State v. Ball

591 S.W.2d 715

• Court: Missouri Court of Appeals
• Decided: October 16, 1979
• Docket: No. 41011
• Status: Published

Opinion

CLEMENS, Senior Judge.

On a charge of armed robbery, a jury found defendant guilty and fixed his punishment at five years in prison. He has appealed the ensuing judgment, raising only two procedural points.

First, defendant contends the court erroneously disqualified a prospective juror who declared she thought the offense would not warrant the minimum five-year sentence. This was a discretionary ruling and we find no clear abuse. Compare State v. Perkins, 568 S.W.2d 588[2] (Mo.App.1978).

By his second point defendant claims plain error during closing argument. Four witnesses had described defendant’s physical appearance at the robbery and when arrested later, including the fact he had a gold tooth. At trial defendant did not show his teeth. In closing argument the prosecutor referred to the gold tooth testimony and said: “This has been a pretty tight-lipped trial for Mr. Ball because we haven’t had much chance to see the gold tooth.”

This challenged “tight-lipped” comment can be interpreted, as the state now contends, as a literal description of defendant’s failure to expose his teeth during trial. Or, it might be interpreted, as appellate counsel now contends, as a figurative reference to defendant’s failure to testify. Apparently trial counsel did not so consider the remark because he neither objected at trial nor raised the point in defendant’s after-trial motion.

Appellate relief for plain error is discretionary under Rule 27.20(c). It is limited to cases where there is a strong, clear showing of manifest injustice and where there is not, as here, overwhelming evidence of guilt. State v. Meiers, 412 S.W.2d 478[1] (Mo.1967); State v. Hurtt, 509 S.W.2d 14[2, 3] (Mo.1974). We find no such plain error.

Judgment affirmed.

REINHARD, P. J., and GUNN and CRIST, JJ., concur.