State of Missouri v. Lawrence Mosely

MISSOURI COURT OF APPEALS
WESTERN DISTRICT
STATE OF MISSOURI, )
) WD81972
Respondent, )
v. ) OPINION FILED:
)
LAWRENCE MOSELY, ) February 4, 2020
)
Appellant. )
Appeal from the Circuit Court of Cole County, Missouri
Honorable Daniel Richard Green, Judge
Before Division Two:
Cynthia L. Martin, P.J., Thomas H. Newton, and Gary D. Witt, JJ.
Mr. Lawrence Mosely appeals his conviction by a Cole County Circuit Court
jury of one count of knowingly distributing marijuana, a controlled substance, and the
24-year suspended sentence the court imposed. § 195.211, RSMo. (2000 & 2003
Supp.). 1 Mr. Mosely challenges trial court rulings allowing certain testimony and
evidence, overruling the motion for new trial on the basis of the State ’s alleged
withholding of certain information, permitting the State to make improper arguments
in closing while chastising defense counsel for objecting, and refusing to grant a
mistrial after the State purportedly commented on Mr. Mosely’s failure to testify. We
affirm.
1
This offense is now codified at section 579.055.
Mr. Mosely distributed marijuana to Ms. Kalie Kluge in the presence of
undercover highway-patrol Trooper Shawn Griggs who paid $130 for the purchase on
March 1, 2012. Trooper Griggs alleged that Mr. Mosely displayed a weapon during
this drug transaction. Mr. Mosely was also alleged to have distributed marijuana to
Ms. Kluge on March 8, 2012. Mr. Mosely was charged with and convicted by a jury in
January 2016 of two counts of distribution of a controlled substance in the Cole County
Circuit Court, but was acquitted of one charge of unlawful use of a weapon. 2 State v.
Mosely, 534 S.W.3d 879, 880 (Mo. App. W.D. 2017). On appeal, we reversed for a
Batson violation and remanded for a new trial. Id. at 885. On retrial, the jury convicted
Mr. Mosely of one count of distribution of a controlled substance, involving the March
1, 2012, sale but acquitted him of the distribution count involving the March 8, 2012,
sale. The court denied Mr. Mosely’s motion for new trial and, because Mr. Mosely was
a prior and persistent offender, imposed a 24-year prison sentence but suspended its
execution, placing Mr. Mosely on five years’ supervised probation. Mr. Mosely files
this appeal, asking the Court to either dismiss the case for prosecutorial misconduct or
remand for a new trial.
“On direct appeal we review the trial court for prejudice, not mere error, and
will reverse only if the error was so prejudicial that it deprived the defendant of a fair
trial. We review the facts in the light most favorable to the verdict. ” State v. Morrow,
968 S.W.2d 100, 106 (Mo. banc 1998).
2
Mr. Mosely had been charged by grand jury indictment with a violation of section 571.030.1(4),
RSMo. (2000, as amended through 2011), for knowingly exhibiting, “in the presence of one or more
persons a handgun, a weapon readily capable of lethal use, in an angry or threatening manner.”
2
Uncharged Crime
In the first point, Mr. Mosely claims that the trial court abused its discretion in
“permitting testimony related to the presence of a fire arm [sic] because such evidence
violates the appellant’s rights to not twice be put in danger of life and liberty an d to
only be tried for the offense charged.” Because he was acquitted of a firearm-related
charge arising from the March 1, 2012, incident and “did not face any charges related
to the possession of a gun” on retrial, Mr. Mosely contends that evidence that a weapon
was used “violated [his] right to be tried for the offense charged and to be free from
double jeopardy.” The State argues that because Mr. Mosely did not frame the issue in
the motion for new trial as a double-jeopardy claim, we may review it, if at all, for
plain error. As to this part of the point, we agree.
Mr. Mosely first raised an objection to evidence or testimony about possession
of a firearm in a motion in limine, arguing that this evidence would violate the Double
Jeopardy Clause and constitute uncharged criminal conduct. Mr. Mosely did not
address the double-jeopardy issue when arguing the motion to the trial court. Mr.
Mosely objected to the introduction of this evidence during trial, relying on the
arguments previously made, but not expressly addressing the Double Jeopardy Clause.
The motion for new trial raises the matter solely as error in allowing the State to
introduce “evidence of prior bad acts and uncharged criminal conduct.” The case cited
in support, State v. Atkinson, 835 S.W.2d 517, 519-20 (Mo. App. S.D. 1992), discusses
only uncharged criminal acts, the danger associated with allowing evidence relating to
such acts, and exceptions to the exclusion of such evidence. Accordingly, the double -
jeopardy argument was not properly preserved. See State v. Walter, 479 S.W.3d 118,
3
123 (Mo. banc 2016) (“the general rule with respect to preservation of error is that an
objection stating the grounds must be made at trial, the same objection must be set out
in the motion for new trial and must be carried forward in the appellate brief to preserve
it.” (citation omitted)); and State v. Davis, 564 S.W.3d 649, 656 (Mo. App. W.D. 2018)
(“[Appellant] is bound by the grounds specified at trial and cannot change or broaden
his theory. The purpose of requiring a specific objection to preserve an issue for
appellate review is to put the trial judge on notice of the alleged error, giving an
opportunity to correct it before the case is submitted to the jury. ”).
Rule 30.20 allows unpreserved claims to be reviewed for plain error at our
discretion. Still, “because the right to be free from double jeopardy is a constitutional
right which goes to the very power of the State to bring the defendant in the court to
answer the charge brought against him,” we “should grant plain error review in any
case where from the face of the record it appears that the court had no power to enter
the conviction.” State v. Wright, 383 S.W.3d 1, 4 (Mo. App. W.D. 2012). The U.S.
Constitution’s Double Jeopardy Clause, enforceable against the states through the
Fourteenth Amendment, “provides two distinct protections for criminal defendants: (1)
protection from successive prosecutions for the same offense after acquittal or
conviction and (2) protection from multiple punishments for the same offense.” Id.
Mr. Mosely does not develop his double-jeopardy argument with any particular detail
on appeal other than to claim that “[a]s a matter of first impression, acquitted conduct
should not be permitted as res gestae.” 3 According to Mr. Mosely, “[i]f an item is so
3
Because the State has defended its introduction of evidence about the firearm Mr. Mosely brandished
and its references to the firearm during trial as res gestae, most of Mr. Mosely’s argument focuses on
this legal theory.
4
integral as to render it impossible for a crime to be understood without evidence of a
crime for which the defendant has already been found not guilty, the State should not
be able to ignore the double jeopardy clause . . . to remedy this problem.” It is not
clear to us that the admission of evidence about Mr. Mosely’s use of a firearm during
the March 1, 2012, drug sale implicates the Double Jeopardy Clause, accordingly we
have not passed the threshold for plain-error review, i.e., the existence of an error that
is evident, obvious, and clear. Id. See also State v. Flores, 437 S.W.3d 779, 794 (Mo.
App. W.D. 2014) (seeing no apparent double-jeopardy violation from the face of the
record, we declined full plain-error review). The admission of this evidence constituted
neither a successive prosecution for the same offense after an acquittal nor a multiple
punishment for the same offense.
As for Mr. Mosely’s claim that the trial court abused its discretion in admitting
evidence of an uncharged offense, we note that courts have broad discretion to admit
and exclude evidence during a criminal trial, and we will reverse the court ’s decision
“only if that discretion was clearly abused.” State v. Collings, 450 S.W.3d 741, 765
(Mo. banc 2014). Missouri courts usually do not admit evidence of an uncharged crime
“because that evidence may result in a conviction based upon a crime with which the
defendant is not charged.” Atkinson, 835 S.W.2d at 519 (quoting State v. Kitson, 817
S.W.2d 594, 596 (Mo. App. E.D. 1991)). This is so, because “[t]he jury may use the
evidence of the uncharged crime to infer the defendant has a general criminal
disposition, a bad character, or a propensity or proclivity to commit the type of cr ime
charged, which, in turn, results in the jury basing a finding of guilt on the uncharged
crime.” Id. (citation omitted). Still, a non-exclusive “list of theories for establishing
5
independent logical relevance” that would justify the admission of such evidence
includes evidence tending “to establish motive, intent, identity, the absence of mistake,
or a common scheme or plan embracing the commission of two or more crimes so
related that the proof of one tends to establish the other.” Id. (citation omitted). Such
evidence can also be admitted “to present the jury a complete and coherent picture of
the charged crimes.” Morrow, 968 S.W.2d at 107; Kitson, 817 S.W.2d at 597 n.1
(setting forth the parallel exception “which permits proof of another crime, if the other
crime is so linked together in point of time and circumstances with a crime charged
that one cannot fully be shown without proving the other.” Under this exception, “the
state is permitted to paint a complete and coherent picture of the crime charged and is
not required to sift and separate evidence and exclude the testimony tending to prove
the crime for which defendant is not on trial.”). The State countered Mr. Mosely’s
uncharged-crimes claim at trial by arguing that the jury would better u nderstand why
an experienced undercover state trooper would immediately exit the vehicle when
ordered to do so, as well as to show why the trooper would recall what Mr. Mosely
looked like.
Here, Trooper Griggs testified that, after Ms. Kluge arranged the March 1, 2012,
drug buy over the phone and Mr. Mosely drove to their location, the trooper got into
the back seat on the passenger side of the car. It was about 1 a.m., and the car’s interior
dome light was illuminated when Ms. Kluge and the trooper got into it. Because Mr.
Mosely did not know the trooper, he ordered Trooper Griggs out of the car. As Mr.
Mosely did so, according to the trooper, “[h]e then raised a firearm from the center
console area of the vehicle and pointed it at the ceiling. Kind of back towards my
6
direction, but at the ceiling.” The prosecutor further asked, “what did he say as he
raised that firearm there between you and he?” Trooper Griggs responded, “After
stating what’s up, bro, and he held that up, he said, you can wait outside. I believe he
said, homey. He said, you can wait outside.” The trooper further testified that he
believed the firearm was a semiautomatic nine-millimeter pistol and that he had a
decision to make, “[b]ut the decision was fairly easy. The door was still open if I
wanted to remove myself from that situation rather than something else occur. ” He
then got out of the vehicle and moved to the front passenger-side door where Ms. Kluge
had gotten into the vehicle and he watched the sale take place. Trooper Griggs testified
that he was focused on staying safe, but also focused on the driver of the vehicle “so I
could, you know, identify him at a later time.” When Ms. Kluge opened the window,
she grabbed the money from the trooper and then gave it to Mr. Mosely.
Trying to raise questions about the ability of Trooper Griggs to see the man who
sold him the marijuana, defense counsel had the following exchange with him:
Q. And certainly, I think you said earlier, 100 percent of your attention
was on his – on trying to identify the person?
A. Once I had the firearm displayed at me and I was standing outside the
vehicle, looking into the window with the two occupants, yes, I was very
focused on the person that had done that.
Q. Well, I guess what I don’t understand here is were you more concerned
about the gun or were you more concered about making ID?
A. I would say first my safety and second being a good investigator and,
you know, taking in everything that was going on.
Defense counsel further questioned the trooper about the failure of the highway patrol
to obtain the vehicle’s license plate number or to recover the bills used to pay for the
marijuana. Additional questioning revealed that the investigation did not include trying
7
to ascertain whether Mr. Mosely had owned a vehicle of the type used when the drug
sale occurred given its unknown make or model, or whether Ms. Kluge had cell -phone
conversations with a number that could be linked to Mr. Mosely. Trooper Griggs also
revealed that no effort was made to further identify other young, African-American
men who were at the house where the trooper met Ms. Kluge, nor could he identify
them other than with general descriptions. Trooper Griggs had picked Mr. Mosely ’s
picture out of group of similar photographs after Ms. Kluge identified him as the man
who sold the drugs to the trooper on March 1, 2012.
With the identification of the suspect central to the defense, the accuracy of
Trooper Griggs’s recall from an interaction that spanned a little longer than a minute
to his selection of Mr. Mosely’s photo from an array more than two years later was best
explained by the presence of a firearm that concentrated the trooper ’s attention.
“Because the State bears the burden of proving guilt beyond a reasonable doubt, it
should not be unduly limited in the manner in which it satisfies its quantum of proof. ”
State v. Watson, 391 S.W.3d 18, 21-22 (Mo. App. E.D. 2012) (citation omitted) (finding
no abuse of discretion in the admission of testimony about a gun in the defendant ’s
waistband as the State is allowed “to present a coherent picture of the events”). And,
as the State argues, Missouri courts have ruled admissible evidence concerning the
presence of firearms in drug cases, because it shows that the defendant knowingly and
intentionally possessed a controlled substance. See, e.g., Watson, 391 S.W.3d at 21;
and State v. Brand, 309 S.W.3d 887, 896-97 (Mo. App. W.D. 2010) (ruling admissible
evidence of a firearm on or near the defendant to establish knowing and intentional
possession of a controlled substance, “the offense[] for which [defendant] was on
8
trial.”). The trial court did not abuse its discretion in admitting testimony about an
uncharged criminal act. This point is denied.
Witness Unavailability
In the second point, Mr. Mosely argues that the trial court erred in admitting Ms.
Kluge’s testimony from the first trial because it denied the right to confront his accusers
and the State “presented no evidence that the witness was unavailable or unable to
testify in any alternative manner or after a continuance.” 4 As the point involves an
evidentiary ruling, we may reverse on a finding of clear abuse of discretion only,
although we review de novo a claim that constitutional rights were violated. State v.
Ise, 460 S.W.3d 448, 459, 461-62 (Mo. App. W.D. 2015) (“When addressing the
admissibility of prior testimony, we consider whether (1) the prior testimony was given
before a judicial tribunal, (2) the witness was sworn and testified, (3) the accused was
present and had an opportunity for cross-examination, (4) the parties and issues were
substantially the same as in the case on trial, and (5) the witness is no longer available
to testify.” (citations omitted)). The U.S. and Missouri constitutions guarantee an
accused the right to confront the witnesses against him or her, but an exception to this
right “is permitted if the State demonstrates a witness is unavailable.” State v.
Christian, 364 S.W.3d 797, 801 (Mo. App. S.D. 2012). Missouri courts have not often
been called on “to scrutinize, from the constitutional standpoint, the sufficiency of the
showing of the unavailability of a witness as a predicate to the admissibility of evidence
of his testimony in a prior proceeding.” State v. Williams, 554 S.W.2d 524, 534 (Mo.
App. 1977). The court in Williams, on the basis of affidavits stating that the witness
4
The transcript of Ms. Kluge’s testimony was read to the jury when the State presented it s case in chief
at Mr. Mosely’s retrial.
9
could not testify because he had undergone “very serious surgery,” the statements of
counsel during a pre-trial hearing as to his unavailability for trial the next day, and
information the court gleaned by calling the hospital in which the witness was
recuperating, concluded that the trial court did not deny the defendant due process of
law in finding the witness unavailable, a matter deemed “collateral” to the proceeding.
Id. at 532-35. So ruling, the court observed that in federal courts “[i]t is customary . .
. to accept statements of . . . counsel as to unavailability of witnesses as a predicate to
the use of a deposition.” Id. at 532 n.5. See also State v. Lindsay, 709 S.W.2d 499,
505 (Mo. App. W.D. 1986) (holding as sufficient the evidence of unavailability adduced
through the testimony of an attorney and by “other testimony and acknowledgements
of certain facts by counsel.”).
Ms. Kluge’s counsel filed a motion to quash the State’s subpoena seeking her
attendance as a witness at Mr. Mosely’s second trial. The State filed a motion to declare
Ms. Kluge unavailable as a witness. When the trial court conducted a hearing on these
motions, Ms. Kluge’s counsel stated that her client had a medical disability:
Ms. Kluge is currently pregnant. She has a due date of April 20 th of this
year. I understand the trial date is set for April 17 th . According to
Maternal Fetal Medicine, Division of the University of Missouri Health
Care, she has a high-risk pregnancy and has been having several
complications including seizures due to stress. She’s been unable to work
for the last three weeks.
And she’s actually in the process of requesting further medical records
from the medical examiners and from the hospital for your review, if you
do not quash the subpoena or you choose to require her to be here for the
trial.
When Ms. Kluge testified at Mr. Mosely’s first trial, she was apparently harassed by
an individual attending the trial, and, according to her counsel, Ms. Kluge claimed that
10
it caused her quite of bit of stress at the time. The transcript from the first trial shows
that the trial court found a person in the courtroom in contempt for shouting when Ms.
Kluge entered the courtroom:
THE COURT: Okay. The record will reflect that in open court that this
person, when witness Kluge entered the courtroom, she yelled “snitch” in
a loud and threatening voice from the gallery and in front of the jury and
in open court.
Ma’am are you aware that your actions are inappropriate?
MS. WEIR: Yes, sir.
THE COURT: And do you have any excuse for your conduct?
MS. WEIR: Just emotional. I do apologize.
THE COURT: Okay. I am going to find you in direct contempt as having
an intentional interference with the judicial process. 5
The prosecutor’s chief investigator testified that because Ms. Kluge was living
in Florida when the case was first tried, the State was obliged to pay her transportation
expenses to ensure attendance. He also testified that Ms. Kluge could be not served
and he had been able to communicate with her only via email. He testified that Ms.
Kluge “advised me through an e-mail that she is in her eighth month of pregnancy and
it’s a high-risk pregnancy, and that she has been suffering seizures and is on medicatio n
for that currently.” According to the investigator, prior telephone and cell -phone
contact information for this witness was no longer working, he was unable to find an
address for her through a “TLO” skip-tracing program, and he did not seek a Florida
subpoena.
5
The trial court took judicial notice of the transcript from the first trial at the pre -trial motion hearing
for Mr. Mosely’s retrial.
11
The court quashed the State’s subpoena directed to Ms. Kluge and indicated that
it would not require Ms. Kluge to personally appear at Mr. Mosely ’s second trial,
basing its decision on unavailability due to medical condition. 6 The court also
sustained the State’s motion to read into evidence Ms. Kluge’s prior court testimony.
The trial court determined that the State made a good faith effort to secure Ms. Kluge ’s
presence as a witness. 7
Mr. Mosely argues that even if Ms. Kluge were pregnant “no evidence to support
that belief was introduced by the State,” and because this is a transient condition, the
prosecution should have requested a continuance. He also contends that information
which became available after trial allegedly showed that the State “most certainly did
not use any degree of diligence. Specifically, it was discovered that, contrary to the
claims of the State, [Ms.] Kluge was residing in Jefferson City and had been regularly
attending court.” Mr. Mosely further claims that “the State possessed communications
6
Mr. Mosely has indicated that federal courts will continue trial to sec ure the presence of an
unavailable witness, but we would note that the trial had already been rescheduled several times. The
first date set for retrial was November 6, 2017. It was rescheduled for April 3, 2018, and then continued
to April 17, 2018.
7
The State attached the investigator’s affidavit to the motion in which the investigator addressed his
knowledge about her medical condition:
1. I have been advised by Kalie Kluge that anything that is overly stressful, emotional,
or causes anxiety, she is not capable of dealing with; it causes her to have seizures.
2. Kalie Kluge is 8 months pregnant with a due date of April 20, 2018, and she is a
high risk pregnancy. She has had 3 different seizures this year alone causing the
doctors to have to up the dosage of seizure medication she was placed on in July
of 2015. She has had a seizure while driving and totaled her vehicle.
3. Kalie Kluge advised that she already has so much going on medically now that it
would be impossible for her to feel safe, not functional.
4. Kallie Kluge advised that medically for her safety and the baby’s safety, she does
not feel comfortable taking any risks that can harm her or her unborn child.
12
from the witness stating that she had done her part and that she does not want to testify. ”
We find that the trial court did not abuse its discretion in allowing Ms. Kluge ’s
testimony to be read to the jury at the second trial. Counsels’ statements and the
affidavit about the witness’s medical condition were sufficient for the court to conclude
that the witness was unavailable due to a medical condition regardless of her
geographic location.
Even if we were to determine that Ms. Kluge was available to testify, the State
argues that Mr. Mosely was not prejudiced because her testimony was needed only to
identify Mr. Mosely as the person selling marijuana to Trooper Griggs on March 8,
2012. On March 8, 2012, the car the drug seller was driving had tinted windows, and
the trooper could not see who was in the car when Ms. Kluge got out of it to effect the
sale, leaving Ms. Kluge as the only witness who could identify Mr. Mosely with respect
to that drug transaction. The jury acquitted Mr. Mosely of the charge related to the
March 8, 2012, marijuana sale. Ms. Kluge’s testimony from the first trial was
cumulative of the trooper’s testimony with respect to the identification of Mr. Mosely
as the drug seller during the March 1, 2012, sale. Mr. Mosely has not sustained his
burden of establishing prejudice, even assuming it was error to permit Ms. Kluge ’s
testimony from the first trial to be read to the jury. This point is denied.
Brady Violation
In the third point, Mr. Mosely claims that the trial court erred in denying the
motion for new trial as to Ms. Kluge’s unavailabiltiy as a witness “in that the State
possessed information that the witness was located in Jefferson City, had appeared in
municipal court for months, and made statements benefiting the defendant” when “the
13
State argued that she was unavailable and failed to disclose any of this information to
the defense or the court.” When the motion was filed, Mr. Mosely attached to it several
exhibits, including a post-trial deposition of the prosecutor’s chief investigator, an
email chain between the investigator and Ms. Kluge, a medical provider ’s statement
about Ms. Kluge’s health, and Jefferson City municipal court records relating to a
speeding violation with which Ms. Kluge had been charged. Arguing the claim before
the trial court during the sentencing hearing, defense counsel claimed that the
prosecution had the emails and Ms. Kluge’s Jefferson City address, which appeared on
the medical provider’s statement, before trial and violated Brady or the discovery rules
in not producing them. 8 No evidence was presented during this part of the sentencing
hearing.
“Under Brady v. Maryland, due process is violated when the prosecutor
suppresses evidence that is favorable to the defendant and material to either guilt or
punishment.” State v. Steidley, 533 S.W.3d 762, 771 (Mo. App. W.D. 2017). Still, “[i]f
the defendant had knowledge of the evidence at the time of trial, the State cannot be
faulted for nondisclosure.” Id. The medical provider’s document attached to Ms.
Kluge’s motion to quash the State’s subpoena was addressed to Ms. Kluge at a Jefferson
City address. At the pre-trial hearing on Ms. Kluge’s motion to quash the subpoena,
her attorney clearly stated that she was being treated by a division of the University of
Missouri Health Care. Accordingly, Mr. Mosely knew more than one week before
retrial that Ms. Kluge may not have been in Florida.
8
Brady v. Maryland, 373 U.S. 83 (1963).
14
Although municipal court records may have shown that Ms. Kluge was in
Jefferson City in December 2017 and apparently had a Missouri driver ’s license, they
did not prove that she was in or was a resident of Missouri in April 2018, when Mr.
Mosely was retried. More to the point, Mr. Mosely does not explain how this evidence
was material to the issues of guilt or innocence, or how he was prejudiced by the State ’s
failure to produce the evidence. The trial court declared Ms. Kluge unavailable due to
medical condition. That result would not have changed even if her presence in Missouri
had been known. The trial court did not abuse its discretion in denying the motion for
new trial on the ground that exculpatory evidence may not have been produced. 9 This
point is denied.
Video-Recording Admissibility
In the fourth point, Mr. Mosely contends that the trial court erred in allowing the
State to show to the jury Ms. Kluge’s state highway patrol interview in its entirety
“because it was improper bolstering, was hearsay, and presented substantial accusations
of uncharged criminal conduct in that no legitimate purpose was served by showing the
video. . . .”
Mr. Mosely had used the video-recording out of the jury’s presence to refresh
retired Sgt. Jason Clark’s recollection of the interview, particularly as to assurances
Ms. Kluge had received in return for her cooperation in Mr. Mosely’s case. Because
the State wanted to have the entire video admitted and played for the jury, Mr. Mosely
9
Mr. Mosely contends that one statement Ms. Kluge made in an email to the investigator before trial,
i.e., that she did “not feel comfortable in proceeding with this” and she had already done her part in
2015, was proof that she had “a firm desire not to testify at trial” and was therefore eviden ce that she
was not credible. The statement was made in the context of an explanation of her medical condition
and how the stress of testifying would cause seizures that threatened her health and the health of her
baby.
15
objected that admitting the video would violate the “hearsay confrontation clause.”
The video-recording was played for Sgt. Clark outside the jury’s presence. When the
jury returned to the courtroom, Mr. Mosely’s counsel asked the witness if his
recollection was refreshed and then queried him about any promises made to Ms.
Kluge. The witness disagreed with defense counsel on certain points, saying, for
example, “I don’t know if that was the exact words,” “I don’t believe so,” and “I don’t
remember [saying something about] all the charges going away. Certainly I would not
have the ability to do that.” The State then introduced the video-recording during re-
direct examination of the officer and offered it into evidence, with Mr. Mosely again
objecting on hearsay and confrontation clause grounds. The trial court admitted the
video-recording into evidence allowing Mr. Mosely a continuing objection, and it was
published to the jury. Mr. Mosely objected as the video-recording was played for the
jury because statements about a gun were about to be made, and he again claimed that
it represented prior bad acts and violated the U.S. and Missouri constitutions. He
moved for a mistrial when the video-recording concluded, stating that the video “is
laced with tons of evidence of prior bad acts, drug – other drug deals, trading guns.”
He also argued that it violated the U.S. and Missouri constitutions because it included
evidence of uncharged acts. The court overruled the objection but later gave the jury
a limiting instruction before it retired, stating that the evidence in the video -recording
“may be considered by you only for the purpose of determining the credibility of
Sergeant Jason Clark’s testimony. You are directed that you may not consider the
statements made by Kalie Kluge in that video as evidence in this case. ” At closing,
defense counsel argued that the recorded interview showed that the officer tried to
16
“swim around” during cross-examination as to whether Ms. Kluge had been promised
that the slate would be wiped clean and none of her statements would be used against
her, and he urged the jury to “watch that video again.”
We agree with the State that Mr. Mosely failed to raise a bolstering claim when
objecting to the admission of this evidence, although this was the basis for his challenge
to the video-recording in the motion for new trial. Accordingly, we may review it, if
at all, for plain error. The remaining claims of error—hearsay and uncharged criminal
conduct—to the extent they may have been preserved, will be analyzed for abuse of
discretion. 10
Regarding the bolstering claim, Mr. Mosely argues that the video-recording
improperly bolstered the testimony of the witnesses. He contends that he did not place
Sgt. Clark’s credibility at issue, but if he did so, only those parts of the video-recording
that would have rehabilitated the witness would have been admissible. State v.
Johnson, 684 S.W.2d 581, 583 (Mo. App. E.D. 1984); see also State v. McFadden, 391
S.W.3d 408, 430 (Mo. banc 2013) (stating that while an out-of-court statement of a
witness offered “solely to be duplicative or corroborative of trial testimony” constitutes
improper bolstering, “[p]rior consistent statements are admissible to rehabilitate the
witness.” (citation omitted)). In those instances where a statement read into evidence
is not confined to the subject matter of the impeachment, the admission is harmless
where the statement is cumulative, i.e., where the substance of the witness ’s trial
10
A general hearsay challenge was made in the motion for new trial, but the interview is not specifically
mentioned in the motion in this context. Mr. Mosely referred to Exhibits 1 and 3 in connection with
the hearsay and confrontation challenge. Ms. Kluge’s video -recorded interview was, however, labeled
at trial as State’s Exhibit 8 and Defendant’s Exhibit Y.
17
testimony is proven by evidence other than the statements. State v. Hutton, 825 S.W.2d
883, 887 (Mo. App. E.D. 1992).
We believe that Mr. Mosely’s questions were intended to impeach Sgt. Clark
who testified about promises made to Ms. Kluge during her interview. The State ’s sole
purpose in publishing the video-recording to the jury was not to improperly duplicate
or corroborate Sgt. Clark’s trial testimony but was rather to rehabilitate him. And this
was what the limiting instruction was intended to focus the jury on. Mr. Mosely has
failed to demonstrate evident, obvious, and clear error, so we do not find that the trial
court plainly erred in admitting this evidence to rehabilitate Sgt. Clark. To the extent
that the admission of the entire video-recording may have improperly bolstered Ms.
Kluge’s testimony, Mr. Mosely does not specifically discuss this aspect of his
bolstering claim, so it has been abandoned and we do not consider it further. Rule
84.04(e); Lattimer v. Clark, 412 S.W.3d 420, 423 (Mo. App. W.D. 2013).
Regarding whether the trial court abused its discretion in allowing the jury to
view a video-recording of hearsay evidence, as we indicated above, this part of the
point was not specifically raised in the motion for new trial. Mr. Mosely simply
brought before the trial court a generalized claim about hearsay, without including or
specifying the video-recording of Ms. Kluge’s interview with Sgt. Clark. Nor does Mr.
Mosely discuss this aspect of the point in any detail other than to discuss the bolstering
and impeachment issues already addressed. And even if the entire video-recording was
improperly admitted, we disagree that it prejudiced Mr. Mosely. Ms. Kluge may have
discussed uncharged criminal acts, but only one objection was made while the video -
recording was played for the jury, and we have already found that evidence about a gun
18
used in the transaction is admissible as res gestae, i.e., to further explain Trooper
Griggs’s actions, or as a proper exercise of trial court discretion to allow the State to
meet its quantum of proof. 11 Also, anything Ms. Kluge may have said about Mr.
Mosely’s participation in the drug sales on March 1, 2012, was simply cumulative of
other testimony already in evidence. Because the statements Ms. Kluge made in the
video-recording about the March 8, 2012, incident had no bearing on Mr. Mosely ’s
conviction, he cannot show prejudice. This point is denied.
State’s Closing Argument
The fifth point raises issues about trial court error in allowing the State to “make
many improper arguments and chastising defense counsel for objecting during closing
statements.” Mr. Mosely contends that the error violated due process rights “in that
the statements were unfairly prejudicial and the judge’s conduct ensured that the jurors
found such statements to be prejudicial.” The prosecutor made the statements Mr.
Mosely challenges in rebuttal, and they fall into one of three categories: the
prosecutor’s response to a defense argument about punishment that the prosecutor
claimed was improper and intended to scare the jury, the prosecutor ’s response to
defense counsel’s challenges to law enforcement witnesses’ credibility and reliability,
and a statement about the defense’s failure to support from the witness stand counsel’s
11
The record also shows that Mr. Mosely failed to ask the court, before the video -recording was played
in its entirety, to have the State remove any statements relating to unc harged acts and, as indicated
above, then urged the jury in closing to watch it again. By allowing objectionable material to remain
in the video-recording played for the jury and then calling on the jury to watch it while deliberating,
Mr. Mosely appears to have created a self-invited error or an error of his own choosing. “It has long
been held that a defendant should not be allowed to profit from the existence of errors they create.”
State v. Prince, 518 S.W.3d 847, 855 n.6 (Mo. App. W.D. 2017).
19
claims on opening or in closing. 12
“The trial court maintains broad discretion in controlling closing arguments.
Closing arguments must be examined in the context of the entire record.” State v. Deck,
303 S.W.3d 527, 540 (Mo. banc 2010). When a claim is preserved, we review for an
abuse of discretion—“whether a defendant was prejudiced to the extent that there is a
reasonable probability that the outcome at trial would have been different if the error
had not been committed.” Id. Still, prosecutors have “considerable leeway to make
retaliatory arguments in closing. A defendant may not provoke a reply and then assert
error.” State v. Middleton, 998 S.W.2d 520, 530 (Mo. banc 1999) (citation omitted);
see also State v. Derennaux, 535 S.W.3d 395, 403 (Mo. App. S.D. 2017) (“The
prosecutor is given even more latitude when responding to issues raised in the
defendant’s closing argument. Indeed, a prosecutor may retaliate to an is sue raised by
the defense even if the prosecutor’s comment would be improper.” (citations omitted)).
Here, defense counsel reminded the jury in closing that Ms. Kluge had testified
that she thought she would “get 15 to 25 years per count, almost 30 to 50 years with
10 years of probation on top of that 50 years.” Counsel further stated, “That’s what
she traded. She traded that. She put it on someone else. She wanted somebody else
12
As to the latter, the State argued the following:
Another rule, as I mentioned earlier, evidence comes from this witness stand. And he
had a chance to tell you what his evidence would show and he spent his time doing
nothing but arguing at the opening of this trial. I told you what my evidence would be
and sat down. And now he wants to throw in there’s evidence of this and there’s
evidence of that. Did you hear anything of that from the stand? Absolutely not.
Mr. Mosely did not object to this statement at trial and did not raise a challenge to it in the motion for
new trial. He claims that it was a comment on “the defendant’s exercise of his Fifth [A]mendment
right not to testify.” Because that interpretation is questionable and because the challenge to the trial
court’s failure to sua sponte declare a mistrial when the prosecutor made this statement is raised in the
final point before this Court, we do not address it further as alleged error in relation to Mr. Mosely’s
fifth point.
20
to do her time. So right away, I mean, that’s pretty suspect.” The prosecutor began
the rebuttal by referring to defense counsel’s argument and claiming he had spent most
of his time “talking about what you don’t get to decide and have to decide, can’t pass
on and that’s punishment. That is nothing but a scare tactic to you. That’s improper
and uncalled for.” Defense counsel objected, the court overruled the objection, and the
prosecutor continued to inform the jury that it does not decide what punishment is
imposed. The prosecutor further stated that “to stand here and talk to you about
punishment is improper and wrong. That’s not a burden on you under any sense. You
are going to decide guilty or not guilty, so why would somebody stand up and scare
you into doing what’s not right?” Defense counsel again objected, and the court again
overruled the objection. While casting aspersions on defense counsel may not be
proper, the prosecutor’s argument about punishment was made in response to the
argument that defense counsel made regarding the time that Ms. Kluge faced for
charges arising from these drug sales, implying that Mr. Mosely would serve that time.
Mr. Mosely cites several cases involving statements a prosecutor made to the
jury in closing and contends that what the prosecutor stated in this case was far worse.
In State v. Hornbeck, 702 S.W.2d 90, 92-93 (Mo. App. E.D. 1985), the statements at
issue involved an accusation that the defendant’s counsel took measures to ensure that
a witness would not be on the witness stand. According to the appeals court, the
statement constituted an accusation, with no foundation in the evidence, that defense
counsel had conspired to commit a crime, and the trial court, failing to sustain the
objection, “permitted the jury to speculate on defense counsel’s complicity in the crime
charged.” In State v. Spencer, 307 S.W.2d 440, 446 (Mo. 1957), the prosecutor’s
21
statement about the defendant—a prominent young man from a prominent family—was
not made in response to statements of defense counsel and was, according to the
supreme court, an appeal to the jury to convict the defendant on the basis of something
other than evidence, that is, prejudice. We do not believe that the prosecutor ’s
arguments here rose to this level, and given the leeway accorded to prosecutors
responding to defense counsel claims, we cannot conclude that the trial court abused
its discretion in overruling Mr. Mosely’s objections to this part of the prosecution’s
closing.
Mr. Mosely’s counsel devoted considerable attention in closing to the officers
who testified, and he (1) stated that he did not know if they were lying, but they
certainly could have been mistaken, (2) reminded the jurors about the officers ’
“evasiveness” on the witness stand, saying that it “speaks volumes,” and (3) also
challenged Trooper Griggs’s training to identify individuals of a different race and his
ability to focus on the suspect when he was under stress. Regarding Trooper Griggs
testifying that he had absolutely no trouble identifying someone of another race, Mr.
Mosely’s counsel stated that that “goes to his credibility, the fact that he’s not even
willing to be honest with himself and say, yeah, maybe it’s difficult. . . . It’s a problem,
but what’s more of a problem that he wasn’t honest with you, ladies and gentlemen.”
As to Sgt. Clark, Mr. Mosely’s counsel acknowledged that he was a nice guy, but also
said he could have made mistakes and argued that he “did his best to try to swim around
and say things like, well, that’s not exactly what I said when I asked about the slate
being wiped clean and having talked to the prosecutor and understanding that none of
this would be used against [Ms. Kluge],” when testifying about what he had promised
22
Ms. Kluge during the interview. In response, the prosecutor stated that people “think
it sells well to juries to go after law enforcement officers,” and argued that the video-
recording of Ms. Kluge’s interview gave the jury the opportunity “to sort that out that
the defense was falsely accusing [Sgt. Clark] of him being wrong. ” Defense counsel
objected to this statement as a mischaracterization of the evidence, and the court
overruled it stating, “The jury will be guided by the recollection of the evidence as they
recall it.” Again, we do not believe that the prosecutor’s arguments here rose to the
level of misconduct shown in the cases Mr. Mosely cites, and, given the leeway
accorded to prosecutors responding to defense counsel claims, we cannot conclude that
the trial court abused its discretion in overruling Mr. Mosely’s objections to this part
of the prosecution’s closing.
The trial court chastised Mr. Mosely’s counsel, telling him to sit down when he
sought permission to approach the bench to object to the prosecutor ’s statement that
Ms. Kluge had been declared unavailable. During the State ’s rebuttal closing
argument, when Mr. Mosely’s counsel raised an objection, the prosecutor stated in front
of the jury, “I didn’t stand up and interrupt him, your Honor.” The court responded, in
front of the jury, “I understand that,” and then conducted a bench conference outside
the jury’s hearing. The trial court stated to Mr. Mosely’s counsel, “He didn’t interrupt
you. Don’t interrupt him.” Counsel asked the court, “So I’m not allowed to make
objections?,” and the trial court responded, “You do whatever you think is in your
client’s best interest.” Three pages of transcript later, the following exchange occurred:
[DEFENSE COUNSEL]: Objection. Unavailable.
[PROSECUTOR]: They are talking about –
23
[DEFENSE COUNSEL]: Permission to approach?
THE COURT: Sit down. Sit down, Mr. [Defense Counsel]. Sit down.
[DEFENSE COUNSEL]: I need to make a record, Judge.
THE COURT: No. Sit down.
The prosecutor made no further reference to Ms. Kluge’s availability, and the trial court
allowed defense counsel to make a record on the objection after the jury had been
excused from the courtroom to deliberate. When asked what relief Mr. Mosely sought
for the alleged improper reference to the witness’s unavailability, defense counsel
called for a mistrial. Mr. Mosely does not argue that the trial court erred in overruling
the request or in failing to declare a mistrial; rather, he contends that by “chastising”
and “yelling” at counsel when he attempted to approach the bench to argue an objection
and by commanding that he sit down, the trial court “amplified the prejudicial effect
of the State’s remarks.” The written record, of course, does not indicate whether the
trial court actually yelled at defense counsel, and Mr. Mosely did not make this claim
in the motion for new trial. 13 Instead, in the motion for new trial, Mr. Mosely claims
only that it was error for the trial court to “chastise” defense counsel in the jury’s
presence.
13
That our courts do not put much stock in how a trial court’s remarks are characterized on appeal is
reflected in cases such as State v. Thomas, 791 S.W.2d 861, 863 (Mo. App. E.D. 1990) (“Finally,
comments by a judge depend largely upon tone of voice, facial expressions and o ther similar facts
which give content to the trial episodes and the rulings thereon. Since those factors are not reflected
in the cold record on appeal, an appellate court must largely defer to the trial court’s superior vantage
point to appraise the trial situation.”); and State v. Nevills, 530 S.W.2d 52, 54 (Mo. App. E.D. 1975)
(finding trial court’s threat to hold defense counsel in contempt did not constitute plain error, court
also observes, “An appellate court cannot totally reconstruct the atmospher e of a trial and all the
intangible factors that might lead counsel to believe that his client has been prejudiced by a remark of
the court.”).
24
The high standard that is applied to judicial conduct during jury trials has been
articulated in the following way:
Under our system of jury trials, the judge before whom the trial is
conducted has a deep responsibility for the orderly and dignified conduct
of courtroom proceedings. When the issue is one which may imprison the
defendant on trial in a criminal cause, the tension of the courtroom drama
and the human frailties and emotional factors inevitably involved serve
but to make the judge’s task more difficult. Order and decorum must be
maintained. The factual inquiry must be conducted within the issues and
at all times under the applicable rules of law. Even if counsel or others
should be guilty of misconduct the judicial calmness and the dignity and
the self-restraint and obvious impartiality of the judge must always be
maintained and made manifest. The judge must not indicate a belief in
either the guilt or innocence of the accused. Nor may he let such belief
be reflected or even conjectured by the jury in his treatment of either
counsel. We know that juries are inclined to draw conclusions and are
quite sensitive to any indications of the judge’s belief as to the merits of
the issue being tried.
State v. Montgomery, 251 S.W.2d 654, 657 (Mo. 1952). “No paper record, such as we
have in appellate courts, will fully disclose trial atmosphere, or jury mood or sensitivity
to remarks and incidents of doubtful propriety.” Id. Still, we examine the context and
words in each case, understanding that trial judges “should be empowered to clarify
obscurity in issues or evidence, prevent unnecessary delay, and promote the
expeditious, fair and dignified course of trial.” State v. Kennedy, 726 S.W.2d 884, 887-
88 (Mo. App. S.D. 1987) (citations omitted). Where the trial judge ’s comments “were
of such a nature as would reasonably tend to prejudice the minds of the jury against the
defendant and thereby deny him a fair and impartial trial, the verdict cannot stand. ”
State v. Dixon, 463 S.W.2d 783, 785 (Mo. 1971) (citations omitted). “The question
whether appellant’s rights were violated must be determined from the whole record.”
Id. at 785 (citation omitted).
25
Although defense counsel responded to the trial court’s direction that he sit
down by saying that he needed to make a record about the State ’s reference to Ms.
Kluge’s unavailability, when he was later permitted to do so outside of the jury ’s
presence, counsel asked for a mistrial. This request, however, was limited to Mr.
Mosely’s claim that the State’s argument was highly prejudicial. Mr. Mosely made no
argument and sought no relief based on the contention that the trial court ’s direction
that he sit down was prejudicial. This claim was not made until Mr. Mosely ’s motion
for new trial. Because Mr. Mosely first challenged the trial court ’s open-court
admonition in the motion for new trial, this alleged error has not been preserved for
review. See State v. Nevills, 530 S.W.2d 52, 54 (Mo. App. E.D. 1975) (reviewing trial
court’s threat to hold counsel in contempt for plain error because counsel failed to raise
the objection when the comment was made, but noting that a court’s remarks could be
so prejudicial “that their effect is considered ineradicable” and thus may be reviewed
for plain error). Accordingly, we will review this part of point five for plain error.
Rule 30.20.
In State v. Montgomery, 251 S.W.2d at 656-57, the trial court similarly instructed
defense counsel to sit down after the prosecutor had objected to a question posed by
defense counsel in cross-examination and the court had threatened to fine defense
counsel for contempt. There, however, while the supreme court characterized the
statement “[s]it in your chair please” as a “most humiliating and shameful situation”
that “was very prejudicial to the defendant,” other circumstances in the case further
demonstrated the trial court’s “clear animosities.” Id. at 658. As well, the prosecutor
“transgressed the bounds of proper and legitimate arguments” in closing by making
26
intimations, allowed by the court over objection, that he knew of “facts tending to
establish the guilt of the defendant on trial, and which [were] not in evidence, or whic h
for some reason could not be introduced in evidence, or which, if the jury but knew
such facts, would cause them to return a verdict of conviction.” Id. Based on this
record, the supreme court determined that the defendant was not accorded a fair trial ,
thus warranting reversal and remand for a new trial. Id. The court cited State v. Davis,
225 S.W. 707, 710 (Mo. 1920), in which the supreme court similarly reversed a
conviction and remanded for a new trial where the record included more than one
instance “indicating impatience of the court with counsel for the defense. ” These
instances concluded in an exchange resulting in the court fining defense counsel $50
in open court for contempt after counsel had made an objection that was deemed on
appeal not beyond his rights but “which the [trial] court did not permit him to make.”
Id.; see also State v. Hicks, 438 S.W.2d 215, 220-21 (Mo. 1969) (citing multiple
instances of trial court’s “obvious hostility” exhibited toward defense counsel in the
jury’s presence, as well as multiple legal errors, court reverses conviction and remands
for new trial).
In contrast, Mr. Mosely does not argue that the trial court’s remarks or conduct
directed at him or at defense counsel during trial were in any manner improper w ith
the exception of the challenged exchange during closing. We do not believe that the
trial record, examined as a whole, supports the conclusion that the trial court ’s directive
to defense counsel to sit down during closing resulted in the denial of a f air trial for
Mr. Mosely. The objection which immediately preceded the trial court instructing
defense counsel to sit down was related to the prosecutor ’s reference to Ms. Kluge’s
27
unavailability. This matter had been briefed and argued several times before and during
trial, and Mr. Mosely had been given a continuing objection on three separate occasions
to any mention of or indication that Ms. Kluge was unavailable as a witness. 14 It
appears likely that the trial court’s direction to defense counsel to sit down after his
objection, in lieu of a bench discussion, was intended to prevent unnecessary delay or
jury annoyance given that the same objection had already been repeatedly made and
preserved. 15
14
The trial court considered Mr. Mosely’s objection to Ms. Kluge’s unavailability at a pre -trial
conference and overruled that objection, but advised defense counsel that he could brief the matter and
try to persuade the trial court otherwise before her testimony from Mr. Mosely’s first trial was read to
the jury during the second trial. Defense counsel made his legal argument as to the issue and promised
to submit a research brief as soon as possible. Before voir dire, the trial court invited defense couns el
to address any additional matters, and counsel referred to the brief on the witness -unavailability issue
and again argued the matter. The trial court responded by stating, “Well, I think those are good
arguments, and I appreciate you doing all that leg al research, but I’m going to, again, allow [the
prosecutor] to put on his case the way he feels that he’s able to within the laws and the rules of
evidence.”
Mr. Mosely’s counsel then objected to and argued at side bar any mention of Ms. Kluge as
unavailable (1) during voir dire and (2) the State’s direct examination of the undercover state trooper,
(3) after the retired state trooper testified, and (4) before Ms. Kluge’s transcript was read to the jury.
Three times, Mr. Mosely asked for and was granted a continuing objection on this matter. When Mr.
Mosely’s counsel indicated that he needed to reiterate any evidentiary objections at each stage of the
trial and with each witness to make his record, despite the grant of a continuing objection, the trial
court stated that this was not its “understanding of the law.” Still, the trial court allowed the argument
at side bar on unavailability four times before defense counsel raised the issue again in open court and
asked to approach the bench to argue it immediately before the jury retired to deliberate. The venire
panel had been told during voir dire that the parties believed trial would start and conclude the day
after the jury was selected, but was also cautioned that testimony could spill over to an a dditional day.
This is what occurred, and the final challenged exchange between counsel and the trial court took place
at about 2:30 p.m. on the second full day of trial.
This Court stated as recently as 2018 that “[t]he request for a continuing ob jection . . . signifies
the mutual understanding between defense counsel, opposing counsel and the trial court that defense
counsel intends to keep his objection alive throughout the trial.” State v. McWilliams, 564 S.W.3d
618, 626 n.5 (Mo. App. W.D. 2018) (emphasis added) (citation omitted). It was entirely unnecessary
for defense counsel here to repeat the unavailability objection at each different stage of the trial to
properly preserve it for our review. The trial court’s understanding of the law was correct, and Mr.
Mosely’s ability to protect the record was not compromised in any way by the trial court’s refusal to
allow defense counsel to make the argument for a fifth time at the bench just moments before the jury
retired to deliberate. That argument, in any event, was permitted after the jury left the courtroom.
15
The trial court used a white-noise machine during bench conferences and had earlier in the trial
apologized to the jury for the machine’s annoying sound.
28
We do not condone the trial court’s open-court admonishment directing defense
counsel to “sit down” during the prosecution’s closing rebuttal argument. In fact, we
find the statements toward defense counsel unbecoming of a trial judge during a trial.
We would remind trial courts that counsel should not be s ubjected to open correction
or criticism in the jury’s presence when taking steps to protect their clients’ interests.
We do not believe, however, that this single instance, on its own, would have signaled
to the jury that the trial court was clearly hostile to defense counsel or had an opinion
as to guilt or innocence. We do not believe that as a result of this single instance Mr.
Mosely was not afforded a fair trial. We have found numerous cases where appellate
courts have found no reason to reverse a conviction for potentially intemperate trial-
court remarks, and we find no reason to do so here. 16 This isolated statement did not
rise to the level of manifest injustice supporting plain error review or relief.
In addition, we have been unable to find case law, and Mr. Mosely does not cite
any, where a conviction has been reversed because a trial court’s alleged “handling of
16
See, e.g., State v. Stanfield, 1 S.W.2d 834, 835-37 (Mo. 1927) (affirming conviction after finding
trial court’s rebuke of defense counsel proper; counsel, who persisted in questioning witness after
prosecution objection was sustained, was told by the trial court to “[j]ust sit down there and conduct
your examination in a gentlemanly way.”); State v. Teeter, 144 S.W. 445, 447 (Mo. 1912) (analyzing
whether trial court prejudiced the jury against the defendant by stating to defense counsel that he
considered them competent to practice only before justice of the peace, court concludes that criticizing
defense attorneys during progress of trial is not alone cause for overturning the verdict, as the “remarks
did not indicate how [trial court] thought the case ought to be decided.”); State v. Koonce, 731 S.W.2d
431, 441-42 (Mo. App. E.D. 1987) (finding no prejudice or plain error in three statements made in
open court to defense counsel, court lauds trial court for showing great patience with defense counsel
and sets forth “factors used to determine the propriety of any comment” including “whether it was
volunteered by the trial judge, was not made in response to an objection as part of the court’s ruling,
was made in the presence of the jury, or could have been construed by the jury to prejud ice the
defendant.”); State v. Hudson, 950 S.W.2d 543, 548 (Mo. App. W.D. 1965) (finding that trial court’s
use within jury’s hearing of the word “ridiculous” in characterizing defense counsel’s cross -
examination did not rise to level of “manifest injustic e” under plain-error review; also noting that trial
court “neither expressed an opinion on the evidence nor commented on [defendant’s] guilt or
innocence. Trial judges are not stone statues. When trial counsel propound irrelevant or misleading
questions to a witness to affect absurdity, reaction by the trial judge is understandable”; and observing,
“The trial court’s comments were directed at controlling the court proceedings.”).
29
a defense objection amplified the prejudice” of a prosecutor’s closing arguments,
particularly where, as here, those closing arguments were not improper. Because we
have determined that the trial court did not abuse its discretion in overruling Mr.
Mosely’s objections to the prosecutor’s rebuttal argument, we do not find any
prejudice, amplified or otherwise, to Mr. Mosely. This point is denied.
Fifth Amendment Right
In the sixth and final point, Mr. Mosely argues that the trial court erred by not
sua sponte declaring a mistrial when the State made “an improper comment on his right
to remain silent.” The prosecutor’s statement about evidence coming from the witness
stand is set forth above. It does not in any way refer to or implicate Mr. Mosely ’s right
to remain silent. Mr. Mosely made no objection at trial when the statement was made
and did not raise this matter in the motion for new trial. Accordingly, we may review
it, if at all, for plain error. “Plain error relief as to closing argument should rarely be
granted and is generally denied without explanation. State v. Barton, 552 S.W.3d 583,
589 (Mo. App. W.D. 2018). “This is because the absence of an objection during
arguments means that any trial court intervention would be uninvited and may cause
increased error.” Id. We may reverse for improper closing argument on plain-error
review only “when it is established that the argument had a decisive effect on the
outcome of trial and amounts to manifest injustice.” Id. (citation omitted). Mr. Mosely
has not shown that the statement, an isolated comment on all of defense counsel ’s
remarks about the evidence, had a decisive effect on the outcome. This point is denied.
30
Conclusion
Finding no error in the trial court’s rulings, we affirm.
/s/ Thomas H. Newton
Thomas H. Newton, Judge
Cynthia L. Martin, P.J., and Gary D. Witt, J. concur.
31