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State v. Vivone7/23/1999
ssion of such evidence resulted in manifest inJustice or a miscarriage of Justice. Finster, 985 S.W.2d at 888. Clearly, no manifest inJustice or miscarriage of Justice resulted from Dr. Logan's testimony.
We hasten to add that our decision is not based solely on the unique circumstances of this case, i.e., the summary of trial counsel's testimony found in the post-conviction appeal. Vivone, 857 S.W.2d at 493. On the contrary, State v. Hamilton, 892 S.W.2d 774 (Mo.App. 1995), leads to the same result.
In Hamilton, the State presented the expert testimony of an obstetrician/gynecologist. During the expert's testimony, the prosecutor asked the witness if he believed an alleged rape and sodomy victim's story, which she had disclosed to him during a physical examination performed by the doctor. Initially, defense counsel objected to the question, arguing that the prosecutor was calling for the expert to give an opinion he was not qualified to give. After the prosecutor offered a short argument against the objection, defense counsel withdrew the objection before the trial Judge uttered a word. The doctor answered the prosecutor's question by stating, "As far as I could tell, the girl was telling the truth." Id. at 777. Later in the expert's testimony, the prosecutor again asked the doctor whether he believed a different alleged rape and sodomy victim's account of events. The doctor answered, "In my opinion, yes." Id. at 778. This time, defense counsel did not object to either the question or the answer.
On appeal, the defendant claimed that the trial court plainly erred in allowing the expert witness to state his opinion of the credibility of the two victims' stories. In denying plain error relief, this court stated:
"We find no case, and Appellant cites none, where an appellate court convicted a trial court of plain error in failing to exclude evidence after an accused withdrew his objection to it. Reversal for plain error in such circumstances would enable an accused to create a dilemma for a trial court, rendering the court vulnerable to reversal regardless of which way it ruled.
If the trial court received the evidence, the accused could, as Appellant has done here, claim receipt of the evidence was plain error, requiring reversal. If the trial court excluded the evidence, the accused could contend on appeal that the trial court improperly interfered by barring evidence which the accused consciously chose to allow the jury to hear, thereby requiring reversal. To state the scenario is to expose its potential for mischief." Id. at 781.
Although this case does not present us with the problem of defense counsel entering an objection only to withdraw it before the trial court can rule on it, we believe the trial court was presented with the same dilemma here as that described in Hamilton. Therefore, Hamilton confirms our belief that no manifest inJustice or miscarriage of Justice resulted from the reception of Dr. Logan's testimony in this case. Having found no "exceptional circumstances warranting plain error relief," we deny Defendant's third point.
Point IV: Request for Plain Error Review of Closing Argument
During his initial closing remarks, the prosecutor told the jury:
"Let me tell you what's important, is that at approximately 12:40 on the same day this defendant asked for Scotty Penner [policeman] to come back and said 'I need to talk to someone about this. I want to let you know what happened.'"
Later, in his final argument to the jury, the prosecutor said:
"Ladies and gentlemen, just very quickly, why all the time--well he tries to clean up. He admitted that. . .
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