29 on 72nd Street, eastbound. After going through a parking lot, the vehicle went north on Overland, then west on 72nd, finally driving through some backyards before crashing into a tree. The occupants of the vehicle were ordered by the deputy to exit the vehicle. The driver, Evans, immediately complied by opening the door and heading straight to the ground. The appellant hesitated in that his door was trapped against some brush. He finally exited through the window. He was ordered by the deputy to come to the front of the vehicle and lie down by Evans. Instead, he went to the rear of the vehicle and laid down. The deputy again ordered him to go to the front, which he eventually did. Both men were then taken into custody.

When asked by the deputy who they were, both men gave false names. At the rear of the vehicle where the appellant had laid down, the deputy found a small silver compact containing a white powdery substance, later stipulated to at trial as being methamphetamine. Inside the vehicle, the deputy found the black doctor's bag, which contained syringes, miniaturized scales, and a pill crusher, commonly used to break down methamphetamine tablets in the process of making methamphetamine. Also found inside the vehicle were three pagers and a green plastic box with a hunting knife on top and containing small plastic baggies with a red apple logo. By the open driver's door, the deputy found a scraper commonly used to crush and separate the powder form of the drug. A search of the area where the deputy observed objects being thrown out the window led to the recovery of a red case and baggies, one with an apple logo. Several of the baggies appeared to contain a white, powdery substance, which was stipulated to at trial as being methamphetamine. When questioned, appellant acknowledged that items were thrown from the vehicle as the deputy observed, but that he had not thrown them.

Evans testified that when the deputy activated his lights, he was going to pull over, but the appellant started screaming for him to "go, go, go" and was swinging a holster that had an old gun in it. It was a .38 which Evans had sold to the appellant. He further testified that the appellant was throwing plastic bags from the black doctor's bag out the window while the deputy was in pursuit.

As a result of this incident, Evans was charged and convicted on two counts of unlawful use of a weapon for carrying brass knuckles and a knife. In addition, he was charged and mistrialed on a charge of possession of methamphetamine with intent to distribute, deliver or sell, a charge to which he later pleaded guilty and received a suspended execution of sentence. He was subpoenaed from prison and testified against the appellant at trial. He did not testify as part of any plea agreement with the State.

Appellant was charged as a prior and persistent offender and prior drug offender with the class A felony of possession of a controlled substance with intent to distribute, deliver or sell, § 195.211, and the class D felony of unlawful use of a weapon, which was dismissed during trial. He was convicted by jury of the possession charge and was sentenced to twenty years imprisonment.

This appeal follows.

Standard of Review

Appellant concedes that he did not preserve for appellate review the issues raised in either of his Points Relied On and asks for plain error review under Rule 30.20. " 'The plain error rule should be used sparingly and does not justify a review of every trial error that has not been properly preserved for appellate review.' State v. Valentine, 646 S.W.2d 729, 731 (Mo.1983), citing State v. Davis, 566 S.W.2d 437, 447 (Mo. banc 1978)." State v. McMillin, 783 S.W.2d 82, 98 (Mo. banc 1990); see State v. Silvey, 894 S.W.2d 662, 670 (Mo. banc 1995), citing McMillin. Unless a claim of error "facially establishes substantial grounds for believing that 'manifest injustice or miscarriage of justice has resulted,' " we will decline to review for plain error. State v. Brown, 902 S.W.2d 278, 284 (Mo. banc 1995), cert. denied, --- U.S. ----, 116 S.Ct. 679, 133 L.Ed.2d 527 (1995). As such, plain error review is discretionary with the appellate court. State v. Wyman, 945 S.W.2d 74, 77 (Mo.App.1997); State v. Frazier, 927 S.W.2d 378, 379 (Mo.App.1996).

Plain error relief is appropriate only when the alleged error so substantially affects the rights of the defendant that a manifest injustice or miscarriage of justice results. Rule 29.12(b). The defendant bears the burden of showing that an alleged error has produced such a manifest injustice. State v. Parkus, 753 S.W.2d 881, 888 (Mo. banc), cert. denied, 488 U.S. 900, 109 S.Ct. 248, 102 L.Ed.2d 237 (1988). Mere allegations of error and prejudice will not suffice. See State v. Kilgore, 771 S.W.2d 57, 67 (Mo. banc), cert. denied, 493 U.S. 874, 110 S.Ct. 211, 107 L.Ed.2d 164 (1989).

State v. Isa, 850 S.W.2d 876, 884 (Mo. banc 1993). "The determination whether plain error exists must be based on a consideration of the facts and circumstances of each case." State v. Cline, 808 S.W.2d 822, 824 (Mo. banc 1991), citing State v. Sanders, 541 S.W.2d 530, 533 (Mo. banc 1976). " 'When guilt is established by overwhelming evidence no injustice or miscarriage of justice will result from the refusal to invoke the rule.' " State v. Jordan, 627 S.W.2d 290, 293 (Mo. banc.1982), citing State v. Bainter, 608 S.W.2d 429, 431 (Mo.App.1980), citing State v. Hurtt, 509 S.W.2d 14, 15 (Mo.1974).

" 'The declaration of a mistrial is a drastic remedy to be granted only with extreme caution and in extraordinary circumstances,' " State v. Ramsey, 864 S.W.2d 320, 331 (Mo. banc 1993), citing State v. Feltrop, 803 S.W.2d 1, 9 (Mo. banc 1991), " 'where the prejudice to the defendant cannot be removed any other way.' State v. Jones, 921 S.W.2d 28, 31-32 (Mo.App.1996). 'Because the trial court is in a better position to evaluate the prejudicial effect on the jury, its decision not to grant a mistrial is granted enormous discretion.' " State v. Danback, 886 S.W.2d 204, 209 (Mo.App.1994). Wyman, 945 S.W.2d at 77. As to closing argument, the decision of the trial court not to grant a mistrial is reversible as plain error only where manifest injustice occurs and the argument has a decisive effect on the jury's determination. State v. Shurn, 866 S.W.2d 447, 460 (Mo. banc 1993). "Relief should rarely be granted on assertions of plain error as to closing argument because, 'in the absence of objection and request for relief, the trial court's options are narrowed to uninvited interference with summation and a corresponding increase of error by such intervention.' " Silvey, 894 S.W.2d at 670, citing State v. Clemmons, 753 S.W.2d 901, 907-08 (Mo. banc 1988). Further, plain error relief should be rarely granted as to closing argument, " 'for trial strategy looms as an important consideration and such assertions are generally denied without explanation.' " State v. Cobb, 875 S.W.2d 533, 537 (Mo. banc 1994), citing State v. Wood, 719 S.W.2d 756, 759 (Mo. banc 1986); see also, W...