State v. Nolen, 19005

• Decision Date: 22 March 1994
• Docket Number: No. 19005,19005
• Citation: 872 S.W.2d 660
• Parties: STATE of Missouri, Respondent, v. Sheri Rae NOLEN, Appellant.
• Court: Missouri Court of Appeals

Page 660

872 S.W.2d 660

STATE of Missouri, Respondent, v. Sheri Rae NOLEN, Appellant.

No. 19005.

Missouri Court of Appeals,

Southern District,

Division One.

March 22, 1994.

Matthew J. O'Connor, Office of the State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Mary Moulton Bryan, Asst. Atty. Gen., Jefferson City, for respondent.

MONTGOMERY, Judge.

A jury found Sheri Rae Nolen (Defendant) guilty of forgery, in violation of § 570.090.1(4), RSMo 1986. The trial court sentenced her as a prior offender to four years in prison.

Defendant raises two points on appeal. She first claims the trial court should have declared a mistrial when the assistant prosecutor, during closing argument, commented on Defendant's prior criminal record. Second, she claims the trial court should not have submitted to the jury a "reasonable doubt" instruction patterned after MAI-CR 3d 302.04.

On September 10, 1992, Defendant presented a check to a clerk at Consumer's Supermarket in Joplin, Missouri. The $159.33 check was for $139.33 in groceries and $20 cash. It was drawn on the account of Shirley Shaffer at First National Bank of Nevada, Missouri. When the clerk asked for identification, Defendant offered her driver's license. The clerk recorded on the check that the person passing it matched the person on the license.

Shaffer had known Defendant for many years before this incident and considered her to be a friend. In May or June 1992, Shaffer became too ill to walk, and Defendant began running errands for her, mostly to buy groceries or to take Shaffer's dogs to the veterinarian. To pay for these expenses, Shaffer would each time provide Defendant with a check, on which Shaffer would write the date, to whom the check was payable, and her signature. She trusted Defendant to later fill in the correct amount.

Shaffer was hospitalized in September or October 1992. About that time she noticed that her checking account was overdrawn. Eventually, she discovered that Defendant had written the check to Consumer's without permission. Defendant admitted that she had signed the check in Shaffer's name. Shaffer testified that she had never given Defendant permission to sign Shaffer's name to a check and that the only person authorized to write checks on the account was Shaffer. Nothing on the September 10, 1992, check to Consumer's was in Shaffer's handwriting.

Comments During Closing Argument

At trial, after all the preceding evidence had been adduced, Assistant Prosecuting Attorney Dean Dankelson made his closing argument. What follows is part of that argument, including (in italics) the portion Defendant finds objectionable. Also included are some of Dankelson's preceding statements and the subsequent exchange between Dankelson, the defense counsel (Mr. Perry) and the trial judge. At the beginning of the statement below, Dankelson was challenging the credibility of Harvey Norman (Defendant's boyfriend and one of her witnesses at trial). The State had previously established that Norman had himself been convicted of forgery.

DANKELSON: ... I will admit that, just because [Norman] committed a crime in the past does not make him a liar when he comes up here. But it's a fact you can consider, it is a fact you can consider. And when Ms. Nolen got up on the stand, when the defendant got up, she's admitted to three prior convictions, there were two misdemeanors and a felony passing bad check. So she's passed bad checks before and knew the defendant --

PERRY: Judge, may we approach the bench?

[Counsel approached the bench and the following proceedings were had.]

PERRY: Judge, I think his argument is getting awful close to arguing something other than credibility of a witness.

THE COURT: I agree with you.

DANKELSON: I wasn't going any further with it, Judge.

THE COURT: I'm going to sustain your objection which I think you're getting ready to make, or have made. Correct?

PERRY: Yes.

THE COURT: That objection will be sustained. And do you wish me to admonish the jury?

PERRY: I would ask that the jury--a mistrial be declared.

THE COURT: I'm going to overrule that, I don't think it's reached that point.

PERRY: Then I'd ask that the jury be instructed to disregard the last comment of the prosecutor.

Following a brief discussion with the attorneys about the proper wording of an admonishment, Judge Crawford made the following statement to the jury:

The objection of the defense will be sustained, the jury is instructed to disregard the last statement of the prosecutor to the effect that you must remember that she has been previously convicted in Pettis County of passing a bad check. Now, you may proceed, Mr. Dankelson, you have approximately three and a half minutes remaining.

In reviewing this matter, we are mindful of the following principles. First, declaring a mistrial is a drastic remedy that should be exercised only in extraordinary circumstances. State v. Feltrop, 803 S.W.2d 1, 9 (Mo. banc 1991), cert. denied, 501 U.S 1262, 111 S.Ct. 2918, 115 L.Ed.2d 1081 (1992). Such circumstances occur only when no action short of a mistrial would remove the prejudice claimed. State v. Herron, 863 S.W.2d 6, 8 (Mo.App.1993). Usually, an admonition to the jury cures any prejudicial effects of prosecutorial comments. State v. Williams, 784 S.W.2d 309, 313 (Mo.App.1990); State v. Wren, 643 S.W.2d 800, 802 (Mo.1983).

Second, the trial court possesses the "best coign of vantage to assess the prejudicial effect of prosecutorial remarks." Wren, 643 S.W.2d at 802. Our review therefore is limited to deciding whether, as a matter of law, the trial court abused its discretion in refusing to declare a mistrial. Feltrop, 803 S.W.2d at 9; 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).

Third, the trial court's discretion in controlling closing argument is broad, and wide latitude is accorded counsel in their summaries. State v. Boswell, 849 S.W.2d 739, 740 (Mo.App.1993); State v. McDonald, 661 S.W.2d 497, 506 (Mo. banc 1983), cert. denied, 471 U.S. 1009, 105 S.Ct. 1875, 85 L.Ed.2d 168 (1984). To constitute an abuse of discretion that requires reversal, the prosecuting attorney's statements "must be plainly unwarranted and clearly injurious to the accused." State v. Mahurin, 799 S.W.2d 840, 844 (Mo. banc 1990), cert. denied, 502 U.S. 825, 112 S.Ct. 90, 116 L.Ed.2d 62 (1991). Those statements must have had a "decisive effect on the jury's determination." State v. Parker, 856 S.W.2d 331, 333 (Mo. banc 1993).

As Defendant correctly points out, "[i]t is improper to argue prior unconnected crimes as reflecting upon the defendant's character or as a basis for conviction in the case on trial." State v. Guernsey, 577 S.W.2d 432, 435 (Mo.App.1979). The only legitimate purpose for which prior convictions may be used is to impeach the defendant's credibility. State v. Mobley, 369 S.W.2d 576, 580 (Mo.1963). It is also true, as defense counsel stated in his objection at trial, that Dankelson's remark got "awful close to arguing something other than credibility of a witness."

Nonetheless, given the context of Dankelson's remark and the fact that he was never allowed to complete his sentence, we cannot find with certainty that he actually overstepped the boundary between legitimate and improper argument. Just before the remark complained of, Dankelson told the jury that the prior convictions of Defendant's boyfriend bore on the man's credibility. One could reasonably assume that, by mentioning Defendant's prior convictions, Dankelson had the same purpose in mind. Dankelson said as much during the ensuing bench conference, and the court did not challenge his motives.

The trial court was well within its discretion, however, when it halted Dankelson's argument and admonished the jury. By this action, the trial court clearly cured any conceivable prejudicial effect Dankelson's remark may have had.

The facts before us are somewhat similar to those in State v. Richardson, 810 S.W.2d 78 (Mo.App.1990). In that case, a defendant convicted of selling cocaine appealed the trial court's refusal to grant a mistrial when the prosecutor made the following statement during closing argument: "Do not think that this is just his first time doing it; this is the first time he has gotten caught." No facts were in evidence to support this statement, and the trial court instructed the jury to disregard the prosecutor's comment.

In reaching its decision to affirm the trial court's ruling, the appeals court...