755 S.W.2d 622 | Mo. Ct. App. | 1988
Defendant, Thomas P. Joles, appeals from a jury conviction of seven counts of stealing by deceit, in violation of RSMo § 570.030 (1986). He was sentenced as a persistent offender to a term of fifteen years on count I, a consecutive term of seven years on count II, and concurrent terms of fifteen years on counts III through VII, for a total of twenty-two years imprisonment. Defendant raises two issues on appeal. He argues the trial court erred in allowing the State to introduce into evidence the deposition of a certain witness because that witness was not an “essential witness” as defined in RSMo § 492.303 (1986). Defendant also alleges the trial court committed plain error in failing to declare a mistrial or take other corrective action because the prosecutor’s comments during closing argument were improper. Finding defendant’s contentions to be without merit, we affirm.
The State adduced the following evidence at trial, which evidence essentially detailed seven incidents of stealing by defendant. Defendant came by Clara Norman’s house on December 7, 1984, and offered her a
The deposition of Grace Porchey was also introduced into evidence. She explained that defendant agreed to spray her home for termites in exchange for $375.00. Mrs. Porchey paid defendant $375.00; defendant performed none of the agreed upon work. In contrast to Lohman, Cumuette, Paul, Norman, Hoffman, Tucker and Greer, defendant was not charged with stealing from Porchey. Additional facts will be set forth as they become warranted by our discussion of the issues.
In his first point, defendant maintains the trial court erred when it allowed the State to take and introduce into evidence the deposition of Grace Porchey. Section 492.303 provides that a deposition may be taken by the State where a person is an “essential witness.” RSMo § 492.303.1 (1986). One is an essential witness if:
[He] is an eyewitness to a felony or if a conviction would not be obtained without his testimony because the testimony would establish an element of the felony that cannot be proven in any other manner.
RSMo § 492.303.1 (1986) (emphasis added). Further, section 492.303.3 states that any deposition obtained in accordance with this statute may be used at trial, insofar as it is otherwise admissible under the rales of evidence. Defendant asserts “it is clear the legislature intended” that, in order for one to be an essential witness, one must be an eyewitness to a charged offense, which Porchey was not; however, defendant provides no support for this proposition and this court’s research yields no basis for such a holding. The plain language of the statute states that one is an essential witness if he “is an eyewitness to a felony.” RSMo § 492.303.1 (1986) (emphasis added). As the facts previously set forth show, Porchey’s testimony demonstrated that she was an eyewitness to a felony. Moreover, even if the trial court erred in allowing the State to depose Porchey and introduce the deposition into evidence, the error, if any, was not prejudicial. For, Porchey’s testimony was merely cumulative to the other strong evidence of defendant’s guilt. See State v. Kelley, 693 S.W.2d 114, 118 (Mo.App., W.D.1985). This point is denied.
In his second point, defendant asserts the prosecutor’s comments during closing
It is improper for a prosecutor to argue as to a defendant’s criminal proclivities or as to the necessity for deterring him from committing further crimes. State v. Raspberry, 452 S.W.2d 169, 172 (Mo.1970). A prosecutor should not speculate concerning future crimes a defendant may commit. State v. Swenson, 551 S.W.2d 917, 919 (Mo.App., W.D.1977). The basis for this n !e is that a defendant is on trial for what he is alleged to have done in the past and not for what he might do. State v. Raspberry, 452 S.W.2d at 172.
Nonetheless, our review is circumscribed to an examination for plain error, and plain error does not embrace all trial error. State v. Murphy, 592 S.W.2d 727, 732 (Mo. banc 1979). This court’s discretion to reverse a conviction on the basis of plain error should be exercised sparingly; plain error is not a vehicle by which this court may review every alleged trial error which is not asserted or preserved for review. Its application is limited to instances where it is manifest that injustice or a miscarriage of justice will result if such review is not invoked. Id. Moreover, ordinarily an error made during closing argument does not justify relief under this standard unless we determine the error had a decisive effect on the jury. Id. A review of the strong and copious evidence of defendant’s guilt, as well as the prosecutor’s argument in its entirety, fails to convince us that the complained of comment had a decisive effect on the jury. See State v. Murphy, 739 S.W.2d 565, 570 (Mo.App., E.D.1987) (Prosecutor’s comment did not constitute plain error when prosecutor argued that a verdict of not guilty would tell the defendant to “go on burglarizing out there....”).
The judgment of the trial court is affirmed.