515 S.W.2d 789 | Mo. Ct. App. | 1974
Two points are presented by appellant in seeking reversal of his conviction of the crime of robbery in the first degree, after which sentence was imposed at 7 years confinement in the Department of Corrections. The first claim of error relates to alleged inflammatory conduct and argument of state’s counsel in waving a handgun and bullets in front of the jury and in using “rhetoric which irreparably prejudiced the appellant’s right to a fair trial”. The second claim of error is that the court erred in admitting into evidence a Miranda warning card [Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)], and the testimony of a police officer concerning statements made in appellant’s presence about the crime, to which appellant made no response.
The sufficiency of the evidence to sustain the conviction is not questioned. It will suffice as background material to state the evidence briefly. On September 15, 1972, at about 11:00 p. m., appellant and one Graves held up, with a gun, Linden Chapman and Larry Yarsulik, employees
The closing argument of' State’s counsel which is complained of is this: “ * * * And I wish I knew some other way besides sending people to the penitentiary to make it clear that you just can’t go around (holding State’s Exhibit 1) [the revolver] — MR. HANDLEY: Excuse me. I am going to object to this, Your Honor, I think it is inflammatory. THE COURT: Overruled. MR. SPECK: There is just no other way that the point can be brought across that you can’t go around with a loaded gun, full of these (indicating State’s Exhibit 3) [the bullets] that can tear somebody apart, and point it at people and risk that somebody is going to be injured or killed, every second that you are in the room and participating in the act that involves one of these. * * [Brackets added.]
The argument was not improper. Its gist was the necessity of law enforcement in the protection of the citizenry, and the punishment for crime by imprisonment as a deterrent. State v. Pruitt, 479 S.W.2d 785, 790 [9-11] (Mo. banc 1972); State v. Crawford, 478 S.W.2d 314, 320 [14] (Mo.1972). See State v. Murray, 280 S.W.2d 809, 811 et seq. (Mo.1955), holding that it was not an abuse of discretion for the trial court to overrule an objection to the argument, where the prosecuting attorney grabbed up the gun, shook it in the face of the jury, saying “ ‘And, he wants to know who is vicious. He would have you believe that this defendant had to go in there with this pistol and * * * and shoot somebody * * * before he is being vicious.” See also Cloud v. State, 507 S.W.2d 667, 668 (Mo.App.1974), where the argument concerned the use of a pistol, a dangerous and deadly weapon often used to kill, which defendant trained upon the victims, there being evidence that a deadly weapon was used, held not to be plain error. The argument here certainly does not reach the heights of repeated, persistent overstepping of the bounds of legitimate argument by personalizing the jury, arousing hostility toward defendant, or implanting fear in the jury that an acquittal would be a threat to them personally, which was condemned in State v. Heinrich, 492 S.W.2d 109 (Mo.App.1973). Appellant’s first point is overruled.
As to the second claim of error, the record shows this: The arresting officer testified that at the time of the arrest he read appellant his Miranda rights from a card. The card was admitted into evidence. The officer’s testimony was further that appellant and Graves told him they understood their rights, and “Q. After you advised them of their rights, what happened then? A. O.K. We had them at the back of the wagon in the search position, and Mr. Graves stated that his friend, Hams, had the money, at which time Officer Walton went into a real thorough search and found a large number of bills in Mr. Ham’s right front pocket, along with six .38 caliber rounds.” The admission of the italicized words, standing
The judgment is affirmed.
All concur.