State v. Brown

CLEMENS, Senior Judge,

dissenting.

I must dissent from the majority opinion.

The trial court error now asserted concerns only its denial of defendant’s motion for new trial; this, on the ground the prosecutor’s allegedly prejudicial closing jury argument.

The record shows the defense counsel’s trial objection not only was unspecific, but nonetheless the trial court sustained it. This is shown by defense counsel’s initial argument. With emphasis underlined it was this:

“She [prosecuting attorney] made numerous references in her closing argument *164about (defendant) Brown being a ‘professional criminal’; she indicated, that while Brown did not take the stand, that he had prior felony convictions for burglary and stealing, and implied that fact might be adequate to convict him. I do not recall whether her statements were inferential or whether they were outright statements.”

It is fundamental that an appellant must show wherein and why a trial court erred. Defendant’s vague point relied on did not rise to a level to show the required statement of court error. In State v. Sanders, 660 S.W.2d 273[1] (Mo.App.1983) we applied the universal rule:

“Due to the trial judge’s superior opportunity to observe and weigh the prejudicial effect, if any, of counsel’s closing argument, the trial court is afforded wide discretion in controlling the scope of closing arguments.... A reviewing court is limited to determining whether the trial court abused its discretion as a matter of law.”

Note also State v. Morris, 470 S.W.2d 467[6] (Mo.Sup.1971) holding:

“The trial court should exercise its discretion as to whether improper argument necessitates a mistrial.... Mistrial is a drastic remedy and we will not interfere with the court’s exercise of discretion unless it was clearly abused.”

I cannot say the record here showed the court abused its discretion.

Furthermore, defendant admits the trial court did rule on his objection to the state’s closing argument. Note his next paragraph:

“The trial court erred in not ordering a mistrial when the prosecutor made repeated references to the prior convictions of two co-defendants who took the stand. The instructions to the jury to disregard the references of the prosecutor was not adequate to prevent the prejudice to the defendant....”

Paraphrasing an ancient case, we owe deference to the trial judge who “was in the atmosphere of the trial, saw and heard the witnesses and counsels’ arguments; and he could interpret and appreciate the evidence in all its shades of meaning better than we can merely by reading a written report of it; he saw and heard the living thing, but we have only a dead image of it. We would be more likely to err by overruling his decision than by affirming it.”

From this I conclude defendant’s trial objection was not adequately specific, but also that it was in fact sustained by the trial court. So, I would deny his appeal.