Appellant Willard Russell Woods appeals from judgment of conviction on a jury verdict finding him guilty of capital murder, § 565.001, RSMo 1978. Punishment was fixed at imprisonment for life without eligibility for parole or probation for fifty years, § 565.008, RSMo 1978. Jurisdiction of this appeal is vested in this Court. Mo. Const, art. V, § 3. Appellant alleges error in the trial court’s failure to instruct the jury on first degree (felony) murder, § 565.003, RSMo 1978, in admitting evidence that a state’s witness had taken polygraph tests and been placed under hypnosis, and in permitting reference in the state’s closing argument to his failure to testify. We affirm.
On August 13, 1979, the body of Allen House was found in his pickup truck parked on a dirt and gravel lane off Route 0 south of Stark City, Missouri. The victim had been shot in the head.
The state adduced evidence that earlier that day appellant and his cousin, Douglas Simmons, were riding appellant’s motorcycle south from Stark City on Route O when they encountered the victim getting into his pickup truck at a roadside pasture gate. Appellant “pulled a gun” on the victim, forced him into the pickup, and got into the driver’s side himself. With Simmons following on the motorcycle, appellant drove the pickup to a cemetery lane.
Simmons watched from a distance as the victim produced his billfold and put it on the dashboard of the pickup. Simmons then heard two shots in rapid succession and turned to see appellant fire a third shot. The pair fled on the motorcycle, stopping later to throw away the billfold after taking the money out.
Appellant was charged with capital murder. Consistent with the directives of MAI-CR2d 15.00, Note 3(d), the trial court instructed on capital murder, conventional second degree murder, and manslaughter. Appellant now charges error in the trial court’s failure to submit an instruction on murder in the first degree because the evidence justified such submission and Note 3(d) requires such submission if the evidence supports it. Appellant argues that the directives of MAI-CR2d 15.00, Note 3(d), are in accordance with § 556.046, RSMo 1978. This Court has addressed this precise question in
State v. Baker,
Appellant next complains of error in admitting evidence that state’s witness Douglas Simmons had taken polygraph tests and been placed under hypnosis be
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cause such evidence created an inference that Simmons had passed the tests, which prejudiced the jury regarding his credibility. The state did employ the words “polygraph” and “hypnosis” in an exhibit. Such usage was inconsistent with the trial court’s pretrial ruling on appellant’s motion in li-mine that the prosecutor could use the word “tests” but not descriptive terms such as “polygraph” or “lie detector.” However, the pretrial ruling on the motion in limine is interlocutory in nature only,
State v. Riggs,
We are mindful that it is improper to admit evidence of the fact that polygraph tests have or have not been taken even though the results are not mentioned,
Stack v. State,
Finally, we find no plain error in the state’s closing argument references to the defense case. The references now characterized as comments on appellant’s failure to testify are general statements that the defense had not contradicted Simmons’ testimony and had not presented any evidence of appellant’s innocence. It would call for a strained conclusion to find an indirect reference to appellant’s failure to testify.
State v. Hutchinson,
The judgment is affirmed.