State v. Burgett

848 S.W.2d 613, 1993 Mo. App. LEXIS 302, 1993 WL 50957
CourtMissouri Court of Appeals
DecidedMarch 2, 1993
DocketNo. 59180
StatusPublished
Cited by2 cases

This text of 848 S.W.2d 613 (State v. Burgett) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Burgett, 848 S.W.2d 613, 1993 Mo. App. LEXIS 302, 1993 WL 50957 (Mo. Ct. App. 1993).

Opinion

REINHARD, Judge.

Defendant appeals his conviction by a jury of stealing at least Sj>150, a class C felony, § 570.030, RSMo 1986; stealing, a class A misdemeanor, § 570.030; and two counts of second degree burglary, a class C felony, § 569.170, RSMo 1986. He was sentenced as a persistent offender by the court to terms of five years’ imprisonment on each of the felony charges and one year on the misdemeanor count. The court ordered the two burglary sentences to run concurrently, as well as the terms on the two stealing charges, but mandated that the burglary and stealing sentences run consecutively. We affirm in part; reverse and remand in part.

The evidence reveals that on December 19, 1988, Catherine McGarry and her grandson went on vacation, leaving the keys to her locked gate, house, car, and garage with defendant’s wife, Delores Bur-gett, so that she could use the car and look in on things while they were gone. Mrs. Burgett returned the car to Mrs. McGar-ry’s garage on December 31, 1988, and checked the house. She noted nothing unusual about the premises, and relocked the doors and gate.

On the night of January 2, 1989, Mrs. Burgett left her home, where she lived with defendant, and travelled to work. Defendant was asleep when she returned at about 7:45 the next morning. She went out to run some errands and returned about twenty minutes later. Defendant then left to get some coffee. Mrs. Burgett noticed that he was carrying a brown paper bag when he left. She asked him what was in the bag; defendant replied that “it was just a few things that he had gotten from a friend." After her husband left, Mrs. Bur-gett noticed several small empty jewelry boxes in the trash can. The trash can had been emptied the previous night. Defendant returned thirty minutes later, and then left again at approximately 12:30 p.m. Defendant came home again at about 2:30 p.m., went into the bedroom, and returned with the paper bag. Mrs. Burgett asked him about the bag again, and he replied [614]*614that it did not pertain to her and was “no big deal”.

Mrs. Burgett thought that defendant’s actions and responses were unusual and “went snooping” when he left a few minutes later. She found several items in the bedroom closet which she had not seen there before and did not belong to them. Mrs. Burgett recognized one of these items as a radio from Mrs. McGarry’s house. She examined the radio and found the name “McGarry” written on it. Mrs. Bur-gett put the radio back on the shelf and left the house. She completed some errands and went to the McGarry residence. Upon arriving, she noticed that the lock on the front gate was secured in a different manner than she had left it following her most recent visit. She opened the gate, went down the driveway, and found the front door of the house open. The home had been ransacked. She called her mother, who advised her to contact the police.

A sheriffs deputy arrived, and Mrs. Bur-gett told him that she thought her husband, the defendant, had burglarized the home. She explained that she believed this because “there was stuff at our house that belonged to this house.” The deputy called for assistance; Mrs. Burgett accompanied the officers to her home, where defendant was taken into custody. The house was searched, but no stolen material was found.

Defendant was taken to the police station, where he was interrogated by the officers. Defendant initially denied having anything to do with the crime, but then asked to speak to one of the officers privately. Defendant told the remaining officer, “I did it, but I didn’t do it for my own gain.” He then requested to speak to the officer “off the record”. The contents of that conversation were not divulged at trial.

Mrs. McGarry and her grandson returned from their vacation on January 4, 1989. When she arrived at her house, Mrs. McGarry found it in disarray and noted that an adding machine and various items of jewelry, cutlery, and tools had been stolen. She further noticed that a radio, with her name on it, was missing. Mrs. McGar-ry’s car, which had been parked in her garage, had been beaten with a hammer. The stereo from her grandson’s truck, which had also been left in the garage, had been stolen. The grandson valued the stereo at about $200.

Later that afternoon Mrs. McGarry received a telephone call; she identified the caller as defendant. The caller said, “Cathy, this is [defendant].... Cathy, I’m sorry for what I did. I’ll come over to your house. I will repair what I damaged and will clean and fix everything up and return your things.” 1 Defendant said he would do these things if Mrs. McGarry did not prosecute. Mrs. McGarry told defendant that she would not accept his offer.

At trial, the defense’s theory was that someone else committed the crimes. Defendant’s sister testified that he had stayed at her house, not his own, from December 31, 1988, through January 10, 1989, because he had been having marital problems.

She stated that defendant ate dinner at her house on the evening of the 2nd and stayed the night there. She testified that she spent the entire day of January 3rd with defendant, and that she received a call from Mrs. Burgett that day, who reported that “she had found some footprints and that they weren’t [defendant’s and she messed them up.” Mrs. Burgett testified under cross-examination that she and defendant had been having marital problems and were seeking a divorce at the time of trial. Defendant’s mother and another family friend also testified that defendant had been a guest in his sister’s home on the night of January 2-3.

In his first point on appeal, defendant claims:

The trial court erred and plainly erred in failing to declare a mistrial, sua sponte, when during his opening state[615]*615ment the prosecutor stated that State’s witness Delores Burgett told the arresting officer it was her belief that [defendant] had committed the crime, and in overruling [defendant's objections when the prosecutor elicited such testimony from [Mrs.] Burgett and [the deputy], ... in that Burgett’s conclusion that [defendant] committed the crime was the ultimate issue for the jury to determine, and thus the prosecutor’s opening statement, the testimony he elicited, and his closing argument improperly invaded the province of the jury and created a manifest injustice.

We note that no objection was made to the allegedly improper opening and closing arguments at the time they were given, nor was error in allowing such argument alleged in defendant’s motion for a new trial.2 Under direct examination, the prosecutor elicited Mrs. Burgett’s testimony that she told the deputy at the scene that she thought her husband “had done it”. Defendant’s claim of error in the admission of this evidence was not preserved in his motion for a new trial. The deputy testified, under direct examination, that Mrs. Bur-gett told him that she believed her husband had done it. Defense counsel raised only a general objection to this testimony, which was overruled by the trial court. “To preserve error, an objection must be made with sufficient specificity to advise the trial court of the grounds for the objection. ‘A general objection preserves nothing for review, and ordinarily constitutes no objection at all.’ ” State v. Bell, 743 S.W,2d 907, 909 (Mo.App.1988) (citations omitted) (quoting State v. Cannady, 660 S.W.2d 33, 36 (Mo.App.1983)).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Edwards
365 S.W.3d 240 (Missouri Court of Appeals, 2012)
State v. Dixon
70 S.W.3d 540 (Missouri Court of Appeals, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
848 S.W.2d 613, 1993 Mo. App. LEXIS 302, 1993 WL 50957, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burgett-moctapp-1993.