State v. Hubbard

Decision Date11 October 1983
Docket NumberNo. WD,WD
Citation659 S.W.2d 551
PartiesSTATE of Missouri, Respondent, v. Lloyd HUBBARD, Appellant. 33323.
CourtMissouri Court of Appeals

Larry O. Denny, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Raymond C. Bosch, Asst. Atty. Gen. (argued), Jefferson City, for respondent.

Before CLARK, P.J., and DIXON and NUGENT, JJ.

NUGENT, Judge.

Defendant appeals his conviction by a jury of second degree burglary, in violation of § 569.170 1 for which he was sentenced to four years imprisonment. On appeal, the defendant complains of the state's display of a knife throughout his trial, and a demonstration of the use of the knife by the defendant, a portion of the prosecutor's closing argument, and the state's requiring the defendant to expose his tattooed arms in the presence of the jury. We affirm the conviction.

The following facts are relevant to the determination of the issues on appeal. On July 14, 1980, Margaret O'Connor observed two young men circling on bicycles in front of her house and surveying the neighborhood. She watched the men go behind the house of Kenneth and Pamela Sparks across the street. When the men did not reappear, Mrs. O'Connor went to the Burkhead house, next door to the Sparks'. At her behest, Mr. Burkhead went to the back of the Sparks' house to investigate while Mrs. O'Connor waited in the Burkhead's front yard. He saw no one.

Meanwhile, Mrs. O'Connor observed one of the two men appear from behind the Sparks' house riding one bicycle and carrying another. She then noticed someone lift a bedroom window blind. Thereupon, Mr. Burkhead instructed her to telephone the police. Mr. Burkhead proceeded to the front of the Sparks' house where he encountered the defendant armed with a knife leaving through the front door. At trial, witness Burkhead testified, without objection, that the defendant held the knife pointed at him causing Mr. Burkhead to raise his arms and retreat. At the prosecutor's request, he stood up and demonstrated how the defendant held the knife. 2 No objection was raised during the trial to either the demonstration or the presence or display of the knife. As shown by the testimony in footnote two, Mr. Burkhead identified the knife, Exhibit No. 5, as "very similar" to the knife defendant pointed at him, but at that time the state did not offer the knife into evidence.

In the last moments of the state's presentation of its evidence, Robert Martin, the arresting officer was called. The officer testified that he had retrieved a knife from the defendant's pocket and that Exhibit No. 5 "looks like the one I took from Mr. Hubbard at the scene." The state offered the knife into evidence. On voir dire of the witness on the question of the admissibility of the exhibit, the defendant established that the officer could not vouch for the chain of custody of the knife. Defense counsel also asked the witness the following:

Q. Are you saying that this is the same knife you took from the defendant?

A. No Counsel, I said it was similar.

Q. Could be a different knife; is that right?

A. It's possible.

Defendant then objected to the introduction of Exhibit No. 5. The court sustained the objection. Officer Martin then testified that be observed no difference between the State's Exhibit No. 5 and the knife he found on the defendant.

The knife apparently remained within the jury's view throughout the trial from the time it was marked for identification. At the close of the state's evidence, the defendant moved for a mistrial on the basis of the prejudicial effect of the knife being displayed throughout the trial.

Another neighbor, Bryan Sullivan, was driving south when he noticed the confrontation between the defendant and Burkhead. He stopped his truck directly in front of the Sparks' house and watched the defendant and his companion bicycle away.

Burkhead and Sullivan chased the defendant, confronted him and returned to the Sparks' house. Two police officers soon arrived. Sullivan and Burkhead accompanied the police on their search of the neighborhood. Sullivan sighted the defendant and identified him to Officer Martin. The officer apprehended the defendant hiding beneath a shade tree. He seized a knife from the defendant's pocket.

Upon arriving home, Pamela Sparks found her jewelry box in disarray and her jewelry scattered, although nothing was missing. The screen to the bedroom window had been cut and the window which had been closed when she left for work was found open.

In his first point defendant asserts that the trial court erred in refusing to sustain his motion for mistrial made after the state rested its case. In that motion, defendant complained of the prosecutor's display of the knife during the entire trial. In his later motion for a new trial defendant contended that the court's ruling was in error. On appeal, defendant expands the complaint to include for the first time the prosecutor's use of witness Burkhead's demonstration how defendant held the knife on Burkhead or swung it at him.

If we are to review defendant's first point at all, we may do so only as a matter of grace or by invoking the plain error rule because defendant has not preserved his first point for review. Defendant's only objection was lodged at the close of the state's evidence, by way of the motion for mistrial. He based his motion solely on the continued display of the knife, not to the demonstration of its use. Because a point raised on appeal must be based upon the theory of the objection made at trial, State v. Lang, 515 S.W.2d 507, 511 (Mo.1974), State v. Byrnes, 619 S.W.2d 791, 793 (Mo.App.1981), and because a party is not permitted to broaden the scope of his objection on appeal beyond that made at trial, State v. Broadnax, 572 S.W.2d 224, (Mo.App.1978), defendant did not preserve his error as to the "demonstration". Moreover, we must deem defendant's entire first point waived because his motion for mistrial was not timely. He had ample opportunity to complain of the display and demonstration prior to the close of the state's evidence. Thus, these errors are not preserved for review. State v. Ricks, 642 S.W.2d 375, 377 (Mo.App.1982). Aware of this, defendant suggests in his argument that his first point on appeal constitutes plain error.

We have discretion to invoke the plain error rule under Rule 30.20. Appellate courts use the rule sparingly, however, and limit its application to those cases where there is a strong, clear showing of manifest injustice or a miscarriage of justice. State v. Harper, 637 S.W.2d 170, 172 (Mo.App.1982); State v. Sammons, 640 S.W.2d 488, 490 (Mo.App.1982); State v. Williams, 637 S.W.2d 839, 841 (Mo.App.1982); Rule 30.20. When guilt is established by overwhelming evidence, no injustice or miscarriage of justice will result from a refusal to invoke the rule. Williams, supra at 841; State v. Tyler, 622 S.W.2d 379, 383 (Mo.App.1981). Finally, the defendant bears the burden of proving that the alleged error amounted to manifest injustice. State v. Berry, 609 S.W.2d 948, 953 (Mo.1980) (en banc); State v. Sanders, 628 S.W.2d 390, 392 (Mo.App.1982); Tyler, supra at 383.

Despite his assertion of plain error, defendant never attempts to show that the alleged error caused manifest injustice. Defendant argues only that "the prejudicial affect the State's display of the knife had on the jury cannot be ignored." He contends that the knife display may well have influenced the jury to find the defendant guilty of the burglary charge rather than the lesser included offense of first degree trespass. He further postulates that the four year sentence imposed by the jury not being the minimum for the crime of second degree burglary, appeared to be out of proportion to the crime as nothing was actually taken from the Sparks' home.

"Prejudicial error" and "plain error" are not the same. Resort to plain error as a basis for appellate relief places a much greater burden on the defendant. A defendant must not only show that prejudicial error resulted, he must further show that the error so substantially affects his rights that manifest injustice or a miscarriage of justice will inexorably result if left uncorrected. State v. Miller, 604 S.W.2d 702, 705-06 (Mo.App.1980). Even with these guideposts in mind, no rigid formula exists for determining whether plain error occurred. Rather the question must be determined "on a case to case basis and rebalanced each time against the particular facts and circumstances of each case." Miller, supra at 706.

Defendant's claim on appeal is based both on the state's continued display of the knife and Mr. Burkhead's "threatening demonstration" to the jury. Because the record does not show how the witness demonstrated the incident, we cannot presume that the demonstration was threatening, as the transcript is binding on the reviewing court. State v. Battle, 588 S.W.2d 65, 69-70 (Mo.App.1979). Being thus bound by the record, we can only consider the display of the knife to the jury (hereinafter "display") and the state's requesting the defendant to demonstrate how the defendant held the knife, the state's handing the knife to the witness, and the witness' verbal response (hereinafter "demonstration").

Defendant contends that the display and demonstration were error because they were not necessary to prove the prosecution's case against the defendant. Defendant is essentially arguing that the display and demonstration were not relevant to the crime charged because burglary in the second degree, § 569.170, does not require that the defendant be armed with a deadly weapon or that violence be used in the commission of the crime. The statutory requirements for burglary in the second degree, § 569.170, are as follows:

A person commits the crime of burglary in the second degree when he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime...

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