State v. Brown, 36336

• Decision Date: 09 September 1975
• Docket Number: No. 36336,36336
• Citation: 528 S.W.2d 503
• Parties: STATE of Missouri, Plaintiff-Respondent, v. James Kenneth BROWN, Defendant-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 503

528 S.W.2d 503

STATE of Missouri, Plaintiff-Respondent, v. James Kenneth BROWN, Defendant-Appellant.

No. 36336.

Missouri Court of Appeals, St. Louis District, Division One.

Sept. 9, 1975.

Application to Transfer Denied Nov. 10, 1975.

Charles D. Kitchin, Public Defender, David M. Adams, Asst. Public Defender, James C. Jones, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Clarence Thomas, Jefferson City, J. Brendan Ryan, Circuit Atty., David McDonald, St. Louis, for plaintiff-respondent.

RENDLEN, Judge.

Defendant appeals from his conviction on three counts of first degree robbery by means of a dangerous and deadly weapon. § 560.135, RSMo 1969. Having admitted the existence of a prior conviction, he was sentenced to concurrent twenty year terms of imprisonment on each count. § 556.280, RSMo 1969.

No challenge is made to the sufficiency of the evidence; therefore, we will state only those facts necessary for disposition of defendant's points on appeal.

In the late afternoon of September 26, 1973, Edward Flynn, an employee, and several customers of the Adult Book Store on Angelica and North Broadway were robbed at gun point. While Flynn was working near the front door at the cash register, and several customers were in the back watching peep shows, Jimmie Lee Hill and defendant entered the book store followed a few minutes later by Edward White. William Hardester, an ultimate victim of the robbery, entered the store and requested change from Flynn; at that point Hill pulled a shotgun from the shopping bag he was carrying an announced the robbery. Hardester tried to leave but was stopped by defendant who threateningly ordered him to the back of the store. All the victims were forced to face the wall and bound with adhesive tape. Hardester's wedding ring, watch, wallet and money were taken, though he could not see who actually took them since he was forced to face the wall. Two police cars, summoned by a silent alarm, arrived as defendant walked from the front entrance of the building followed shortly by Hill and White. Defendant attempted to leave the scene but was caught and arrested by the police. Hill was shot and captured immediately thereafter. White escaped but was soon arrested by other officers a few blocks from the store. Hardester's wedding band and $78 were found in defendant's pocket. Defendant asserted that he had been a customer at the store and not a participant in the robbery. As impeachment of witness Hardester, defendant offered the transcript of the preliminary hearing in which Hardester testified that White, not defendant, had robbed him.

In the State's closing argument it was stated without objection that the amount of money found on defendant and the amounts taken in the robbery 'correspond.' During the rebuttal portion of closing argument the statement was repeated. This time defendant objected and the court instructed the jury 'to remember what the evidence was.' We shall construe this statement and action of the court as tantamount to an overruling of defendant's objection.

Defendant raises two contentions of error: (1) the State made improper argument in closing, and (2) an arresting officer was improperly allowed to testify concerning identification of the defendant made by the victims.

At the outset we note that appellant's brief as to Point I fails to meet the requirements of Rule 84.04(d), V.A.M.R., as it does not state 'what actions or rulings of the court are sought to be reviewed.' A point which merely alleges error in closing argument preserves nothing for review. State v. Rush, 495 S.W.2d 714 (Mo.App.1973). Defendant urges that we review the point as plain error under Rule 27.20(c). While the court may consider the issue of statement on closing argument as plain error, State v. McClure, 504 S.W.2d 664, 670(11) (Mo.App.1974), such a statement will rarely affect the substantial rights of the defendant. State v. Henderson, 510 S.W.2d 813, 823(22) (Mo.App.1974); State v. May, 479 S.W.2d 451, 456(5) (Mo.1972); State v. Agee, 474 S.W.2d 817, 820(10) (Mo.1971). Examination of the transcript discloses the complained of statement appearing in the closing argument of the assistant circuit attorney. He stated 'You also recall that they took money from the defendant Brown's pocket. We know the money was taken, the amount corresponds so it is not--' Objection was interposed and defendant claims this statement was impermissible, constituting plain error. As noted above, a similar statement was made earlier without objection. In response to defendant's objection the court stated, 'As I told you, members of the jury, it is up to you to remember what the evidence was.' After the court had thus instructed the jury, defendant made no request for further relief.

In his brief defendant asserts the trial court erred in refusing to grant a mistrial because of the prosecutor's alleged improper statement yet a review of the transcript discloses that no motion for mistrial was made at the time. He cannot now be heard to complain that the trial court failed to take action not requested. State v. Bibee, 496 S.W.2d 305, 312(4) (Mo.App.1973).

We further note that defendant failed to raise the issue in his motion for new trial. Construing the court's action as overruling defendant's objection, such rulings cannot be considered as preserved unless raised in the motion for new trial. State v. Jackson, 511 S.W.2d 771, 775(7) (Mo.1974); State v. Rapsberry, 452 S.W.2d 169, 172(1) (Mo.1970); State v. Henderson, 510 S.W.2d 813, 821(12) (Mo.App.1974); Rule 27.20(a), V.A.M.R. It is further significant that the evidence sustains the fact that at least $59 had been taken from the victims of the robbery. The officer who searched defendant stated he took $78 from him immediately after he was apprehended and a reasonable inference could be drawn and argued that $59 of the $78 found on defendant immediately after the robbery could have come from the victims. Such was the tenor of the argument and it is difficult to see how plain error could result under these circumstances. We find no substantial prejudice here and no manifest injustice under Rule 27.20(c).

Defendant next contends the court erred in refusing to grant a mistrial when one of the arresting officers testified that the victims had identified the defendant and two others. Citing State v. Degraffenreid, 477 S.W.2d 57 (Mo. banc 1972); State v. Fleming, 354 Mo. 31, 188 S.W.2d 12 (1945). In the case at bar three policemen saw defendant leaving...