State v. Steward

• Citation: 564 S.W.2d 95
• Decision Date: 21 March 1978
• Docket Number: No. 39330,39330
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Tyrone STEWARD, Defendant-Appellant. . Louis District, Division One
• Court: Court of Appeal of Missouri (US)

Page 95

564 S.W.2d 95

STATE of Missouri, Plaintiff-Respondent, v. Tyrone STEWARD, Defendant-Appellant.

No. 39330.

Missouri Court of Appeals, St. Louis District, Division One.

March 21, 1978.

Robert C. Babione, Public Defender, Joseph W. Webb, Asst. Public Defender, St. Louis, for defendant-appellant.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, J. Michael Davis, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Richard L. Poehling, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

PER CURIAM.

This is an appeal by defendant-appellant, Tyrone Steward, from a judgment of conviction for the offense of burglary in the second degree. §§ 560.045, 560.095, RSMo. Defendant was found guilty by the jury and sentenced by the court under the provisions of the Second Offender Act, § 556.280, to ten years in the Department of Corrections. For reasons hereinafter stated, we affirm.

The thrust of the evidence at trial was the following. On August 16, 1976, Mr. Harold Winkelman, who resided at 4233 Grove Street in the City of St. Louis, left his home "for breakfast" at about 8:00 a. m. He returned about 9:00 a. m. and

". . . saw some things was disturbed in the yard. The gate was open, window had been forced, and I looked around the house, I saw a window open so I went down the street and called the police on the phone."

The window had been "secured" ¹ when he left the house that morning. A board lay on the window sill. Two officers came to the home. According to the testimony of Mr. Winkelman, when the officers arrived he opened the front door and while he remained outside the officers went in. Inside the officers found the appellant in the coal bin in the basement. He was arrested and searched. In his trousers were two unemployment checks belonging to Mr. Winkelman. The house was in disarray; Mr. Winkelman saw "an array of everything out on my bed."

The two officers testified. Their testimony brought out that when they arrived the door of the residence "was standing open" and they entered the residence with Mr. Winkelman and "searched the residence for any persons who may have been inside." They found the defendant "(i)n the basement in a coal bin" and took him upstairs. One of the officers found "in his right-rear-trouser pocket two checks belonging to the victim." An officer testified: "We received an assignment . . . . Upon entering the building the door was open, ² the window was broken out." "The glass was broken and the window was open." ³ "There was glass in the gangway." "We searched the first-floor premises, found no one. Then we searched the basement premises and in a back closet room we apprehended a subject." "The residence was ransacked."

The defendant did not testify.

During his closing argument, the defense attorney compared the legal principles in this country with those of other countries and stated that the jury would be required to find the defendant guilty beyond a reasonable doubt. He argued that there was no evidence of a "breaking" a necessary element of the offense. He concluded his argument by informing the jury that

". . . to Tyrone Steward this is the important, important, day of his life and I'm convinced that when you look at this case, look at the evidence, . . . you're going to find Tyrone Steward not guilty because the State hasn't proved those elements beyond a reasonable doubt."

In the second portion of the state's argument, the prosecutor began:

". . . (T)his is an important day in Tyrone Steward's life because he's sitting there looking at the twelve people of you saying, 'Am I going to be able to beat this case?' 'Am I going on the bricks?' 'Am I going to walk the streets again?' 'Am I going to get to look at another house?' "

This was objected to; the prosecutor withdrew the statement and the court instructed the jury to disregard it.

Later, in commenting upon the defense counsel's argument, the prosecutor stated:

"(Defense Counsel) talked with you about the founding fathers of our country. I'd like to expand on this. . . .

One of the things that you as citizens have to remember is that the Constitution is made for everybody, not just for people like Tyrone Steward who can come in and say, 'I got caught. Now you give me my constitutional rights.' Mr. Winkelman "

An objection was made and overruled. The prosecutor continued:

"Mr. Winkelman has some rights too. He has the same rights that you enjoy when you go to your house to leave your house without having fear that somebody is going to break in and take your property. Those are your constitutional rights, to protect your property.

Now, you have to go up to the jury room and decide what you're going to do when you get evidence like this, . . . where the officers catch the man breaking into a house that had been secured an hour before."

An objection was made to this latter statement and overruled.

Finally, near the end of his closing argument, the prosecutor argued "You have to let your community and Mr. Steward himself know what you think when you hear a case with evidence like this, what you think your community demands, you as a citizen demand. When you ask for your demand of justice, why don't people do something about what is going on out there it comes down to twelve citizens like yourself in every case sitting as a jury weighing the evidence and saying, when we get evidence like this, strong evidence, . . . we're going to tell him, Mr. Tyrone Steward and everyone like him, that when you do that you're going to have to be prepared to pay for your actions and when you're caught like that, . . . the evidence in this case shows the citizens of the community are not going to tolerate it, you're going to be found guilty as charged, as in fact the evidence shows you to be beyond a reasonable doubt . . . ."

On this appeal appellant contends (1) that the evidence was insufficient to support a conviction of burglary in the second degree because there was no direct evidence of a "breaking" since the evidence showed a number of open entry points existed and because the facts and circumstances did not point so clearly to guilt as to exclude every reasonable hypothesis of innocence since there was some evidence of open doors and windows, and (2) that the trial court erred in overruling objections to the prosecutor's argument which referred to the community and the jury, and to those comments which communicated a presumption of appellant's guilt "to beat this case," "to get to look at another house" and "I got caught."

We find neither point to be meritorious.

The thrust of appellant's first point is that, since the evidence showed a variety of possible open entry points, there was no "breaking" so as to constitute the offense of burglary. Although there was some contradictory testimony in the state's case as to whether the front door or cellar door or a certain window was open, there was substantial evidence that the house had been secured when Mr. Winkelman left the house. And when he returned one or more of the windows had been broken, a board lay on the sill, there was glass in the gangway, the defendant was found inside the residence, the house was in disarray or "ransacked" and the defendant was found to have two checks on his person which belonged to the victim. Taking the evidence and all reasonable inferences derived therefrom in the light most favorable to the state, we conclude that there was sufficient evidence to indicate a "breaking" and entering with the intent to steal. The contradictory testimony that there may have been possible open entry points does not preclude the jury from finding upon the testimony of Mr. Winkelman that there was a breaking and entering. Mr. Winkelman testified that a window had been forced and that before he left it was secured.

Although there were no eyewitnesses to the actual "breaking," the facts and circumstances were such so as to point so clearly to guilt as to exclude every reasonable hypothesis of innocence. See State v. Cox, 527 S.W.2d 448, 452 (Mo.App.1975); State v. Mason, 506 S.W.2d 458, 460 (Mo.App.1974); State v. Sanderson, 528 S.W.2d 527, 531 (Mo.App.1975); State v. Brunson, 516 S.W.2d 799, 803 (Mo.App.1974).

We have examined the authorities ⁴ relied upon by the appellant and find that they are not controlling or dispositive of this cause.

As to appellant's second point, the only portion of the argument of the prosecutor which was properly preserved in the motion for new trial was the comments concerning the effects that the jury's verdict would have on the local community. We find no error as to those comments.

It is true, of course, that an accused is entitled to a fair trial and it is the duty of the prosecutor to see that he gets one. As long as the prosecutor stays within the record and its reasonable inferences, his argument is legitimate. State v. Laster, 365 Mo. 1076, 293 S.W.2d 300, 306 (banc 1956). But the trial court has wide discretion in determining the latitude in permitting argument of counsel, and an appellate court will not reverse...