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10/08/93 STATE MISSOURI v. HARRY HERRON

October 8, 1993

STATE OF MISSOURI, PLAINTIFF-RESPONDENT,
v.
HARRY HERRON, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY. Honorable David P. Anderson, Judge

Garrison, Flanigan, Crow

The opinion of the court was delivered by: Garrison

After being convicted by a jury, Harry Herron (Defendant) was sentenced to five years' imprisonment for distribution of a controlled substance in violation of § 195.211, RSMo Supp. 1990.

Defendant does not challenge the sufficiency of the evidence that led to his conviction. His sole point on this appeal is that the trial court erred in denying his request for a mistrial when the prosecutor stated in closing argument that Defendant was "the scum of the earth." He also alleges in the same point that "because the trial court failed to promptly and unequivocally instruct the jury to disregard the remark, the remark had the imprimatur of the trial court."

In May 1990, the Springfield, Missouri Police Department was conducting an undercover drug operation. They were assisted by Dale Goodrich, who had been arrested for possession of a controlled substance and had agreed to act as an informant. During the operation, an undercover narcotics officer and Goodrich made the purchase of crack cocaine which resulted in Defendant's conviction in this case.

At Defendant's trial, his counsel commented, during closing argument, on the fact that Goodrich had not been called as a witness. The following occurred during the prosecutor's final argument:

The bottom line is that Dale Goodrich didn't come in and testify, and that's absolutely right. That's right. That's what's called misdirection. Don't look at my client over here, look over here at the snitch, he's a bad guy.

It'd be nice if I could bring my friend Father Mark to come in here and testify that he talked to Mr. Herron and set up a drug deal, or Mother Teresa would come in here and get on the stand and say that he set up this drug transaction, or -- I'm Catholic, that maybe some of the alter boys from Immaculate Conception come in here and get on the stand and tell you that Harry Herron did a drug transaction. But you know what? Those are the kind of people that engage in drug deals, folks. It's not that way. It's not that way.

And when you paint Dale Goodrich with that paint brush be careful, because when you clean the brush you get some on yourself. Mr. Herron is the scum of the earth, granted, but --

[DEFENSE COUNSEL] Your Honor, objection, he just called my client the scum of the earth.

I'm sorry. Mr. Goodrich --

[DEFENSE COUNSEL] I'm going to ask for a mistrial, Judge.

THE COURT: Well, I'll overrule the request for a mistrial.

Inadvertent remark. Mr. Goodrich, Dale Goodrich, the snitch, I'm not here to tell you can take him home and let him marry your daughter. But I am here to tell you that's the kind of ...


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