848 S.W.2d 613 | Mo. Ct. App. | 1993
Defendant appeals his conviction by a jury of stealing at least Sj>150, a class C felony, § 570.030, RSMo 1986; stealing, a class A misdemeanor, § 570.030; and two counts of second degree burglary, a class C felony, § 569.170, RSMo 1986. He was sentenced as a persistent offender by the court to terms of five years’ imprisonment on each of the felony charges and one year on the misdemeanor count. The court ordered the two burglary sentences to run concurrently, as well as the terms on the two stealing charges, but mandated that the burglary and stealing sentences run consecutively. We affirm in part; reverse and remand in part.
The evidence reveals that on December 19, 1988, Catherine McGarry and her grandson went on vacation, leaving the keys to her locked gate, house, car, and garage with defendant’s wife, Delores Bur-gett, so that she could use the car and look in on things while they were gone. Mrs. Burgett returned the car to Mrs. McGar-ry’s garage on December 31, 1988, and checked the house. She noted nothing unusual about the premises, and relocked the doors and gate.
On the night of January 2, 1989, Mrs. Burgett left her home, where she lived with defendant, and travelled to work. Defendant was asleep when she returned at about 7:45 the next morning. She went out to run some errands and returned about twenty minutes later. Defendant then left to get some coffee. Mrs. Burgett noticed that he was carrying a brown paper bag when he left. She asked him what was in the bag; defendant replied that “it was just a few things that he had gotten from a friend." After her husband left, Mrs. Bur-gett noticed several small empty jewelry boxes in the trash can. The trash can had been emptied the previous night. Defendant returned thirty minutes later, and then left again at approximately 12:30 p.m. Defendant came home again at about 2:30 p.m., went into the bedroom, and returned with the paper bag. Mrs. Burgett asked him about the bag again, and he replied
Mrs. Burgett thought that defendant’s actions and responses were unusual and “went snooping” when he left a few minutes later. She found several items in the bedroom closet which she had not seen there before and did not belong to them. Mrs. Burgett recognized one of these items as a radio from Mrs. McGarry’s house. She examined the radio and found the name “McGarry” written on it. Mrs. Bur-gett put the radio back on the shelf and left the house. She completed some errands and went to the McGarry residence. Upon arriving, she noticed that the lock on the front gate was secured in a different manner than she had left it following her most recent visit. She opened the gate, went down the driveway, and found the front door of the house open. The home had been ransacked. She called her mother, who advised her to contact the police.
A sheriffs deputy arrived, and Mrs. Bur-gett told him that she thought her husband, the defendant, had burglarized the home. She explained that she believed this because “there was stuff at our house that belonged to this house.” The deputy called for assistance; Mrs. Burgett accompanied the officers to her home, where defendant was taken into custody. The house was searched, but no stolen material was found.
Defendant was taken to the police station, where he was interrogated by the officers. Defendant initially denied having anything to do with the crime, but then asked to speak to one of the officers privately. Defendant told the remaining officer, “I did it, but I didn’t do it for my own gain.” He then requested to speak to the officer “off the record”. The contents of that conversation were not divulged at trial.
Mrs. McGarry and her grandson returned from their vacation on January 4, 1989. When she arrived at her house, Mrs. McGarry found it in disarray and noted that an adding machine and various items of jewelry, cutlery, and tools had been stolen. She further noticed that a radio, with her name on it, was missing. Mrs. McGar-ry’s car, which had been parked in her garage, had been beaten with a hammer. The stereo from her grandson’s truck, which had also been left in the garage, had been stolen. The grandson valued the stereo at about $200.
Later that afternoon Mrs. McGarry received a telephone call; she identified the caller as defendant. The caller said, “Cathy, this is [defendant].... Cathy, I’m sorry for what I did. I’ll come over to your house. I will repair what I damaged and will clean and fix everything up and return your things.”
At trial, the defense’s theory was that someone else committed the crimes. Defendant’s sister testified that he had stayed at her house, not his own, from December 31, 1988, through January 10, 1989, because he had been having marital problems.
She stated that defendant ate dinner at her house on the evening of the 2nd and stayed the night there. She testified that she spent the entire day of January 3rd with defendant, and that she received a call from Mrs. Burgett that day, who reported that “she had found some footprints and that they weren’t [defendant’s and she messed them up.” Mrs. Burgett testified under cross-examination that she and defendant had been having marital problems and were seeking a divorce at the time of trial. Defendant’s mother and another family friend also testified that defendant had been a guest in his sister’s home on the night of January 2-3.
In his first point on appeal, defendant claims:
The trial court erred and plainly erred in failing to declare a mistrial, sua sponte, when during his opening state*615 ment the prosecutor stated that State’s witness Delores Burgett told the arresting officer it was her belief that [defendant] had committed the crime, and in overruling [defendant's objections when the prosecutor elicited such testimony from [Mrs.] Burgett and [the deputy], ... in that Burgett’s conclusion that [defendant] committed the crime was the ultimate issue for the jury to determine, and thus the prosecutor’s opening statement, the testimony he elicited, and his closing argument improperly invaded the province of the jury and created a manifest injustice.
We note that no objection was made to the allegedly improper opening and closing arguments at the time they were given, nor was error in allowing such argument alleged in defendant’s motion for a new trial.
Accordingly, we review defendant’s claim under Rule 30.20, to determine whether plain error occurred.
In a plain error case, the alleged error is defectively preserved or not preserved at all. However, the court still may consider errors affecting substantial rights when it deems that manifest injustice or miscarriage of justice has resulted. Before applying the plain error rule, the court must find a “sound, substantial manifestation” and a “strong, clear showing” that injustice will result, and the appellant has the burden of proving that the error amounted to manifest injustice or miscarriage of justice.
State v. McKinley, 689 S.W.2d 628, 632 n. 3 (Mo.App.1984). The strength of the State’s case is a prime factor in making this determination. State v. Hawkins, 714 S.W.2d 673, 676 (Mo.App.1986).
Defendant relies on State v. Linzia, 412 S.W.2d 116 (Mo.1967), State v. Cason, 596 S.W.2d 436 (Mo.1980), and State v. Thomas, 536 S.W.2d 529 (Mo.App.1976). However, none of these cases were decided under the plain error standard. In Linzia, our supreme court held that the admission of lay opinion testimony could be proper when it related to identity and was offered by a witness with personal knowledge. Additionally, the court stated that because the complained of testimony in that case had not invaded the province of the jury, there had been no prejudicial error. Linzia, 412 S.W.2d at 120.
In Cason, the court was confronted with a challenge to the trial court’s exclusion of lay opinion testimony regarding the defendant’s mental condition. The Cason court found that it was not prejudicial to exclude such testimony. Cason, 596 S.W.2d at 440. In Thomas, a self-defense case, we found that a new trial was warranted when a witness gave her conclusion that she thought a struggle between defendant and
In the case at bar, a proper objection should have been sustained. However, the argument and testimony complained of do not rise to the level requiring reversal. The State’s case against defendant was strong. Defendant confessed to separate witnesses on two separate occasions. Defendant’s wife testified that she saw him bringing things into the house in a paper bag and that she saw empty jewelry boxes in the trash can. She further testified that she found a radio, inscribed with the victim’s name, on the shelf of a closet in defendant’s bedroom. The jury did not assess punishment, and deliberated only forty-six minutes. Under these circumstances, we find no manifest injustice or miscarriage of justice. See State v. Boyd, 706 S.W.2d 461, 465 (Mo.App.1986). Point denied.
In his final point on appeal, defendant claims that the trial court plainly erred in sentencing him as a persistent offender, § 558.016, RSMo 1986, because the amended information charging defendant alleged only that he was a prior offender and the trial court found only that he was a prior offender. The State admits “[Defendant] was not charged, proved or found to be a persistent offender”, and concedes that he should not have been sentenced as a persistent offender. Accordingly, we reverse the trial court’s order and remand it for entry of sentence in accordance with the judgment actually rendered.
Judgment affirmed in part; reversed and remanded in part.
. Ms. McGarry testified that she was familiar with defendant’s voice and that only he and Mrs. Burgett called her "Cathy”.
. During his opening statement, the prosecutor stated:
[The] deputy ... arrives and meets Mrs. Burgett, asks her what happened. She tells him. She tells him who she thinks done [sic] it. She tells him that she believes her husband did it; and the reason she believes he did it is that Mrs. McGarry’s radio is back in their trailer. So the deputy advises her, "we better go get this radio.”
During closing argument, the prosecutor made the following remarks to the jury:
You heard [the deputy] ... responded to [the report of a burglary]. [Mrs. Burgett] testified, [the deputy] verified the first thing she said is, "Cathy’s house has been robbed, and I think I know who did it.” [The deputy] says, "Well, how do you know this?” “Because I found a radio, and I think my husband did it.” [The deputy] says, "We’ve got to find this radio.”
