State v. Franklin

Decision Date22 July 1975
Docket NumberNo. 36179,36179
Citation526 S.W.2d 86
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Robert FRANKLIN, Defendant-Appellant. . Louis District, Division One
CourtMissouri Court of Appeals

Charles D. Kitchin, Public Defender, John F. Bauer, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.

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

WEIER, Presiding Judge.

By its verdict, a jury found defendant, Robert Franklin, guilty of robbery in the first degree by means of a dangerous and deadly weapon. § 560.135, RSMo 1969, V.A.M.S. Upon determining the defendant had committed a prior felony, the court sentenced him to forty-five years imprisonment.

On August 17, 1973, defendant and another black male, both wearing yellow hard hats, entered Little Bit's Tavern at 923 South Grand in St. Louis. Soon after ordering a beer, the defendant pulled a gun on the tavern owner, Mrs. Carrol Reason, and announced, "This is a stick-up." The robbers directed all nine occupants of the tavern, including the owner, her husband, the bartender, and customers, into a back room. After ordering everyone to lie down and demanding their wallets, the two men locked the door and left. Mrs. Reason immediately checked the cash register and another drawer which held money for cashing checks, and discovered $5,200.00 was missing. Mr. Reason and a customer attempted to chase the men, without success. The police accompanied Mrs. Reason through a nearby factory to look at the personnel since an unidentified man stated he had seen two black men wearing yellow hard hats enter the factory. Upon leaving the factory, the tavern owner identified a Mr. Brewster as one of the men who had just robbed her tavern. Later that same day Brewster was identified by four other victims of the robbery.

The following Monday, August 20, 1973, the defendant was stopped by police officers for driving a car without a properly illuminated license plate. He gave a false name and driver's license to the police officer. The officers 'padded down' the defendant-driver and another male passenger for weapons, and requested that a female passenger, Brenda Cook, empty her purse. The defendant and the male passenger were allowed to go after fixing the license plate light, but Brenda Cook was arrested. In her purse were three men's wallets belonging to three victims of the Little Bit's robbery. Brenda Cook initially lied, telling the police she had loaned her purse to a friend, but later admitted to having found the wallets on the car floor of the automobile belonging to defendant's mother. Defendant was arrested on August 23, 1973, and identified in a line-up that day by Mrs. Reason and four of the other robbery victims. All conceded their earlier identification of Brewster was incorrect.

Defendant's first point on appeal alleges the trial court erred in overruling counsel's objections to numerous comments in the prosecutor's closing argument which he charges were irrelevant, immaterial, prejudicial, lacking in probative value, and referred to facts not in evidence.

Prior to a search for error upon such a charge, we recite another generalization. Questions of propriety of oral argument are addressed to the discretion of the trial court and reversal occurs only upon abuse of such discretion. State v. Jewell, 473 S.W.2d 734, 741(8) (Mo.1971); State v. McCreary, 504 S.W.2d 132, 136(12) (Mo.App.1973).

Initially, defendant contends the assistant circuit attorney's recommendation to the jury to consider the testimony by a method outlined in a book authored by Dr. Marshall Rosenburg should not have been permitted because the book was not in evidence. We find no prejudicial error in the mere mentioning of this book. The assistant circuit attorney was merely crediting Dr. Rosenburg for a 'common-sense' approach of sifting through data in order to make a reasoned decision.

Defendant further argues that the prosecutor, as was here done, cannot instruct the jury on how to weight the evidence in any manner. This argument is not properly before the court since it was not raised in defendant's objection at trial, nor in his motion for new trial. State v. Stevens, 467 S.W.2d 10, 19--20(7) (Mo.1971), cert. denied, 404 U.S. 994, 92 S.Ct. 531, 30 L.Ed.2d 546 (1971); Rule 27.20(a).

Defendant next asserts that the prosecutor's comment, that Brenda Cook's reason for lying to the police about where she got the wallets belonging to the three robbery victims was to 'protect' the defendant, was improper argument on facts not in evidence, and not a permissible inference. We disagree. The prosecutor has the right to comment on the evidence and credibility of witnesses from the state's viewpoint. State v. Cage, 452 S.W.2d 125, 130(6) (Mo.1970). The evidence demonstrated that Brenda Cook accompanied the defendant to the robbery and that she 'liked the defendant' and subsequently had visited him in jail. Thus, the inference by the assistant circuit attorney that Brenda Cook's lie was to protect the defendant was not unreasonable. In addition, establishing Brenda Cook's credibility was crucial to the state. Therefore, allowing the prosecutor to thus infer in order to explain her original lie to the police was not error. State v. Sallee, 436 S.W.2d 246, 254(18) (Mo.1969).

Defendant also alleges trial court error for permitting the prosecutor to read from an alleged police report not in evidence. Here, in an effort to rebut defense counsel's statement in his closing argument that only Brenda Cook had mentioned a parking lot in the vicinity of the tavern, the assistant circuit attorney reminded the jury that one of the robbery witnesses, who had attempted to chase the robbers, had also mentioned the lot. The defendant objected for the reason that the prosecutor was reading from a police report not in evidence. The objection was overruled. No proof was made that the prosecutor was reading from any paper. The record shows a 'lot' was mentioned in the testimony of two witnesses. The assistant circuit attorney, therefore, was within the limits of permissible comment on the evidence.

Defendant contends prejudicial error also occurred when the prosecutor commented on Brenda Cook's possession of the wallets. He said, 'You can figure out for yourself why people like to keep wallets like--by the way, they are a false form of identification for many purposes.' This comment, however, was supported by the evidence since the defendant had used false identification when stopped by police for the improperly illuminated license plate. It therefore was a legitimate inference from the evidence.

The fifth statement by the circuit attorney, which defendant contends was prejudicial error, was that Brenda Cook lied to visit the defendant in jail and 'he (the defendant) knows he's only supposed to see relatives.' The objection which followed was sustained and the remark was ordered stricken. But defendant's motion for a mistrial on this point was denied. Although, concededly, this comment was not relevant or within the scope of the evidence, neither does it appear so prejudicial as to require the drastic remedy of a mistrial.

The declaration of a mistrial necessarily and properly rests largely in the discretion of the trial court who observed the incident giving rise to the request. The trial court weighs the prejudicial effect and determines, in the exercise of a sound discretion, whether to grant or deny the request. An appellate court will not reverse on such a ground unless it finds this discretion was abused. State v. Duncan, 499 S.W.2d 476, 479(6--9) (Mo.1973); State v. Schlagel, 490 S.W.2d 81, 85(5, 6) (Mo.1973).

Defendant's sixth ground to sustain his first point is that the trial court erred in overruling defendant's objection to an allegedly 'disparaging remark' directed toward the defense attorney. We find this argument to be without merit since the prosecutor's statement was retaliatory and without prejudice. The disputed statement, 'Well, you know people--defense lawyers discuss these cases like eveybody in the world is the same', was a logical and harmless comment considered within the context of his entire argument that all persons do not have the same recollection of an occurrence. Moreover, since the defense counsel, in his closing argument, emphasized the misidentification and inconsistencies among the witnesses present during the robbery, the remark was in retaliation to this attack on the state's witnesses. As such, it was not manifestly prejudicial. State v. Swing, 391 S.W.2d 262, 264(2) (Mo.1965).

The final comment defendant attacks was the assistant circuit attorney's remark that, 'The victims of eighty-five per cent of crime in the City are the people who have to live in the black areas or do live there.' The prosecuting attorney may argue for the necessity of law enforcement due to the prevalence of crime in a...

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13 cases
  • State v. Hamell
    • United States
    • Court of Appeal of Missouri (US)
    • 18 Octubre 1977
    ...of law the trial court abused its discretion in refusing to declare a mistrial. State v. Seals, 515 S.W.2d 481 (Mo.1974); State v. Franklin, 526 S.W.2d 86 (Mo.App.1975). "Evidence of the commission of separate and distinct crimes is not admissible unless it is within one of the exceptions t......
  • State v. Martin
    • United States
    • Court of Appeal of Missouri (US)
    • 4 Noviembre 1975
    ...v. Bradley, 361 Mo. 267, 234 S.W.2d 556, 560(10) (1950). See also State v. McKinney, 475 S.W.2d 51, 54(3) (Mo.1971); State v. Franklin, 526 S.W.2d 86, 91(13) (Mo.App.1975). Defendant also submits as error the admission into evidence of the victim's bloody clothing he was wearing during the ......
  • State v. Harris
    • United States
    • Court of Appeal of Missouri (US)
    • 20 Enero 1976
    ...grant or deny the request. An appellate court will not reverse on such a ground unless it finds this discretion was abused.' State v. Franklin, 526 S.W.2d 86, 90(8, 9) State v. Rutledge, 524 S.W.2d 449 (Mo.App.1975) presented practically the same issue. In the first half of the State's clos......
  • State v. Stamps, 37172
    • United States
    • Court of Appeal of Missouri (US)
    • 13 Junio 1978
    ...jury, his comments are improper and may constitute reversible error. State v. Jackson, 336 Mo. 1069, 83 S.W.2d 87 (1935); State v. Franklin, 526 S.W.2d 86 (Mo.App.1975). The contested comments in this case, however, were not of a prejudicial or derogatory tenor. They were not made in an eff......
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