State v. Burnett

931 S.W.2d 871, 1996 Mo. App. LEXIS 1465, 1996 WL 480493
CourtMissouri Court of Appeals
DecidedAugust 27, 1996
DocketNos. WD 50272, WD 51873
StatusPublished
Cited by7 cases

This text of 931 S.W.2d 871 (State v. Burnett) 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. Burnett, 931 S.W.2d 871, 1996 Mo. App. LEXIS 1465, 1996 WL 480493 (Mo. Ct. App. 1996).

Opinion

ULRICH, Chief Judge, Presiding Judge.

Irvin Burnett appeals his convictions and sentences for murder in the second degree, section 565.021.1, RSMo 1994, assault in the first degree, section 565.050, RSMo 1994, and two counts of armed criminal action, section 571.015.1, RSMo 1994. Mr. Burnett also appeals the denial of his Rule 29.15 postconviction motion after an evidentiary hearing.

The judgment of conviction is affirmed. The judgment denying the Rule 29.15 post-conviction motion is affirmed.

Irvin Burnett accompanied Glenda McHenry to get Ms. McHenry’s cousin, Marvin Jackson. Mr. Jackson had agreed to help Mr. Burnett fix a lawn trimmer at Mr. Burnett’s home. Upon arriving at Mr. Burnett’s house, the two men went to the basement to repair the trimmer. Meanwhile, Ms. McHenry prepared sandwiches for lunch.

The trio then sat around the kitchen table eating lunch and conversing. Mr. Burnett got up from the table and went to the basement alone. When he returned, he initiated an altercation with Mr. Jackson by accusing him of dating Ms. McHenry. Ms. McHenry and Mr. Jackson were both seated at the table. Ms. McHenry stood up between the two men with her back to Mr. Burnett; Mr. Jackson was still seated at the table. Ms. McHenry felt Mr. Burnett stab her three times in the back. Mr. Jackson arose from the table and attempted to take the knife away from Mr. Burnett. During the skirmish, Mr. Jackson was fatally stabbed in the chest with the knife. Ms. McHenry exited the house and called police from a neighbor’s house.

When the police arrived, Ms. McHenry was staggering in the middle of the street, and Mr. Jackson was lying unconscious on [874]*874the ground. Mr. Jackson died as a result of a single stab wound to his heart. The police arrested Mr. Burnett. He told police officers that Mr. Jackson had tried to intervene in a fight he was having with Ms. McHenry. He admitted that he stabbed Mr. Jackson and said he did not care if Mr. Jackson died. He expressed concern for Ms. McHenry. He told police officers they would find the knife in the house.

Mr. Burnett made another statement to the police later that day. This time he claimed that Mr. Jackson punched him several times, and it was only after he was punched that he stabbed at Mr. Jackson with the knife. At trial, Mr. Burnett presented yet another variation of his story in which he asserted that he stabbed Mr. Jackson in self-defense and accidentally stabbed Ms. McHenry.

Following closing arguments and deliberation, the jury returned verdicts of guilty on the charged offenses. Mr. Burnett filed a timely appeal and also filed a Rule 29.15 post-conviction motion. An evidentiary hearing was held on the motion. The motion court entered findings of fact and conclusions of law, overruling Mr. Burnett’s motion. The appeals are consolidated.

I. Plain Error in Closing Arguments

In Mr. Burnett’s first point on appeal, he claims the trial court plainly erred in failing to sua sponte declare a mistrial, or at least admonish the prosecutor, when the prosecutor, during closing argument, argued that defense counsel attempted to deceive the jury with “smoke screens, mirrors and trickery.” He also asserts that the prosecutor argued defense counsel coached the testimony of Mr. Burnett to fabricate a defense and that this degraded the defense and prevented defendant from receiving a fair trial.

No objection was made at trial, and this issue was not raised in Mr. Burnett’s motion for new trial. Therefore, Mr. Burnett seeks plain error review pursuant to Rule 30.20. In order to receive plain error relief, the error must substantially affect-the rights of the accused so that, if left uncorrected, it would result in manifest injustice. State v. Mishler, 908 S.W.2d 888, 893 (Mo.App.1995).

Mr. Burnett points to several segments of the prosecutor’s argument in which he claims inappropriate attacks were made on the defense. In general, these arguments ask the jury not to be deceived by diversions. The following portions of the prosecution’s closing argument are improper, Mr. Burnett argues, and the trial court should have, at a minimum, reprimanded the prosecution:

Next thing I want to go through, ladies and gentlemen, are what I call the smoke screens, mirrors, and other assorted tricks that have been deliberately used in this case in a conscientious effort to trick you. These are phantom issues and in law school on a law exam the professor will call them red herrings. That is an attempt to distract you from what is important.
[[Image here]]
Ladies and gentlemen, I just want to start out by saying, with all due respect, I consider myself to be a respectful person. I consider Mr. MeMullin’s argument, for the most part, to be shameful because he has stood before you and, in effect, stated to you that you must find his client not guilty because he’s been practicing before this court for 44 years; that he doesn’t cheat; that he doesn’t do that. No one is talking about Mr. McMullin. He is not on trial here. His client is on trial, Irvin Burnett. This is, once again, an illustration of what Mr. Hughes said in the first place. We are talking about trickery, diversion, trying to divert your attention from the essential issue in this case. And it is shameful.
[[Image here]]
[Mr. Burnett] was struggling, trying to do his best to keep up with the coaching, the orchestration of this defense.

[875]*875Prosecutors are given wide latitude in arguing to the jury, and the trial court is vested with broad discretion in determining whether the attorney has exceeded the permissible scope of that argument. State v. Blunk, 860 S.W.2d 819, 821 (Mo.App.1993). Plain error relief as to closing argument should rarely be granted and is generally denied without explanation. State v. Lawson, 876 S.W.2d 770, 774 (Mo.App.1994).

The references to “smoke screens” and diversions were not a direct attack on defense counsel, as Mr. Burnett asserts, but were targeted at the trial tactics of the defense. Arguments directed at the tactics or technique of defense counsel, not his personal character, are permissible. State v. Ward, 807 S.W.2d 225, 226 (Mo.App.1991). The prosecutor may also comment on the credibility of the defendant as a witness and assert the improbability and untruthfulness of his testimony. State v. Weaver, 912 S.W.2d 499, 513 (Mo. banc 1995). The prosecution in this case attempted to show that Mr. Burnett’s defense and testimony was improbable.

While most of the prosecutor’s argument was within his adversarial role, his reference to Mr. Burnett being coached is the most questionable of his comments. However, even if argument is improper, a conviction will be reversed only if it is established that it had a decisive effect on the jury’s determination. State v. Parker, 856 S.W.2d 331, 333 (Mo. banc 1993).

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

Related

State of Missouri v. Monica C. Shoemaker
Missouri Court of Appeals, 2023
McCain v. State
317 S.W.3d 657 (Missouri Court of Appeals, 2010)
State v. Brooks
158 S.W.3d 841 (Missouri Court of Appeals, 2005)
State v. Norville
23 S.W.3d 673 (Missouri Court of Appeals, 2000)
State v. Braggs
972 S.W.2d 643 (Missouri Court of Appeals, 1998)
State v. Hanson
974 S.W.2d 617 (Missouri Court of Appeals, 1998)
State v. Kee
956 S.W.2d 298 (Missouri Court of Appeals, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
931 S.W.2d 871, 1996 Mo. App. LEXIS 1465, 1996 WL 480493, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burnett-moctapp-1996.