State v. Williams, 45106

Decision Date10 August 1982
Docket NumberNo. 45106,45106
Citation637 S.W.2d 839
PartiesSTATE of Missouri, Respondent, v. Willie WILLIAMS, Appellant.
CourtMissouri Court of Appeals

Joseph W. Downey, Public Defender, St. Louis, for appellant.

John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.

REINHARD, Presiding Judge.

Defendant was convicted of robbery in the first degree, a violation of § 569.020 RSMo. 1978, and was sentenced as a persistent offender to twenty five years with the Department of Corrections. He appeals raising two points of alleged trial court error arising out of comments made during closing argument by the prosecuting attorney. We affirm.

In the early morning hours of May 31, 1981, defendant robbed a service station attendant in the City of St. Louis. He was followed out of the station by a St. Louis police officer who apprehended him a short distance from the station. The proceeds of the robbery, as well as a knife, were found in his possession. He was transported back to the station where three witnesses identified him as the robber.

On appeal, defendant argues the prosecuting attorney's comment that "[t]he defendant had an opportunity to put on any evidence they wished and they did not put on any evidence," was a comment on defendant's failure to testify, prohibited by Article I, § 19 of the Missouri Constitution and § 546.270 RSMo. 1978. It has long been the rule in Missouri that references to the defendant's failure to produce evidence does not constitute an improper comment on the defendant's failure to testify. State v. Pruitt, 479 S.W.2d 785 (Mo. banc 1972); State v. Hutchinson, 458 S.W.2d 553 (Mo. banc 1970); State v. Williams, 597 S.W.2d 722, 724 (Mo. App. 1980). There is no merit to defendant's contention.

The other comment which defendant asserts was improper argument came in without objection. If he is to receive relief under this point, we must consider it as plain error. State v. Burnfin, 606 S.W.2d 629, 631 (Mo. 1980). In order to invoke the plain error rule, there must be a sound, substantial manifestation that injustice or a miscarriage of justice will result if the rule is not invoked. When guilt is established by overwhelming evidence no injustice or miscarriage of justice will result from a refusal to invoke the rule. State v. Watson, 588 S.W.2d 20, 22 (Mo. App. 1979).

In an attempt to explain why there had been no lineup, the prosecuting attorney stated:

Now a question was asked, [of the witnesses] did you see a lineup with other people. No. And why not? Because the fairest way for an innocent person as well as a guilty person is you bring him back as quick as possible.

If you get them back within five minutes, half an hour while the memory is fresh in their minds and see them face to face, that's the fairest way for everybody. To get a lineup, take him back to the station, protect everybody's rights, fill out the paperwork, to get enough people to stand there the right size who are willing to, that takes a couple of hours.

Is that a fair way, to wait a couple of hours? If you were an innocent man, wouldn't you want to go right back where that happened so they can see your clothes are different, your face is different and you could say, I...

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6 cases
  • State v. Koonce
    • United States
    • Missouri Court of Appeals
    • May 5, 1987
    ...rule, there must be a sound, substantial showing of manifest injustice or that a miscarriage of justice has resulted. State v. Williams, 637 S.W.2d 839, 841 (Mo.App.1982); State v. Vidauri, 699 S.W.2d 46, 48 Under § 566.030 (rape) and § 566.060 (sodomy) forcible compulsion is a key element.......
  • State v. Hubbard
    • United States
    • Missouri Court of Appeals
    • October 11, 1983
    ...of justice. State v. Harper, 637 S.W.2d 170, 172 (Mo.App.1982); State v. Sammons, 640 S.W.2d 488, 490 (Mo.App.1982); State v. Williams, 637 S.W.2d 839, 841 (Mo.App.1982); Rule 30.20. When guilt is established by overwhelming evidence, no injustice or miscarriage of justice will result from ......
  • State v. Andrews
    • United States
    • Missouri Court of Appeals
    • April 11, 1989
    ...rule, there must be a sound, substantial showing of manifest injustice or that a miscarriage of justice has resulted. State v. Williams, 637 S.W.2d 839, 841 (Mo.App.1982); State v. Vidauri, 699 S.W.2d 46, 48 (Mo.App.1985). We do not find such plain error. There is no showing that appellant ......
  • State v. Collis
    • United States
    • Missouri Court of Appeals
    • March 16, 1993
    ...The evidence of guilt is overwhelming and there is no injustice or miscarriage of justice in not applying the rule. State v. Williams, 637 S.W.2d 839, 841 (Mo.App.1982). The burden is on appellant to prove the alleged error amounted to manifest injustice. State v. Sanders, 628 S.W.2d 390, 3......
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