State v. Jackson

664 S.W.2d 583, 1984 Mo. App. LEXIS 4468
CourtMissouri Court of Appeals
DecidedJanuary 3, 1984
DocketNo. 45488
StatusPublished
Cited by9 cases

This text of 664 S.W.2d 583 (State v. Jackson) 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. Jackson, 664 S.W.2d 583, 1984 Mo. App. LEXIS 4468 (Mo. Ct. App. 1984).

Opinion

SNYDER, Judge.

Appellant was found guilty by a jury, convicted of forcible rape, § 566.030 RSMo. 1978, and sentenced to a term of eight years in the custody of the Department of Corrections. The judgment is affirmed.

Two issues are raised on appeal. Appellant charges the trial court erred in denying his motion for a new trial on the grounds of prosecutorial misconduct. He also maintains it was error to deny his motion for a [584]*584new trial because the prosecution sought to use the alleged rape of the victim’s aunt, for which appellant had been tried and acquitted, as evidence of his guilt in the case under review.

The victim was appellant’s stepdaughter. Appellant and the victim’s mother were separated and lived in separate residences at the time of the rape. The victim lived with her mother, her grandmother and her mother’s sister, the aunt who testified as a witness, and who had some eight or ten years before been the victim of a rape for which the appellant was tried and acquitted.

On the day of the crime, appellant drove the 12 year old victim home from school. After appellant dropped her off at home she walked to a friend’s house to return a jump rope. Appellant then drove up in his car, told the victim to get in and drove to appellant’s apartment where the rape occurred. Appellant threatened to kill the victim if she told anyone. The victim testified that it had happened once before, but she had not told anyone about it because appellant had also threatened to kill her at that time.

After the rape appellant drove the victim home where the victim’s aunt noticed that victim’s eyes were red, that “she was really shakey and jittery,” and that she was holding her stomach and head. The aunt asked the victim what was wrong and received evasive answers. The aunt then asked directly whether appellant had raped the victim and the victim said he had.

On cross-examination, the following exchange occurred between the victim and defense counsel:

“Q: Did you testify that your sister— Aunt Sandra told you that she knew Alpha would do something like this to you?
A: Yes.
Q: Did she tell you that he had raped her too?
A: Yes.
Q: You know there was a trial that Alpha was found not guilty, didn’t you?
A: Yes.”

The prosecutor questioned the aunt about the circumstances of the prior rape on direct examination. No objection was made by defense counsel. The victim’s mother was questioned about the rape, and defense counsel’s objections were overruled. When the defense counsel questioned the appellant, appellant indicated that he had been accused of rape by the aunt. On cross-examination, the prosecutor asked additional questions about the rape. The rape of the aunt was also mentioned in the closing arguments of both the prosecution and the defense.

Appellant’s defense was alibi. Both appellant and a friend testified that they were together at various other places during the time the rape took place, alibi evidence which the jury obviously did not believe.

Numerous heated exchanges between the lawyers occurred during the trial relating to objections and remarks made in closing argument.

In appellant’s first point he contends the trial court erred in denying his motion for a new trial because the prosecuting attorney, “repeatedly and persistently, despite numerous sustained objections, indulged in statements and arguments calculated to inflame the jury and prejudice appellant.” The point is denied.

A prosecuting attorney in a criminal case represents the people of the state. It is his duty to be impartial, and to refrain from conduct that causes him to be a heated partisan who by vituperation and appeals to prejudice, seeks a conviction at all cost. State v. Wintjen, 500 S.W.2d 39, 43-44[8] (Mo.App.1973). A prosecutor’s obligation is not simply to obtain a conviction but to see that justice is done and that the accused gets a fair and impartial trial. State v. Hicks, 535 S.W.2d 308, 311[01-3] (Mo.App.1976). However, “[wjhether or not the remarks of counsel are improper, and whether or not improper remarks are [585]*585prejudicial under the facts of a particular case and necessitate a reprimand of counsel or discharge of the jury are matters which rest very largely within the trial court’s discretion, and the appellate court will not interfere unless the record shows an abuse of such discretion to the appellant’s prejudice.” State v. Wintjen, supra at 42.

It is unnecessary to discuss in detail the incidents at trial about which appellant complains. As appellant admits in his brief, defense counsel was partly responsible for the rancor engendered during trial. In two of the incidents complained of, appellant’s objections were sustained and the jury instructed to disregard the evidence. In four other instances, the trial court sustained appellant’s objection and no further relief was requested. “When a defendant, as here, receives all of the relief he asks, no error results, and the trial court’s rulings and admonitions obviate any prejudicial error.” State v. Wendell, 542 S.W.2d 339, 342[7, 8] (Mo.App.1976).

In another incident complained of by appellant, defense counsel improperly asked appellant whether he offered to take a polygraph test, and then complained that the prosecutor said during her objection, “[f]or all they know, he took it.” The defense argued that the prosecutor was injecting matters into evidence by suggesting that appellant would fail a polygraph test. An accused’s offer or professed willingness, or his unwillingness, to submit to a polygraph examination, as well as the results of such an examination, are inadmissible as evidence. State v. Biddle, 599 S.W.2d 182, 185[1] (Mo. banc 1980). Here, both the question by defense counsel and the comment by the prosecutor were improper. Both sides were at fault. However, since the court instructed the jury to disregard the polygraph “evidence,” there was no error. See State v. Davison, 601 S.W.2d 623, 627[2] (Mo.1980).

Defense counsel made numerous objections during closing argument. All of them were overruled. Appellant argues that those objections should have been sustained. However, the trial court is given wide discretion in the control of jury arguments. State v. Moomey, 581 S.W.2d 899, 903[6-8] (Mo.App.1979). When the conduct of both counsel during the trial and closing arguments are considered, the remarks of the prosecutor were within the wide latitude permitted in closing arguments. See State v. Newlon, 627 S.W.2d 606, 616[12-14] (Mo. banc 1982).

After a thorough examination of the transcript, this court concludes that the incidents complained of did not support appellant’s charge of prosecutorial misconduct. The motion for new trial on that ground was properly denied.

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664 S.W.2d 583, 1984 Mo. App. LEXIS 4468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jackson-moctapp-1984.