The defendant, Sammie J. Louis, appeals the judgment entered after a jury convicted him of' the class D felony of operating a motor vehicle without a valid license in violation of section 302.020, RSMo 2000. He complains the prosecutor informed the jury that the trial judge endorsed the arresting officer’s actions during a traffic stop. We affirm as modified.
The evidence adduced at trial, viewed in the light most favorable to the verdict, was as follows: Shortly after midnight, on December 18, 1999, Bruce Becker, a Missouri Highway State Patrol trooper, was patrolling Highway 79 in Elsberry, Missouri. As he drove north, he passеd the defendant driving a car southbound. Trooper Becker noticed the car’s license plate ended with a letter, instead of a number. Knowing this meant the license plate belonged to а pickup truck, instead of a car, he turned around and pulled the defendant over. Trooper Becker asked the defendant for his driver’s license and proof of insurance. The defendаnt responded that he did not have a driver’s license. After running a computer check that verified the defendant lacked a valid driver’s license, Trooper Becker issued him a citation.
Prior to the subsequent trial, the defendant moved in
limine
to suрpress Trooper Becker’s testimony on the grounds that Trooper Becker violated his Fourth and Fifth Amendment rights. He argued
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Trooper Becker lacked reasonable suspicion to perform a traffic stop and had pulled him over merely because he was African-American. He further argued Trooper Becker failed to read him his rights pursuant to
Miranda v. Arizona,
At trial, the defendant did not renew his objection to Trooper Becker’s testimony. Instead, he ai’gued to the jury that it could nоt consider Trooper Becker’s testimony because Trooper Becker violated the defendant’s rights by failing to Mirandize him and by pulling him over without reasonable suspicion and due solely to his racе. After the defendant made this argument in both his opening statement and his cross-examination of Trooper Becker, the following exchange occurred during the State’s re-direct examination:
Q. Trooper Becker, you were asked about questions about if you stop somebody for the color of their skin, that that’s improper?
A. Yes, sir, I was.
Q. If you stop them without reasonable suspicion, that’s improper?
A. Yes, sir.
Q. If your actions are improper and evidence should not be allowed in Court, who makes that decision?
A. The Judge does.
Q. In what type of hearing?
A. Motion to Suppress hearing—
The defendant then objected and the trial court sustained the objection. In closing argument, the prosecutor referred to this exchange, commenting that the judge decides what evidence the jury is allowed to hear and consider. Then, in his rebuttal argument, the prosecutor сommented:
[L]ook on [the verdict director], and see where it tells you that you have to decide whether or not Trooper Becker was racially profiling [Defendant] on that date. Loоk at it and see do you have to decide whether or not the officer had reasonable suspicion to stop this vehicle. It’s not on there because it’s not your obligation ... If these issues werе addressed in terms of if they were improper or if it was a reference to the Miranda Warnings were supposed to be given, do you think that you would have been able to hear the defendant’s stаtement, that he said, “I don’t have a license.”
The jury found the defendant guilty of operating a motor vehicle without a valid license. Because the defendant had two prior convictions for the same offense, he stood convicted of a class D felony under section 302.020.3, RSMo 2000. The court also found he had a previous felony conviction for possession of a controlled substаnce and therefore sentenced him as a prior offender to four years’ imprisonment. The court ordered the sentence to be served concurrently with sentences it imposed in threе other cases in which the defendant pleaded guilty to possession of a controlled substance, felony passing bad checks, and three counts of forgery. The defendant appeаls.
In his sole point relied on, the defendant argues the trial court plainly erred in permitting the prosecutor to inform the jury that the judge determined that Trooper Becker’s actions during the traffic stop were legal and proper. The defendant contends that by citing judicial approval for Trooper Becker’s actions, the prosecutor preempted the jury’s fact-finding rolе and improperly vouched for the propriety of the traffic stop, which was the crux of his defense.
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The defendant acknowledges our review is limited to the plain-error standard under Rule 80.20 beсause he failed to properly object to the evidence at trial and failed to raise this claim of trial court error in his motion for new trial.
State v. Hornbuckle,
We find the trial court did not commit error, plain or otherwise, because the prosecutor’s questions and comments were рroper. Where the defendant has injected an issue into the case, the State may be allowed to admit otherwise inadmissible evidence in order to explain or counteract a nеgative inference raised by the injected issue.
State v. Lingar,
Here, the defendant injected the issue of the propriety of Officer Becker’s actions during the traffic stop. In both his оpening statement and his tross-examination of Trooper Becker, he indicated that any evidence obtained as a result of the allegedly improper traffic stop was “moot,” “irrelevant,” and “could not be used against [him].” He then argued in closing,
We need to send a message to the Police Department, to the Prosecuting Attorney’s Office and tell, “If you don’t have reasonable suspicion to pull [Defendant] over, then don’t pull him over.”
In making this argument, he was essentially asking the jury to acquit the defendant because Trooper Becker violated his rights. The prosecutor wаs merely responding to this plea for jury nullification when informing the jury that the judge decides what evidence the jury can hear and consider and when implying that the judge determined Trooper Becker’s аctions were proper.
See, State v. Rawlins,
Moreover, even if the prosecutor’s questions and comments were improper, they did not have a decisive effect on the verdict. While the propriety of the traffic stop may have been the central focus of the defense, it was not “the ultimate question for the jury” as the defendant asserts. It was a question of law for the judge.
State v. Mendoza,
Because the prosecutor’s remarks implying that the judge approved of Trooper Becker’s actions only affected a collateral issue, this ease is distinguishable from the two “judicial endorsement” cases the defendant relies upon,
State v. Ross,
In the course of reviewing this case, however, we note that the both the oral pronouncement of sentence and the written judgment and sentence incorrectly reflect that the defendant was convicted of driving while revoked. Instead, the defendant was convicted of oрerating a motor vehicle without a valid license. Pursuant to Rule 30.23, we modify the written judgment and sentence to reflect that the defendant was convicted of operating a motor vehicle without a valid license.
The judgment, as modified, is affirmed.