State v. Tramble

• Decision Date: 16 October 2012
• Docket Number: No. ED 97507.,ED 97507.
• Citation: 383 S.W.3d 34
• Parties: STATE of Missouri, Respondent, v. Steven TRAMBLE, Appellant.
• Court: Missouri Court of Appeals

383 S.W.3d 34

STATE of Missouri, Respondent,

v.Steven TRAMBLE, Appellant.

No. ED 97507.

Missouri Court of Appeals,

Eastern District,

Division Four.

Oct. 16, 2012.

Andrew E. Zleit, Assistant Public Defender, Office of the Missouri Public Defender, St. Louis, MO, for Appellant.

Chris Koster, Attorney General, Jessica P. Meredith, Assistant Attorney General, Jefferson City, MO, for Respondent.

KURT S. ODENWALD, Judge.

Introduction

The appellant, Steven Tramble (“Tramble”), appeals from the judgment entered upon a jury verdict of one count of first-degree robbery, in violation of Section 569.020 ¹, one count of attempted first-degree robbery, in violation of Section 564.011, and two counts of armed criminal action, in violation of Section 571.015. Tramble alleges first that the trial court abused its discretion by overruling defense counsel's objection to the prosecutor's closing remarks, which he claims were inflammatory, prejudicial, and a plain appeal to the emotions of the jurors. Second, Tramble claims that the trial court plainly erred in allowing the State to cross-examine him regarding his prior convictions. Finding no error, we affirm.

Factual and Procedural History

Viewed in the light most favorable to the verdict, the following evidence was adduced at trial. On June 29, 2010, Tramble and Cyron Kirkland (“Kirkland”) were driving around St. Louis City in Tramble's “chameleon” colored Buick Riviera. At approximately 10:30 a.m., Joshua Golden (“Golden”) was standing at a bus stop at the corner of Kennedy and Whittier when a car that “changed colors” drove by Golden and pulled into a nearby alley. Golden made eye contact with Kirkland as the car drove past. Shortly thereafter, Kirkland came out of the alley and began walking toward Golden. Kirkland told Golden that it was a stick-up, showed Golden the handle of a gun in his waistband, and took Golden's Fossil watch and cell phone before running back toward the direction of the alley.

Around 11 a.m., Marie Lingo and her mother Sandra Lingo were standing at a bus stop at the corner of Norwood Avenue and St. Louis Avenue while a third woman was walking by. Tramble approached the women and asked the third woman if she had any cigarettes. As Tramble and the third woman walked away from the bus stop, Kirkland, wearing a ski mask and holding a gun, came up behind Marie and Sandra Lingo and demanded their possessions. Kirkland grabbed Marie Lingo's purse and ran, along with Tramble, toward Tramble's car. As Kirkland ran, he threw the contents out of Marie Lingo's purse before throwing the purse onto the street. Marie Lingo's wallet was later recovered on the next street over.

The victims reported the crimes to the St. Louis Metropolitan Police Department, and a dispatch was broadcast to officers regarding a robbery involving a chameleon-colored Buick Riviera. At approximately 11:30 a.m., a police officer observed a chameleon-colored car and turned around to follow it. When the officer caught up with the car, he saw that it was parked along the curb. The officer then witnessed Tramble throwing items onto the ground, which were later determined to be a Fossil watch and a cell phone. Tramble was arrested and later charged by substitute information in lieu of indictment as a prior and persistent offender with two counts of first-degree robbery, in violation of Section 569.020, one count of attempted first-degree robbery, in violation of Section 564.011, and three counts of armed criminal action, in violation of Section 571.015.

After a jury trial, Tramble was found guilty of one count of first-degree robbery, one count of attempted first-degree robbery, and two counts of armed criminal action in connection with the robbery of Marie and Sandra Lingo. Tramble was found not guilty of one count of robbery and one count of armed criminal action in connection with the robbery of Joshua Golden. Tramble filed a motion for new trial, which the trial court denied. Tramble was sentenced to 18 years in the Missouri Department of Corrections for each of the first-degree robbery and armed criminal action counts, and 15 years for the attempted robbery count, to be served concurrently. This appeal follows.

Points on Appeal

Tramble's first point on appeal alleges that the trial court abused its discretion by overruling defense counsel's objection to the State's closing argument. In his second point on appeal, Tramble argues that the trial court plainly erred in allowing the State to cross-examine him regarding the sentences he served following his prior convictions.

Standard of Review

“The trial court maintains broad discretion in controlling closing arguments.” State v. Deck, 303 S.W.3d 527, 540 (Mo. banc 2010) ( quoting State v. Edwards, 116 S.W.3d 511, 537 (Mo. banc 2003)). “Closing arguments must be examined in the context of the entire record.” Id. Because Tramble's claim of alleged error made during closing arguments was preserved at trial and in his motion for new trial, we will review for abuse of discretion—whether he was prejudiced to the extent that there is a reasonable probability that the outcome at trial would have been different had the error not been committed. Id.; see also

State v. Burton, 219 S.W.3d 778, 781 (Mo.App. E.D.2007).

However, because Tramble neither objected at trial to the State's questions regarding his prior convictions nor included the claim in his motion for new trial, this Court may review his second point on appeal only for plain error under Rule 30.20². State v. Beam, 334 S.W.3d 699, 704 (Mo.App. E.D.2011). The plain error standard permits, but does not require, this Court to review for plain errors substantially affecting the rights of a defendant that resulted in a manifest injustice or miscarriage of justice. Id. Review for plain error requires two steps. Id. ( citing State v. Freeman, 189 S.W.3d 605, 608 (Mo.App. W.D.2006)). First, we review the record to determine whether the trial court committed “evident, obvious, and clear” error that affected the substantial rights of the defendant. Id. “If this Court finds such error, we must then determine whether a manifest injustice or a miscarriage of justice resulted from the error.” Id.

Discussion

I. The trial court did not abuse its discretion when it overruled defense counsel's objection to the State's closing argument.

In his first point on appeal, Tramble argues that the trial court abused its discretion by overruling defense counsel's objection to the State's closing argument. Tramble claims that the State's remarks were inflammatory, prejudicial, and a plain appeal to the emotions of the jurors. We are not persuaded.

During closing argument, the State is permitted considerable latitude in arguing the necessity of law enforcement, the duty of the jury to convict the defendant and prevent crime, and the results to society of a failure to uphold the law. State v. Schaefer, 855 S.W.2d 504, 507 (Mo.App. E.D.1993). The prosecutor may comment on the prevalence of crime in the city and the evils that may befall society if a jury fails its duty. State v. Burton, 219 S.W.3d 778, 781 (Mo.App. E.D.2007). Comments of this general nature are in stark contrast to comments that focus on the defendant and the defendant's conduct. A prosecutor may not speculate as to the future possible acts or conduct of a defendant. A defendant has the right to be tried only for what he has or has not done, not what he might do in the future. Schaefer, 855 S.W.2d at 507. The purpose of this rule is to preclude argument that “goes beyond bounds so as to excite and inflame passion or prejudice” toward the defendant. Id. ( quoting State v. Kalter, 828 S.W.2d 690, 692 (Mo.App. E.D.1992)).

Improper personalization that invites error occurs when the State suggests that the defendant on trial poses a personal danger to the jurors or their families. State v. Deck, 303 S.W.3d 527, 540 (Mo. banc 2010). Improper personalization also occurs when the State asks jurors to place themselves in the shoes of the victim or at the crime scene, thereby arousing fear in the jury. Id.;West v. State, 244 S.W.3d 198, 201 (Mo.App. E.D.2008). An argument is not personalized, however, if it does not suggest a personal danger to the jurors or their families if the defendant were to be acquitted. West 244 S.W.3d at 201 (emphasis added). “The use of the word ‘you’ during closing argument does not automatically amount to an improper personalization.” Id.

In the rebuttal portion of its closing argument, the State argued as follows:

[PROSECUTOR]: These robberies affect not only the people in those areas but every person in the City of St. Louis is the victim of a robbery, anybody who wants to walk down to the bus stop because not only do we now know you have to fear the actual robber, you have to look around to see if someone is waiting for him, someone else has it for you, somebody else who is in on it.

[DEFENSE COUNSEL]: Objection, Your Honor. She's injecting the jurors into the case.

[THE COURT]: Again, the jury is the trier of fact. You can accept or reject the argument.

Tramble argues that the prosecutor crossed the line when she “invited the jurors” to fear that while they were standing at the bus stop, they would always need to be on guard that there could be an accomplice waiting in the wings. He alleges that when the prosecutor told the jurors they would always have to wonder whether the accomplice “has it for you,” the prosecutor was referring to the jurors. Tramble also claims that because the trial court informed jurors before trial that the sheriff would handle any problems they might have with their bus pass or parking ticket, the prosecutor's use of the bus stop example during closing argument inappropriately raised fear in the jurors who were charged with dispassionately weighing the evidence. We disagree.

By suggesting that persons have reason to fear not only the criminal, but also his or her accomplice, the prosecutor merely...