State v. Peterson

• Decision Date: 12 February 1968
• Docket Number: No. 2,No. 53017,53017,2
• Citation: 423 S.W.2d 825,26 A.L.R.3d 1400
• Parties: STATE of Missouri, Respondent, v. Gerald D. PETERSON, Appellant
• Court: Missouri Supreme Court

Page 825

423 S.W.2d 825

26 A.L.R.3d 1400

STATE of Missouri, Respondent, v. Gerald D. PETERSON, Appellant.

No. 53017.

Supreme Court of Missouri, Division No. 2.

Feb. 12, 1968.

Norman H. Anderson, Atty. Gen., Jefferson City, Robert L. Carr, Special Asst. Atty. Gen., Potosi, for respondent.

Robert G. Duncan, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.

EAGER, Judge.

Defendant was charged by information with the burglary of a liquor store in North Kansas City. He was not charged with stealing. Upon trial, the jury convicted him and fixed his punishment at a term of three years. He was represented at the trial by privately employed counsel, and he is so represented here. Upon this appeal the only point raised concerns the final arguments and we shall not need to state the evidence in detail. We may say here, however, that the record discloses that the defendant seriously contested the issue of his identity, as well as his guilt.

At approximately 2:30 a.m. on August 18, 1966, the front door of Laurie's Liquor Store at 10th Street and Swift Avenue in North Kansas City was forced open. A burglar alarm sounded at police headquarters and three cars, these being practically the whole force on duty at the time, responded to the dispatcher's call. Each car contained one officer. One, William Boydston, saw a man running out of the front door and around the building; the man wore 'dark clothing,' was approximately six feet tall and was 'stocky.' The next officer, Edward L. Smith, stopped his car at the corner of the building and saw a 'figure' run along the side of the building toward the street; the man wore dark clothing. The third officer, Sergeant Brant, approached the scene on Swift Avenue and as he did so a man ran out into the street toward his car; he put on his brakes and swerved to avoid hitting the man, and thus crashed his car into a light pole. However, he testified that the man rain in front of his car at a distance of perhaps one or one and one-half car lengths, that his lights shone on him, and that he saw his face; he identified the man very specifically as the defendant. It was also shown in the record that officer Brant recognized the man at the time as Peterson, this defendant, and so told the other officers. His means of knowledge was not asked or given. The wrecking of the police car caused some confusion and the fleeing man was not apprehended. The neighborhood was searched by the officers, and a car was spotted at the rear of a rooming house or apartment building (referred to as the 'Palmer House'), which the police recognized as, or learned by radio to be, that of defendant. This car was kept under surveillance and, after perhaps and hour, a man entered the car. A nearby officer approached and the man drove hurriedly away without lights, despite an order from the officer to 'hold it.' That officer definitely identified the driver as the defendant, whom he knew. The car narrowly missed another police car near the entrance of the driveway, 'fishtailed' down the wet street, drove around a barrier and finally ran into a building, having been shot at several times in the interval by both of the officers. No one was in the car when the police got there. The officers agreed that the man in that car was wearing a lightcollored shirt, but whether it was a 'T shirt' or not, they did not know. The officer in the police car at the entrance to the driveway testified that he also recognized the driver as the defendant.

The attendant at a nearby Apco Filling station was interviewed and told to watch for a man of a certain description. There was controversy in the evidence concerning the description so given. This attendant, Robert Jones, testified that a man came in later and sat around for 30--40 minutes and drank coffee, and that he answered generally the description given; further, that this man sat in the shadows in a side room; that he left in a taxicab and that he, Jones, then notified the police. A police officer, in rebuttal, denied that he had given Jones such a description as Jones testified to. Jones further testified that the man who stopped in his station was not the defendant.

Mildred Andrews, who lived across the street from the spot where the fleeing man's car crashed into a building, turned over to the police three receipts which she had found later that morning in the corner of her front yard. These were lying in a 'little pile' very near a rope which had been stretched along the side of her yard to keep people from walking across it; she also found that a metal pipe to which the rope was tied had been bent over to within approximately one foot of the ground. The receipts received in evidence were all issued to defendant, one from a bonding company, one from the firm of attorneys which now represents him, and one of an undisclosed nature. In the liquor store it was found that one or more cigar boxes and some papers were scattered about on the floor, and that a filing cabinet had been opened. Some currency from the filing cabinet was on the floor with the papers, but apparently nothing was missing. It had been raining off and on during much of the night, and wet footprints were found. Fingerprints were taken but the results were ineffective because of moisture, presumably from the hands or fingers of the person who made them.

Defendant does not question the submissibility of the case, but we have stated the foregoing facts in order to show more clearly the evidence and the issues which were submitted to the jury. After a warrant was issued for the defendant he surrendered to the police voluntarily.

The sole point relied upon on this appeal is that the trial court 'erred and abused its discretion' in overruling defendant's objections to portions of the State's concluding argument, and in overruling his motion for a mistrial based upon that argument. In the State's opening argument the assistant prosecutor reviewed the evidence in detail, including that upon the question of identification, the finding of the receipts, and the testimony of the filling station operator. Based upon this, he asked for a verdict of 'guilty.' That argument did not include any discussion of or reference to punishment. Defendant's counsel, in his turn, also reviewed the evidence and sought strenuously to disparage the identifications made by the State's witnesses. He avoided entirely all reference to the question of punishment. In the State's closing argument, after reviewing some of the evidence, the assistant prosecutor said: '* * * we are asking that this jury bring back a verdict of guilty, and we're asking not only that you bring back a verdict of guilty, but we're asking that you assess the maximum sentence.' Out of the presence of the jury defense counsel promptly objected for the reasons that the matter had not been mentioned in the State's opening argument and that he had made no argument on the subject; he further moved that the statements be stricken, and for a mistrial. After a very little colloquy, the Court overruled both the objection and the motion. Thereafter, counsel for the State continued with his argument, asked again for a maximum sentence of ten years, and added: 'There's just one way to stop burglaries, there's just one way to stop crime in this county, and that is to let the criminals know that if they commit a crime in this county they will be punished. I don't mean by a slap on the wrist, I mean by punishment, I mean punished.' Again counsel for defendant objected on the 'same grounds' and was overruled. Continuing, the assistant prosecutor argued: '* * * If these people like Gerald Peterson, if they are to know that we want law and order in this county that we don't want burglaries, they are going to have to be made to believe it, and believe me, your conviction in this case, and the returning of a maximum sentence of ten years will be just like a red flag.' Another objection was then made and overruled. Thereafter the State's counsel continued: 'It'll be just like a red flag. The criminals will know then that Clay County doesn't want any crime, that if you come over here and burglarize you'll go to the penitentiary and you'll go there for a long stretch. And this is, I think, is what the people of Clay County want. We don't want these people over here committing crimes, and if they come over here and commit a crime we want to send them down for just as long as we can because we want it absolutely understood--' We have quoted these portions of the argument in order to show the context in which the requests for a maximum sentence were made.

Counsel for defendant relies strongly on Shaw v. Terminal R.R. Ass'n of St. Louis, Mo., 344 S.W.2d 32, 93 A.L.R.2d 265, a civil case for personal injuries. There plaintiff's counsel, in his opening argument, discussed the evidence and his theory of liability, stating also that in his concluding argument he would develop 'some other points.' At that time defendant's counsel notified him that the should 'make all of his points' then, including the matter of damages, so that defendant might answer, or that it would later object. The Court overruled this request. Defendant's counsel proceeded with his argument but did not touch upon the question of damages. In plaintiff's concluding argument his counsel dwelt at length upon the injuries and sundry elements of the claimed damages, concluding with a request for a verdict of $25,000. To all of this defendant's counsel promptly objected, but the objections were overruled. Thus, the entire argument concerning injuries and damages was withheld until the plaintiff's concluding argument. On the appeal this Court held that such action was improper, that the trial court abused...