State v. McGowan, WD
| Decision Date | 06 June 1989 |
| Docket Number | No. WD,WD |
| Citation | 774 S.W.2d 855 |
| Parties | STATE of Missouri, Respondent, v. Gary McGOWAN, Appellant. 41002. |
| Court | Missouri Court of Appeals |
Application to Transfer Denied Sept. 12, 1989.
Sean D. O'Brien, Public Defender, Leon Munday, Asst. Public Defender, Kansas City, for appellant.
William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.
Before SHANGLER, P.J., and NUGENT and LOWENSTEIN, JJ.
Gary McGowan was charged by information with robbery in the first degree, § 569.020, RSMo.1986, and armed criminal action, § 571.015, RSMo.1986. The case went to trial on December 7, 1987, but jury deadlock resulted in a mistrial. On March 4, 1988, the state was granted leave to file a second amended petition which charged McGowan as a prior offender. On May 4, 1988, a jury returned a verdict of guilty of robbery in the first degree and armed criminal action.
After the jury returned its verdict, the judge heard evidence that McGowan was a prior offender. The court found him to be a prior offender and sentenced him to 10 years for robbery and 3 years for armed criminal action. Both are minimum terms under law. McGowan does not dispute the sufficiency of the evidence to sustain his convictions.
The first point on appeal is that the trial court erred in overruling defendant's objection to the prosecutors' statements on multiple occasions in the closing argument that the victim had identified defendant in another proceeding because no evidence of such an identification was presented. The defense claims that the improper statements clearly prejudiced him.
Mr. Corona, the victim, testified at trial. He was a maintenance and clean-up man at the Los Corrals Restaurant, in Kansas City. He testified that on Monday, August 31, 1987, at around 5:30 he heard a knock on the door of the restaurant. The restaurant was closed that day. Corona identified Gary McGowan as the person who knocked on the door. McGowan asked for some matches. Corona went to get some. When he returned with the matches, Gary McGowan asked for another book of matches. Then McGowan pulled out a gun. After taking Corona's pocketbook, McGowan hit him several times on the head. Then McGowan kicked Corona in the mouth. McGowan then left the restaurant.
Corona made his way to a hospital with the assistance of an exterminator who was working in the downstairs of the restaurant. At the hospital, Corona informed a police officer that Darry McGowan (Gary McGowan's non-identical twin brother) was the person who robbed him. Only after Corona was shown a photo display did he realize that it was actually the defendant Gary McGowan who robbed him. Later, Corona was shown another photo display. He again picked Gary's picture. No evidence was adduced at trial that Corona identified Gary at an earlier court proceeding. The other court proceeding, however, was referred to when Corona was cross-examined.
"The trial court has broad discretion in the controlling of closing argument, with wide latitude accorded counsel in their summations, and a conviction will be reversed for improper argument only if it is established the complained of comments had a decisive effect on the jury's determination." State v. Moffitt, 754 S.W.2d 584, at 590 (Mo.App.1988). "In determining whether an improper argument was so clearly injurious that a new trial should be required, this court considers whether the trial court gave a cautionary instruction, whether the trial court gave a curative type instruction to disregard the improper comment and the strength of the State's case." State v. Cannady, 660 S.W.2d 33, at 40 (Mo.App.1983).
The closing remarks in question were made by Assistant Prosecutors Bortnick and Sakoulas. The remarks here at issue, as well as proceedings before the bench are quoted:
Mr. Corona, as I have said three different times, three different line-ups--excuse me, photo spreads, September 1st, the next day, eight people. He sees eight people. He did it. He sees one a month later. Again, he did it. He testifies on two separate occasions, and both separate occasions--
MS. SCHENKENBERG [Assistant Public Defender]: Your Honor, I am going to object to that. I don't believe there is any other testimony at all.
(THE PROCEEDINGS RETURNED TO OPEN COURT.)
MR. BORTNICK: He testified on one other occasion, kept the same story. So you at least have three line-ups and one other time that he has testified, sworn under oath, that Gary McGowan, not Darry Davis or Darry McGowan.
During the state's second-half closing argument, Assistant Prosecuting Attorney Steve Sakoulas made the following remarks:
(THE PROCEEDINGS RETURNED TO OPEN COURT.)
Corona picked McGowan's picture out on two different occasions. Moreover, he made an in-court identification. Evidence was adduced at trial of the original mistaken identification of Darry and of the fact that there was a prior hearing concerning the same case. Therefore, whatever prejudice may have been caused by the prosecutor's remarks does not require reversal. This point is denied.
McGowan's second and third points stem from the belated charge and proof of his being a prior offender. Section 558.021 RSMo.1986 outlines the procedure by which a court determines that the defendant has a prior felony conviction. That statute provides that in a jury trial the facts supporting a finding of a prior conviction "shall be pleaded, established and found prior to submission to the jury...." The jury loses its sentencing function to the judge when a defendant is found to be a prior offender.
McGowan was first charged by information of first degree robbery and armed criminal action. After declaration of a mistrial following a hung jury, the prosecutor made two attempts to file an amended information charging him as a prior offender. Leave was finally granted to add the prior offender charge about two months before the trial. After the guilty verdict was brought in, the state introduced a certified copy of McGowan's 1986 judgment of conviction for attempted robbery.
McGowan claims on appeal that the amended information charging him as a prior offender constituted prosecutorial vindictiveness. The introduction and finding of the prior conviction were untimely since the extended term procedure statute, § 558.021.2, requiring such a finding before submission, was not followed.
As to the issue of prosecutorial vindictiveness, it cannot be said to have been shown merely by the filing of the prior offender charge after the mistrial. Contrary to McGowan's argument, the "ante was not upped" here as denounced in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The only effect the prior offender statute had here was to allow the court to assess punishment rather than to involve the jury, § 557.036.4(2). McGowan received ten years...
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