State v. Jackson

833 S.W.2d 888, 1992 WL 174429
Missouri Court of Appeals·Decided July 28, 1992·No. Nos. 17167, 17789·Published·Cited by 4 cases

Opinion

CROW, Presiding Judge.

A jury found Appellant, Lydell Jackson, guilty of assault in the first degree, § 565.-0501 (Count I), and armed criminal action, § 571.015 (Count II). The trial court sentenced Appellant as a prior offender to 15 years’ imprisonment on Count I and 30 years’ imprisonment on Count II, to run consecutively. Appellant brings appeal 17167 from that judgment.

While appeal 17167 was pending, Appellant commenced a proceeding per Rule 29.-152 to vacate the judgment. Following an evidentiary hearing, the motion court filed comprehensive findings of fact and conclusions of law, and entered an order denying relief. Appellant brings appeal 17789 from that order.

We consolidated the appeals, Rule 29.-15(Z), but address them separately in this opinion.

[890]*890Appeal 17167

Because the sufficiency of the evidence to support the verdicts is unchallenged, we summarize only the evidence pertinent to Appellant’s sole claim of error in this appeal.

Viewed favorably to the verdicts, State v. Evans, 802 S.W.2d 507, 514[12] (Mo. banc 1991), and reduced to its essentials, the evidence established that about 1:30 a.m., April 26, 1990, Kathrine Neal and her three children were in her residence, 1109 Osage, in Sikeston. Kathrine’s brother, Doug Neal, was there with them. Kathrine and Doug heard a horn outside. Kathrine looked through a window and saw Appellant in a truck. Doug opened the front door and saw Appellant in the truck, holding a rifle. Appellant fired a shot, striking the door. Doug shut it. Appellant fired additional shots, also hitting the door. The truck sped away.

During the rebuttal segment of his final argument, the prosecutor said:

Ladies and gentlemen, it’s something that goes on in New York City and Los Angeles, California, but this is something that happened in Scott County, Missouri. We have a drive-by shooting. Sounds strange to have happening in Scott County, Missouri. That’s something that happens in Los Angeles, New York, Chicago, but lo and behold, it happened at 1109 Osage and there’s bullets in the door to prove it.
... There needs to be a message, and it’s got to go out from right here, because there’s no other place, and it’s when juries say “Yes, Lydell Jackson, you’re guilty of shooting that gun at Doug Neal and you’re guilty of using a gun, and we’re going to convict you of that. We are not going to have it happen in Scott County.” ... It’s time to stop. This is not Los Angeles, California, this is not New York City, this is not Chicago....
Ladies and gentlemen, we have got to provide protection. We have to stop the action. We have to prevent another shooting at a front door of 1109 Osage Street, and it has to stop here.

Appellant’s point relied on avers the trial court committed plain error in failing to declare a mistrial, sua sponte, when the prosecutor made the above argument. Appellant acknowledges that because no objection was made to the argument at trial, review is limited to plain error. Rule 30.20.

An appellate court should rarely grant relief on assertions of plain error as to closing argument. State v. Clemmons, 753 S.W.2d 901, 907 (Mo. banc 1988), cert. denied, 488 U.S. 948, 109 S.Ct. 380, 102 L.Ed.2d 369 (1988). This is because, absent objection and request for relief, the trial court’s options are narrowed to uninvited interference with summation and a corresponding increase in the risk of error by such intervention. Id., 753 S.W.2d at 907-08. A holding that would require a trial judge to interrupt counsel during argument presents myriad problems. State v. Kempker, 824 S.W.2d 909, 911 (Mo. banc 1992).

Furthermore, plain error relief is granted only when the error so substantially affects the rights of the accused that a manifest injustice or miscarriage of justice inexorably results if left uncorrected. State v. Hadley, 815 S.W.2d 422, 423[1] (Mo. banc 1991). No such circumstances exist here.

A prosecutor is permitted to argue such propositions as the prevalence of crime in the community, the personal safety of its inhabitants, and the jury’s duty to uphold the law as well as inferences from its failure to convict. State v. Newlon, 627 S.W.2d 606, 618—19[21] (Mo. banc 1982), cert. denied, 459 U.S. 884, 103 S.Ct. 185, 74 L.Ed.2d 149, reh’g denied, 459 U.S. 1024, 103 S.Ct. 391, 74 L.Ed.2d 520 (1982); State v. Olds, 603 S.W.2d 501, 511[14] (Mo. banc 1980). That was the theme of the prosecutor’s argument here. If he overstepped the boundary, an issue we need not decide, the transgression was minimal. There was no manifest injustice or miscarriage of justice.

Appellant relies on United States v. Solivan, 937 F.2d 1146, 1148-50 (6th Cir.1991). However, that case is inapposite in that the claim of error there was preserved by timely objection at trial. Furthermore, Solivan [891]*891is not binding on us. Futrell v. State, 667 S.W.2d 404, 407[3] (Mo. banc 1984). We are constitutionally bound to follow the last controlling decision of the Supreme Court of Missouri. Mo.Const. art. V, § 2 (1945); State v. Wilson, 795 S.W.2d 590, 591[1] (Mo.App.1990). The decisions of the Supreme Court of Missouri cited above demonstrate no plain error relief is warranted.

Appellant’s point relied on is denied, and the judgment is affirmed.

Appeal 17789

This appeal likewise presents one claim of error. Appellant maintains the motion court should have granted post-conviction relief in that he received ineffective assistance of counsel in the trial court. Appellant complains his lawyer (“defense counsel”) was derelict in failing to secure the presence of, and present testimony from, Shawn Townsend.

At Appellant’s jury trial, the evidence showed he and Tony Neal (brother of Kathrine and Doug Neal) had a dispute and fought each other at a pool hall approximately a half-hour before the shooting.

At the evidentiary hearing in the motion court, Appellant — who had remained silent at trial — testified Townsend saw the incident at the pool hall. Appellant recounted he “was into it with about four or five guys and ... they had bats and sticks.” According to Appellant, Townsend could have testified Doug Neal struck Appellant in the head with a baseball bat. Such testimony, insisted Appellant, would have refuted Doug Neal's trial testimony that he (Doug) did not strike Appellant in the head with a bat.

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State v. Jackson, 833 S.W.2d 888, 1992 WL 174429 (Mo. Ct. App. 1992).

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