State v. Harris

714 S.W.2d 561, 1986 Mo. App. LEXIS 4117
Missouri Court of Appeals·Decided May 13, 1986·No. No. WD 36603·Published·Cited by 5 cases

Opinion

PER CURIAM:

Defendant Daniel Harris appeals from his jury convictions of robbery in the first degree, § 569.020, RSMo 1978, and armed criminal action, § 571.015, RSMo 1978, and sentence to 25 years imprisonment on each conviction. The sentences are to be served consecutively.

Defendant raises three allegations of error on appeal. First, he argues, that the prosecutor was allowed to personalize the crime to the jury during closing argument. Second, he claims a mistrial should have been granted because the prosecutor alluded to facts not in evidence during the closing argument. Third, he contends that the court should have suppressed the victim’s pre-trial and in-court identifications of defendant because of the way the identifications were conducted.

The victims in this case, Roy Maurer and Victoria Ellensohn, were robbed at gunpoint in Maurer’s car around midnight on July 19, 1983. Maurer was stopped at a stop sign at the intersection of Grand and 79th Streéts when a vehicle pulled in front of the Maurer car and blocked its path. Two men got out. One man went to the driver’s side of Maurer’s car, pointed a gun at Maurer and demanded his wallet. He also took Maurer’s watch and car keys. The other man went to the passenger side of the car and took Ellensohn’s purse and jewelry. The robbery took between five and eight minutes. The area was lighted by street lamps.

A few days later Maurer was shown a photographic display at the police station, and he identified defendant as the robber. [563]*563A day or two after that Maurer again identified defendant as the robber from a police line-up. These identifications were made within about a week and a half of the robbery. At the trial Maurer testified that defendant was the man who robbed him. Ellensohn kept her eyes down throughout the robbery and therefore was unable to participate in the identification process.

At trial, the state produced evidence that the day after the robbery a man driving defendant’s car and a passenger in the car attempted to buy gas with Ellensohn’s credit card. The passenger came into the station and expressed an interest in buying tires and a battery. The attendant had discovered the card was no good, and he told the passenger that the gas would have to be paid for in cash. The passenger went back to the car on the pretext of getting money for the gas, and the two men drove away. The attendant had obtained the license number of the car and he called the police.

The officer who interrogated defendant testified that upon defendant’s arrest, defendant denied any involvement in the robbery. When questioned about the credit card incident, defendant first claimed that whoever had told the police that story was a liar; then he said he had picked up an individual whose name he did not know and that person had offered to put gas in defendant’s car. Defendant told police that his girlfriend would be his alibi on “whatever” night the robbery occurred.

In a second interview with the police detective, defendant told the officer that he was the driver of the car used in the robbery but that he never got out of the car. He claimed a man called “Nunu” and a friend of “Nunu’s” actually did the robbery. Later defendant told the officer that “Nunu’s” real name was Todd Carr. He claimed to have learned “Nunu’s” first name from a cellmate and his last name from defendant’s cousin.

At trial defendant testified that on the night of the robbery, he drove his girlfriend to work at about 11:30 p.m. He denied telling the police that he was involved in the robbery. In rebuttal, the state produced work records which showed that defendant’s girlfriend was not scheduled for work and did not work on the night of the robbery.

In his first point of error, defendant claims the trial court erred in overruling defendant’s objection to a remark made by the prosecutor in closing argument which defendant claims improperly personalized the crime to the jury. The pertinent part of the closing argument follows:

[State]: And this isn’t TV. This isn’t John O’Connor up here versus Charles Brown, and it isn’t even Roy Maurer versus Daniel Harris, because it’s the State of Missouri that brings this case. And why is that? Because every time a member of this community is victimized, we all suffer. So just because on this occasion it was Roy Maurer, it could have been someone else, someone dear and close to us.
[Defendant]: Your Honor—
[State]: That is why the law—
[Defendant]: Excuse me. I’m going to object to counsel personalizing. I think it’s totally improper.
THE COURT: OVERRULED.

The offending remark is the prosecutor’s statement that the victim could have been “someone dear and close to us.” Defendant claims that by overruling defense counsel’s objection to the remark, the trial court placed its imprimatur on the comment and “reinforced the inflamed passion of the jury that the victim of this crime could have easily been a member of their family or close friend.” Therefore, contends defendant, he was denied a fair and impartial trial.

“It is well settled that the prosecutor may not personalize his argument to the jury.” State v. Raspberry, 452 S.W.2d 169, 172 (Mo.1970). The jury must determine the guilt or innocence of the defendant from the evidence presented and that determination cannot be made objectively if the jury members have been put in fear of their safety or the safety of their families [564]*564by the tone of the prosecutor’s closing argument. Id; See State v. Groves, 295 S.W.2d 169, 174 (Mo.1956).

The language used in this case is not nearly so blatant as that used to improperly personalize the jury in cases such as State v. Tiedt, 357 Mo. 115, 120-123, 206 S.W.2d 524, 527-528 (banc 1947); State v. Groves, 295 S.W.2d at 173; State v. Raspberry, 452 S.W.2d at 172; or State v. Ellinger, 549 S.W.2d 136, 139 (Mo.App.1977), and in fact is much more analogous to the language used in State v. Fletcher, 244 S.W.2d 98, 104 (Mo.1951), which was found not to be error.

Nevertheless the prosecutor’s subtle remark in this case could very well have caused the jury to consider how they would feel if “someone dear and close” had been the victim of this robbery. The argument is not to be condoned and the court should have sustained defendant’s objection to the comment. Even considering the impropriety of the prosecutor’s remark and the trial court’s failure to remedy the situation, it does not necessarily follow that a new trial is warranted. No mistrial was requested by defendant. The question defendant presents on review is whether the remark created a situation of such manifest unjus-tice for defendant that a new trial must be had.

In view of the evidence in this case it cannot be said that defendant was unduly prejudiced by the remark in the closing argument. Here, there was eyewitness identification of defendant as the robber. Defendant was involved in an attempt to use Ellensohn’s credit card the day following the robbery.

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State v. Harris, 714 S.W.2d 561, 1986 Mo. App. LEXIS 4117 (Mo. Ct. App. 1986).

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