State v. Ladd, KCD

• Decision Date: 04 April 1977
• Docket Number: No. KCD,KCD
• Citation: 552 S.W.2d 23
• Parties: STATE of Missouri, Respondent, v. Michael LADD, Appellant. 28623.
• Court: Missouri Court of Appeals

Page 23

552 S.W.2d 23

STATE of Missouri, Respondent, v. Michael LADD, Appellant.

No. KCD 28623.

Missouri Court of Appeals, Kansas City District.

April 4, 1977.

Motion for Rehearing and/or Transfer Denied May 2, 1977.

Application to Transfer Denied July 11, 1977.

William G. Mays, II, Public Defender, 13th Judicial Circuit, Columbia, for appellant.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.

PER CURIAM.

A jury found appellant guilty of armed robbery and assault with intent to do great bodily harm, § 559.190, RSMo 1969. Upon a finding of the applicability of the Second Offender Act, the court sentenced him to 40 years on the robbery charge and 5 years on the assault charge, to run concurrently, in the Department of Corrections.

The sole point on appeal is a contention that the argument of counsel for the state was improper: "The Court erred in overruling defendant's objection and request for mistrial regarding improper argument by the prosecutor relating to the element of intent in the crimes of rape and murder." This point is inadequate under the rule in that it fails to set forth why and wherein the court erred, and renders this appeal subject to dismissal. It may be gleaned from the short argument portion of the brief that it was beyond the instructions given by the court on the issues relevant to the case, and was therefore improper for the prosecutor to comment beyond those instructions; the argument was of such a nature as to be highly prejudicial in impact and was outside the scope of evidence presented at trial and was intended to inflame and prejudice the minds of the jurors. Although inartfully presented, the point and argument will be considered. And although the brief mentions only portions of the argument, it is set forth more fully in order that its full context will appear, in connection also with appellant's argument:

"BY MR. HARPER: Ladies and gentlemen, I'll try not to belabor this, but I want to make a couple more comments on Count II. I want to read this, it's Instruction 7. Read it when you get back to the jury room and I ask you, you know when a person commits an armed robbery or any crime, they have to have criminal intent at that time to do certain acts. Later what if they say, gosh, I was going to give the money back. I was going to give it back. So if somebody says I was going to give that back, does that negate the whole criminal intent at the time? If that's all, you know, you had to do, why, you could kill, rape, rob, steal, everything else with no consequence. MR. CLINE: This way outside the evidence. There's no evidence of killing, raping (interrupted) MR. HARPER: I'm not alleging there is. Your Honor, this is argument. THE COURT: Objection will be overruled. Proceed." The grounds for the objection were then expanded by appellant's counsel. "MR. HARPER: I'm arguing the concept of criminal intent." The objection was again overruled and a request for mistrial was denied. "MR. HARPER: What I am trying to say to you, is, in any criminal case, you have to have criminal intent. In Count I you have the intent to deprive the owner of their property, their intent to put them in fear of great bodily harm. Criminal intent is the essence of any type of crime. I don't care what it is, rape, robbery, stealing, whatever. MR. CLINE: I object. There's no evidence of rape. I want to make a record on this." Further request for mistrial was denied, and the objection was again overruled. Counsel for state further argued appellant's intent in aiming the pistol at Carroll Highbarger.

Appellant's counsel had argued: " * * * Taking the State's evidence, taking their evidence at its most favorable light, the defendant came out of the car with a gun and pointed it at Highbarger. Highbarger yelled, 'Don't, Ladd, don't.' What happened next? Shots? No, defendant threw down the gun and ran. Is that the intent to kill somebody or to do great bodily harm, to throw down the gun and run? He ran 500 feet before he was caught. Is that the intent to do great bodily harm? He had no weapon on him. Everybody agrees he didn't fire any shots. * * * After a short confrontation with Ladd, Ladd got behind the tree. You know what he did when he got behind the tree; he threw the gun down, didn't he? * * * He wasn't caught for another half-a-block yet, * * *. But by the same token, the defendant fleeing the scene after throwing down his weapon when people are shooting at him, that makes sense. * * * Is this really an assault by this defendant? * * * Is that trying to kill somebody, is that trying to do great bodily harm and to throw down the gun and run, being shot at? I don't think there is any intent to assault anyone here."...