State v. Poole, No. 38403
| Court | Missouri Court of Appeals |
| Writing for the Court | McMILLIAN |
| Citation | 556 S.W.2d 493 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Charles POOLE, Defendant-Appellant. . Louis District, Division Two |
| Decision Date | 20 September 1977 |
| Docket Number | No. 38403 |
Page 493
v.
Charles POOLE, Defendant-Appellant.
Page 494
Terry Burnet, Robert G. O'Blennis, Asst. Public Defenders, St. Louis, for defendant-appellant.
John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
McMILLIAN, Presiding Judge.
Defendant appeals from a judgment of conviction for assault with intent to kill with malice, § 559.180, RSMo 1969, entered by the circuit court of the City of St. Louis. Defendant was sentenced to 20 years in the Missouri Department of Corrections pursuant to the Second Offender Act, § 556.280, RSMo 1969.
For reversal, defendant urges that the trial court erred in overruling his objection to that part of the prosecutor's closing argument in which the prosecutor referred to the defendant as a hoodlum, and that part in which the prosecutor put the sole burden of ending crime in St. Louis on the jurors. Defendant also alleges the trial court erred in admitting Exhibits 21-A and 22-B, two spent shotgun shells, because inadequate foundation was laid for their admission and even if the proper foundation was laid, the prejudice introduced by the shells outweighed their probative value. We find that the above allegations of error were not properly preserved or are of no merit and accordingly affirm.
On January 25, 1974, about half an hour before the alleged assault, appellant and several of his friends were involved in a fight with two of the victim's brothers, Leroy and Randy Wilson, at Lee's Market. Appellant was struck and injured by Randy Wilson.
The Wilsons returned to their home at 915 Clarendon Street. Shortly thereafter Andrew Wilson left the house and crossed the street to go to a liquor store. As he was about to enter the store, Morris Bynum, one of defendant's friends involved in the fight, walked up to Andrew, exchanged a few words and shot Andrew, injuring him. Andrew ran into the liquor store, fell down and then ran back across the street to his house. It was while he was returning to his house that he was allegedly shot by the appellant, who was in the Wilson garage. As Andrew reached his house, his brother Willie Wilson came out on the porch and fired one shotgun blast which killed John Frederick, and injured Lydia Wilson, Tommy Davis and Mary Thomas.
The following excerpt from the prosecutor's argument and the defense counsel's objections constitutes the basis of the defendant's first two allegations of error:
"Well, ladies and gentlemen, there is nobody, and I mean nobody, that cares about the problems of the City of St. Louis except the City of St. Louis residents. There is nobody in Washington or in East St. Louis that cares, or in St. Louis County that cares, and the only people who care as to what happens in this city are the citizens. As you sit here, you represent this community. Are you going to tolerate acts like this going on on our streets? Have we finally reached the end of the rope? Are we going to announce to the other hoodlums in this city that we are not going to
"Mr. O' Blennis: I object to that.
(Whereupon, the following proceedings were had at the bench, in the presence but out of the hearing of the jury;)
"Mr. O'Blennis: The final argument is, is it a reasonable inference, and the facts involved, and there is nothing about crime in the City of St. Louis and protecting everyone else.
"MR. ROGERS: It's clearly the function and proper argument.
"THE COURT: I will overrule that objection.
Page 495
(Thereafter, the following proceedings were had within the presence and hearing of the jury:)"
As can be seen, the defense counsel, at trial, objected neither to the prosecutor's implication that the defendant was a hoodlum nor to that part of the prosecutor's argument in his motion for a new...
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State ex rel. O'Blennis v. Adolf, No. 49752
...July, 1976, and was sentenced to twenty years imprisonment as a second offender. That conviction was affirmed on appeal. State v. Poole, 556 S.W.2d 493 (Mo.App.1977). Poole filed a motion pursuant to Rule 27.26 to correct, vacate, or set aside his conviction and sentence on the basis that h......
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State v. Steward, No. 39330
...evidence; State v. Malone, 301 S.W.2d 750, 760 (Mo.1957) "confessed convict" not improper under facts. See also State v. Poole, 556 S.W.2d 493, 495 (Mo.App.1977) (collecting cases of epithets held not prejudicial); State v. Mayfield, 562 S.W.2d 404...
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State v. Plummer, Nos. 60749 and 62194
...the law and not tolerate violations of this particular statute. Schwer, 757 S.W.2d at 264; Steward, 564 at S.W.2d at 99; State v. Poole, 556 S.W.2d 493, 495-96 (Mo.App.1977). Plummer's reliance on United States v. Solivan, 937 F.2d 1146, 1153 (6th Cir.1991), for the proposition that a prose......
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State v. Mayfield, No. 38313
..."drunken killer", and "pimp" has been reviewed by our courts and not resulted in reversal. See State v. Poole, 556 S.W.2d 493, 495 (Mo.App.1977). We have read the text of the closing argument and do not feel that the appellations given by the prosecutor to the defendant ......
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State ex rel. O'Blennis v. Adolf, No. 49752
...July, 1976, and was sentenced to twenty years imprisonment as a second offender. That conviction was affirmed on appeal. State v. Poole, 556 S.W.2d 493 (Mo.App.1977). Poole filed a motion pursuant to Rule 27.26 to correct, vacate, or set aside his conviction and sentence on the basis that h......
-
State v. Steward, No. 39330
...improper evidence; State v. Malone, 301 S.W.2d 750, 760 (Mo.1957) "confessed convict" not improper under facts. See also State v. Poole, 556 S.W.2d 493, 495 (Mo.App.1977) (collecting cases of epithets held not prejudicial); State v. Mayfield, 562 S.W.2d 404...
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State v. Plummer, Nos. 60749 and 62194
...the law and not tolerate violations of this particular statute. Schwer, 757 S.W.2d at 264; Steward, 564 at S.W.2d at 99; State v. Poole, 556 S.W.2d 493, 495-96 (Mo.App.1977). Plummer's reliance on United States v. Solivan, 937 F.2d 1146, 1153 (6th Cir.1991), for the proposition that a prose......
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State v. Mayfield, No. 38313
..."desperado", "hoodlum", "drunken killer", and "pimp" has been reviewed by our courts and not resulted in reversal. See State v. Poole, 556 S.W.2d 493, 495 (Mo.App.1977). We have read the text of the closing argument and do not feel that the appellations given by the prosecutor to the defend......