State v. Gibson

• Decision Date: 05 August 1976
• Docket Number: Nos. 9965,9966,s. 9965
• Citation: 540 S.W.2d 952
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Junior Ernest GIBSON, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 952

540 S.W.2d 952

STATE of Missouri, Plaintiff-Respondent, v. Junior Ernest GIBSON, Defendant-Appellant.

Nos. 9965, 9966.

Missouri Court of Appeals, Springfield District.

Aug. 5, 1976.

Motion for Rehearing or Transfer Denied Sept. 1, 1976.

Application to Transfer Denied Oct. 12, 1976.

Norman S. London, Lawrence J. Fleming, London & Greenberg, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., Charles L. Howard, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Before HOGAN, P.J., FLANIGAN, J., and CAMPBELL and PYLE, Special Judges.

FLANIGAN, Judge.

Appellant Junior Ernest Gibson was charged with murder in the second degree (§ 559.020 V.A.M.S.) of Buster Harrison Farrell and with murder in the second degree of Bobbie Gene Hopkins. Both slayings took place on May 18, 1970. By stipulation of the parties the two cases were tried together before a jury. The jury found appellant guilty of the second degree murder of Hopkins. On the charge pertaining to the victim Farrell, the jury found appellant guilty of manslaughter. The defendant was sentenced to 10 years on each conviction, the sentences to run consecutively. Appellant does not question the sufficiency of the evidence to support the two convictions.

Appellant presents three assignments of error, each dealing with alleged misconduct on the part of the prosecuting attorney.

Appellant's first contention is that the closing argument of the prosecutor was improper in six particulars and that he should have received a new trial by reason thereof.

Of the six portions of the prosecutor's argument singled out for complaint in this court, three ¹ were not objected to at the time of trial nor was complaint concerning them made in the motion for new trial. Thus 'no proper foundation has been laid for presentation of the matter on this appeal,' State v. Jackson, 511 S.W.2d 771, 775(3) (Mo.1974) and they need not be considered.

The fourth portion ² of the prosecutor's argument, of which complaint is made here, was not mentioned in the motion for new trial although an objection, somewhat indefinite and belated, was made at the trial itself. This assignment has not been preserved for appellate review because it was not included in the motion for new trial. State v. Raspberry, 452 S.W.2d 169, 172(1) (Mo.1970); State v. Jackson, 511 S.W.2d 771, 775(7) (Mo.1974); State v. Brown, 528 S.W.2d 503, 505(4, 5) (Mo.App.1975). Moreover, the record does not fully substantiate appellant's description of the fourth portion.

Appellant seeks to predicate appellate review of the foregoing four portions of the argument by invoking the 'plain error rule,' Rule 27.20(c). However, this court's review of the four portions does not cause it to deem 'that manifest injustice or miscarriage of justice has resulted therefrom.' Rule 27.20(c). There is no 'strong, clear showing' that injustice will result if the rule is not invoked. State v. Embry, 530 S.W.2d 401, 404(2) (Mo.App.1975). The plain error rule 'cannot be used as a vehicle for review of every alleged trial error which is not asserted or properly preserved in the trial court.' State v. Murphy, 521 S.W.2d 22, 25(2) (Mo.App.1975). Rule 27.20(c) is of no avail to appellant.

As his fifth challenge to the prosecutor's argument, appellant claims that the prosecutor 'improperly argued matters concerning the alleged violent nature of defendant.'

At the trial appellant testified in his own defense. On cross-examination the prosecutor elicited that appellant had been convicted of assaulting his wife. That charge arose out of the occurrence of May 18, 1970, from which stemmed the present charges. The appellant also admitted that he was convicted in Illinois of assaulting a woman.

During prosecutor Zane White's argument the following occurred:

MR. WHITE: 'He had killing on his mind. His personality and his tendency to viciousness has been established twice in court, once over in Illinois where he was convicted and received a 6 months sentence for an assault upon a woman.'

MR. WISEMAN (defense counsel): 'Just a moment. I object to that, Your Honor. Your Honor instructed the jury just a moment ago that the conviction over in Illinois could not be used for any purpose in this case.' ³

THE COURT: 'That's correct. That conviction was shown only for the purpose of his credibility, Mr. White. Stay within the record and the court's instructions.'

MR. WHITE: 'Do you believe that a man--do you believe his story of this thing is believable? This man of this degree of violence, this tendency?

'He has not only killed two people but been convicted of shooting his wife and assault upon a woman way over in Illinois, not in any way related, connected with this incident here--'

MR. WISEMAN: 'I object to that, Your Honor.'

MR. WHITE: 'I'm arguing with respect to the believability of his story itself.'

THE COURT: 'All right; if that's the purpose of showing it, overruled.'

In support of his position, appellant relies upon the following language in State v. Mobley, 369 S.W.2d 576, 580(2, 3) (Mo.1963): . . . '(T)he only legitimate purpose of an argument concerning prior convictions lies in its bearing upon the credibility of the defendant . . . It is improper to argue prior unconnected crimes as reflecting upon the defendant's character or as a basis for a conviction in the case on trial.'

However, Mobley is distinguishable. There the prosecutor made five separate references to the criminal record of the defendant and the only ruling of the trial court helpful to the defendant was one which struck a portion of one of the five references and instructed the jury to disregard it.

Here the original objection of defense counsel was only a general one--'I object to that.' No ground ⁴ for the objection was stated. But defense counsel said that the Illinois conviction 'could not be used for any purpose in this case.' The trial court stated that counsel's remark was 'correct' and added that the Illinois conviction was shown 'only for the purpose of his credibility.' Because the defendant had testified, the Illinois conviction could properly be shown as affecting his credibility. § 491.050 V.A.M.S.; State v. Phelps, 478 S.W.2d 304, 307 (Mo.1972). The second objection of defense counsel also stated no ground for the objection and apparently was directed to the Illinois conviction. The prosecutor stated that he was 'arguing with respect to the believability of his story itself.' The court, after stating 'if that's the purpose of showing it,' overruled the general objection. No further relief was requested by appellant.

This court concludes that the portion of the argument here under consideration 'taken in (its) full context, should be construed as going merely to the question of credibility.' State v. Slay, 406 S.W.2d 575, 580 (Mo.1966). This is not a situation where there was 'almost complete lack of action by the trial court' which, according to State v. Renfro, 408 S.W.2d 57, 60 (Mo.1966), was the situation in Mobley.

The facts here are more akin to those in State v. Patrick, 420 S.W.2d 258, 262(1) (Mo.1967) and State v. Phelps, 478 S.W.2d 304, 307 (Mo.1972), in each of which a prosecutor's argument, alluding to the criminal record of the defendant without expressly limiting its effect to the defendant's credibility as a witness, was held, under the particular circumstances, not to require the granting of a new trial. See also State v. Raspberry, 452 S.W.2d 169, 173(7--11) (Mo.1970).

Appellant's fifth challenge to the prosecutor's argument has no merit.

Appellant states his sixth attack upon the prosecutor's argument as follows: 'The prosecutor improperly implied the guilt of defendant because he had retained a particular counsel from Illinois.'

This attack is based on the following occurrence during the closing argument of prosecutor Zane White:

MR. ZANE WHITE: 'Now of course this defense attorney, Mr. Wiseman, wise man, I guess his name means in some language or the other. He is no doubt wise and no doubt extremely successful. They have gone through this thing once before, as the evidence indicates and lost, and the man is now in the Penitentiary--'

MR. JAY WHITE: 'I object, Mr. Wiseman wasn't in that case.'

MR. ZANE WHITE: 'I know that. But let me finish my statement before you jump up and interrupt so rudely.'

THE COURT: 'Well, stay within the record here.'

MR. ZANE WHITE: 'They no doubt searched in an ever-widening circle for a man who was capable and bright enough to clear this man and they eliminated the whole State of Missouri and had to get over in Illinois to get one they felt could do the job.'

MR. WISEMAN: 'Now, just a moment, I want to make my objection, his selection of counsel is not involved in this case.'

THE COURT: Sustained.'

During voir dire examination Mr. Wiseman, one of appellant's attorneys, introduced himself to the panel as 'a lawyer from Alton, Illinois.' Twice during Wiseman's closing argument, which preceded the attacked portion of the prosecutor's argument, he mentioned the fact that he was from Alton, Illinois. His first statement was: 'I am from Alton, Illinois. Do you know where it is? Across the river from St. Louis, 13 miles.' His second statement was: 'I came from Alton, Illinois, it is still in the United States, I think. You do not have to go through a customs board when you cross the Lewis-Clark Bridge. I came over to Missouri. It says 'Welcome to Missouri."

Of course the fact that Mr. Wiseman came from Alton, Illinois, had nothing to do with the guilt or innocence of appellant and neither the prosecutor nor Mr. Wiseman is to be commended for emphasizing that extraneous fact.

The first objection made by Mr. Jay White was general in nature and the segment of the argument to which it was addressed made no mention of Mr. Wiseman's being from Illinois. The second objection, made by Mr. Wiseman, was sustained. No further relief was requested by appellant.

'. . . Questions...