State v. Harper

Decision Date12 July 1977
Docket NumberNo. 10445,10445
Citation553 S.W.2d 895
PartiesSTATE of Missouri, Respondent, v. Larry HARPER, Appellant.
CourtMissouri Court of Appeals

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.

Jay P. Cummings, Springfield, for appellant.

Before BILLINGS, C. J., and STONE and TITUS, JJ.

TITUS, Judge.

Tried under the habitual criminal law, defendant was jury-convicted of second degree burglary and stealing and court-sentenced to consecutive terms of imprisonment of six and four years.

The points relied on, while composed with some indifference to the requirements of Rule 84.04(d), V.A.M.R., will, nevertheless, be considered upon merits where deserving.


During voir dire examination of the jury panel, the prosecutor asked the array a question to which defendant objected. The court promptly sustained the objection and properly explained the reason therefor. Defendant did not ask for a mistrial but now says the court erred in not declaring a mistrial sua sponte. As defendant appeared content with the bestowal of the only relief requested, the matter is not available as a viable point on appeal and precludes the conclusion that the trial court's failure to declare a mistrial ex mero motu affords any basis for a new trial. State v. Jackson, 511 S.W.2d 771, 775(4) (Mo.1974); State v. Crider, 419 S.W.2d 13, 15(6) (Mo.1967); State v. Drake, 514 S.W.2d 653, 655(1) (Mo.App.1974).


In closing argument the prosecuting attorney referred to the inability of the state's witnesses "to remember for sure the dates" without consulting "the papers" whereas the defendant's witnesses "could remember those particular dates" without apparent research. He then concluded, "No one can remember the exact dates that long ago unless they have rehearsed it and gotten together on it ahead of time." Defendant's counsel: "If it please the Court, I will object to that last statement of the prosecutor. The Court: This is argument. The jury understands this is argument and the jury can weigh it for whatever value it might be."

Defendant now claims there was no evidence to support an argument anent rehearsal of testimony and that such a statement "tended to inflame and prejudice the jury regarding the testimony of defense witnesses." This point is not for review. The objection was general and did not advise the court why the argument was claimed to be improper. State v. Underwood, 530 S.W.2d 261, 264 (Mo.App.1975). To preserve an overruled objection for appellate consideration, the objection made to the trial court must be the same or substantially the same as that set forth in the motion for new trial and that relied on in the brief on appeal. State v. Jones, 515 S.W.2d 504, 506(3, 4) (Mo.1974). In addition, a prosecutor is afforded wide latitude in arguing on the credibility of defendant's witnesses and the truth or falsity of their testimony from the state's point of view (State v. Griggs, 445 S.W.2d 633, 636(2) (Mo.1969)), and because, in the first instance, the control of arguments is a trial court function, appellate courts seldom display a propensity for examining complaints not properly brought to the trial court's attention. State v. Henderson, 530 S.W.2d 382, 384 (Mo.App.1975).


Amid the course of closing argument and in commenting upon the alleged disparity between the testimony of defendant's various alibi witnesses, the prosecutor inquired of the jury: "What is the first word that comes to your mind when you hear the word alibi?" This was followed by the rhetorical question: "Isn't it lie?" Defendant made no objection. While admitting any complaint to this oratory was not preserved for review (State v. Morgan, 444 S.W.2d 490, 494(6) (Mo.1969)), defendant urges the averred error should be treated as a plain error falling within the provisions of Rule 27.20(c), V.A.M.R.

Invocation of the plain error rule is done on a case by case basis and not in every case where it is claimed for the first time on appeal. State v. Wendell, 542 S.W.2d 339, 343(12) (Mo.App.1976). Finding error alone is not enough (State v. Watts, 515 S.W.2d 854, 856(2) (Mo.App.1974)) because before the rule will be applied, there must be a sound, substantial manifestation and a strong, clear showing that injustice or a miscarriage of justice will otherwise result. State v. Caffey, 457 S.W.2d 657, 660(4) (Mo.1970). Out-of-context extractions oft present portraits of portentous proportions and appear to be more prejudicial to a defendant than when seen in the total light of the overall evidence and argument. State v. Henderson, supra, 530 S.W.2d at 385. That of which defendant now complains, does not appear to be error, plain or otherwise, when viewed in the entirety. The state's complained-of questions were prefaced and followed by a critique of what the prosecutor asseverated to be inconsistencies in the testimony of defendant's alibi witnesses. For him to verbally perceive the testimony to constitute lies, does not render his mouthings plain error. Cf. State v. Jackson, supra, 511 S.W.2d at 775(7); State v. Lay, 427 S.W.2d 394, 403(9) (Mo.1968); State v. Henderson, supra, 530 S.W.2d at 384(3).

IV, V and VI

In three of his next to last points, defendant lifts out of context from ten pages of the transcript eight statements made by the prosecutor and claims they constitute reversible error. The statements are: (1) "I am very sorry this burglary did not happen in front of a bunch of witnesses. But you know, that's the way a successful burglar operates." (2) "Yes, you brand him a criminal, but what you do here today will be remembered . . . ." (3) "The deterrant effect you have on the criminal element in our society cannot be underestimated." (4) "This is your community. If you want to let this man loose, then do so." (5) Regarding circumstantial evidence "Recent possession of stolen property has always been sufficient to convict a man in Missouri. All you have to do is look how recent it is." (6) "Burden of proof is not an impossible burden. Beyond a reasonable doubt is not impossible. It is not beyond all doubt whatsoever." (7) "It (the burden of proof) is not beyond any unreasonable doubt, rather it is a very realistic burden." (8) "You heard from every witness in this case except one and that is your common sense, and it is a silent witness and it ought to be screaming out the truth to you right now."

Defendant did not object to statements (2), (3) and (4), and in absence of objection to the argument of the prosecutor when it was made, the alleged prejudicial arguments were not preserved for review. State v. Carter, 478 S.W.2d 358, 361(4) (Mo.1972); State v. Savage, 522 S.W.2d 144, 146(1) (Mo.App.1975). The only objection made to statements (1) and (8) were very general, e. g., "I will object to that last statement." Having only objected in a most general way, defendant cannot be heard to object on specific grounds not given the trial court. State v. Jones, supra, 515 S.W.2d at 506(4); State v. Lang, 515 S.W.2d 507, 511 (Mo.1974). Moreover, if statements (1) through (4) were improper, they were isolated, nonrepetitive remarks which, standing alone, would not call for relief under the plain error rule. State v. Crawford, 539 S.W.2d 633, 637(9) (Mo.App.1976).

As to (6) and (7): The Notes on Use under MAI-CR 2.20 prohibit a court's efforts to define reasonable doubt. In State v. Belleville, 530 S.W.2d 392, 395 (Mo.App.1975), it was held the prosecutor's definition of reasonable doubt was improper argument but not reversible error because, as here, his remarks were brief and he properly discussed reasonable doubt in relation to the evidence. We do not find error, plain or otherwise, in admission of the prosecutor's statements under the circumstances peculiar to this case (State v. Sanders, 541 S.W.2d 782, 784(1, 2) (Mo.App.1976)), but caution prosecutors that this ruling is not to be taken as an invitation for them to continue to skate on thin ice. Also as regards statement (8), the allusion to the "silent witness" was specifically designated to be "your...

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