State v. Bramlett

647 S.W.2d 820, 1983 Mo. App. LEXIS 3857

• Court: Missouri Court of Appeals
• Decided: January 4, 1983
• Docket: No. WD32819
• Status: Published

Opinions

CLARK, Judge.

Gary W. Bramlett was found guilty by a jury of the offense of sale of a controlled substance and was sentenced to the minimum term of five years provided by § 195.-200(4), RSMo 1978. In this appeal, Bram-lett challenges rulings by the trial court on objections to evidence and to argument by the prosecuting attorney as well as the exclusion of evidence proffered by the defense. In this discussion of trial error, only a brief recitation of the facts in evidence is required.

In February, 1980, one Cartmill, a deputy sheriff in Clay County, was operating undercover procuring evidence of illicit drug sales. One such sale was the purchase of several bags of marijuana from an individual later identified by Cartmill as the defendant Bramlett. Apparently because of Cartmill’s continued undercover activities, Bramlett was not charged and arrested until some two months after the offense occurred. The state’s case rested entirely on Cartmill’s identification of Bramlett as the seller of the marijuana and on the physical evidence of the purchase. The defense was alibi supported by testimony from Bram-lett’s wife and her brother.

The contest over the reliability of Cart-mill’s identification of Bramlett as the individual from whom the marijuana was purchased was sharply drawn and depended entirely upon belief that Cartmill was truthful and accurate and disbelief of Bramlett’s alibi. According to Cartmill, the transaction occurred in about ten minutes and no other law enforcement officers participated. A third person whom Cartmill relied upon for an introduction to Bramlett and was allegedly present during the sale did not testify. Cartmill also testified he had known Bramlett since 1973, but no inquiry was made as to how Cartmill was able to conceal his identify and make the incriminating purchase. In seeking to develop the details of acquaintanceship between Cart-mill and Bramlett, the prosecutor inquired of Cartmill the course of their contact. Cartmill responded that as a deputy sheriff, he had twice previously booked Bramlett into the county jail.

Objection to this line of inquiry suggestive of other criminal activity by Bramlett was sustained and the jury was instructed to disregard the testimony. A motion for mistrial, however, was denied and that ruling is asserted here in one of Bramlett’s points claiming trial error. Because we conclude that Bramlett is entitled to a new trial by reason of prejudicial closing argument of the state permitted by the trial court, the point need not be directly addressed. The fact of this testimony is, however, relevant by reason of its cumulative effect upon the characterization of Cartmill as a peace officer whose testimony was entitled, for that reason, to greater weight in the jury’s deliberation.

Closing arguments for both sides sought to persuade the jury on the one hand that Cartmill’s identification was positive and accurate or on the other that he was mistaken and overzealous in his undercover activities. The lack of corroborating identification witnesses for the state, discrepancies in Cartmill’s reports and countervailing evidence by the defense were all stressed in argument on behalf of Bramlett. In closing, the prosecuting attorney made an appeal for the jury to return a guilty verdict to demonstrate its alliance with undercover operations fielded to combat drug traffic and argued as follows:

“How in the world are we going to fight it if you don’t even believe your own representative who was sent into the field?

* * * * * *

Every undercover operation we’ve run has been a success. The prosecutor of this county, like all counties, is under a duty, a duty, a sworn duty, that if he believes in the innocence of the defendant, he has to make that known to the court and to his lawyer.”

Objection to this argument was promptly made by Bramlett’s attorney. The objection was overruled and a request for mistrial was denied.

As Bramlett correctly asserts in his brief, the vice of the prosecutor’s argument lies in an appeal to the jury not to decide the case alone upon independent evaluation of the evidence, but upon reliance that the prosecution and its witnesses are servants of the public interest and would themselves candidly disclose any basis for acquitting the accused. The tenor of the argument is not to seek a verdict based on proof of guilt of the accused but as an expression of confidence in a prosecutorial system which does not bring innocent persons to trial. This appeal to the jury is a pernicious attack upon fundamental concepts of the criminal justice system and exceeds the bounds of legitimate comment on the evidence.

No comparable ease has been cited nor has independent research disclosed any in which this line of jury argument has been attempted. The cases do hold, however, that argument by the prosecutor as to his belief of guilt, if expressed at all, must be based upon and related in his argument to the evidence brought before the jury. A prosecutor will not be permitted to argue to a jury in a way suggestive of special knowledge he has showing the defendant to be guilty. State v. Anthony, 577 S.W.2d 161 (Mo.App.1979). The prosecutor may not imply to the jury that he has knowledge which, if the jury but knew those facts, would cause them to return a verdict of guilty. State v. Montgomery, 363 Mo. 459, 251 S.W.2d 654 (1952). Failure to sustain objection to argument suggestive of facts known to the prosecution and indicative of defendant’s guilt but not presented to the jury is prejudicial error warranting reversal of a conviction. State v. Blockton, 526 S.W.2d 915 (Mo.App.1975).

In the present case, the prosecutor made no reference to any evidence supportive of the argument to which Bramlett objected. Indeed, there scarcely could have been any proof that the undercover agent was a representative of the jury summoned to decide Bramlett’s guilt nor could the jury have had information as to whether all the undercover operations had been successful. Least of all was the jury entitled to base its decision on the assumption that a failure of the prosecutor to confess Bramlett’s innocence was in some way an indicia of guilt.

The argument quoted and other statements by the prosecutor which served as a preamble were prejudicially erroneous, particularly when employed in this case where a determination of guilt or innocence rested entirely on the credibility of the single witness for the state. The trial court erred in failing to sustain the objection to the argument.

Other points advanced by Bramlett appear to have been limited to the circumstances of time and are unlikely to be repeated on retrial. Those issues, therefore, are not considered.

The judgment of conviction and sentence are reversed and the case is remanded for a new trial.

SOMERVILLE, C.J., and SHANGLER, DIXON and KENNEDY, JJ., concur.

PRITCHARD, J., dissents and concurs-in dissent of MANFORD, J.

MANFORD, J., dissents in separate opinion.