State v. Jones

629 S.W.2d 592, 1982 Mo. App. LEXIS 3448
Procedural entryThis page is a short order in State v. Jones. Read the opinion of the Court — 1979 Mo. App. LEXIS 2872
Missouri Court of Appeals·Decided January 19, 1982·No. No. WD 32269·Published

Opinion

LOWENSTEIN, Judge.

Daniel Jones, defendant-appellant was convicted of kidnapping, first degree robbery and first degree assault in Jackson County. The jury assessed punishment and the court sentenced him to five years for kidnapping to run concurrently with ten years for robbery, both to run consecutively with a ten year sentence imposed for assault, for a total of 20 years imprisonment.

Defendant does not challenge the sufficiency of the evidence. The jury could reasonably find from the evidence the facts hereinafter listed.

At 9:00 o’clock in the evening on February 24, 1980, the victim, Mr. Lacy, was in his automobile waiting at a red light at 31st and Paseo in Kansas City, Missouri. Three men, including defendant, jumped into his car, one ordering Mr. Lacy to get in the back seat, which he did. While defendant took over as driver one of the men held a gun to the victim’s ribs. The gunman asked the victim to hand over his billfold, which he did, and it was handed to defendant. After driving several blocks the victim was told he was going to be put in the trunk. The car was stopped, whereupon the victim jumped out of the car, slammed the door on the gunman’s leg, and began running. While the victim was running away, two shots were fired, one of which hit the victim in the shoulder. Defendant and the other two robbers drove away in the victim’s car.

The victim testified that he had eight keys on a metal key ring in the car at the time of the robbery and the taking of his car. Within a half hour the victim’s car was located by the Kansas City Police, parked, with the motor running and with the victim’s billfold in the front seat. Approximately 100 yards away the police saw defendant lying flat on his stomach. Several more officers arrived on the scene and defendant was arrested and searched. He was found to have seven keys on a ring and several loose keys. The ring of keys was later identified by the victim as being his. The victim testified that he later found the eighth key, the ignition key, in the automobile at the police tow lot. The loose keys were not taken from appellant. Later that evening defendant was identified by the victim in a police line-up procedure. The next day, defendant was taken to the Jackson County Jail where an inventory search found him to have six keys on a metal ring.

The crux of defendant’s appeal is that he was prejudiced by the trial judge, who, on his own initiative, kept defendant’s attorney from stating in closing argument that the police had “planted” the victim’s keys on appellant.1 Defendant’s second point [594]*594states that by stopping him from arguing this point, the judge breached his impartiality and left the impression with the jury that he had sided with the prosecutor.

One day prior to trial, defendant filed a motion to suppress the police line-up identification as well as introduction of the victim’s keys. After first being ruled untimely, the motions were then heard and denied. In his motion for new trial, defendant cited as error the court’s not allowing him to argue that the police conspired against him when they testified that the keys were found on him. It did not mention the issue of the appearance of impartiality of the judge.

The judgments of conviction are affirmed.

With regard to his first point, defendant stresses that there was conflicting evidence about the keys: the paddy wagon officer stated that defendant had one ring of seven keys and several loose keys; one arresting officer stated that he believed defendant had two rings of keys, but was not positive; another officer testified that she did not know how many keys were on the ring; and the admitting officer at the jail testified that defendant had one ring of six keys. Defendant argues that it could reasonably be inferred that when the car was abandoned the whole ring of keys was in the car, and that in order to strengthen the case against defendant, the police said they found them on him. Although his motion to suppress any evidence of the keys was unsuccessful, appellant’s attorney extensively cross-examined all the state’s witnesses with regard to the discrepancy.

Defense counsel is permitted wide latitude to argue all reasonable inferences from the evidence which most strongly favor his client. State v. Dickson, 596 S.W.2d 482, 485 (Mo.App.1980). Further, the trial court has wide discretion in determining the scope of the argument to the jury, and unless an abuse of discretion is demonstrated to the prejudice of the defendant, the case will not be reversed. State v. Reynolds, 608 S.W.2d 422, 426 (Mo.1980); State v. Wood, 596 S.W.2d 394, 403 (Mo. banc 1980). In State v. Hendrix, 520 S.W.2d 701, 705 (Mo.App.1975), a gun stolen from the victim was found near the place where the defendant was arrested. The prosecutor stated that the jury either had to believe the defendant was guilty or that the police planted the gun at the site of the defendant’s arrest. Objection to this line of argument was overruled, after which the prosecutor repeated his argument that the jury would have to believe the police had planted the gun in order to find for the defendant. The court ruled that the argument was based on the evidence.

In the instant case, defense counsel did not couch his argument in terms of the jury believing that the keys were either “planted” by the police or that his client was not guilty, but simply stated that the police had reason to lie and that they wanted a conviction so bad they would plant the keys on defendant. The fact that there were discrepancies regarding how many keys were found on defendant is not evidence from which one could reasonably infer such bold charges of wrongdoing on the part of the police. The testimony was clear that the keys were found on defendant’s person. In any case, there still must be a showing of prejudice to warrant reversal. State v. Wood, supra. Defendant claims the error here is prejudicial because of possible misidentification of defendant by the victim. This ignores the fact that defendant was identified by the victim without [595]*595any equivocation. This alone is enough evidence to sustain a conviction. State v. Wood, 613 S.W.2d 898, 900 (Mo.App.1981). Moreover, the trial court ruled adversely on defendant’s motion to suppres the identification, and defendant has not contested that ruling in his points of error. The argument of erroneous identification has not been preserved and cannot be relied upon now through argument in defendant’s brief.

Defendant’s second point is without merit and has not been properly preserved for appeal. Defendant made no objection to the judge’s comments when asked to approach the bench and this allegation was not mentioned in his motion for new trial. State v. Nevills, 530 S.W.2d 52, 54 (Mo.App.1975). In any event, the issue of impartiality is not well taken, as the comments of the judge were made out of the hearing of the jury and could not have conveyed a non-neutral position to the jury. State v. Newberry, 605 S.W.2d 117, 124 (Mo.1980); State v.

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State v. Jones, 629 S.W.2d 592, 1982 Mo. App. LEXIS 3448 (Mo. Ct. App. 1982).

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Related

State v. Newberry
605 S.W.2d 117 (Supreme Court of Missouri, 1980)
State v. Wood
596 S.W.2d 394 (Supreme Court of Missouri, 1980)
State v. Puckett
611 S.W.2d 242 (Missouri Court of Appeals, 1980)
State v. Wood
613 S.W.2d 898 (Missouri Court of Appeals, 1981)
State v. Nevills
530 S.W.2d 52 (Missouri Court of Appeals, 1975)
State v. Reynolds
608 S.W.2d 422 (Supreme Court of Missouri, 1980)
State v. Hendrix
520 S.W.2d 701 (Missouri Court of Appeals, 1975)
State v. Dickson
596 S.W.2d 482 (Missouri Court of Appeals, 1980)
State v. Roddy
604 S.W.2d 32 (Missouri Court of Appeals, 1980)