State v. Bronaugh

571 S.W.2d 788, 1978 Mo. App. LEXIS 2686

• Court: Missouri Court of Appeals
• Decided: September 12, 1978
• Docket: No. 39448
• Status: Published

Opinions

CRIST, Judge.

Defendant appeals his conviction of robbery in the first degree by means of a dangerous and deadly weapon and carrying a concealed weapon. He does not challenge the sufficiency of the evidence.

Defendant raises two points on appeal. He contends that certain statements made by the prosecutor in final argument constitute an impermissible reference to the defendant’s failure to testify and an impermissible reference to the failure of defendant to produce evidence of his good character. We disagree.

The defendant did not testify at the trial. At defendant’s request the trial court gave the following instruction to the jury:

“Under the law, a defendant has the right not to testify. No presumption of guilt may be raised and no inference of any kind may be raised from the fact that the defendant did not testify.”

The prosecutor made the following remarks during his closing argument:

“Its not easy to serve as a juror on a criminal case when you come down to this point cause in exactly forty minutes the case is going to be given to you twelve citizens to make a judgment. But, this is your guide here (indicating). You’re not sitting as judges in one sense. You’re not to judge Calvin Bronaugh as an individual cause you haven’t heard any evidence. You haven’t heard anything to permit you to judge him as a human being.”

Defendant’s counsel made timely objection that such statements called the jury’s attention to the fact that ,the defendant, Calvin Bronaugh did not testify.

The foregoing statements of the prosecutor did not violate defendant’s federally guaranteed rights of not testifying under the Fifth Amendment to the Constitution of the United States, nor were they violative of Sec. 546.270, V.A.M.S. (Supreme Court Rule 26.08, V.A.M.R.). State v. Hutchinson, 458 S.W.2d 553 (Mo. banc 1970). The statements did not amount to either a direct or indirect reference. Eichelberger v. State, 524 S.W.2d 890 (Mo. App.1975). Even if the statements can be considered an indirect reference to defendant’s failure to testify, the giving of the above quoted instruction would render any error harmless.

Defendant further claims that the above quoted remarks of the prosecutor were an impermissible reference to the failure of defendant to produce evidence of his good character. No such trial objection was raised by defendant, nor was this contention contained in his motion for a new trial. A study of the record, briefs and cases cited revealed that no miscarriage of justice would result in declining to review defendant’s second point under plain error Rule 27.20(c). State v. Toney, 537 S.W.2d 586 (Mo.App.1976). Accordingly, this second point is ruled against the defendant.

Judgment of conviction affirmed.

SMITH, P. J., concurs. McMILLIAN, J., dissents in separate opinion.