State v. Raspberry
Decision Date | 13 April 1970 |
Docket Number | No. 1,No. 54255,54255,1 |
Citation | 452 S.W.2d 169 |
Parties | STATE of Missouri, Respondent, v. Benny Louis RASPBERRY, Appellant |
Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Michael L. Boicourt, Asst. Atty. Gen., Jefferson City, for respondent.
J. Arnot Hill, Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant.
Defendant, Benny Louis Raspberry, was charged by indictment with murder in the first degree for allegedly inflicting upon one James Willie Graham fatal gunshot wounds on February 3, 1968, in Jackson County, Missouri. Defendant was found guilty by a jury as charged and sentenced to life imprisonment.
It is not contended on this appeal that the evidence was insufficient to sustain a conviction. Therefore, the statement of the facts need only be in a summary form. The evidence on behalf of the state was that on the evening of February 2, 1968, at approximately nine o'clock, the deceased, James Willie Graham, and a companion, one Ulysses Stewart, entered a bar known as the Last Roundup on Twelfth Street in Kansas City, Missouri. At about eleven o'clock that evening the defendant appeared outside the bar and was seen looking in the window. On one occasion when Graham went outside to talk to a female acquaintance, the defendant was overheard saying that he was 'going to kick James' ass.' A brief argument ensued, the nature of which is not disclosed by the record, and then Graham went back into the tavern. The defendant was seen outside the bar by several witnesses at various times later that evening and, in view of subsequent events, the jury could have reasonably concluded that the defendant was keeping Graham under surveillance. Graham and Stewart remained at The Last Roundup until it closed at about 1:30 a.m. on the following morning. They then proceeded on foot to a nearby restaurant called the Chicken Shack. The defendant apparently followed as he was next seen standing on the sidewalk outside the Chicken Shack. After placing an order, Graham walked out on the sidewalk and approached a young boy identified in the evidence only as Tomcat. The defendant was standing just a few feet away as Graham talked to this boy. Without any words passing between them, the defendant suddenly pulled a handgun and shot Graham in the face from a distance of about five feet. Graham turned and made an effort to get back into the Chicken Shack when he was shot a second time in the back of the head. Graham fell mortally wounded in the doorway of the restaurant and died the following morning. The motive for the killing is not reflected by the evidence.
The only testimony for the defense was that of the defendant. He testified that he was standing outside the Chicken Shack when Graham came out and asked the boy called Tomcat for money to buy a drink. The defendant claimed that Graham then poked Tomcat with a club he was carrying. Thereupon, according to the defendant, Tomcat backed off, put his hand in his pocket and said, 'I am not going to give you no more money.' The defendant testified that he then heard two shots and Graham fell to the sidewalk. It was denied by the defendant that he had thereatened the deceased.
The defendant's first contention is that the court erred in overruling his motion to discharge the jury because of alleged prejudicial statements of the prosecuting attorney in his closing argument. The defendant attacks several portions of the prosecutor's closing argument, but in only two instances did the defendant properly preserve the alleged errors for appellate review by including them in his motion for new trial. We are precluded from considering that part of the prosecutor's closing argument which was not included in the motion for new trial regardless of objections made at the trial. Supreme Court Rule 27.20, V.A.M.R.; State v. Laster, 365 Mo. 1076, 293 S.W.2d 300.
The first portion of the prosecutor's closing argument for which the alleged error of the trial court was properly preserved in the motion for new trial was as follows: Counsel for defendant objected for the reason that the argument was an attempt to personalize the case with the jury. He moved that the jury be instructed to disregard the statement and further moved for a mistrial. The trial judge sustained the objection, instructed the jury to disregard the statement, but overruled the motion to declare a mistrial and discharge the jury.
The second portion of the state's closing argument complained of and preserved in the defendant's motion for new trial was: The defendant objected to this argument on the ground that the statement 'so he can't do this again' was a comment on the character of the defendant when his character had not been put at issue. Defendant did not place his character at issue when he testified. Defendant's objection was sustained and the jury was instructed to disregard the prosecutor's statement. The motion to declare a mistrial was overruled.
At the outset we must agree that the prosecutor's argument was improper in the two instances recited. It is well settled that the prosecutor may not personalize his argument to the jury. The jury must act objectively, without fear or prejudice. They must determine the guilt or innocence of the defendant from the evidence and it is improper for the prosecutor to taint their judgment with suggestions of personal danger to them or their families if the defendant is acquitted. See State v. Groves, Mo., 295 S.W.2d 169. It has likewise been held improper for the prosecutor to argue with respect to the defendant's character or criminal proclivities and the necessity of deterring him, not as an example to others, but to prevent the defendant on trial from committing further crimes. See State v. Mobley, Mo., 369 S.W.2d 576. In other words, a defendant is on trial for what he has or has not done and not for what he might do. This is not to say that the prosecutor may not argue the necessity of law enforcement and ask for a severe penalty as a deterrent to others. See State v. Laster cited above.
While the prosecutor in this case in some degree exceeded the bounds of legitimate argument, what we are called upon by defendant to hold is that the trial court erred in not declaring a mistrial because of these statements of the prosecutor. In examining the cases cited to us by the defendant we find them to be distinguishable. See State v. Groves and State v. Mobley cited above and also State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524. These cases involved situations wherein the trial court overruled the objections and failed to instruct the jury to disregard the objectionable argument. In other words, the court took no affirmative action in the cases cited to purge from the minds of the jurors the improper argument. That is not the case before us. Here, the court properly sustained the objections and in each instance instructed the jury to disregard the argument. As was stated by this court in the Mobley case (369 S.W.2d 582(7)): 'We would have a somewhat different question here if the court had taken some action in connection with the erroneous parts of the argument; we might then need to determine whether the drastic remedy of a mistrial was required.' Every instance of a prosecutor exceeding the limits of legitimate argument is not a cause for declaring a mistrial. The declaration of a mistrial is, as stated, a drastic remedy and should be exercised only in extraordinary circumstances where the prejudicial effect can be removed in no other way. See State v. Smith, Mo., 431 S.W.2d 74; State v. James, Mo., 347 S.W.2d 211; State v. Camper, Mo., 391 S.W.2d 926. This determination rests largely within the discretion of the trial judge who observed the incident and can best gauge its prejudicial effect upon the jury. See State v. Simth cited above. The function of this court is to determine whether as a matter of law the trial court abused its discretion in refusing to declare a mistrial. The portions of the prosecutot's closing argument complained of on this appeal, while improper, were certainly not extreme. Much stronger language has been allowed by this court in a closing argument. See State v. Laster, 365 Mo. 1076, 293 S.W.2d 300, 306. We cannot under the circumstances presented hold as a matter of law that the trial court abused its discretion in not declaring a mistrial.
We shall consider next the contention that the trial court erred in not sustaining defendant's motion for new trial on the ground that a member of the jury received information from his wife during the trial which was calculated to prejudice the juror against the defendant.
The trial of this cause commenced on June 4, 1968, and the jury returned a verdict on the evening of June 6, 1968. This being a capital case the jury was not allowed to separate. The incident giving rise to the defendant's claim of error occurred at...
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