664 S.W.2d 677 | Mo. Ct. App. | 1984
A jury found defendant, Herbert William Harris, guilty in Count I of burglary, first degree, Sections 560.040,560.095
The sufficiency of the evidence to sustain the conviction is not questioned. The evidence briefly stated, as viewed most favor
Earl returned home to find the police there. All but one of his apartment doors were open. A basement window had been kicked in. Telephone wires had been pulled out. His tin snips were missing and a pair was found near Nellie’s washer. His pick ax was gone and one similar was found on Nellie’s back porch. His apartment had been ransacked and a knife had been used in an unsuccessful effort to pry open a metal box. Fingerprints on the knife and the doorframe matches those of appellant. A lighter owned by Earl was missing. Slivers of glass that would form a circle identical to the crystal of a watch were found in appellant’s pants’ pocket.
The bargain made between appellant and the prosecution wherein appellant agreed to plead to twenty (20) years was never accepted by the trial court. Appellant was advised of the trial court’s refusal and thereafter was offered a twenty-five (25) year sentence in exchange for a plea of guilty. This twenty-five (25) year sentence offer was never accepted by appellant.
There is no evidence in the record indicating the trial court abused its discretion in refusing to accept appellant’s supposed plea to a twenty (20) year sentence. Point one is ruled against appellant.
Next appellant contends the Court erred in refusing to allow him to endorse three alibi witnesses because he had failed to comply with the prosecution’s request for discovery. Rules 25.05 and 25.08. The prosecution properly requested discovery of an alibi defense to which no response was ever made. On the second day of the trial, May 5, 1981, appellant sought to endorse two of his relatives and his girlfriend. Counsel for appellant was aware of what the testimony of one of the witnesses, Elaine Davis, would be but his decision was not to call her, but appellant insisted. Counsel for appellant stated that his client did not give him the names of the other two witnesses until the morning of the second day of the trial. The record reflects that on February 27, 1981, appellant sought and was granted a continuance to locate and interview alibi witnesses, including witness Elaine Davis. The trial judge on objection of the prosecution refused the request to endorse the alibi witnesses. Rule 25.16 authorizes the trial court to exclude the testimony of witnesses whose identity has not been properly divulged pursuant to a request for discovery. State v. Harry, 623 S.W.2d 577 (Mo.App.1981); State v. Jones, 614 S.W.2d 774 (Mo.App.1981). The sanction to be imposed lies within the discretion of the trial court. Discretion will be abused only where fundamental unfairness to the defendant will result from the sanction imposed. State v. Royal, 610 S.W.2d 946 (Mo. banc 1981).
The sanction applied by the Court was proper. No reasonable justification was given for late endorsement. It is inconceivable that these three alibi witnesses were
Finally, appellant claims the Court erred in overruling his objection to portions of closing argument of the prosecution. Appellant failed to assert this allegation of error in his motion for new trial as required by Rule 29.11(d). Appellant requests that we invoke Rule 29.12. Review can be had on an assertion of plain error, but the facts must show manifest injustice or miscarriage of justice will result if the rule is not invoked.
We have read the transcripts and the briefs. The guilt of the appellant is established by overwhelming evidence. The argument of the prosecution stressed the duty of jurors, the necessity of conviction to serve as deterrence to future similar criminal conduct by others, safety in the community and evils of a minimum punishment. The remarks did not infer that appellant, if acquitted, would commit other crimes, nor were such made to create a personal hostility against defendant by the jurors.
We find no manifest injustice or miscarriage of justice. Point III is ruled against appellant. The judgment is affirmed.
. All references to statutes are to RSMo 1969 except 559.225 which refers to Laws of 1976.