State v. Brogan
| Decision Date | 08 January 1973 |
| Docket Number | No. 56734,No. 2,56734,2 |
| Citation | 488 S.W.2d 623 |
| Parties | STATE of Missouri, Respondent, v. Mike BROGAN, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
Marvin L. Smith, Lay, Ichord & Smith, Houston, for appellant.
Mike Brogan (hereinafter defendant) appeals from a conviction by a jury of robbery in the first degree. Section 560.120. 1 He was sentenced to confinement for a period of five years. Section 560.135. This appeal was properly pending in this court on January 1, 1972; therefore we retain jurisdiction as required by the schedule (§ 31) to the 1970 amendment of Article V, Constitution of Missouri, V.A.M.S. We affirm.
The information charged that defendant, armed with a pistol, took a Chevrolet automobile owned by Kathleen Martin from the person and possession of her husband, Herchel Martin, in charge thereof, by putting him in fear of some immediate injury to his person.
On the evening of January 28, 1971, Herchel Martin drove his wife's Chevrolet to Cabool from their home about three miles north of that town on Highway 63. His mission was to assist a friend whose car had broken down. After taking the friend home, he parked in front of Elmer's Tavern, went in, and drank some beer. Returning to his car, he found Ronnie Goodman and defendant leaning against it. Goodman and Martin were acquainted, but had been on bad terms. They made some sort of friendly understanding at this chance meeting. Goodman introduced defendant to Martin and asked Martin to drive them to a liquor store on the other side of town so that he (Goodman) could buy a bottle. 2 Desiring to retain the new friendly understanding, Martin agreed, but they found the liquor store closed and returned to Cabool. Martin went in Elmer's Tavern and purchased a six-pack of beer and, upon request of Goodman, they drove to Houston, also in Texas county. Each drank a can of beer en route. In Houston, they went to Russ' Bar where they had sandwiches and beer while Goodman had defendant played pool.
At 1:30 a.m., Russ' Bar closed, and they left en route to Cabool with Martin driving. A Houston policeman, Leon Haney, stopped the automobile because the license plates were expired. He testified that the car was not weaving when stopped; that Martin's speech was not slurred, yet he smelled strongly of beer and appeared to him to be unsteady on his feet when he stepped out of the car. Martin testified he has had two back operations, is partially paralyzed, and therefore is normally unsteady; that he often walks with a limp in a bent over position; that he was not intoxicated. However, Officer Haney suggested and Martin agreed that defendant could drive the car to their destination.
With defendant driving, they continued their return trip to Cabool. Martin was in the front seat on the passenger side, Goodman in the back when they were within five miles of Cabool, Martin said that he was tired and needed to go home, that he would take defendant and Goodman to their home, and then go home. Goodman did not agree with this and said they were going to 'make a night of it.' When Martin insisted, defendant pointed a .44 caliber pistol at him and said that Martin could do whatever he wanted, but that he (defendant) and Goodman were going on. Defendant, continuing to point the pistol at Martin, drove a short distance and stopped in the middle of the highway. Martin testified he was afraid for his life when defendant stopped; that the pistol was still pointed at him so he got out on the road and closed the door; that as he got out defendant put the car in gear, and drove off; that defendant took exclusive possession of the car without his permission and against his will, because he was afraid for his life and did not resist. Martin walked home, told his wife what had occurred and they reported the robbery to the police. The Chevrolet was found later that night in front of the home of defendant's sister.
Defendant denied taking the car by force or against Martin's will, denied having a pistol that night or ever owning one, and both he and Goodman insisted that Martin simply asked to be let out at his home and suggested they take the car on to Cabool.
Defendant's first point is that the court erred in permitting the prosecutor to state during his argument to the jury that defendant had been convicted of crimes involving violence, and erred in permitting the prosecutor to repeat this statement 'so many times in such an inflammatory manner' that the jury became biased and prejudiced against defendant and he was thereby denied a fair and impartial trial. Defendant made no objection to this argument at any time, nor did he move to strike it, or move that the court direct the jury...
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State v. Arney
...the issue is only reviewable under our Rule 29.12(b) for plain error. State v. Comstock, 647 S.W.2d 163, 165 (Mo.App.1983). State v. Brogan, 488 S.W.2d 623 (Mo.1973), is a similar situation. There the prosecutor made statements during his argument to the jury that "defendant had been convic......
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State v. Clark
...for prior crime bears on credibility and may be argued for jury consideration in issue of guilt or innocence. State v. Brogan, 488 S.W.2d 623, 625(2) (Mo.1973). If it can be said that the argument unduly emphasized the prior conviction for murder, even for a legitimate purpose, no abuse of ......
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