State v. Britton

• Decision Date: 21 December 1982
• Docket Number: No. WD,WD
• Citation: 647 S.W.2d 155
• Parties: STATE of Missouri, Respondent, v. Byron D. BRITTON, Appellant. 33548.
• Court: Missouri Court of Appeals

Page 155

647 S.W.2d 155

STATE of Missouri, Respondent, v. Byron D. BRITTON, Appellant.

No. WD 33548.

Missouri Court of Appeals Western District.

Dec. 21, 1982.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

Feb. 8, 1983.

George A. Wheeler, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Rosalynn Van Heest, Asst. Atty. Gen., Jefferson City, for respondent.

Before MANFORD, P.J., and WASSERSTROM and KENNEDY, JJ.

MANFORD, Presiding Judge.

This is a direct appeal from judgment upon jury convictions for forcible rape, forcible sodomy, burglary first degree and two counts of robbery first degree. The judgment is affirmed.

Three points are presented, which in summary charge the trial court with error in (1) overruling appellant's objection to prosecution's statement in final argument; (2) failing to sustain appellant's pre-trial motion to dismiss the indictment because the proceedings were improperly transferred from the juvenile court; and (3) overruling appellant's objection and allowing the prosecutor to ask leading and suggestive questions.

The sufficiency of the evidence is not challenged. A brief summary of the pertinent facts suffices.

At about 8:30 p.m. on the evening of October 26, 1980, the victims of these crimes were jogging on the public streets near their home. Appellant and his accomplice observed the victims. Appellant's accomplice (named James) decided to rob the victims and retrieved a handgun from his residence. Appellant and James approached the victims from the rear, telling them not to turn around, and demanded their money. One of the victims (the husband) gave them his billfold. The two were dissatisfied with the amount of money in the billfold and demanded more. Appellant and his accomplice accompanied the victims to their home. Upon arrival, one of the victims (the wife) gave the two money from her purse. At this point, the victims were separated. At gunpoint, the husband was placed in the bathroom. The wife was taken to an upstairs bedroom, where she was ordered by James to remove her clothes. She was raped. Appellant and James then exchanged places. Appellant attempted to rape the wife. The wife was uncertain whether penetration was achieved by appellant. The two forced the wife to perform oral sex on them. The weapon was then placed inside the vagina of the wife. Other property was stolen from the residence before the two departed.

Fingerprints were secured from the victims' home which matched James and appellant. Appellant's defense was that he denied any of the above acts, but had entered the victims' home in their absence to burglarize it. Appellant testified that he intended to steal a stereo and borrowed a relative's auto in his attempt to transport the stereo.

The husband could not identify either James or appellant. The wife stated that she was 75% sure of her identification of appellant. James, in exchange for a 15-year sentence, testified for the state regarding his and appellant's participation in the robbery, rape, sodomy, and burglary. Charges of kidnapping and armed criminal action were dismissed. The jury returned its verdict. Judgment was entered. After trial motions were filed and overruled and this appeal followed.

In his first point, appellant charges that the trial court erred by overruling his objection to a statement by the prosecutor during final argument. The challenged statement, it is contended, was a personalized statement which substituted the prosecutor's credibility for the credibility of witness Rodney James. From this, it is concluded by appellant that he was denied a fair trial. The challenged statement, it must be noted, occurred in the last portion of the state's argument. It reads as follows:

"Ladies and gentlemen, as a prosecutor, this is one of many cases I try. And I don't put my license on the line for one case and that is what I would be doing if I were to do that."

At this point, appellant's counsel objected, charging that the above statement was "the personalization of the argument." He went on to state, "I would at this time move for a mistrial based upon Mr. Hall's personalized argument." The objection and motion for mistrial were overruled.

In order to clarify the above and to reveal disposition of this alleged error, two things must be set forth. The above statement occurred in the last portion of the state's final argument. As a preface to the challenged statement, the record discloses (and it is not referenced by appellant) the following:

"MR. HALL: Ladies and gentlemen, there are just a few more things I want to cover in answer to what Mr. Colantuono has just said. First of all, as to the plea bargain, when I sat up there yesterday after the testimony with Rodney James, the testimony of Mr. James was I did not threaten him concerning the plea bargain. The plea was already there. The testimony from Rodney James was that the only thing I ever told him was to tell the truth. Mr. Colantuono has at least put into evidence--tried to put into evidence that I would tell him to lie.

MR. COLANTUONO: I object. That is not what I did or what I attempted to do. The question is whether Rodney James would lie, not whether Mr. Hall would instruct him to. I have no doubt that Mr. Hall would never instruct a witness to be deceptive.

THE COURT: The objection to the argument is overruled.

MR. HALL: Or that I would threaten Rodney James if he didn't change his story today, that I would take away the plea bargain."

There then followed the above challenged statement.

As noted, appellant contends that the above challenged statement was the personalization of the argument in such manner as to substitute the credibility of the prosecutor for that of witness James, thus denying appellant a fair trial. Respondent's reply is that the challenged statement was "permissible retaliation to appellant's final argument that witness James was merely stating what the prosecutor wanted to hear in that such statement suggested to the jury that the prosecution encouraged James to say what it wanted him to say regardless of its truth."

The record reveals the following portion of appellant's final argument:

"You may take into consideration any interest, any bias or prejudice the witness may have. Mr. Hall indicated that I was going to jump all over the plea bargain. I am not going to. It is a fact. You know about it. And I think each and every one of us is aware that when Mr. Hall sat over here with Rodney James last night and talked to him and Rodney James said this morning, 'Yeah, we talked about that plea bargain,' every one of us in this courtroom knows what Mr. Hall wanted to hear, what Rodney James needed to say to protect himself."

Obviously, the credibility of witness James was at issue. This is evident on this precise point, and it is reflected again within appellant's last point presented. It is also obvious from the foregoing portion of appellant's argument that appellant not only attempted to persuade the jury that James' testimony was false, but suggested to the jury that if the prosecutor did not in fact invite fabrication by James, he (the prosecutor) was willing to participate in testimony by James which indicated that James was forced to testify as to appellant's participation in the crimes so he (James) could protect and fulfill his part of his own plea bargain.

We conclude that appellant's argument went further than a suggestion that James' testimony was merely false, but in fact suggested that the prosecutor participated in the fabrication of James' testimony. Under these conditions, the prosecutor was within his rights to comment upon such argument by appellant.

It is unquestioned that the scope of final argument lies within the sound discretion of the trial court and rulings relative thereto will not be disturbed unless there is a clear showing of an abuse of that discretion. State v. Frankoviglia, 514 S.W.2d 536, 539 (Mo.1974); State v. Ralls, 583 S.W.2d 289, 292 (Mo.App.1979) and State v. Stamps, 569 S.W.2d 762, 769 (Mo.App.1978). Another rule has evolved, which provides that in those cases where an argument by the prosecution might be otherwise improper, it is permissible for a prosecutor to retaliate in regard to an issue raised by the argument of the accused. State v. Wood, 596 S.W.2d 394 (Mo.1980), cert. denied 449 U.S. 876, 101 S.Ct. 221, 66 L.Ed.2d 98 (1980). In the instant case, had the challenged statement been made in the absence of any comment, reference, or suggestion in appellant's argument, the statement would have been improper. Our courts have set forth the standard to be applied in determining the permissibility of such argument. In State v. Buford, 619 S.W.2d 777, 782 (Mo.App.1981), this court declared, "where the argument complained of is retaliatory in nature and invited by remarks of opposing counsel, a claim of error will not be sustained." We conclude that this is precisely what occurred when the whole record is considered, including the entirety of final arguments by both parties. Appellant invited the statement via his own final argument as noted above. The response by the prosecution was directed precisely to that point raised in appellant's argument. With the invitation made, the prosecution was thus entitled to retaliate. Buford, supra. The trial court did not abuse its discretion in overruling appellant's objection, or in its refusal to grant appellant a mistrial.

Point (1) is meritless and is ruled against appellant.

Under his point (2), appellant charges that the trial court erred in denying his pre-trial motion to dismiss the indictment. To support this contention, appellant charges that this was error because "the prosecution of appellant improperly transferred from the juvenile division of the circuit court in violation of R.S.Mo. Section 211.071 and Rule 118.01 which require that the filing of a petition in the juvenile division precede any transfer of pro...