State v. Shepherd, 57142
| Decision Date | 14 May 1973 |
| Docket Number | No. 57142,No. 2,57142,2 |
| Citation | 494 S.W.2d 53 |
| Parties | STATE of Missouri, Respondent, v. Gary Paul SHEPHERD, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
Neale, Newman, Bradshaw & Freeman, Leland L. Gannaway, Springfield, for appellant.
Defendant, found guilty by a jury of robbery in the first degree, was sentenced to fifteen years in the custody of the Department of Corrections. We have jurisdiction of the appeal because it was filed prior to January 1, 1972. Mo.Const. Art. V, §§ 3 and 31, V.A.M.S.
This prosecution arose out of a charge that defendant and his sister-in-law, Hazel May Shepherd, drove from Springfield, Missouri to Polk County to the home of the victim to 'get some guns'. Upon arrival and after kicking in thd door, defendant picked up a gun, fired some shots, struck the victim with a gun, tore up some furniture, demanded money, and after obtaining the same, left with the money, one rifle and two shotguns.
The two questions raised on this appeal are: (1) That the trial court committed plain error in failing on its own to declare a mistrial based on allegedly prejudicial closing argument by the prosecuting attorney, and (2) that Instruction No. 4 was prejudicially erroneous.
With reference to the first contention, defendant claims the prosecuting attorney's closing argument included statements not supported by evidence. Defendant argues these statements indicated or implied to the jury that the prosecutor possessed or knew of additional facts not in evidence which, if the jury knew, would cause them to return a verdict of guilty.
Defendant made no objection whatsoever to the argument now complained of. Furthermore, there was no reference thereto in his motion for new trial filed subsequent to the completion of the trial. We have examined the arguments complained of in the light of the evidence received and conclude that there is no reason to apply Rule 27.20(c), V.A.M.R., the plain error rule. The prosecutor's final argument would not have indicated that he possessed special knowledge of the defendant's guilt, nor did it constitute a prejudicially unfair characterization of the evidence in the case. Rule 27.20(c) is available when the court deems that manifest injustice or miscarriage of justice has resulted from the incident of which defendant complains. We find no basis for concluding that manifest injustice or miscarriage of justice resulted from the closing argument of the prosecuting attorney.
Defendant's second contention is that the court erred in giving Instruction No. 4 for the reason that the evidence did not support that instruction, and also that it allowed the jury to believe that the court was possessed of superior and independent knowledge of facts showing guilt of the defendant.
Instruction No. 4, to which this complaint was directed, is as follows:
'The Court instructs the jury that if they believe and find from the evidence that the defendant, Gary Paul Shepherd, in the County of Polk, State of Missouri, on or about the 24th day of January, 1971, by means of a dangerous and deadly weapon, to-wit: a shot gun, and by putting Hillard E. Dickinson in fear of some immediate injury to his person, in the presence and...
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...determined to have had a decisive effect on the jury or to have resulted in a manifest injustice or miscarriage of justice. State v. Shepherd, 494 S.W.2d 53 (Mo.1973) (1); State v. Elmore, 467 S.W.2d 915 (Mo.1971) (3).' State v. Collins, 520 S.W.2d 155, 157(4, 5) (Mo.App.1975). Here the rem......
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