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State v. Hibler6/27/2000
re" to impose a jail sentence, never suggesting the return of a particular verdict. In any event, the trial court's reference to the range of sentence in its explanatory instruction was necessary to an explanation of the inconsistency in the jury's verdict. Such a reference was in keeping with the giving of MAI 2.06 and its Notes on Use, which instruction was recommended by the court in Peters, 855 S.W.2d at 349, as a model instruction. As such, we cannot find that the non-MAI-CR explanatory instruction given by the trial court unduly highlighted the range of punishment, rendering it impartial, or in any way confused or misled the jury.
Point denied.
III.
In Point III, the appellant claims:
The trial court erred in denying movant's objection to the State's introduction into evidence movant's failure to call forth a witness and allowing the State to comment on proposed testimony of witness as proof of guilt of movant in violation of movant's constitutional rights, both state and federal.
(Emphasis added.) The appellant admits in his brief that he failed to include this issue in his motion for new trial, as required by Rule 29.11(d), and that as such, he is limited to plain error review under Rule 30.20, the standard for which is set forth, supra.
Contrary to the appellant's point relied on, we would initially note that the challenged comments of the prosecutor in closing argument were not evidence. State v. Madison, 997 S.W.2d 16, 21 (Mo. banc 1999); State v. Kenley, 952 S.W.2d 250, 270 (Mo. banc 1997). Logically then his claim with respect to plain error for the "introduction" of evidence has no merit. We would also note that in his argument on this point, he does not discuss error with respect to the trial court's "introduction" of evidence, as claimed in his point relied on, but in the context of plain error for the prosecutor's arguing matters in closing argument which were not in evidence, for which he cites one case as authority. This violates Missouri Rule of Criminal Procedure 30.06(c) (2000), which provides that the "statement of facts, points relied on, argument and appendix shall be prepared as provided in Rule 84.04." In this respect, Rule 84.04(e) provides, in pertinent part: "The argument shall be limited to those errors included in the 'Points Relied On.'" As such, we need not review the appellant's claim that the prosecutor was arguing matters outside the evidence. Missouri Rule of Criminal Procedure 30.06(c) (2000); State v. Evans, 992 S.W.2d 275, 286 (Mo. App. 1999). However, for the reasons discussed, infra, even if we were to gratuitously review the appellant's claim for plain error, it would still fail. See State v. Gilpin, 954 S.W.2d 570, 580 (Mo. App. 1997) (quoting State v. Rehberg, 919 S.W.2d 543, 548 (Mo. App. 1995)) (holding that in criminal cases "'it is preferable to decide cases on the merits to avoid punishing appellant for the shortcomings of appellate counsel'").
Although the appellant attempts to characterize the prosecutor's challenged comments in closing argument as comments on matters outside the record, that is an improper characterization of what the State was actually attempting to do, based on our review of the record. A fair reading of the record would indicate that what the prosecutor was asking the jury to do was draw an adverse inference from the fact that the appellant's father did not testify at trial in his defense. As to the propriety of the prosecutor doing this, the Missouri Supreme Court held in State v. Neil, 869 S.W.2d 734 (Mo. banc 1994):
If a defendant fails to call an available witness whom one might reasonably expect to testify in the defendant's favor, th
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