State v. Givens

• Decision Date: 20 April 1993
• Docket Number: 61565,Nos. 59727,s. 59727
• Parties: STATE of Missouri, Respondent, v. Harry GIVENS, Appellant, Harry GIVENS, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 754

851 S.W.2d 754

STATE of Missouri, Respondent, v. Harry GIVENS, Appellant, Harry GIVENS, Appellant, v. STATE of Missouri, Respondent.

Nos. 59727, 61565.

Missouri Court of Appeals,

Eastern District,

Division Four.

April 20, 1993.

John Munson Morris, III, Atty. Gen., Rudolph Rhodes, Asst. Atty. Gen., Jefferson City, for respondent.

Raymond Legg, Office of the State Public Defender, Columbia, for appellant.

William L. Webster, Atty. Gen., Rudolph R. Rhodes, IV, Asst. Atty. Gen., Jefferson City, for respondent.

SIMON, Judge.

Appellant, Harry Givens, appeals his jury convictions for two counts of sodomy, § 566.060 R.S.Mo. (1986) (all statutory references are to R.S.Mo.1986 unless otherwise noted), and one count of first degree sexual abuse, § 566.100, for which he received consecutive terms of fifteen years for each sodomy count and a concurrent term of seven years on the sexual abuse count. He was charged and sentenced as a prior and persistent offender under §§ 558.016 and 557.036.4, and as a persistent offender under § 558.019 R.S.Mo. (Cum.Supp.1989). He also appeals the denial of his post-conviction relief (Rule 29.15) motion after an evidentiary hearing.

On appeal, appellant raises numerous points claiming essentially that the trial court erred in: (1) failing to declare a mistrial, sua sponte, following the state's closing argument during which the prosecutor read an essay about the lasting effects of childhood sexual abuse and discussed the law's failure throughout history to protect children; (2) allowing the state to impeach appellant regarding his 1950 and 1956 convictions, admitting the record of his 1950 conviction in evidence, and allowing the state to examine him about statements he made during a pretrial mental examination; (3) overruling his motion to strike the prior and persistent offender allegation under § 558.019 (Cum.Supp.1989) from the amended information and using his 1950 and 1956 convictions for purposes of finding him a prior and persistent offender under §§ 558.016 and 558.019 (Cum.Supp.1989); (4) denying his disclosure request seeking production of the mental health records of two of the state's witnesses; (5) admitting testimony concerning sexual acts with which he was not charged; (6) allowing cross-examination of appellant's character witnesses during which the prosecutor alluded to appellant as a "child molester" and suggested that one of the witnesses was associated with child molesters; and (7) submitting MAI-CR3d 302.04 defining "reasonable doubt." He also claims the motion court erred in denying his Rule 29.15 motion based on ineffective assistance of counsel. We affirm.

Appellant does not challenge the sufficiency of the evidence, so we briefly review the evidence in a light most favorable to the verdicts. The victim, T.K.G., appellant's daughter who was eleven years old at the time of the charged offenses, slept in a large bed with her two sisters and her stepsister. On one occasion, appellant called the victim into the bathroom and made her hold his penis. On other occasions, appellant came into her bedroom at night, pulled her to the foot of the bed or on to the floor and sexually molested her by fondling her breasts and vagina, having her perform oral sex on him, and/or rubbing his penis on her bottom. When she tried to tell him to stop, he would smack her in the face. He also threatened to kill her, her sisters and her mother if she told anybody what he was doing. T.K.G., one of her sisters, and her stepsister all testified that appellant also performed similar acts on each of them on numerous occasions. Eventually the girls told their mother, Mrs. Givens, what had occurred, and she reported it to the police.

Appellant has raised numerous points on appeal, some of which we have combined for purposes of clarity in our discussion. In his first and second points on appeal, appellant contends that the trial court should have declared a mistrial, sua sponte, after improprieties in the state's closing argument. In the opening portion of his argument, the prosecutor read to the jury an essay entitled Warrior Child, which describes the long term negative effects of sexual abuse on children. The prosecutor introduced the essay by arguing the future effects of appellant's conduct on the victim and her sisters. In the rebuttal portion of his argument the prosecutor argued about the failure of society, throughout history, to protect children, and about his fear that this would be another case where the legal system fails to protect children. He argued that appellant gets a trial by a jury of his peers, but the children do not.

Appellant made no objection to this argument at trial, and failed to raise the points in his motion for new trial. Therefore, these points were not preserved for review. State v. Stallings, 812 S.W.2d 772, 778[7, 8] (Mo.App.1991). Since these points were not preserved, we review only for plain error. State v. Stepter, 794 S.W.2d 649, 655 (Mo. banc 1990). Relief is granted under plain error only when the error so substantially affects the rights of the accused that manifest injustice or miscarriage of justice inexorably results if left uncorrected. State v. Burgess, 800 S.W.2d 743, 746 (Mo. banc 1990).

The prosecutor should not express his belief of appellant's guilt to the jury in such a way that it implies knowledge on his part of facts not in evidence pointing to appellant's guilt. State v. Evans, 820 S.W.2d 545, 547 (Mo.App.1991). Nor should he make any argument which would inflame the passions or prejudices of the jury. State v. Douglas, 720 S.W.2d 390, 393 (Mo.App.1986). The declaration of a mistrial, however, is a drastic remedy that should be employed in those extraordinary circumstances in which prejudice to the defendant cannot otherwise be removed. Burgess, at 746. The decision to declare a mistrial rests largely in the discretion of the trial court which, having had an opportunity to observe the incident, is better able to determine whether prejudice necessitating a mistrial occurred. Id. For that reason, its decision will rarely be disturbed on appeal. Id.

Here, the record reveals sufficient evidence of guilt to support appellant's conviction. A reading of the record reflects that the challenged portions of the prosecutor's argument were not based on evidence contained in the record and were thus clearly improper. Relief should rarely be granted, however, on assertions of plain error as to closing argument, for where no objection to the argument is lodged, trial strategy is an important consideration and such assertions are generally denied without explication. State v. Newlon, 627 S.W.2d 606, 616[12-14] (Mo. banc 1982), cert. denied, 459 U.S. 884, 103 S.Ct. 185, 74 L.Ed.2d 149 (1982). This is true because in the absence of an objection, request for admonishment to disregard, or other specific request for relief the trial court's options are narrowed to uninvited interference with summation and a corresponding increase in the risk of error by such interference. Id. Improper argument will constitute plain error only if it has a decisive effect on the jury. State v. Murphy, 592 S.W.2d 727, 732 (Mo. banc 1979). Here, based on the record, we cannot say that the challenged arguments had such an effect on the jury. Points denied.

Appellant next raises several points relating to his prior convictions. Prior to trial, the state established that appellant was convicted, upon guilty pleas, of robbery with a gun in Illinois in 1950 and armed robbery in Wisconsin in 1956, by introducing authenticated records of those convictions. The record here indicates that he was not represented by counsel on either occasion.

Appellant asserts first that the state should not have been allowed to impeach him with these prior convictions because they were too remote in time to be used. He acknowledges that Missouri does not place a limit on the age of convictions used to impeach, State v. Rice, 603 S.W.2d 83, 84-85 (Mo.App.1980), but urges this court to reconsider that rule in light of Federal Rule 609(b) which places a general ten-year time limit on prior convictions which can be used for impeachment, in that the federal approach is more in keeping with a defendant's due process rights. Since appellant did not object to the use of these prior convictions for impeachment at trial, or preserve the issue in his motion for new trial, we review only for plain error.

The use of prior convictions for impeachment is governed by § 491.050 which places no limit on the age of convictions used for impeachment. We decline to add to the statute a time limit, as any such change should come from the legislature. State v. Williams, 603 S.W.2d 562, 568 (Mo.1980).

Appellant also asserts that the trial court erred in admitting his entire Illinois conviction record into evidence, including the guilty plea transcript, because this unduly emphasized the prior conviction. He contends that the purpose of impeaching his credibility had been accomplished when he admitted to pleading guilty, and that the state went beyond proper impeachment when the prosecutor was allowed to put the complete record of the prior conviction before the jury. Since no objection to the admission of the conviction record was made at trial, we review only for plain error.

Proof of prior criminal convictions may be either by the record of the conviction or by cross-examination, § 491.050, and the trial court has discretion to permit the state to test and challenge denials of guilt and statements designed to blunt the impact of prior convictions. State v. Jones, 809 S.W.2d 45, 46-47 (Mo.App.1991). Here, at trial, appellant admitted the guilty plea, but denied committing the charged offense saying that he pled guilty because he had been beaten. Thus, we do not find admission of the Illinois conviction record to be an abuse of the trial court's discretion.

In other points relating to his prior...