State v. Sims

764 S.W.2d 692, 1988 Mo. App. LEXIS 1769, 1988 WL 137940
Missouri Court of Appeals·Decided December 27, 1988·No. 54538·Published·Cited by 22 cases

Opinion

PUDLOWSKI, Chief Judge.

Appellant, Rickie Dale Sims, appeals from his jury conviction on eight counts of robbery in the first degree, § 569.020 RSMo; one count of attempted robbery, § 564.011 RSMo; and nine counts of armed criminal action, § 571.015 RSMo. He was sentenced to life imprisonment on robbery counts I and XIII, to fifteen years on attempted robbery Count XIX and to twenty years on all other counts. The life sentences to run consecutively and the terms of years concurrently with one or the other life sentence. We affirm his conviction.

On July 21, 1987 appellant was charged by indictment on nine counts of robbery, one count of attempted robbery and ten counts of armed criminal action in the Circuit Court of the City of St. Louis. The indictment alleged the appellant engaged in ten separate criminal episodes on the City of St. Louis’ southside between May 24, 1987 and June 14, 1987. Appellant moved to have the offenses severed. The motion was denied. Appellant also made a motion in limine to prevent the state from referring to a prior arrest as an “arrest.” This motion was granted. Appellant’s second motion in limine, to exclude evidence of two brown paper bags taken from him in the prior arrest was denied. The cause was heard before a jury on January 19-21, 1988. Appellant was acquitted on two counts (Counts XVII and XVIII) but convicted on the other eighteen counts. Appellant raises three points on appeal.

First, appellant contends the trial court erred in overruling his motion in li-mine, objections and motion for mistrial in closing argument concerning his prior arrest while in possession of two paper bags. Appellant moved in limine to exclude evidence of brown paper bags seized more than a month prior to the robberies, on the theory that they were too far removed in time from the crimes charged and that no similarity was shown between the bags seized and the bags the witnesses would testify were used in the robberies. The motion was denied. At trial, appellant did not object to testimony concerning the brown paper bags when offered. To preserve error for appeal, objections to evidence must be timely and made with sufficient specificity to advise the trial court of the ground or reason for excluding evidence. State v. Matthews, 748 S.W.2d 896, 897-898 (Mo.App.1988). A motion in limine does not relieve a defendant of the duty to make a timely objection at trial. State v. Silcox, 694 S.W.2d 755, 756 (Mo.App.1985). Because appellant did not object at trial, our review is restricted to plain error. Rule 29.12.

The plain error rule should not be routinely invoked. State v. Jordan, 627 S.W.2d 290 (Mo. banc 1982). “Under the plain error rule, the court will set aside a lower court ruling only when it affects the rights of the accused to the extent of manifest injustice or miscarriage of justice if left uncorrected.” State v. Sandies, 740 S.W.2d 169, 177 (Mo. banc 1987). When guilt is established by overwhelming evidence, no injustice or miscarriage of justice will result from a refusal to invoke the plain error rule. State v. Goode, 721 S.W. 2d 766, 770 (Mo.App.1986).

We find overwhelming evidence established appellant’s guilt. Appellant signed a written confession in which he described his involvement in ten criminal episodes. Appellant does not attack the validity of this confession on appeal. Further, in each of the eight episodes in which *695 he was convicted, a witness positively identified the appellant, either in court or previous to trial.

Appellant also alleges error in prosecutor’s closing argument in which the following was said.

MR. WARREN: Ladies and gentlemen of the jury, your Honor, Ms. Boresi:
This has been a rather swift two days and we’ve had a lot of witnesses who have come in to testify. What I say now is the same as what I told you during voir dire — what I say now and what Ms. Boresi says is not evidence. What you heard was the evidence, what you heard from that witness chair, and you heard a lot of witnesses, something like twenty-odd witnesses, that came in Tuesday and Wednesday to testify, they told you what happened between, well, actually starting back on April 14th when Susan Dougherty arrested the defendant—
MS. BORESI: Your Honor, may we approach the bench?
(Thereupon, the following proceedings are had at the bench out of the hearing of the jury:)
MS. BORESI: Your Honor, at this point I will have to object to Mr. Warren using the word “arrest” in his closing argument, by virtue of my motion in limine that the State not use the word arrest; it’s highly prejudicial to the jury and I would ask for a mistrial at this time.
THE COURT: I assume you did that by accident?
MR. WARREN: Absolutely, I meant to say detain for investigation. It was definitely my mistake the use of that word.
MS. BORESI: Whether or not it was intention or nonintentional, the prejudice has been done to Mr. Sims and the jury heard the word. I don’t think there’s a curative instruction that would be sufficient — the jury has already been tainted and at this point in time I would ask for a mistrial.
THE COURT: Denied. Overruled, do you want me to instruct the jury to disregard Mr. Warren’s last statement?
MS. BORESI: Yes, your Honor.
(Proceedings resumed before the jury:)
THE COURT: Ladies and gentlemen, the last statement made by Mr. Warren was not in evidence and the objection made by Ms. Boresi has been sustained by the Court. You are to disregard the last statement in reference to any actions taken by Detective Dougherty.
MR. WARREN: On April 14th, Detective Dougherty told you, she came in here and testified that she talked to this man, the defendant, Rickie Sims. This is what he looked like at that time. Detective Dougherty told you she took from him and her partner took from him, in her presence, these two bags. They were folded up in his back pocket.

The declaration of a mistrial is a drastic remedy. It should be granted only in extraordinary circumstances where the prejudice to the defendant cannot be removed by any other means. State v. Endres, 741 S.W.2d 788, 791 (Mo.App.1987). The trial court has broad discretion in the declaration of a mistrial and its discretion should be overturned only when there is clear evidence that its discretion has been abused. Id.

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State v. Sims, 764 S.W.2d 692, 1988 Mo. App. LEXIS 1769, 1988 WL 137940 (Mo. Ct. App. 1988).

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