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Docket Number

No. 44211.

Attorney(S)

Lester Watson, Clayton, for appellant. John M. Dalton, Atty. Gen., Fred L. Howard, Asst. Atty. Gen., for respondent.

Judges

HYDE, Judge.

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Smart Summary

State of Missouri v. Johnson Sterling Brock, No. 44211 (Dec. 13, 1954)

Factual and Procedural Background

Defendant Johnson Sterling Brock was convicted in the Circuit Court of St. Louis County, Judge John A. Witthaus presiding, of first-degree burglary and sentenced to ten years (statutes cited: 560.040, 560.095, RSMo and V.A.M.S.). He appealed, alleging error in the giving of instructions 2 and 6 and in improper argument by the State. The transcript filed on appeal did not contain the trial evidence. Counsel of record: Lester Watson for appellant; John M. Dalton, Attorney General, and Fred L. Howard, Assistant Attorney General, for respondent. Opinion by Judge Hyde for the Supreme Court of Missouri, Division No. 1.

Legal Issues Presented

Whether instruction 2 was erroneous, specifically whether there was evidence of intent to commit larceny or larcenous action supporting the burglary instruction.
Whether instruction 6 incorrectly stated the law of alibi or improperly authorized conviction based solely on presence at the scene.
Whether prosecutorial remarks (including that "the eyes of Kirkwood are on this panel" and references to defendant's alleged confessions to other offenses) warranted mistrial or reversal for prejudice.

Arguments of the Parties

Appellant's Arguments

Instruction 2 was erroneous because, appellant contends, the record contains no evidence of intent to commit larceny, no attempt, and no consummation of larcenous action.
Instruction 6 was an incorrect statement of the law of alibi and could permit conviction if the jury found mere presence at the scene without finding active participation beyond a reasonable doubt.
Prosecutorial comments were prejudicial: (a) that "the eyes of Kirkwood are on this panel," and (b) that defendant confessed to six other offenses, thereby improperly proving or emphasizing other crimes to the jury.

Respondent's Position (as reflected in the record)

The prosecutor argued the jury's decision was important and made remarks that the police had taken defendant to multiple locations and that defendant had confessed to six other offenses; the trial court ruled such matters were in evidence or otherwise properly before the jury.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Heady, 316 Mo. 111, 289 S.W. 564(1)	Appellate courts cannot rule on claimed instructional error when the transcript lacks the evidence necessary to review the claim.	Used to decline ruling on appellant's contention regarding instruction 2 because the transcript contained no evidence.
State v. Politte, Mo.Sup., 249 S.W.2d 366, 370(11, 12)	Instructions must be read together.	Applied to conclude that, read with instructions 2 and 3, instruction 6 did not improperly permit conviction based solely on presence.
State v. Londe, 345 Mo. 185, 132 S.W.2d 501(16)	An admonition to the jury and sustaining an objection can be sufficient to cure a prejudicial prosecutorial remark; trial court has discretion in such matters.	Relied on to hold that sustaining the objection and admonishing the jury to disregard the "eyes of Kirkwood" remark was adequate and that refusal to grant mistrial was not error.
State v. Dipley, 242 Mo. 461, 147 S.W. 111, loc. cit. 117	Similar support for treating admonition as sufficient remedy for certain prosecutorial comments.	Applied alongside other cases to uphold the trial court's remedial action.
State v. Carter, 345 Mo. 74, 131 S.W.2d 546(5)	Not error to overrule objection to similar prosecutorial statement in comparable circumstance.	Supported the conclusion that overruling mistrial was within discretion.
State v. Tiedt, 360 Mo. 594, 229 S.W.2d 582 (8-11)	Trial court discretion governs handling of prejudicial remarks and motions for mistrial.	Referenced to show such determinations are generally within trial court discretion.
State v. Saussele, Mo.Sup., 265 S.W.2d 290(11)	Confession of other offenses may be in evidence and thus properly before the jury under some circumstances.	Used to justify the court's view that the prosecutor's statement about confessions could have been based on evidence properly admitted.
State v. Kornegger, 363 Mo. 968, 255 S.W.2d 765(7)	Similar point that confessions or admissions may be admissible or treated as in evidence.	Supported the assumption that the confession referenced by the prosecutor was properly in evidence or at least not objected to in a manner preserving the issue.
State v. Wellman, 253 Mo. 302, 161 S.W. 795	Cited by defendant as authority on prejudice from proving other offenses.	Cited by defendant but the court found the cited cases distinguishable from the present situation.
State v. Lasson, 292 Mo. 155, 238 S.W. 101	Cited by defendant regarding improper emphasis of other crimes.	Cited by defendant but the court characterized the present case as different.
State v. Leonard, Mo.Sup., 182 S.W.2d 548	Cited by defendant for similar propositions concerning prejudice from references to other offenses.	Not treated as controlling; court found circumstances different here.
State v. Cummings, 189 Mo. 626, 88 S.W. 706, 712	Objections to testimony should be made when testimony is offered; a party may not permit evidence without timely objection and later complain of comment upon it.	Quoted and applied to emphasize that defendant did not preserve a proper objection to the evidence or its use in argument and thus could not prevail on that ground.
State v. Jones, Mo.Sup., 221 S.W.2d 137	Contextual reference about a defendant who testifies and may have convictions of other offenses.	Noted the record shows defendant was a witness and it was not shown whether he had prior convictions; used to explain why comment might not be improper.
State v. Hawley, Mo.Sup., 51 S.W.2d 77	Confession of other offenses may be material to a defense such as alibi, permitting state comment.	Applied to support that comment on confessions might have been proper if relevant to alibi defense.

Court's Reasoning and Analysis

The court proceeded as follows:

Noted the transcript submitted on appeal contained no evidence; relying on State v. Heady, the court held it could not review appellant's claim that instruction 2 was erroneous because the evidentiary basis for that claim was absent from the record.
Set out instruction 6 (requiring the jury to acquit unless they found beyond a reasonable doubt that defendant was present at the time and place of the alleged burglary) and addressed appellant's contention that it misstated the law of alibi. The court observed that instructions 2 and 3 required a finding beyond a reasonable doubt that appellant committed the burglary and, applying the rule that instructions must be read together (State v. Politte), concluded the contention was without merit.
Reviewed the prosecutor's remark that "the eyes of Kirkwood are on this panel." The trial court sustained the objection and admonished the jury to disregard the remark but denied a mistrial. The appellate court, citing prior decisions, held the admonition and action taken were sufficient and within the trial court's discretion.
Considered the prosecutor's later argument that police had taken defendant to fourteen places and that, according to Kirkwood police, defendant confessed to six of them. Because the appellate transcript lacked the evidence, the court presumed the trial court properly overruled objections on the ground the confession was in evidence and that the confession was properly in evidence (either unobjected to when offered or admissible). The court further observed the appellant's objections at trial were not the same as those raised on appeal and therefore were not preserved. The court relied on State v. Cummings to emphasize timely objections are required to preserve claims that argument improperly comments on evidence.
Noted additional considerations: defendant was a witness (and it was not shown whether he had been convicted of other offenses), and a confession of other offenses might be material to an alibi defense, permitting state comment. Because the record did not preserve an objection to admissibility, the appellate court could not find the comments improper or prejudicial on the record before it.
Finally, the court examined the record for fundamental sufficiency and found the information, verdict, judgment and sentence sufficient and allocution properly granted.

Holding and Implications

Judgment affirmed.

Direct effect: The conviction for first-degree burglary and the ten-year sentence are upheld. The court declined to set aside the conviction based on the claimed instructional errors or prosecutorial remarks given the state of the record on appeal. The opinion does not announce a new legal rule; rather, it applies existing precedent concerning preservation of issues, reading instructions together, trial-court discretion in addressing prejudicial remarks, and the treatment of evidence of confessions to other offenses.

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STATE OF MISSOURI, RESPONDENT, v. JOHNSON STERLING BROCK, APPELLANT.

HYDE, Judge.

Defendant appeals from judgment of conviction and sentence of ten years for burglary in the first degree. Secs. 560.040, 560.095. Statutory references are to RSMo and V.A.M.S. Defendant alleges error in giving instructions 2 and 6 and in improper argument for the State.

The transcript filed by defendant contains no evidence. Therefore, we cannot rule appellant's contention that instruction 2 was erroneous "in that there is no evidence of any intent to commit larceny or any attempt or any complete consummation of any larcenous action" because the evidence is not in the transcript. State v. Heady, 316 Mo. 111, 289 S.W. 564(1). Instruction 6 was: "The court instructs the jury that unless you find beyond a reasonable doubt, from all the facts and circumstances given in evidence, that the defendant was present at the time and place of the alleged burglary, you should acquit the defendant." Appellant contends that this instruction was "an incorrect declaration of the law of alibi" and authorized a conviction if the jury "found that defendant was present at the time and place of the alleged burglary without further instructing and cautioning the jury that they must find beyond a reasonable doubt that he actively participated in the act of burglary." However, instructions 2 and 3 required the jury to find beyond a reasonable doubt that appellant committed the burglary. When the instructions are read together, as they must be, State v. Politte, Mo.Sup., 249 S.W.2d 366, 370(11, 12), it is apparent that there is no merit to this contention.

The transcript contains portions of the argument to the jury by the assistant prosecuting attorney but none of the argument of defendant's counsel. The assistant prosecuting attorney stated: "Before I sit down I want to caution you on one thing: I say that the eyes of Kirkwood are on this panel in this case." Defendant's counsel objected without stating any reason and the Court said: "The objection is sustained." Defendant's counsel then moved for a mistrial. The Court overruled the motion but stated: "The jury will disregard that statement." We have held that the action taken here on such a statement was sufficient, State v. Londe, 345 Mo. 185, 132 S.W.2d 501(16); State v. Dipley, 242 Mo. 461, 147 S.W. 111, loc. cit. 117, and in State v. Carter, 345 Mo. 74, 131 S.W.2d 546(5), we said that it was not error to overrule an objection to a similar statement. Such matters are usually within the trial court's discretion. See State v. Tiedt, 360 Mo. 594, 229 S.W.2d 582 (8-11) and cases cited. We do not think anything more was required here than the admonition given by the Court and hold there was no error in refusing to declare a mistrial.

Later in the argument of the assistant prosecuting attorney the following occurred:

"Mr. Rader: The evidence shows the police took Johnson Brock to fourteen places in Kirkwood, and we are not trying him for any other case than the Mepham burglary. I say this to show you the importance of your decision in this case: of the fourteen cases they took him to, according to the Kirkwood police he confessed to six of them.

"Mr. Watson: If your Honor please, we object to that. That is not proper; that is not in evidence.

"The Court: It is in evidence. The objection will be overruled.

"Mr. Watson: We object to it for the reason counsel is offering evidence tending to prove this case as evidence of another crime.

"The Court: The objection is overruled."

Since the evidence is not before us, we must consider that the Court properly overruled the first objection on the ground that defendant's confession of six other offenses was in evidence. We must also consider that this confession was properly in evidence, either because no objection had been made to its admission or because it was admissible as it might well have been. See State v. Saussele, Mo.Sup., 265 S.W.2d 290(11); State v. Kornegger, 363 Mo. 968, 255 S.W.2d 765(7). Defendant's second objection seems to have been more an objection to the confession being received in evidence than to what was said in the argument about it. Perhaps counsel meant his objection to be to "arguing" this evidence rather than "offering" it but he certainly did not make that clear to the Court. Anyhow, the objection now made is different from the one made to the trial court. What defendant now says in his assignments of error is that this latter statement referred back to the previous one about the eyes of Kirkwood being on the panel and emphasized the fact that defendant was charged with other crimes to prejudice the minds of the jury, citing State v. Wellman, 253 Mo. 302, 161 S.W. 795; State v. Lasson, 292 Mo. 155, 238 S.W. 101; State v. Leonard, Mo.Sup., 182 S.W.2d 548. Nevertheless, defendant in his points and authorities goes back to the claim that it was error to "prove other criminal offenses." We see nothing wrong in saying to the jury that their decision was important and we cannot say that the Court did not properly rule on the actual objection made.

On this subject, we said in State v. Cummings, 189 Mo. 626, 88 S.W. 706, 712: "Can appellant, during the progress of the trial, permit testimony to be introduced without objection, and then complain that the prosecuting attorney improperly based remarks upon it? The proper and only time to make the test as to the admissibility of testimony is at the time it is offered. We are unwilling to sanction the practice, conceding that incompetent evidence was introduced, of allowing the testimony to go to the jury, and wait until counsel in his closing argument proceeds to comment upon it, before interposing objections to it." While we would not say that no comment that might be made in argument on incompetent evidence, admitted without objection, or on evidence properly admitted for a limited purpose, could be prejudicial, we do say that the State may have some right of comment on such evidence. It is shown in the transcript herein that defendant was a witness in this case and we do not know whether or not he had been convicted of any of the other offenses to which he had confessed. See State v. Jones, Mo.Sup., 221 S.W.2d 137. Furthermore, defendant's confession of other offenses might well have been material on his defense of alibi; and if so, the state could properly comment on it. See State v. Hawley, Mo.Sup., 51 S.W.2d 77. The cases cited by defendant are based on very different situations and arguments. In this case, defendant has not preserved any issue as to the admissibility of his confession and we cannot hold from what is before us that any of the comment to which objection was made was improper and prejudicial

We have examined the record and find the information, verdict, judgment and sentence sufficient and allocution properly granted.

The judgment is affirmed.

All concur.

STATE v. BROCK