State v. Price, 37126

• Decision Date: 21 September 1976
• Docket Number: No. 37126,37126
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Helen Patricia PRICE, Defendant-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 777

541 S.W.2d 777

STATE of Missouri, Plaintiff-Respondent, v. Helen Patricia PRICE, Defendant-Appellant.

No. 37126.

Missouri Court of Appeals, St. Louis District, Division One.

Sept. 21, 1976.

Bell, Harris, Kriksey & Thomas, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

McMILLIAN, Judge.

Defendant-appellant Helen Patricia Price appeals from a conviction in the circuit court of the City of St. Louis for stealing over $50 and a sentence imposed by the court, pursuant to the Second Offender Act, to a term of five (5) years imprisonment. We reverse the conviction and remand for a new trial.

At trial the state's evidence was that on December 4, 1974, Ms. Joyce Jobe and Ms. Sally Parker, security officers in the downtown Famous-Barr Department Store, saw appellant take a red plastic shopping bag from her purse, place four handbags from a sales rack into the bag, and attempt to walk out of the store. Appellant was then detained by the two security officers and Mr. Joseph Gaal, a member of the St. Louis Police Department, who was employed on a part-time basis by the store. These three employees testified to having observed and detained appellant. An assistant buyer testified that the value of the items was in excess of $50.00.

Appellant testified and admitted to having been previously convicted of a shoplifting offense involving Famous-Barr and to several felony convictions. She claimed, however, that in the present case she was being framed. She testified that she was shopping on the second floor of the store with her sister and brother, when Officer Gaal told her to leave the store. A short time later Officer Gaal again saw her around the first floor entrance and a scuffle ensued. She was then taken to the store security office where Officer Gaal told Jobe and Parker to get some merchandise valued at over $50.00 and to bring it to the office so that appellant could be charged with a felony. Appellant also testified that she had had a prior hostile encounter with Ms. Jobe.

Ms. Jobe and Ms. Parker testified that appellant had been accompanied by someone when they first observed her but that they had lost track of that person in the process of following Ms. Price. Appellant's attorney, Mr. Charles Kirksey, Jr., first notified the prosecutor of his intention to call appellant's sister and brother on the day the trial commenced. During a conference in the judge's chambers held the following morning, the court found that appellant had failed to comply with the discovery request for witnesses made by the state under Rule 25.34(2). Therefore, at the request of the state, the court then applied Rule 25.45 to prohibit the appellant from calling either her brother or sister as a witness.

In his closing argument the prosecutor, Mr. Raymond Bruntrager, Jr., commented on the appellant's failure to present any evidence to corroborate her story. Appellant's counsel objected and was overruled.

Appellant raises two points on appeal: that the trial court erred by excluding appellant's witnesses from testifying resulting in a deprivation of her constitutional rights; and that the trial court erred in not sustaining appellant's objection to the prejudicial argument of the prosecutor.

We pass to consideration of the second point. Generally, the granting or withholding of a new trial for improper argument is a matter for the trial court's discretion and an appellate court will not interfere without a showing that the trial court abused its discretion to the prejudice of the appellant. State v. Turley, 518 S.W.2d 207, 211 (Mo.App.1975) and State v. Connell, 523 S.W.2d 132 (Mo.App.1975). Such a statement must have been plainly unwarranted and clearly injurious. State v. Hutchinson, 458 S.W.2d 553, 556 (Mo. banc 1970).

It is an established rule in our state that it is improper for a prosecutor, or defense attorney, to argue matters that the court has excluded. State v. White, 440 S.W.2d 457, 460 (Mo.1969) and State v. Williams, 376 S.W.2d 133, 136 (Mo.1964).

In his closing argument the prosecutor made the following statement: 'Helen Price takes the stand . . . Okay. She tells you, 'well, this happened. That person was with me. And that person was with me.' Do you see any of this now? You don't see any of it now. All you see is her telling you---.'

We find this to be a clear...