State v. Savage, KCD

Decision Date31 March 1975
Docket NumberNo. KCD,KCD
Citation522 S.W.2d 144
PartiesSTATE of Missouri, Respondent, v. Terry Eugene SAVAGE, Appellant. 26846.
CourtMissouri Court of Appeals

Kenneth K. Simon, Kansas City, for appellant.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.

Before SWOFFORD, P.J., and WELBORN and HIGGINS, Special JJ.

ROBERT R. WELBORN, Special Judge.

Terry Eugene Savage was charged in the Jackson County Circuit Court with robbery in the first degree and assault with intent o kill, with malice. The charges were consolidated for trial, which resulted in a jury verdict of guilty on each charge. The court, under the Second Offender Act, sentenced the defendant to consecutive 20-year terms.

On December 31, 1970, 'a colored fellow' entered Traxler's Pharmacy in Kansas City and ordered a package of cigarettes from the proprietor, Seymour Traxler. When Traxler turned to deliver the cigarettes, the 'customer' was holding a gun. He told Traxler to open the cash register. The robber took money from the register, put it in a sack, and began to tape Traxler's hands. At that time a police officer, Sergeant Thomas H. Ratterman, responding to an alarm tripped by Traxler, entered the store. The robber fired three times at Sergeant Ratterman and the officer returned the fire. Neither man was hit. The robber threw his gun from behind a counter and said 'I quit.' The officer placed him under arrest. A pillow case containing currency was found near the cash register.

Savage was charged with robbery from Traxler and with assault with intent to kill with a deadly weapon, with malice, against Ratterman. Traxler, Sergeant Ratterman and another officer who came to the scene testified at the trial of the charges. The officers unequivocally identified appellant as the man arrested at the scene. Traxler was unable to make an identification. No evidence was offered on behalf of defendant.

On this appeal, the first contention is that the trial court erred in failing to grant a new trial because of prejudicial argument by the prosecuting attorney.

In his opening summation, the prosecutor, in recalling Traxler's testimony, referred to the robber on seven occasions as a 'black man.' No objection was made. In his motion for new trial, appellant requested a new trial 'on the grounds of over emphasis by the Prosecutor in closing argument of Defendant's race by reference to 'that black man' repeatedly in summing up evidence before the * * * all white jury.'

The lack of objection at trial precludes reliance on this ground for relief in this court. State v. Brogan, 488 S.W.2d 623, 625(1) (Mo.1973); State v. Carter, 478 S.W.2d 358, 361(4) (Mo.1972); State v. Richards, 467 S.W.2d 33, 37(7) (Mo.1971); State v. Davis, 448 S.W.2d 892, 894(2) (Mo.1970). The case of State v. Sheard, 276 S.W.2d 191 (Mo.1955), cited by appellant, demonstrates that any error in the use of language such as that here objected to is correctable upon proper objection to the trial court. Having failed to make objection at the time of the remarks, there is no basis for a finding of error on the part of the trial court.

Appellant does not suggest that the complaint justifies relief under the plain error rule. Rule 27.20(c), V.A.M.R. The remarks, in any event, would not have resulted in 'manifest injustice' or a 'miscarriage of justice.' The only issue for the jury was the innocence or guilt of appellant. The evidence of guilt was overwhelming. There is no indication of a motive on the part of the prosecutor to derogate appellant because of his race. The prosecutor merely was describing appellant in approximately the language of Traxler to whose testimony he was referring, and who did not, in fact, identify appellant.

Appellant next complains of error in the overruling of his motion to dismiss for failure to afford him his constitutional right to a speedy trial.

Appellant was arrested at the scene of the crime on December 31, 1970. Informations were filed in the circuit court on January 11, 1971. He was arraigned on January 11, 1971, entered pleas of not guilty, and the charges were set for trial February 15, 1971. On January 14, 1971, he escaped from custody in Jackson County. He remained at large until June 7, 1971, when he was arrested in Florida on a federal bank robbery charge. A hold order was sent to federal authorities from Jackson County while appellant was in custody in Florida. He was eventually convicted of that offense and incarcerated at a federal penal institution.

On March 16, 1972, while he was in the Medical Center for Federal Prisoners at Springfield, Missouri, appellant was notified of a detainer filed by the Jackson County sheriff on charges of assault with intent to kill and tampering with a motor vehicle.

In November, 1972, while he was at the Federal Reformatory in El Reno, Oklahoma, appellant mailed to the 'Office of the Clerk, Criminal Court Building, Kansas City, Missouri' a 'Petition Seeking the Withdrawal of the Detainers and the Dismissal of the Charges' against him in the Jackson County Circuit Court. The grounds of the 'petition' are not entirely clear. Apparently, however, relief was sought for the reason that no action had been undertaken to bring him to trial within 180 days from the notice of the detainer filed while he was awaiting trial on the bank robbery charge. The clerk's records showed the filing of the petition, but no copy appeared in the file upon presentation of a later motion. There is likewise no record of the disposition of this petition.

In April, 1973, a formal request, in accordance with the Uniform Agreement on Detainers (§ 222.160, RSMo 1973 Supp.), was made for the disposition of the Missouri charges. They were set for trial on June 18, 1973. On June 12, 1973, defendant filed a motion to dismiss the charges for failure to grant a speedy trial. The motion was presented to the court and overruled.

Although it is not entirely clear that the June 12, 1973 motion was premised on such basis, appellant here contends that his November, 1972 'Petition' was sufficient to place in motion the operation of the Agreement on Detainers and that failure on the part of the state to bring him to trial within 180 days of the filing of that document precluded his being tried. The respondent has joined issue on this ground.

The United States (18 U.S.C.Supp.) and Missouri (§ 222.160, supra) are parties to the Agreement on Detainers (AOD). Article...

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  • People v. Daily
    • United States
    • United States Appellate Court of Illinois
    • February 24, 1977
    ...be shouldered by the prisoner. Beebe v. State, 346 A.2d 169 (Del.Sup.Ct.1975); Ekis v. Darr, 217 Kan. 817, 539 P.2d 16 (1975); State v. Savage, 522 S.W.2d 144 (Mo.Ct. of App.1975); State v. Brockington, 89 N.J.Super. 423, 215 A.2d 362 (1965). At first glance, this position might seem incong......
  • State v. Tarango
    • United States
    • Court of Appeals of New Mexico
    • February 19, 1987
    ...defendants have generally been held to a high standard of compliance. See Beebe v. State, 346 A.2d 169 (Del.1975); State v. Savage, 522 S.W.2d 144 (Mo.App.1975). If a defendant, acting pro se, elects to bypass the custodial official and send a request for a speedy trial directly to the rece......
  • State v. Smith, 13422
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    • Missouri Court of Appeals
    • February 19, 1985
    ...v. Carrillo, 5 Mass.App. 812, 361 N.E.2d 415, 416 (1977). Compare State v. Carroll, 670 P.2d 1290 (Hawaii App.1983); State v. Savage, 522 S.W.2d 144 (Mo.App.1975). It has been held that under extraordinary circumstances, a dismissal may become appropriate when a warden fails to promptly inf......
  • State v. Buckles
    • United States
    • Missouri Supreme Court
    • August 23, 1982
    ... ...         These procedures are reasonable and proper requirement in the interest of orderly jurisdictional and custodial process. State v. Patterson, 508 S.W.2d 304, 306(2) (Mo.App.1974); State v. Savage, 522 S.W.2d 144, 147(2, 3) (Mo.App.1975); State v. Soloway, 603 S.W.2d 688, 690(2, 3) (Mo.App.1980) ...         As shown by the record, the letters of February 21, 1978 (defendant's request that counsel be appointed) and the letter of April 25, 1978, (assistant federal public defender's ... ...
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