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10/06/87 STATE MISSOURI v. BRUCE MOTLEY

October 6, 1987

STATE OF MISSOURI, RESPONDENT,
v.
BRUCE MOTLEY, APPELLANT



Appeal from the Circuit Court of the City of St. Louis

Motion History: Application to Supreme Court for Transfer Denied December 15, 1987

Gary M. Gaertner, Presiding Judge, Stephan, J., Simon, J.

The opinion of the court was delivered by: Gaertner

GARY M. GAERTNER, Presiding Judge

Defendant Bruce Motley was found guilty by a jury in the St. Louis City Circuit Court of robbery in the first degree, RSMo § 569.020 (1986) and armed criminal action, § 571.015.1 (1986). Finding the defendant to be a prior offender, the court sentenced defendant to twenty-five and five years respectively, sentences to run consecutively.

On appeal, defendant contends that the trial court erred in (1) denying defendant's motion in limine and admitting into evidence two pages from a police ledger book containing defendant's photograph, and receiving state witnesses' testimony to the effect that the ledger book contained photographs of persons who had prior police involvement, which was emphasized by the prosecutor during closing argument; (2) denying defendant's motion to suppress the out of court photograph identification of the defendant and the line-up identification of the defendant; and (3) failing to declare sua sponte a mistrial for prosecutorial misconduct.

On February 1, 1986, a robbery occurred at the Dairy Queen located on 2140 East Grand Avenue at approximately 11:00 p.m. The police arrived at the scene shortly thereafter and took statements and descriptions of the robber. Later that evening, the police returned with a police ledger book containing photographs of possible suspects. Although no police officers were present when the witnesses examined the book, each testified that they independently identified the defendant as the robber.

On February 15, 1986, the police arrested defendant and conducted a line-up. The line-up occurred prior to formal charges. Defendant was never informed of the right to counsel at the line-up and was never given the opportunity to waive this right. Two of the three witnesses were available for the line-up. Both witnesses independently identified the defendant as the robber.

Pretrial hearings were conducted in response to defendant's various motions. One motion in limine requested that the state not use the term "mug shot". or any other prejudicial phraseology when making reference to the photographs. The state then agreed not to make any prejudicial references as to where the photographs came from and volunteered to instruct the police officers not to make such references when testifying. The trial court overruled defendant's motion "subject to further being reinstated." Defendant's motion to suppress requested that all evidence relating to the identification of the defendant be suppressed. This motion was overruled as well.

During trial, over defendant's pretrial motions and continuing objections, state's Exhibit No. 1 was admitted into evidence. Exhibit No. 1 consisted of six mug shots, one of which was the defendant. Each picture, including the defendant's, contained the following information: a front and side profile; the words "St. Louis Metro Police Department"; an identification number; a date; name; and physical description.

During cross-examination, one of the employees testified that she was not absolutely sure the book she was reviewing in court was the same book she viewed the night of the crime. On cross-examination of a police officer, the defense attorney asked the officer whether the ledger book was the same photo book the witnesses reviewed on the night of the robbery. In response to the question, the officer stated: "I don't maintain them. Books of this nature are maintained usually by the detective division and are usually comprised of people who have some police involvement." The defense attorney made no objection to the answer at this time.

In the state's closing arguments the prosecutor made the following comments: "Remember, it was not the state's attorney, it was the defense attorney who told you that people who are arrested before are placed in this book." The defense attorney objected and stated that it was the state's witness not the defense attorney that made this statement. The objection was overruled as untimely. At the close of trial, the jurors were given, over defendant's objection, all the exhibits, including the photographs, to review during deliberation.

In his first point, defendant contends that the court erroneously admitted into evidence two pages from the photograph ledger book and police officer's statement ". . . books of this nature are usually comprised of people who have had some police involvement." Defendant further argues that the prosecutor's statement during closing argument emphasized and enhanced the prejudicial effect of this evidence.

Initially, we note that defendant failed to properly preserve for appeal the alleged errors regarding police officer's statement and the prosecutor's comment during closing argument. Although defendant has not properly preserved these points for appellate review, the court may, within its discretion, review for plain error. Rule 29.12. The standard of review under Rule 29.12 allows reversal only for prejudicial errors which so substantially affect the rights of the defendant that manifest inJustice or miscarriage of Justice would result if left uncorrected. State v. Hanes, 729 S.W.2d 612, 616 (Mo. App., E.D. 1987).

First we will examine the state witness' comment during cross-examination. Defendant relies on State v. Quinn, 693 S.W.2d 198 (Mo. App., E.D. 1985). In Quinn, we reversed the trial court's refusal to grant a mistrial after a detective testified that thirty-six photographs, including the one of the defendant, had "come from my robbery and crime books." Id. at 199. The defendant in Quinn immediately objected and asked the court to consider a mistrial or instruct the jury to disregard the statement because of possible prejudicial effects. In the case at bar, defendant failed to object and the trial court was never given the opportunity to rule on the alleged error. Additionally, the phrase "they came from my robbery and crime books" is much more suggestive of prior criminal activity than the statement "the books are usually comprised of persons with prior police involvement." We do not imply that such testimony is ordinarily permissible, but in the context of the entire record, the statement does not rise to the level of manifest inJustice.

We now examine the prosecutor's statement during closing argument. A trial court has wide discretion in determining the permissible scope of counsel's closing arguments to the jury. State v. Wood, 596 S.W.2d 394, 403 (Mo. banc), cert. denied, 449 U.S. 876 (1980). We reverse for errors in closing statements only when the trial court has clearly abused this discretion. State v. Mitchell, 611 S.W.2d 223, 227 (Mo. banc 1981). Moreover, alleged errors in closing arguments will not justify relief under plain error unless they are determined to have a decisive effect on the jury. State v. Davis, 566 S.W.2d 437, 447 (Mo. banc 1978).

During closing argument counsel may comment on evidence raised at trial. A defendant who permits testimony to be introduced at trial without objection cannot later complain about the prosecutor's improper remarks on such evidence during closing argument. State v. Brock, 273 S.W.2d 166, 168 (Mo. 1954). Although the prosecutor in the instant case misstated the evidence, we do not feel this misstatement alone rises to the level of manifest inJustice, nor do we find that the trial court abused its discretion.

Finally, we examine the alleged error regarding the introduction of the two pages from the police ledger book which defendant properly preserved for review. The two pages of the police ledger book included six photographs, one of which was the defendant. Each photograph contained the words "St. Louis Police Department" and an identification number. The law in Missouri is clear. In order for mug shots to be admissible, inculpatory information must first be removed. State v. Quinn, 693 S.W.2d 198, 200 (Mo. App., E.D. 1985). As this procedure was not followed in this case, the trial court erred in admitting the "unmasked" mug shots into evidence.

But, in matters involving the admission of evidence, this court reviews for prejudice, not mere error. State v. Tyler, 676 S.W.2d 922, 924-25 (Mo. App., E.D. 1984). Therefore we should only reverse if the error was so prejudicial that it deprived defendant of a fair trial. State v. Williams, 606 S.W.2d 254, 256-57 (Mo. App., S.D. 1980). Although the impermissible reference to defendant's prior bad acts presents the possibility of prejudice, *fn1 error may be disregarded as harmless where evidence of defendant's guilt is very strong. State v. Beasley, 731 S.W.2d 255, 257 (Mo. App., E.D. 1987); State v. Montgomery, 596 S.W.2d 735, 738 (Mo. App., E.D. 1980).

The evidence of defendant's guilt in this case was very strong. The robbery took place in a well lit store. Each witness had an excellent opportunity to view the robber at the scene of the crime. Each witness independently identified defendant as the robber from a police ledger book on the night of the robbery. Two of the three witnesses went to the police station to view a line-up. Both witnesses identified defendant as the robber. In light of the overwhelming identification evidence indicating defendant's guilt, the ...


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