State v. Smith, 49905
| Decision Date | 03 December 1985 |
| Docket Number | No. 49905,49905 |
| Citation | 703 S.W.2d 50 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Fred Walter SMITH, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Henry B. Robertson, Jennifer H. Fisher, Asst. Public Defenders, St. Louis, for defendant-appellant.
John Munson Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Defendant, Fred Walter Smith, appeals jury conviction of robbery in the second degree in violation § 569.030 RSMo 1978, on the grounds that: (1) the trial court erred in admitting irrelevant and prejudicial evidence, and (2) the trial court erred in sustaining the state's challenge for cause of a venireman. The trial court assessed punishment at ten years imprisonment. We affirm.
Defendant does not challenge the sufficiency of the evidence from which a jury could reasonably find that on June 21, 1984, defendant forcibly stole property from another. The victim and a bystander eyewitness testified and positively identified defendant as a perpetrator of the offense. Defendant testified and offered an alibi defense.
Defendant first contends the trial court erred in admitting as an exhibit money in the amount of $20.14 taken from defendant when he was arrested the day after the robbery. He contends the evidence "was irrelevant and prejudicial in that there was no connection shown between this money and the $100.00 bill taken from the victim." Defendant argues further that "[t]he error was heightened in closing argument." The victim testified that a $100.00 bill and a wristwatch was taken from him by defendant and two others. Police Officer Joseph Brauer testified that when defendant was arrested he had in his possession $20.14. Officer Brauer's partner, Officer Daniel Saitz, testified that he seized the currency from defendant and identified state's Exhibit 3 as the $20.14 taken from defendant. No objection was raised to this testimony. Defendant subsequently objected to the introduction of state's Exhibit 3 into evidence. In the state's closing statement, it argued that if the money taken from the victim was "split" three ways "you get 33 bucks and some-odd cents." Defendant "had $20.00 of it in his pocket." Defendant made no objection to this argument.
Specific objections not made at trial when questions are asked and answers given are not preserved for appellate review. State v. Franco, 544 S.W.2d 533, 537 (Mo. banc 1976), cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977). Defendant's objection to the introduction of state's Exhibit 3 did not preserve a claim of error because the testimony and identification of the exhibit were received into evidence without objection. State v. Weeks 603 S.W.2d 657, 664 (Mo.App.1980). Further, the money exhibit added nothing to the evidence and could not have had any prejudicial effect before the jury.
Allegations of error pertaining to allegedly prejudicial statements by a prosecutor in closing argument which are raised for the first time on appeal are not properly preserved for consideration. Rule 29.11(d); State v. Ballard, 657 S.W.2d 302, 307 (Mo.App.1983). Our review is limited to a determination of whether the statements constitute plain error under Rule 29.12(b). Improper argument will justify reversal only if its effect is decisive on the jury's determination, and the defendant has the burden of demonstrating such effect. State v. Wren, 643 S.W.2d 800, 802 (Mo.1983). Because the evidence was before the jury without objection, through testimony of witnesses, defendant could not and did not meet this burden. In addition, the money exhibit was related to the issue of identification, and the state independently met that issue with the testimony of two eyewitnesses, one of whom was acquainted with the defendant. Point denied.
Defendant's second contention is that the trial court erred in sustaining the state's challenge for cause of a venireman.
On voir dire the state asked if anyone "either yourself or close friend or relative has ever been charged or arrested for a crime." Those who raised their hands were given the option of responding at their seat or speaking privately by approaching the bench. Several of the venirepersons responded after which the state proceeded row by row asking the same question. The venireman in question did not respond at any time to this question. Subsequently, in chambers the state presented to the court a computer printout indicating that...
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State v. Hoopingarner, 61394
...Defendant seeks plain error review because he did not specifically object to this line of questioning by the prosecutor. State v. Smith, 703 S.W.2d 50, 51 (Mo.App.1985). Under this standard the plain error complained of must impact so substantially upon the defendant's rights that manifest ......
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State v. Williamson
...when questions are asked and answers given, issues presented by that testimony are not preserved for appellate review. State v. Smith, 703 S.W.2d 50, 51 (Mo.App.1985). Since there was no objection at trial insofar as these questions and answers are concerned, unless there is "plain error," ......