State v. Roberts, s. 57669

• Decision Date: 18 August 1992
• Docket Number: Nos. 57669,59416,s. 57669
• Citation: 838 S.W.2d 126
• Parties: STATE of Missouri, Respondent, v. Sidney ROBERTS, Jr., Appellant, Sidney ROBERTS, Jr., Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 126

838 S.W.2d 126

STATE of Missouri, Respondent, v. Sidney ROBERTS, Jr., Appellant, Sidney ROBERTS, Jr., Appellant, v. STATE of Missouri, Respondent.

Nos. 57669, 59416.

Missouri Court of Appeals,

Eastern District,

Division Two.

Aug. 18, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

Sept. 14, 1992.

Application to Transfer Denied Oct. 27, 1992.

Emily Blood, Kathleen Green, St. Louis, for appellant.

William L. Webster, Atty. Gen., Millie Aulbur, Asst. Atty. Gen., Jefferson City, for respondent.

SATZ, Judge.

A jury convicted defendant, Sidney Roberts, of murder, first degree, § 565.020.1, RSMo 1986 ¹, and armed criminal action, § 571.015. He was sentenced to life imprisonment without probation or parole on the murder charge and to fifty years imprisonment on the armed criminal action charge; the sentences are to be served concurrently.

Defendant appeals from his convictions and sentences and from the denial of his Rule 29.15 motion. We affirm.

Direct Appeal

Defendant does not question the sufficiency of the evidence. His challenges to his convictions and sentences, however, require a brief recitation of the facts.

The murder took place one night in September 1988. About 9:30 p.m. on that night, Mr. David Patton was at home in his second floor apartment which he shared with his cousin, Ms. Angela Brooks, and her children. He was speaking on the telephone, when noises from the outside caught his attention. He looked out his window and saw a fight taking place immediately below him. He called to his cousin to watch the fight with him.

Mr. Patton and Ms. Brooks saw two men punching a third older man, the victim, Mr. Timothy Booker. One of the two men punching him was later identified as defendant. Defendant told the police he assaulted Mr. Booker because Mr. Booker had accused defendant of "owing him some money."

Shortly after Mr. Patton and Ms. Brooks began watching the beating, they saw Mr. Booker break away from defendant and his companion and run into a liquor store located across the street from Mr. Patton's apartment. Once inside, Mr. Booker asked the clerk of the liquor store, Mr. Nathaniel Cooper, if he could use the phone. Mr. Booker appeared frightened. Mr. Cooper refused to allow Mr. Booker the use of the phone. At this point, defendant and his companion entered the liquor store in pursuit of Mr. Booker. The trio began to fight again in the store, with defendant attempting to punch Mr. Booker at least once. Mr. Cooper told the three men to leave the store because they were disturbing his customers.

Once outside, the beating continued on a lot next to the liquor store. Mr. Cooper came outside and saw defendant kick Mr. Booker in the face while Mr. Booker was on his knees. He then saw defendant run away, come back with a liquor bottle and break the bottle over Mr. Booker's head. Mr. Cooper was five to six feet away from defendant and Mr. Booker. Mr. Cooper then went back into the store, and, a "few seconds" later, he heard shots.

Mr. Patton, still watching from his window, saw defendant, his companion and Mr Booker when they came out of the store. According to Mr. Patton, the "lighting around the liquor store ... [was] lit up real good, because they have a lot of lights on the outside of it.... With [the street light] and the light coming from the liquor store, it seemed like it was daytime." He was about twenty to thirty feet away from the fracas. He watched defendant and his companion punching Mr. Booker again. He saw Mr. Booker being knocked to the ground and being kicked repeatedly. He heard Mr. Booker plead with the two men to stop. Then, he saw defendant run about twenty feet away, pick up a bottle, come back to Mr. Booker and hit him on the head with the bottle. Mr. Patton heard the bottle break.

At this point, Mr. Patton saw defendant's companion produce a gun and begin to pistol whip Mr. Booker around the face and neck. Then, Mr. Patton saw defendant take the gun away from his companion, point it at Mr. Booker's head and pull the trigger. Mr. Patton heard "snapping", the "click of the pistol when [defendant] was pulling it." He heard the "snapping" three times. The gun did not fire. Mr. Patton then heard the gun fire twice. The first shot "seemed like it hit him [Mr. Booker] in the head." Defendant then ran down the street with his companion. They returned, placed a jacket over Mr. Booker's head, and ran away.

Ms. Brooks, watching from another window in Mr. Patton's apartment, saw the same action Mr. Patton did and so testified. Mr. Booker later died from the gunshot wounds.

When the police arrived on the scene, Mr. Patton and Ms. Brooks provided them with their eyewitness accounts. They both described the man who shot Mr. Booker as being a short, muscular man. Ms. Brooks told the police she thought this man was a man she knew from the neighborhood as "Little Herc", to whom she had been introduced.

At one of several lineups held a few days later, Mr. Patton identified defendant as the man he had seen shoot Mr. Booker. Ms. Brooks was unable to make a positive identification at the lineup she viewed. At trial, however, she did identify defendant as the culprit. Mr. Cooper, the liquor store clerk, identified defendant, in a lineup and at trial, as the man who came into the liquor store that night in pursuit of Mr. Booker, and who attempted to punch Mr. Booker while in the store. At trial, a detective testified that defendant's street name was "Little Herc".

Defendant testified at trial. He said he assaulted Mr. Booker because Mr. Booker had accused him of taking "some money from [Mr. Booker]". He also said he did not shoot Mr. Booker, his companion did.

The jury found defendant guilty of murder in the first degree and armed criminal action. This appeal followed.

Defendant contends the prosecutor's improper remarks in closing argument deprived him of a fair trial. The challenged remarks were improper. They did not, however, deprive defendant of a fair trial.

In the last half of his closing argument, the prosecutor, Mr. Robert L. Garrison, argued that: (1) defendant was the "coolest, most collected" liar he had seen in five years of prosecuting; (2) it was his job to speak for the victim's family; (3) the jury should remember the people who loved the victim; (4) the jury should imagine what were the victim's last thoughts before dying; and (5) the jury should put itself in the victim's place on his last night. These remarks, defendant contends, constitute an improper personalization of the argument and an improper argument based upon facts not in evidence. The trial court, defendant argues, improperly failed to grant a mistrial when requested, improperly failed to sustain objections when requested and committed plain error when it failed to strike sua sponte part of the remarks not objected to.

The prosecutor began his improper remarks by personally evaluating the credibility of defendant:

[Prosecutor]: I told you during the first half of my closing argument that [defendant is] a very cool liar. He's a young man but he's an exceptional liar. He's one of the coolest, most collected liars I've seen in five years of prosecuting the--

[Defense Counsel]: Objection, Your Honor. Counsel personalized.

[Court]: Sustained.

[Defense Counsel]: I move for a mistrial.

[Court]: Mistrial denied. Objection sustained.

The court properly sustained defense counsel's objection. A prosecutor may make inferences fairly drawn from the evidence, even if the inferences are not necessarily warranted. Grubbs v. State, 760 S.W.2d 115, 119 (Mo. banc 1988); cert. denied, 490 U.S. 1085, 109 S.Ct. 2111, 104 L.Ed.2d 672 (1989); State v. Cobb, 820 S.W.2d 704, 711 (Mo.App.1991). A prosecutor, however, may not express an opinion implying knowledge of facts unavailable to the jury. Grubbs, supra; Cobb, supra. Here, the prosecutor did express his opinion of defendant's credibility based upon his experience, an experience, obviously, not shared with the jurors.

Admittedly, at times, our Supreme Court has said that "[a] prosecutor has the right to comment on the evidence and the credibility of witnesses from the state's viewpoint", State v. Woods, 346 Mo. 538, 142 S.W.2d 87, 90 (1940), and, without elaboration, the Court also has said that "it is a fair comment on the evidence" for a prosecutor to argue to the jury: "You know this defendant got on the stand and lied to you gentlemen." State v. Johnson, 351 Mo. 785, 174 S.W.2d 139, 142 (1943). However, in each of these instances and other like instances, see, e.g., State v. Lawson, 627 S.W.2d 901, 903-904 (Mo.App.1982), the prosecutor's argument is still implicitly connected to the evidence or clearly tells the jurors to evaluate the facts based upon their own experience and common sense. Here, the prosecutor appointed himself the thirteenth juror and argued his personal beliefs based upon his own personal experience.

To permit the prosecutor to make this argument would afford him a privilege not even granted to a witness under oath and subject to cross-examination. Moreover, the argument may create the false issue of the prosecutor's reliability and credibility. Furthermore, the prosecutor's injection of his personal beliefs not only detracts from but may destroy the nonpartisan and impartial role the prosecutor, as the representative of the state, is required to assume in the courtroom. See, e.g., State v. Jackson, 664 S.W.2d 583, 584 (Mo.App.1984); State v. Wintjen, 500 S.W.2d 39, 43-44 (Mo.App.1973). He is in a position of public trust which invites and may induce the jury to accord his opinions unwarranted weight. State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524, 526-527 (Mo. banc 1947). Thus, for him to sit as a thirteenth juror personally evaluating credibility improperly invites the jury to rely on his personal evaluations. This is not to say the prosecutor must discard the use of the personal pronoun "I". State v. Matthews, 790...