State v. Simms, 55727

• Citation: 810 S.W.2d 577
• Decision Date: 23 April 1991
• Docket Number: No. 55727,55727
• Parties: STATE of Missouri, Respondent, v. Dennis B. SIMMS, Appellant.
• Court: Court of Appeal of Missouri (US)

Page 577

810 S.W.2d 577

STATE of Missouri, Respondent, v. Dennis B. SIMMS, Appellant.

No. 55727.

Missouri Court of Appeals,

Eastern District,

Division Two.

April 23, 1991.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 22, 1991.

Application to Transfer Denied

July 23, 1991.

Maribeth McMahon, Asst. Public Defender, Clayton, for appellant.

William L. Webster, Atty. Gen., Joan F. Edwards, Asst. Atty. Gen., Jefferson City, for respondent.

AHRENS, Judge.

Dennis B. Simms appeals from the judgment rendered by the trial court after a jury found him guilty of attempted robbery first degree under § 564.011, RSMo 1986, and armed criminal action under § 571.015, RSMo 1986. After finding appellant to be a prior, persistent and Class X offender, the trial court sentenced him to concurrent terms of fifteen years' imprisonment for each offense. We affirm.

Appellant does not challenge the sufficiency of the evidence, so we need not relate it in detail. The evidence at trial established the following facts. At about 10:15 p.m. on Saturday, October 24, 1987, the sixteen-year old victim, Robert O'Brien, and Greg Rehg, his twenty-five year old co-worker, were sitting and talking in Greg's truck after having finished work for the evening. The truck was parked on the lot in front of Western Meat Company where both young men were employed. Appellant approached the truck and asked Greg for a cigarette. Appellant then asked them if they were interested in purchasing some guns from him. During their conversation, appellant observed a police car drive by and asked to join them in the truck. Greg said alright and appellant got in the truck beside Robert on the passenger's side. Appellant continued his "sales pitch" for about ten minutes. He left the truck after Robert and Greg told him they were not interested in buying the guns. They did not see where appellant went when he left.

Robert then got out of Greg's truck to go home. Greg drove off as Robert began walking to his home just across the street from Western Meat Company. As Robert crossed the parking lot appellant, who was seated in a car parked on the lot, called out to Robert, again asking if he was sure he was not interested in buying a gun. He mentioned the guns were to the right of the meat shop by a white Mustang car parked behind a nearby gasoline station and offered to show Robert the guns. Robert walked with him toward the Mustang. As soon as they reached the location, appellant demanded money from Robert and grabbed a chain from his neck. They struggled. Appellant stabbed Robert three times with what appeared to be a pocket knife. During the altercation, Robert broke free and ran straight home. He did not waken his parents or call the police. He put large band-aids on his cuts and went to bed.

The next morning when he went to work he told Greg of the night's episode. Both Greg and the store owner persuaded him to call the police and tell his parents. The police began their investigation, leading to appellant's arrest and eventual conviction.

Appellant relies on five points in his appeal. His first four points raise the issues of instructional error, improper rebuttal by the prosecutor during closing argument, juror misconduct, and improper admission of testimony concerning a photographic lineup. His fifth point does not raise an error at trial but seeks post-conviction relief.

We address each in turn. Appellant's first point on appeal claims Instruction No. 5 based on MAI-CR3d 310.10 was erroneous. This is the approved limiting instruction to be given when evidence of defendant's prior convictions is introduced on cross-examination to impeach the credibility of defendant's testimony. The language in the pattern instruction begins: "If you find and believe from the evidence that defendant (was convicted of) (was found guilty of) (pled guilty to) (pled nolo contendere to) the offense of [specify the offense],...."

Appellant directs our attention to the first sentence of the given instruction which provides in part: "If you find and believe from the evidence that defendant pleaded guilty to and was convicted of the offense of...." Appellant complains the instruction as given was flawed because it included two of the four parenthesized groups from the pattern instruction and because it changed the order of the parenthesized sections.

Appellant argues the prosecutor's insistence that the instruction contain the words "was convicted of" reflects an attempt "to emphasize that the jury should consider more than appellant's pleas of guilty" to prior offenses and that "[t]he prosecutor wished for the jury to consider as substantive evidence ... that appellant was a bad man."

We disagree. Deviation from the pattern instruction by inclusion of both phrases and changing the order (and use of "pleaded" instead of "pled") constitutes error under Rule 28.02(f). However, we determine under that same rule that it had no prejudicial effect in this case. Appellant testified at trial and admitted during cross-examination that he had previously pleaded guilty and been convicted of the eight offenses specified in the instruction. The phrases used in the instruction were supported by the evidence and did not misstate the law. The phrase "was convicted of" is broad enough to encompass the guilty pleas in this case where judgment was entered and the defendant sentenced. We find no prejudice to the defendant in the instruction's inclusion of both phrases, their order, or use of the word "pleaded."

Appellant's final salvo against the instruction criticizes the inclusion of the dates and cause numbers of the various offenses specified in the instruction. Appellant again states that the prosecutor, by listing appellant's various pleas along with their dates and cause numbers, used these unrelated offenses not merely to impeach credibility but also to establish that appellant was a bad man. Here, appellant admitted pleading guilty to eight offenses on certain dates and by cause numbers. The prosecutor elicited the dates and cause numbers to distinguish the offenses, most of which were burglary, second degree, and stealing and some of which were in the same year. We find no error in the specification of the offenses in the instruction. In State v. Williams, 632 S.W.2d 266 (Mo.App.1982), we rejected the argument that specific mention of a defendant's offenses unduly and unfairly emphasizes his prior convictions. Id. at 266. We have also observed that "[i]f the prior convictions have already been elicited on cross-examination, we do not see how defendant can be prejudiced by a reference to them in an instruction." State v. McIntyre, 735 S.W.2d 111, 113 (Mo.App.1987). Appellant's first point is denied.

Appellant's second point contends the prosecutor's rebuttal in closing argument warranted the trial court's declaration sua sponte of a mistrial. Earlier in the trial during the presentation of his case-in-chief, the prosecutor asked an officer whether the patrolman who had taken the initial crime report for the case and had first met with victim was still with the police force. The prosecutor then asked whether the patrolman, no longer with the force, was still on good terms with the department. Before the officer could answer, the court sustained defense counsel's objection to its relevancy.

During closing argument appellant referred to the prosecutor's failure to call this patrolman as a witness, implying his testimony would have been unfavorable to the state's case. In rebuttal the prosecutor observed that the officer had recently left the department. Before the prosecutor said anything further, defense counsel objected that such comments related to objections previously sustained. The trial court agreed and instructed the jury to disregard the statement. Appellant did not ask for a mistrial.

On appeal, appellant asserts a mistrial should have been granted sua sponte because the prosecutor's rebuttal interjected facts not in evidence and facts that had been excluded for lack of foundation.

Plain error affecting substantial rights may be considered on appeal although not properly preserved for review, but only if manifest injustice or a miscarriage of justice will result if relief is not given. State v. Childers, 801 S.W.2d 442, 444 (Mo.App.1990). The general rule applicable to this point is that a court should rarely grant relief on assertions of plain error about closing argument. State v. Wilkerson, 796 S.W.2d 388, 392 (Mo.App.1990). This is true because, in the absence of the specific request for relief, the trial court's options are narrowed to uninvited interference with summation and a corresponding increase of error by such intervention. Wilkerson, 796 S.W.2d at 392 citing State v. Clemmons, 753 S.W.2d 901, 907-08 (Mo. banc 1988), cert. denied 488 U.S. 948, 109 S.Ct. 380, 102 L.Ed.2d 369 (1988).

A plain reading of the record reflects that the prosecutor's comment did not refer to any matters outside the evidence. Testimony that the patrolman was no longer with the police department had been admitted previously with no objection. We also note that the state's closing argument was retaliatory and invited by the remarks of defense counsel. In such circumstances, our courts have generally refused to reverse the cause for improper argument. Wilkerson, 796 S.W.2d at 392. We find no basis for concluding that these challenged remarks demonstrated a strong and clear showing that injustice or a miscarriage of justice resulted to warrant the granting of a mistrial sua sponte. Point denied.

Appellant's third point raises the issue of juror misconduct. Prior to the lunch recess on the first day of evidence, the court duly admonished the jurors not to speak about the case. After lunch, Mr. Kain, a juror's husband who had been in the courtroom as a spectator, approached the prosecutor and began discussing the case with him. The prosecutor immediately brought the...