State v. Hall

748 S.W.2d 713, 1988 Mo. App. LEXIS 219, 1988 WL 8351
CourtMissouri Court of Appeals
DecidedFebruary 9, 1988
DocketNo. 52883
StatusPublished

This text of 748 S.W.2d 713 (State v. Hall) 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. Hall, 748 S.W.2d 713, 1988 Mo. App. LEXIS 219, 1988 WL 8351 (Mo. Ct. App. 1988).

Opinion

KAROHL, Presiding Judge.

Defendant, Kenny W. Hall, appeals his conviction of unlawful use of a weapon, Section 571.030.1 RSMo 1986.1 The court [714]*714sentenced Hall as a persistent offender to four years in prison. Defendant briefed two issues on appeal, neither of which challenge the sufficiency of the evidence.

Officer Alfred Adkins testified that on the night of September 22, 1986 he and his partner, Russell Smith, received an assignment to investigate a shooting. The suspect was described as an eighteen year old Negro male with light complexion and red hair. In response the officers proceeded by vehicle to the 5700 block of Mimika where Officer Adkins observed from his passenger seat a group of four black males and two white females clustered around a parked Monte Carlo.

At a distance of ten-to-fifteen feet Officer Adkins watched the defendant remove a gun with white grips from under his shirt and toss it to his left. Officer Adkins advised Officer Smith to stop the car and both officers went to investigate the group. Adkins searched with a flashlight and retrieved the gun from the street. The officers arrested Hall and questioned the other people present at the scene.

Defendant did not testify at trial but called two witnesses, Michele Wilson and Jeannie Haines. They were present at the scene of arrest. They had just dropped off Jeannie’s boyfriend when the incident occurred. Both women testified they were returning to the car when they saw several black males who were talking and drinking in front of Wilson’s Monte Carlo. As the women approached they saw a police car coming down the street toward them. Both testified they saw a male, not the defendant, seated on the driver’s side of the hood lean over and toss an object across the car. Haines further stated that she was hit on her toe by an object that felt like a brick. On cross-examination neither witness stated she actually saw a gun tossed, but merely saw a man who was not Hall throw something across the car toward them. Haines concluded she was hit by the gun because the object glittered and the gun was found there. Both women stated they were standing beside the defendant when the object was tossed and they did not see Hall remove a gun from his coat or throw anything.

The jury believed the testimony of Officer Adkins and rejected the testimony of defendant’s witnesses. It returned a verdict of guilty of unlawful use of a weapon. Hall appeals (1) challenging the court’s denial of a motion to strike the jury on Bat-son grounds and (2) alleging court error in not sustaining defense objections to the prosecutor’s demonstration during final closing argument.

We find defendant is entitled to a new trial on the claim of error relating to closing argument and do not consider the Bat-son issue. Further, after this appeal was filed our Supreme Court issued an opinion in State v. Antwine, 748 S.W.2d 51 (Mo. banc 1987). In that opinion the court addressed both the appropriate procedure for trial courts to follow in deciding Batson issues and the proper standard of review for appellate courts. On retrial the parties and the court will have the benefit of Ant-wine.

Defendant’s second point alleges prejudicial error in the prosecutor’s final closing argument. At trial, the state presented Officer Adkins’ testimony that Hall removed a gun from under his shirt and threw it to the ground. The defense witnesses testified they saw a different black male make a throwing motion. Hall’s defense was that Adkins had mistaken his identity and someone other than defendant had possession of the weapon found at the scene. In his initial closing argument the prosecutor argued that the defense witnesses were distracted by the other people grouped around the car and for that reason their testimony was not reliable. During closing, the defense argued that the witnesses were much closer to the group and better able to see what happened than the policemen who were driving toward them. These arguments were in reference to the events in evidence and both were proper. Both arguments went to the central issue for the jury to consider and decide.

In the rebuttal portion of his closing argument, the prosecutor made the following argument to the jury:

PROSECUTOR: Now as Ms. Moss stood here in front of you, I sat there in her closing argument, I sat right there ap[715]*715proximately the same distance as the two girls were from Kenny Hall, were you paying attention to her or were you paying attention to me? Where is the gun? It’s right here. You didn’t see me put it there because you weren’t paying attention to me, you were paying attention to her.
DEFENSE: I will object to this line of argument. I will object
THE COURT: Overruled. Be governed by your recollections of the testimony.
PROSECUTOR: Just like the girls were looking at the guys.
DEFENSE: May we approach the sidebar?
THE COURT: Not until he finishes. He only has ten seconds. You may make your record after he finishes.
PROSECUTOR: Just like the girls weren’t looking at Kenny Hall to see what he was doing, they were looking at the guy doing like this, (indicating) Be governed by your common sense. Thank you, ladies and gentlemen.
THE COURT: Okay, you [sic] time is up. Now you may approach the bench, (whereupon, the following proceedings were held at the bench out of the hearing of the jury):
DEFENSE: I would like the record to reflect my objections to the prosecutor’s line of argument, that he was doing a display for the jury, and that was not a comment on the evidence, and, nor was it displayed in the evidence at all.
THE COURT: Objection overruled, (our emphasis)

While making this argument, the prosecutor pulled the gun in evidence from his waistband to illustrate his point that no one saw him place it there. Defendant does not argue that this was error because it was merely dramatically inflammatory. His point of prejudicial error is this argument was beyond the scope of closing and beyond the scope of the evidence.

The first defense objection to prosecution’s final closing argument was general and preserved nothing for review. State v. Jones, 515 S.W.2d 504, 506 (Mo.1974); State v. Gibson, 633 S.W.2d 101, 107 (Mo.App.1982). The trial judge refused to hear the next attempted objection, deferring all interruption until the prosecutor finished his closing argument. Under these irregular circumstances we look to the objection made when permitted and thereafter preserved. Defendant was entitled to make a timely, proper objection when the error, if any, occurred. We review the trial court error based on the grounds asserted by defense counsel at the conclusion of closing argument.

The court’s ruling at the end was predictable because the court refused to hear the objection at the time raised. The display and the argument was already before the jury. The argument was not supported by the evidence but it was dramatically before the jury by “leave”.

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Related

State v. Gibson
633 S.W.2d 101 (Missouri Court of Appeals, 1982)
State v. Jones
515 S.W.2d 504 (Supreme Court of Missouri, 1974)
State v. Degraffenreid
477 S.W.2d 57 (Supreme Court of Missouri, 1972)
State v. Ross
667 S.W.2d 31 (Missouri Court of Appeals, 1984)
State ex rel. McDonald's Corp. v. Daly
748 S.W.2d 51 (Missouri Court of Appeals, 1988)

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Bluebook (online)
748 S.W.2d 713, 1988 Mo. App. LEXIS 219, 1988 WL 8351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hall-moctapp-1988.