State v. Mallory

747 S.W.2d 209, 1988 Mo. App. LEXIS 63, 1988 WL 2566
CourtMissouri Court of Appeals
DecidedJanuary 19, 1988
DocketNo. WD 39334
StatusPublished
Cited by5 cases

This text of 747 S.W.2d 209 (State v. Mallory) 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. Mallory, 747 S.W.2d 209, 1988 Mo. App. LEXIS 63, 1988 WL 2566 (Mo. Ct. App. 1988).

Opinion

BERREY, Judge.

Victor Mallory appeals his jury trial convictions for forcible rape, armed criminal action, attempted forcible sodomy, and burglary in the first degree.

On July 14, 1986, sixteen-year-old Deanna Haley was sleeping on her living room floor. Her mother, Sharon Haley, left for work without disturbing Deanna’s sleep. Deanna awoke to the sound of her pet [211]*211poodle, Mindy’s, barking. She got up to see what the poodle was barking about, looked out of the kitchen window and saw two black males trying to force their way into her house. She called 911 and walked back into the living room to put on more clothing but was interrupted by Mallory who told her to turn over on the couch and spread her legs. She refused and he slapped her. She pleaded with him to allow her to go to the bathroom. He grabbed her by her hair and took her to the bathroom, told her she was lying and threw her on the bathroom floor. He then ripped off her underwear after covering her face and proceeded to rape her.

Mindy, the poodle, was barking throughout the attack. As Mindy stood about four inches from Deanna’s head, Deanna heard a gunshot followed by the sound of the dog’s retreat, whimpering and crying. After the attack Mallory pulled the bath mat away, put his penis in front of her face and told her to suck on it. She told him she didn’t know how, so he zipped up his pants and left the room returning only to ask her for money and kick her in the head. She stayed there until the house was silent, then ran to the door when the police had arrived. Officer Timothy Smith saw a black male running from the house. He gave chase but lost him in a wooded area. Officer Brian Price then saw a blue Oldsmobile pull out at a high rate of speed. Shortly thereafter, in close proximity to the crime scene, an accident occurred involving two black males in a blue Oldsmobile 88. The driver of the other vehicle involved testified that after she left her car to inspect for damage, one of the black men got into her car and tried to start it. Prevented from doing so, he and the other black man took off running. The blue Oldsmobile involved in the accident was found to be registered to the appellant, Victor Mallory. Deanna identified Victor Mallory as her attacker in a police line up. He was subsequently tried and convicted.

Appellant first argues that the trial court erred by allowing into evidence references to the suffering and death of the victim’s dog from a gunshot wound. This evidence is characterized by appellant as prejudicial and of relatively little probative value. The state used the evidence in question to support the charge of armed criminal action. The rape victim had her face covered during the rape and was only able to tell that her attacker was armed by the sound of the gunshot and the whimpers, cries and retreat of the wounded dog.

In the instant case, whatever emotion the suffering and death of a pet dog may engender, the relevancy of this evidence on the issue of armed criminal action outweighs its prejudicial nature as was properly decided by the trial court. The evidence was admissible on the charge of armed criminal action. It falls to the discretion of the trial court to weigh the evidence using relevancy as its main criteria for admission. State v. Williams, 652 S.W.2d 102, 113 (Mo. banc 1983). Appellant’s Point I is denied.

Appellant’s next point is that the trial court erred in overruling defense objections to the state’s closing argument; “But how many of you have been raped? How many of you have had a penis put in your face— .... [Yjou’re talking about an individual who wasn’t working at that time. Who knows what he was doing during the day....”

Appellant argues that this was: (1) an improper personalization of the argument to the jury; and (2) an improper inference that being unemployed is related to criminal conduct.

A prosecuting attorney is not allowed to personalize his argument to the jury. State v. Raspberry, 452 S.W.2d 169 (Mo.1970). It is the duty of the jury to make a decision based solely on the evidence and not upon their own fears and emotions. Id. at 172. Personalization interferes with this process. However, a great deal of latitude is given to a prosecutor in his closing argument, especially when he is retaliating in response to arguments by the defense. State v. Kirksey, 713 S.W.2d 841 (Mo.App.1986). The first remarks challenged by appellant are; “But how many of you have been raped? How many of you have had a penis put in your [212]*212face—Standing alone this does seem a personalized remark. However, the prosecutor was, in fact, responding to an argument made by defense counsel concerning the victim’s identification of appellant.

Appellant’s attorney made the following argument:

There are other reasons why you should not trust her identification. She said she stared at the man’s face ... looking at his mouth.... [B]ut when the man is yelling at you and he is demanding things and you are looking at him dead in his mouth, don’t you think that is something that you’re going to see, there’s a shiny gold tooth and do you think if she would have saw [sic] it in his mouth, she would remember it?”

The comments made by the prosecutor were invited by appellant’s counsel. A prosecutor may be permitted to go farther in retaliation than he would’ve been permitted in the first instance. State v. Williams, 721 S.W.2d 102, 107 (Mo.App.1986); State v. Davis, 684 S.W.2d 38, 44 (Mo.App.1984). Appellant may not provoke a response to his argument and then cry foul. State v. Bockes, 676 S.W.2d 272, 276 (Mo.App.1984).

The second statement complained of by appellant is, "... you’re talking about an individual who wasn’t working at that time. Who knows what he was doing during the day, but—.” Appellant takes this remark out of context. The inference appellant assigns the remark is not tenable. Again the prosecution was arguing about the identification of the appellant as the victim’s assailant. Defense counsel characterized the complexion of Deanna’s attacker, whether he was dark, medium, or light complexioned, as a very important fact in the case. The prosecution was responding to this and appellant takes the remark out of context. The issue was the darkness of appellant's skin; the remark should read, “[w]e all tan, and you’re talking about an individual who wasn’t working at that time.” Appellant’s Point II is denied.

Appellant’s third point is that the trial court erred in refusing to allow appellant to be recalled to the witness stand to testify as to why he went to the police' station. Appellant argues that the fact he went to the station in response to a letter informing him his automobile was in police custody was not an acknowledgment of guilt on his part. A trial judge has broad discretion in determining the relevancy of evidence and this determination should only be disturbed if an abuse of that discretion is found. State v. Brown, 718 S.W.2d 493 (Mo. banc 1986).

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Bluebook (online)
747 S.W.2d 209, 1988 Mo. App. LEXIS 63, 1988 WL 2566, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mallory-moctapp-1988.