State v. Dickson

• Decision Date: 11 March 1980
• Docket Number: No. 40747,40747
• Citation: 596 S.W.2d 482
• Parties: STATE of Missouri, Respondent, v. Terry DICKSON, Appellant.
• Court: Missouri Court of Appeals

Page 482

596 S.W.2d 482

STATE of Missouri, Respondent, v. Terry DICKSON, Appellant.

No. 40747.

Missouri Court of Appeals, Eastern District, Division Four.

March 11, 1980.

Springfield Baldwin, St. Louis, for appellant.

John Ashcroft, Atty. Gen. by Lisa M. Camel, Asst. Atty. Gen., Jefferson City, for respondent.

SATZ, Judge.

Defendant appeals from a conviction of second degree burglary and a sentence of 7 years imprisonment. He presents three points on appeal. Finding one to have merit, we reverse and remand and do not discuss the other points raised by defendant since they are not likely to arise again on retrial.

White Shopping Services, Inc. operates a uniform and clothing store located on the northwest corner of the intersection of Natural Bridge and Taylor Avenues in the City of St. Louis. Natural Bridge runs east and west and Taylor runs north and south. According to the state's evidence, early one morning in July, 1977, Officer Whitfield, a St. Louis police officer, was driving east on Natural Bridge and, as he approached the noted intersection, he saw two individuals exiting White Shopping Services' store through a broken window on to Natural Bridge. Apparently, when Officer Whitfield was directly opposite and about three to four car lengths from the store, he observed the individuals' clothing and also noticed that each one of them was carrying an object in his hands. One of the individuals was wearing a red shirt and tan trousers, and the objects appeared to be some sort of machines. Officer Whitfield saw these individuals only "momentarily", for, after they alighted on to Natural Bridge they turned the corner and appeared to be headed north on Taylor. After he lost sight of the individuals, Officer Whitfield turned his car north on to Taylor to follow, caught sight of the two individuals on Taylor, a short distance north of White Shopping Services' store and, at that time, Whitfield saw each of these two individuals drop objects from their hands. Whitfield arrested the two individuals, one of whom was defendant and the other was a Michael Hurn.

Officer Whitfield was not asked and did not specifically identify defendant as one of the individuals whom he saw coming through the store window, apparently, because, at that time, the individuals were only momentarily in his sight; and, even though it was only shortly thereafter that Whitfield caught sight of two individuals on Taylor, part of the inventory missing from the store some shirts, underwear and shoes was never recovered. However, the color of defendant's shirt and trousers apparently matched the red shirt and tan trousers worn by one of the individuals who exited through the store window, and the two objects which, according to Officer Whitfield, were dropped by defendant and Michael Hurn turned out to be an adding machine and a sewing machine owned by White Shopping Services. In addition, a pendant and a watch, also owned by White Shopping Services, were seized from Hurn. Later, fingerprints were lifted from broken glass found inside the store and a palm print was lifted from a plastic case which held the adding machine. Most of these prints were smudged and unidentifiable. Of those remaining prints which were identifiable, only one print was identified the palm print of Hurn which had been lifted from a plastic case holding the adding machine.

Defendant took the stand in his own behalf and denied any participation in the burglary. According to his testimony, he had been visiting a girlfriend, and, while walking home, east on Natural Bridge, on the northside of the street, he noticed a man on the southside of Natural Bridge, also walking east. Defendant later learned this man to be Michael Hurn. Hurn crossed the street, and defendant asked Hurn for a cigarette, which Hurn gave him. Defendant continued to walk east, with Hurn some distance behind him. When defendant arrived at the White Shopping Services' store, he noticed that the store window was broken. He looked into the store, did not stop and continued walking. He turned the corner at Taylor, began walking north and, at that time, saw a man carrying a green trash can and running across a parking lot, located on the opposite side of Taylor, on the northeast corner of the intersection. Shortly thereafter, Officer Whitfield called defendant over to his police car, asked defendant "where it was at" and, among other responses, defendant told the officer about the man running across the parking lot. Defendant also testified on direct examination that he previously had been convicted of "armed robbery". On cross-examination, defendant again was asked whether he had a prior conviction, and, after stating again that he had plead guilty to "armed robbery", he added that he had been paroled on that offense and "got off parole on October 17, 1977", some three months after the incident in question.

In his closing argument defense counsel reminded the jury that defendant's parole was ending at the time of the alleged burglary. At that point, the assistant circuit attorney objected to this argument on the grounds that it was irrelevant and immaterial. The court sustained the objection and instructed the jury to disregard the statement of defense counsel. Defendant made an offer of proof that, if allowed to pursue this argument, he would argue that defendant was gainfully employed at the time of the burglary and, since defendant was on parole, he would not attempt a burglary and run the additional risk of having his parole revoked. The court overruled this offer of proof and again sustained the state's objection.

On appeal, defendant contends that it was prejudicial error for the trial court to preclude him from arguing that defendant's parole status made it improbable that defendant committed the burglary in issue. We agree.

We have long recognized that control of oral argument is within the discretion of the trial court, see, e. g., State v. Kimmins, 514 S.W.2d 381, 382 (Mo.App.1974) and, ordinarily, we will not interfere with this control unless the trial court abuses its discretion to the prejudice of the defendant. E. g., State v. Smith, 527 S.W.2d 731, 733 (Mo.App.1975). However, on the present record, we find the trial court committed error which prejudiced the defendant.

A trial court must carefully refrain from unduly restricting the arguments of counsel. See, State v. Florian, 355 Mo. 1169, 200 S.W.2d 64, 68 (1947). Counsel should not only be allowed wide range in organizing the facts for the jury in a pattern most favorable to his client, he must also be permitted to argue from the facts those reasonable inferences which most strongly favor his client. See State v. Treadway, 558 S.W.2d 646, 650 (Mo. banc 1977); ¹ State v. Ball, 529 S.W.2d 901, 908 (Mo.1975). It is error not to permit counsel this latitude in his closing argument. See State v. Treadway, supra at 650; State v. Ball, supra at 908.

In the instant case, defendant's status as a parolee was an unobjected to fact before the jury. As outlined in his offer of proof, defense counsel's inference from and argument based upon that fact was simple, direct and rational: defendant did not commit the burglary in issue because he had only three more months left on parole and, therefore, he would not want to run the additional...