State v. Sims, 54538

• Decision Date: 27 December 1988
• Docket Number: No. 54538,54538
• Citation: 764 S.W.2d 692
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Rickie SIMS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 692

764 S.W.2d 692

STATE of Missouri, Plaintiff-Respondent, v. Rickie SIMS, Defendant-Appellant.

No. 54538.

Missouri Court of Appeals,

Eastern District,

Division Five.

Dec. 27, 1988.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Jan. 24, 1989.

Application to Transfer Denied March 14, 1989.

Henry B. Robertson, Asst. Public Defender, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., Christopher M. Kehr, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

PUDLOWSKI, Chief Judge.

Appellant, Rickie Dale Sims, appeals from his jury conviction on eight counts of robbery in the first degree, § 569.020 RSMo; one count of attempted robbery, § 564.011 RSMo; and nine counts of armed criminal action, § 571.015 RSMo. He was sentenced to life imprisonment on robbery counts I and XIII, to fifteen years on attempted robbery Count XIX and to twenty years on all other counts. The life sentences to run consecutively and the terms of years concurrently with one or the other life sentence. We affirm his conviction.

On July 21, 1987 appellant was charged by indictment on nine counts of robbery, one count of attempted robbery and ten counts of armed criminal action in the Circuit Court of the City of St. Louis. The indictment alleged the appellant engaged in ten separate criminal episodes on the City of St. Louis' southside between May 24, 1987 and June 14, 1987. Appellant moved to have the offenses severed. The motion was denied. Appellant also made a motion in limine to prevent the state from referring to a prior arrest as an "arrest." This motion was granted. Appellant's second motion in limine, to exclude evidence of two brown paper bags taken from him in the prior arrest was denied. The cause was heard before a jury on January 19-21, 1988. Appellant was acquitted on two counts (Counts XVII and XVIII) but convicted on the other eighteen counts. Appellant raises three points on appeal.

First, appellant contends the trial court erred in overruling his motion in limine, objections and motion for mistrial in closing argument concerning his prior arrest while in possession of two paper bags. Appellant moved in limine to exclude evidence of brown paper bags seized more than a month prior to the robberies, on the theory that they were too far removed in time from the crimes charged and that no similarity was shown between the bags seized and the bags the witnesses would testify were used in the robberies. The motion was denied. At trial, appellant did not object to testimony concerning the brown paper bags when offered. To preserve error for appeal, objections to evidence must be timely and made with sufficient specificity to advise the trial court of the ground or reason for excluding evidence. State v. Matthews, 748 S.W.2d 896, 897-898 (Mo.App.1988). A motion in limine does not relieve a defendant of the duty to make a timely objection at trial. State v. Silcox, 694 S.W.2d 755, 756 (Mo.App.1985). Because appellant did not object at trial, our review is restricted to plain error. Rule 29.12.

The plain error rule should not be routinely invoked. State v. Jordan, 627 S.W.2d 290 (Mo. banc 1982). "Under the plain error rule, the court will set aside a lower court ruling only when it affects the rights of the accused to the extent of manifest injustice or miscarriage of justice if left uncorrected." State v. Sandles, 740 S.W.2d 169, 177 (Mo. banc 1987). When guilt is established by overwhelming evidence, no injustice or miscarriage of justice will result from a refusal to invoke the plain error rule. State v. Goode, 721 S.W.2d 766, 770 (Mo.App.1986).

We find overwhelming evidence established appellant's guilt. Appellant signed a written confession in which he described his involvement in ten criminal episodes. Appellant does not attack the validity of this confession on appeal. Further, in each of the eight episodes in which he was convicted, a witness positively identified the appellant, either in court or previous to trial.

Appellant also alleges error in prosecutor's closing argument in which the following was said.

MR. WARREN: Ladies and gentlemen of the jury, your Honor, Ms. Boresi:

This has been a rather swift two days and we've had a lot of witnesses who have come in to testify. What I say now is the same as what I told you during voir dire--what I say now and what Ms. Boresi says is not evidence. What you heard was the evidence, what you heard from that witness chair, and you heard a lot of witnesses, something like twenty-odd witnesses, that came in Tuesday and Wednesday to testify, they told you what happened between, well, actually starting back on April 14th when Susan Dougherty arrested the defendant--

MS. BORESI: Your Honor, may we approach the bench?

(Thereupon, the following proceedings are had at the bench out of the hearing of the jury:)

MS. BORESI: Your Honor, at this point I will have to object to Mr. Warren using the word "arrest" in his closing argument, by virtue of my motion in limine that the State not use the word arrest; it's highly prejudicial to the jury and I would ask for a mistrial at this time.

THE COURT: I assume you did that by accident?

MR. WARREN: Absolutely, I meant to say detain for investigation. It was definitely my mistake the use of that word.

MS. BORESI: Whether or not it was intention or nonintentional, the prejudice has been done to Mr. Sims and the jury heard the word. I don't think there's a curative instruction that would be sufficient--the jury has already been tainted and at this point in time I would ask for a mistrial.

THE COURT: Denied. Overruled. do you want me to instruct the jury to disregard Mr. Warren's last statement?

MS. BORESI: Yes, your Honor.

(Proceedings resumed before the jury:)

THE COURT: Ladies and gentlemen, the last statement made by Mr. Warren was not in evidence and the objection made by Ms. Boresi has been sustained by the Court. You are to disregard the last statement in reference to any actions taken by Detective Dougherty.

MR. WARREN: On April 14th, Detective Dougherty told you, she came in here and testified that she talked to this man, the defendant, Rickie Sims. This is what he looked like at that time. Detective Dougherty told you she took from him and her partner took from him, in her presence, these two bags. They were folded up in his back pocket.

The declaration of a mistrial is a drastic remedy. It should be granted only in extraordinary circumstances where the prejudice to the defendant cannot be removed by any other means. State v. Endres, 741 S.W.2d 788, 791 (Mo.App.1987). The trial court has broad discretion in the declaration of a mistrial and its discretion should be overturned only when there is clear evidence that its discretion has been abused. Id.

Not every instance in which the prosecution exceeds the limits of proper argument requires a mistrial or reversal. Such excesses not only must be improper but they also must have been prejudicial to the defendant under the facts and circumstances of the particular case. Ordinarily, the court's admonition to the jury to disregard improper argument will be deemed to cure its prejudicial effect, State v. Dees, 631 S.W.2d 912, 918 (Mo.App.1982), unless the prosecutor, thereafter, fails to abandon the improper argument. State v. Davison, 601 S.W.2d 623, 627 (Mo.1980). In determining whether an improper argument was so clearly injurious that a new trial should be required, this court considers whether the trial court gave a cautionary instruction, whether the trial court gave a curative type instruction to disregard the improper comment and the strength of the State's case. State v. Price, 541 S.W.2d 777, 779 (Mo.App.1976).

State v. Cannady, 660 S.W.2d 33, 40 (Mo.App.1983). While the erroneous admission of evidence of other crimes is presumed prejudicial, the mere mention of another offense in the closing argument of a criminal case is not per se prejudicial. State v. Goodson, 690 S.W.2d 155, 159 (Mo.App.1985).

In the present case, the trial court gave MAI-CR3d 302.06, sustained the objection raised by the defendant and directed the jury to disregard the improper comment. We have already noted that the evidence of defendant's guilt is overwhelming. We find no manifest injustice or miscarriage of justice has resulted from the prosecutor's improper comment. The trial court did not abuse its discretion in denying appellant's motion for mistrial.

Appellant's second point alleges that the trial court erred in overruling appellant's motion to sever the ten offenses. Appellant's claim presents us with two distinct points for review. First, the court must examine whether the offenses were properly joined in the indictment. If joinder is found to have been proper, then this court must inquire whether the trial court abused its discretion in not severing the offenses and trying them together in a single prosecution. State v. Clark, 729 S.W.2d 579, 581 (Mo.App.1986). Joinder is either proper or improper under the law while severance is within the trial court's discretion. Id. "[J]oinder addresses the more basic question of what crimes can be charged in a proceeding while severance presupposes proper joinder and leaves to the discretion of the trial court the determination of whether prejudice may or would result if charges properly joined were tried together. State v. Harris, 705 S.W.2d 544, 547 (Mo.App.1986).

For joinder to be proper, the manner in which the crimes were committed should be so similar that it is likely that the same person committed all the charged offenses. Clark, 729 S.W.2d at 579. Liberal joinder of charges is favored in order to achieve judicial economy, and the trial court's decision should be based solely on the state's evidence. State v. Moore, 745 S.W.2d 224, 227 (Mo.App.1987). Joinder of offenses is governed by Missouri Supreme Court Rule 23.05 which provides:

All offenses that are of the same or similar...