State v. Jordan, 48656
| Decision Date | 27 August 1985 |
| Docket Number | No. 48656,48656 |
| Citation | 699 S.W.2d 80 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Donald M. JORDAN, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
William J. Shaw, Public Defender, Clayton, for defendant-appellant.
John Munson Morris, Atty. Gen. Office, Jefferson City, for plaintiff-respondent.
Appellant, Donald M. Jordan, appeals his conviction by a jury in the Circuit Court of St. Louis County of the Class C felony of stealing a motor vehicle, § 570.030 RSMo 1978, and his sentence of nine (9) years imprisonment in the custody of the Missouri Department of Corrections as a "persistent offender" pursuant to the provisions of § 558.016 RSMo 1984.
On appeal he contends his conviction should be reversed and the cause remanded to the trial court for a new trial because the trial court erred (1) in not declaring a mistrial during closing argument when the prosecuting attorney repeatedly called him a professional and a professional car thief for the reason that such epithets were calculated to engender prejudice against him, and (2) in allowing the introduction of rebuttal testimony by a state's witness regarding the personal property possessed by the defendant at the time he was booked in that such testimony was not proper rebuttal, was allowed over objection without a proper offer of proof, and was an abuse of discretion.
We affirm.
Appellant does not challenge the sufficiency of the evidence to support his conviction. Our reading of the evidence convinces us that the jury could find from the evidence, as it did, that during the early morning hours of April 28, 1980, Brenda Cooke's 1979 Corvette automobile was stolen from where it was parked outside her apartment in Creve Couer, Missouri, by the appellant.
Appellant's first contention must be ruled against him because it was not preserved for review. No objection to the argument was made nor does the record reflect that any request for a mistrial was made during the course of the argument. Appellant concedes this but asks that we review the point as "plain error" under Rule 29.12(b) VAMR.
The evidence was that when the Corvette was recovered shortly after its theft the police officers found gloves, screwdrivers, and a device known as a dent puller inside the car. Ms. Cooke testified these items were not hers and were not in the car the night of April 27, 1980, when she parked the car at her apartment. The police officers also found the ignition collar on the floorboard of the car, and the ignition in the steering column was missing. The prosecutor's argument was that the presence of these items demonstrated that the thief was a professional.
Argument that a crime was committed by a professional and that the defendant was a professional car thief have been upheld on appeal where the evidence and the inferences therefrom will support such an argument. In State v. Nichelson, 546 S.W.2d 539, 542 (Mo.App.1977) this court held the fact that a prosecutor, in closing argument, may have injected his personal opinion that defendant was a professional car thief was not plain error where these epithets were within the confines of the evidence and the reasonable inference therefrom. Id., at p. 542.
Appellant's reliance on State v. Stockbridge, 549 S.W.2d 648 (Mo.App.1977) does not, in our opinion, control in this case. In Stockbridge the defendant was on trial on a charge of felonious assault upon a police officer when he was referred to as a "professional," a "pro," and "professional car thief," and as engaged in "stealing cars." The court, in its opinion at p. 651 points out: "The defendant was charged with assaulting an officer, not with car theft; ..." The appellant in this case was charged with...
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State v. Moiser
...directly or indirectly explain, counteract, repel, or disprove a defendant's evidence either directly or by implication. State v. Jordan, 699 S.W.2d 80, 82 (Mo.App.1985). During Cathy Moiser's cross-examination by the state, the following exchange took Q. Now you had not ever been convicted......
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State v. Wooten, 51934
...Testimony offered by the State to rebut testimony brought out in defendant's case is within the scope of rebuttal. State v. Jordan, 699 S.W.2d 80, 82 (Mo.App.1985); State v. Childress, 698 S.W.2d 612, 614 (Mo.App.1985). Caseworker's testimony that she never told defendant or his wife that t......
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State v. Joiner
...appellate review to determine whether the exclusion was erroneous and whether appellant was prejudiced by the exclusion. State v. Jordan, 699 S.W.2d 80, 83 (Mo.App.1985). Furthermore, an offer of proof is not always required. On cross-examination there is a much less exacting requirement fo......
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State v. Childers, s. 54020
...defendant a "professional" is not plain error where the evidence and inferences therefrom will support such an argument. State v. Jordan, 699 S.W.2d 80, 82 (Mo.App.1985); State v. Hill, 678 S.W.2d 848, 851 (Mo.App.1984); State v. Nichelson, 546 S.W.2d 539, 543-44 (Mo.App.1977). In the conte......