State v. Harris, 59268
| Decision Date | 14 January 1992 |
| Docket Number | No. 59268,59268 |
| Citation | 824 S.W.2d 111 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Leslie HARRIS, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Shaw, Howlett & Knappenberger, Charles M. Shaw, Clayton, for defendant-appellant.
William L. Webster, Atty. Gen., Millie Aulbur, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
This appeal arises out of the judgments against the defendant for second degree murder, § 565.021, RSMo 1986; first degree assault, § 565.050, RSMo 1986; and armed criminal action, § 571.015, RSMo 1986. The judgments were obtained in the Circuit Court of St. Louis City and the defendant was sentenced to a total of 25 years imprisonment. On appeal the defendant alleges the trial court erred in: (1) failing to declare a mistrial because of repeated improper questions of the prosecutor; (2) failing to dismiss the defendant's indictment for murder because it was erroneously worded; (3) failing to declare a mistrial due to comments made by the prosecutor in his closing arguments; (4) failing to grant the defendant's motion for a new trial because the state failed to reveal a plea bargain with one of the witnesses; (5) overruling the defendant's motion to suppress a statement made by the defendant to the police; (6) submitting MAI-CR3d 302.04 defining reasonable doubt because it reduces the state's burden of proof; and, (7) failing to declare a mistrial when the prosecutor asked the defendant on cross-examination about a tatoo on his arm. We affirm.
The evidence presented at trial showed the following: On the night and early morning of July 3-4, 1989, Mark Nickels and Willie Jackson drove down to the St. Louis riverfront where the Veiled Prophet Fair was being held. Most of the festivities around the Gateway Arch were over so they decided to visit a popular area nearby, Laclede's Landing. While they were sitting in their vehicle at the intersection of Memorial and Washington Streets the defendant drove up in his truck and was beside the passenger side of Jackson's car. Jackson was driving the car and Nickels was seated in the passenger seat.
Jackson and Nickels glanced over at the defendant in his truck and the defendant responded by asking "What the hell are you looking at?" Jackson and Nickels told the defendant they weren't looking at anything and the defendant again asked "What the hell are you looking at, niggers?" At this point Jackson and the defendant began to argue rather vigorously. The defendant turned to his girlfriend seated next to him, Jenny Waltman, and requested his gun which was in the glove box.
Waltman gave the defendant his gun and he leaned out the window and brandished the gun at Jackson and Nickels. When the two young men saw the gun they told the defendant they were sorry and that they didn't want any trouble. The defendant told Nickels "I want your friend that's driving the car." The defendant then shot Nickels in the head. After the shooting both vehicles sped away but Jackson stopped when he realized that Nickels was seriously wounded. The police arrived shortly thereafter and Nickels was taken away in an ambulance. It was later determined that he had died almost immediately from a gunshot wound to the head. The police investigation at the scene of the shooting and Jackson's car turned up no weapons but they did find a bullet lodged in the left door post.
After the shooting the defendant and Waltman sped away from the scene and went to Waltman's apartment. Either Waltman or the defendant wiped the fingerprints off the gun and placed it in a bag. They then left separately for a friend's apartment, Harry Hicks, and Waltman disposed of the gun in an apartment complex dumpster on the way. When the defendant arrived at Hicks' apartment he told his friend he had messed up and shot somebody.
When the defendant left Harry Hicks' apartment Harry called his brother Brett Hicks and told him the defendant's story. Brett then saw a story about the shooting in the July 5, 1989 St. Louis Post-Dispatch which contained a composite sketch of the man who was believed to have shot Nickels. Brett recognized the defendant from the sketch and contacted him. The defendant told Brett he was going to shave off his beard in an attempt to change his appearance from that of the sketch.
On July 14, 1989, the defendant contacted his friend, Tim Baker, and asked Baker if he would be willing to provide an alibi for him. After the police questioned the defendant, on July 21, he again contacted Baker and told him why he needed an alibi and what Baker and his girlfriend should tell the police in the event the police contacted them. Although Baker and his girlfriend agreed to provide the defendant an alibi they eventually told police they were not with him and that he had asked for an alibi. The defendant was arrested on August 7, 1989, and after the police read him his Miranda rights he responded that he understood them and then said, "You've got me, what else can I say."
At trial the defendant called several witnesses who testified to the amount of fighting that had taken place on the night of the shooting. The defendant also testified and claimed that he shot Nickels in self-defense. At the close of all the evidence the jury found the defendant guilty of second degree murder, first degree assault and armed criminal action. This appeal followed.
In his first point on appeal the defendant alleges that the trial court erred in overruling his repeated requests for a mistrial because of various objectionable questions asked by the prosecutor. The defendant argues the prosecutor repeatedly ignored the rulings of the court in his attempts to interject the character of the deceased. In addition, the defendant claims the prosecutor continually asked leading questions, misquoted witnesses during cross-examination and attempted improper impeachment. Finally, the defendant argues, all the errors mentioned above were compounded by the court's admitting into evidence a picture of the deceased, because this was another attempt to bring before the jury the good character of the victim.
The declaration of a mistrial is a drastic remedy that should be employed only in extraordinary circumstances in which prejudice to the defendant can be removed in no other way. State v. Schneider, 736 S.W.2d 392, 400 (Mo. banc 1987), cert. denied, 484 U.S. 1047, 108 S.Ct. 786, 98 L.Ed.2d 871 (1988). The trial court is in a better position than an appellate court to evaluate the prejudicial effect since it has observed the incident giving rise to the request for a mistrial. State v. Young, 701 S.W.2d 429, 434 (Mo. banc 1985), cert. denied, 476 U.S. 1109, 106 S.Ct. 1959, 90 L.Ed.2d 367 (1986). Therefore, we review this only to determine whether as a matter of law the trial court abused its discretion in not declaring a mistrial. Id.
Here, the defendant believes he was prejudiced because the prosecutor's improper questions placed the defendant in a position where he had to either object to the questions or allow them in. If he objects the defendant argues he is prejudiced because this would "cast a pall over the jury and cause the jury to believe that the defendant is either attempting to hide something or act in a cruel and malicious manner." To avoid this appearance the defendant would have to allow in impermissible evidence before the jury.
In ruling against the defendant's motion for a new trial based upon the allegations above the court agreed with the defendant that the prosecutor ignored rulings of the court and forced the defendant to repeat the same objections. However, the court ruled that in the totality of the circumstances those isolated instances did not deprive the defendant of a fair trial. We agree.
The trial lasted nearly two weeks and the defendant has pointed to relatively few instances of improper questioning by the prosecutor. In many of these instances the defendant's objections were sustained and the jury was admonished to disregard the question. The prosecutor did on occasion ignore the rulings of the court and we in no way condone these actions by the prosecutor. However, the question remains whether the prosecutor's actions denied the defendant a fair trial and the trial court was in the best position to decide such a question. In addition, we must take into account the ample evidence against the defendant. This evidence includes eyewitnesses to the shooting, including the defendant's girlfriend, and the defendant's own statements and actions before his arrest. None of this evidence supports the defendant's claim of self-defense. Therefore, we agree with the trial court's decision that the relatively few improper questions asked by the prosecutor did not so prejudice the defendant as to deny him of a fair trial. "A conviction resulting from a fair trial should not be reversed for the purpose of disciplining and deterring prosecutors, particularly where the mechanism for discipline and deterrence is provided elsewhere." State v. Smothers, 605 S.W.2d 128, 132 (Mo. banc 1980).
Finally, the defendant argues that the errors mentioned above were compounded by the trial court allowing in a picture of the deceased. The defendant claims the photograph was irrelevant and immaterial and was an attempt by the prosecutor to interject the victim's character. This claim is raised in the argument section of his brief, but not in the point relied on. Thus, it is not preserved for appellate review. Rule 84.04(d, e), Washington v. State, 772 S.W.2d 728, 729 (Mo.App.1989). However, even if the photo was incorrectly admitted it had little if any probative value for the state and did not prejudice the defendant. Point denied.
In his second point the defendant claims the trial court erred in failing to...
To continue reading
Request your trial
-
State v. Talley
...this Court will defer to the trial court's determination as to the prejudicial nature of a prosecutor's statements. State v. Harris, 824 S.W.2d 111, 115 (Mo.App. E.D.1992). Both statements challenged by Defendant are supported by the record; either directly or by reasonable inference. Durin......
-
State v. Hope
...of Defendant's guilt. We find that the prosecutor's calling Defendant a "killer" was supported by the evidence. See State v. Harris, 824 S.W.2d 111, 115 (Mo.App.1992). "The prosecutor has a right to draw any inference from the evidence that he believes in good faith to be justified." Id. at......
-
State v. Kriebs, 21909
...Id. A prosecutor can draw an inference from the evidence that he or she believes in good faith to be justified. State v. Harris, 824 S.W.2d 111, 115 (Mo.App. E.D.1992). Furthermore, the State is permitted to argue such propositions as the prevalence of crime in the community and the persona......
-
State v. Isaiah, s. WD
..."The prosecutor has the right to draw any inference from the evidence that he believes in good faith to be justified." State v. Harris, 824 S.W.2d 111, 115 (Mo.App.), cert. denied, 506 U.S. 828, 113 S.Ct. 88, 121 L.Ed.2d 51 (1992). Isaiah's defense was not that the killing of his wife was a......