State v. Savage

602 S.W.2d 481, 1980 Mo. App. LEXIS 3242
CourtMissouri Court of Appeals
DecidedJuly 21, 1980
DocketNo. 11060
StatusPublished
Cited by2 cases

This text of 602 S.W.2d 481 (State v. Savage) 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. Savage, 602 S.W.2d 481, 1980 Mo. App. LEXIS 3242 (Mo. Ct. App. 1980).

Opinion

MAUS, Judge.

The defendant was charged with the capital murder of David Love. A jury found the defendant guilty of manslaughter and fixed his punishment at imprisonment for nine years and six months. The defendant’s timely motion for a new trial was overruled and he was sentenced in accordance with the verdict. He appeals presenting two points of error. As there is no doubt about the sufficiency of the evidence to support the conviction, only a brief summary of the facts that could have been found by the jury is necessary. In so summarizing the facts, in the light of the verdict, the evidence will be reviewed most favorably to the state. State v. Hayes, 597 S.W.2d 242 (Mo.App.1980).

The dramatis personae in this unfortunate tragedy include the following: the defendant, a farmer who was 73 years old at the time; the victim David Love, also a farmer, age 50 at the time; and Ansel Breeding, a livestock dealer. The defendant and victim lived on neighboring farms in a rural community in Southwest Missouri. They were close friends. Breeding had been acquainted with both Savage and Love for 15 or 20 years. Late in the afternoon of the day in question, in the neighborhood where Savage and Love lived, Breeding met them while they were riding in Love’s pickup truck. Apparently Breeding had business to discuss with Love and during the encounter the three decided to look at cattle on several farms in the area. Breeding got in the Love pickup as a passenger, but after a short distance became the driver because Savage and Love had been drinking. The two continued drinking during the trip and became quite drunk. Along the route Savage and Love began to quarrel, perhaps initially in a jocular manner. At one point, Savage put his arm around Love’s neck in such a manner that Love began gasping for breath. When he freed himself, Love began hitting Savage in the face. The strength of the blows is not clear, but he hit him 10 or 15 times, wearing a ring, and Savage bled rather heavily. Breeding calmed them down and drove to the Savage home. As they approached, another quarrel developed. Nevertheless, Breeding was successful in getting Savage from the pickup and helping him to the front door. Unknown to Breeding, Savage had taken the keys to the pickup. After returning to the pickup and discovering the keys were missing, Breeding went back to the house. He found Savage coming from the back room with a gun in his hand. Mrs. Savage was pleading with him, “please don’t”. When Breeding tried to dissuade Savage from his apparent course of action, Savage threatened Breeding. Breeding left by a side door and went to the pickup where he unsuccessfully tried to get Love to run, or leave in some manner. About that time Breeding saw Savage come from his front door and raise his gun. Breeding ran to the nearby Love home. As he was running he [483]*483heard five shots. On the fourth shot a bullet whistled over his head and the fifth shot sounded “real dull”. In 10 or 15 minutes he returned with Mrs. Love and found David Love lying by the passenger’s side of the pickup. He was dead from a shot through the heart. Savage was standing where he had last been seen by Breeding. When the sheriff arrived he found a .38 caliber Smith and Wesson revolver in an ashtray in the dining room. The cylinder contained five spent shells and one live shell. A bullet was lodged in the barrel. This bullet was pushed backward out of the gun. A ballistics expert testified he could not make a positive identification of the bullet taken from the deceased because of the poor condition of that bullet and the fact the condition of the barrel had been altered by the backward pushing. However, he stated the bullet had been fired from a .38 caliber Smith and Wesson and “most probably” from the gun found by the sheriff. The defendant did not testify. The testimony of Mrs. Savage in some particulars contradicted these facts, otherwise established by the testimony of Breeding.

The defendant’s first point is based upon a statement made in the state’s closing argument. The incident complained of is as follows:

“Mr. Paul: It’s up to you twelve people what Paul Savage’s punishment will be. It will be up to you to decide whether you put this gun in his hands again and let him walk out that door with that gun in his hands to—
Mr. Rhoades: Object to this—
Mr. Paul: —use it in the same—
Court: Just a minute, Mr. Paul. The objection will be sustained.”

The defendant contends the trial court committed reversible error in not declaring a mistrial, as he thereafter requested.

Primarily upon the basis of an appeal for law enforcement the following similar arguments have been approved. If you want a community where they shoot people on the streets, slap the defendant on the wrist, State v. Cox, 352 S.W.2d 665 (Mo.1962); if you want this type of man walking the streets, State v. Crawford, 478 S.W.2d 314 (Mo.1972); don’t return this individual to our streets, “[t]he next time it is not going to be little Mr. Alper’s shoe . . .”, State v. Coleman, 524 S.W.2d 27, 31 (Mo.App.1975); an argument that if the defendant was found not guilty the prosecutor would give him the shotgun and send him back on the street, Street v. Bryant, 548 S.W.2d 209 (Mo.App.1977). On the other hand, the following arguments have been condemned: Repeated entreaties not to permit robbers who brandish guns to be in society and a reference to all of us being afraid; State v. Heinrich, 492 S.W.2d 109 (Mo.App.1973); arguments concerning likelihood of defendant committing other rapes, State v. Couch, 523 S.W.2d 612 (Mo.App.1975); an appeal for conviction so the jurors could go out without getting carved up or shot, State v. Ellinger, 549 S.W.2d 136 (Mo.App.1977). It is not clear the argument in question was improper, particularly since there was evidence the defendant carried the gun in his truck. State v. Bryant, supra.

However, this court need not and does not decide the propriety of the argument in question. The trial court sustained an objection to that argument. The defendant now argues the trial court compounded its error in not declaring a mistrial because it did not instruct the jury to disregard that argument. However, the defendant did not request such an instruction. State v. Johnson, 285 S.W. 422 (Mo.1926). The question is whether or not the argument required the drastic remedy of a mistrial. The argument, if improper, was not flagrantly so. State v. Hampton, 559 S.W.2d 224 (Mo.App.1977). It was not personalized to cause the jurors to fear for their own safety. As distinguished from State v. Heinrich, supra, it was an isolated statement with no attempt to repeat it or to make any similar argument.

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Related

Love v. Pogue
650 S.W.2d 346 (Missouri Court of Appeals, 1983)
Matter of Estate of Savage
650 S.W.2d 346 (Missouri Court of Appeals, 1983)

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Bluebook (online)
602 S.W.2d 481, 1980 Mo. App. LEXIS 3242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-savage-moctapp-1980.