State v. Jackson

743 S.W.2d 493, 1987 Mo. App. LEXIS 4935, 1987 WL 1828
Missouri Court of Appeals·Decided November 24, 1987·No. No. 52738·Published·Cited by 7 cases

Opinion

KAROHL, Presiding Judge.

Floyd Jackson appeals from his conviction after jury trial for robbery in the first degree, Section 569.020 RSMo 1986; assault in the second degree, Section 565.060 RSMo 1986; and armed criminal action, Section 571.015 RSMo 1986. He was sentenced as a prior and persistent offender to life, fifteen (15) years, and life respectively, all terms to be served consecutively.

Appellant claims on appeal the trial court erred (1) in overruling appellant’s objections to the prosecutor’s reference to" defense counsel’s performance of her duty; (2) in refusing to instruct on the lesser included offense of assault in the third degree; and (3) in overruling appellant’s motion for mistrial following testimony by a witness that she had seen appellant in federal court. We affirm.

Defendant’s points do not challenge the sufficiency of the evidence. The basic facts, in the light most favorable to the verdict, State v. McBurnett, 694 S.W.2d 769, 770 (Mo.App.1985), are as follows. On February 8, 1986, between 7:30 and 8:00 p.m., Kendol Smith and her friend Daveda Johnson separately drove to the National Food Store on North Kingshighway in St. Louis so that Mrs. Smith could leave the car for her husband’s use. They pulled into the lot and Mrs. Smith parked the car. Daveda Johnson’s car, with the headlights on, was parked directly behind the Smith vehicle. As Mrs. Smith had one foot out of the car, a man appeared with a gun in his hand and got into the car with her. Mrs. Smith subsequently identified this man as defendant.

Defendant took Kendol Smith’s purse. He passed in front of Ms. Johnson’s car as he left in the direction of Enright. She described him as five feet ten inches to six feet tall, in his middle forties, with a beard, cap, jeans, and dark, zippered sweat jacket.

Security guard Adam Burrow responded to a scream that someone had been robbed. He saw a man in dark clothes walking off the lot carrying a small purse. Burrow later identified this man as defendant. Burrow pursued defendant who turned and fired a shot from a distance of twenty-five or thirty feet. Burrow ducked behind a car and drew his own gun.

Defendant turned right at Hodiamont Tracks and Burrow briefly lost sight of him. Burrow went around the comer and saw defendant walking in the street. Burrow raised his gun and told defendant to halt. Defendant ran, but tripped and fell. Burrow handcuffed defendant, retrieved the purse and gun and escorted defendant back to the store. The gun, a .22 revolver, contained five live shells and one spent shell.

Defendant was identified by the victim and Daveda Johnson. He was wearing jeans and a black jacket.

Defendant first contends that certain remarks by the prosecutor in his closing argument, to the effect that defense counsel was just doing her job and had no choice in making her argument, were improperly allowed because it was an impermissible personal reference to counsel and a distraction from the evidence.

Following defense counsel’s closing argument, the prosecutor in his closing remarks stated:

MR. CHANCELLOR [Prosecutor]: No way do I fault Kathy [sic] Gilbert for standing here and doing her job. She doesn’t get to pick the case.
MS. GILBERT [Defense Counsel]: Your Honor, I’ll object to any comment upon me. The case is what’s before the jury.
[495]*495THE COUET: Overruled, closing argument. Proceed.
ME. CHANCELLOE: She took what she had and just did a beautiful job. But she didn’t talk about the evidence. It isn’t what counsel thinks or counsel believes, or would like to have you believe. It’s what the evidence before you is. When we talked to you on voir dire, only two things we asked you to swear that you would do, would you be guided in your decision by the evidence before you and by the law that Judge Peek will give you.
Were it not serious in what we’re doing here, what she has just done would be comic. She would have you close your eyes and she would have you believe that Adam Burrow chased a person for no reason at all, and that that person somehow got around that corner and got away and things were left there, and some new person came in and fell in between. That’s absurdity in its purest form. And although that’s why we have 12 people of conscience — as I say, that’s what I mean, I don’t fault her for making that argument, because she’s left with nothing else. She has no choice. You do have a choice. You have a choice of a clear conscience and common sense.
******
She talks about photographs, and lineups. These are things that are employed by the police when no one is caught. If he gets away, then she is taken to the station and she looks at photographs. Later on, if the person is arrested, he’s put in a lineup. That does not happen in a situation where you catch him with a gun and the person walks away. These are things that are just argued again I say because she has no coince (sic) because she’s got to come up with something.
MS. GILBEET: Your Honor, I object to his commenting on my personal — me personally.
THE COUET: Overruled. Proceed.

We note at the outset that the trial court has broad discretion in controlling counsel’s summation and a conviction will be reversed for improper argument only if it is established that the complained of comments had a decisive effect on the jury’s determination. State v. Newlon, 627 S.W.2d 606, 616 (Mo. banc 1982), cert. denied, 459 U.S. 884, 103 S.Ct. 185, 74 L.Ed. 2d 149 (1982), reh’g denied, 459 U.S. 1024, 103 S.Ct. 391, 74 L.Ed.2d 520 (1982); State v. Hicks, 716 S.W.2d 387, 391 (Mo.App.1986). Generally, error committed in a criminal case is presumed to be prejudicial and it is our duty on appeal to judicially determine whether, under the particular facts of this case, appellant was prejudiced by the prosecutor’s unwarranted declarations. State v. Morris, 680 S.W.2d 315, 318 (Mo.App.1984). However, error, which in a close case might call for reversal, may be disregarded as not prejudicial when evidence of guilt is strong. State v. Ford, 639 S.W.2d 573, 576 (Mo.1982).

Here, the proper subject of the state’s case should have focused upon: 1) the testimony and identification by the witnesses; 2) whether defendant had a gun when he took Kendol Smith’s purse; 3) whether Mrs. Smith could properly identify both the gun and the assailant; and, 4) whether the security guard, Adam Burrow, had opportunity to observe, chase and apprehend the same individual who robbed Mrs. Smith and fired a shot at him. In other words, the proper function of the prosecution was to argue the evidence favorable to a finding of guilt on the charges of robbery in the first degree, assault in the second degree and armed criminal action. The direct evidence in this case was conclusive of guilt once the jury determined the credibility of the witnesses.

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State v. Jackson, 743 S.W.2d 493, 1987 Mo. App. LEXIS 4935, 1987 WL 1828 (Mo. Ct. App. 1987).

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