State v. Dudley

809 S.W.2d 40, 1991 Mo. App. LEXIS 366, 1991 WL 30397
CourtMissouri Court of Appeals
DecidedMarch 12, 1991
DocketWD 42224
StatusPublished
Cited by7 cases

This text of 809 S.W.2d 40 (State v. Dudley) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Dudley, 809 S.W.2d 40, 1991 Mo. App. LEXIS 366, 1991 WL 30397 (Mo. Ct. App. 1991).

Opinion

NUGENT, Chief Judge.

Defendant Alvin Dudley appeals his conviction of one count of forcible sodomy, one count of felonious restraint and one count of armed criminal action. We affirm the convictions.

On this appeal, defendant Dudley raises three points: first, error in overruling defendant’s objection to the comment of the prosecuting attorney in closing argument regarding a missing witness; second, insufficiency of the evidence; and, third, denial of defendant’s Rule 29.15 motion alleging ineffective assistance of counsel.

Viewed in the light most favorable to the verdicts, the record reveals the following facts: On the morning of December 13, 1987, Caroline Holman accompanied defendant Alvin Dudley and another man named Lloyd to Dudley’s house. In the house, the three smoked some crack cocaine. Shortly, Lloyd left, leaving Ms. Holman with defendant Dudley. Soon the defendant locked the door and began a day and night long ordeal in which he beat Ms. Holman’s head and face with a padlock and later with an iron pipe and forced her to sodomize him. At times, the defendant tied her to the bed, and at all times he repeated his threats to kill her. When she tried to escape, he again beat her with the pipe and told her that he was going to kill her during the night.

Eventually, defendant carried Ms. Holman upstairs and let her sleep in his bed. Later he awakened her and told her that [42]*42soon his mother would come home; he commanded her to say nothing. When the defendant’s mother arrived, she looked at Ms. Holman in the bed and told the defendant that the young woman needed to go to the hospital. She put ice on Ms. Holman's face and then departed.

Ms. Holman.fell asleep again, only to be awakened at a later time by defendant’s inserting his penis into her vagina. She drifted in and out of sleep until she awoke the next morning and found the defendant lying motionless on the bed. She ran to the neighbor’s house, where she called the police, who took her to the hospital suffering with severe bruises and swelling about her face and eyes, various cuts, scrapes and lacerations.

The defendant did not testify and adduced no evidence in his own defense. The jury convicted him of sodomy, armed criminal action, and felonious restraint.

After sentencing, defendant Dudley filed a pro se motion to vacate the judgment and sentence under Rule 29.15, Missouri Rules of Court. The court denied the motion because it failed to state any grounds relief. Later, however, the court sustained the defendant’s motion to set aside that order, reinstated the defendant’s pro se motion and appointed an appellate public defender to represent him. Thereafter, the appellate defender filed an unverified amended motion on the defendant’s behalf. The court denied that motion without an evidentiary hearing.

Defendant Dudley first complains that the trial court erred in overruling his counsel’s objection to the prosecutor’s closing argument question:

I’d ask Mr. Gipson [defense counsel] a question, where is Mrs. Dudley. If this is a lie, folks, is there a mother in the world who would not be in here saying, “It’s not true?”

Defendant claims that the prosecutor’s comments created an impermissible adverse inference regarding defendant’s failure to call Mrs. Dudley as a witness inasmuch as the state had equal access to her. Thus, defendant claims, the prosecution improperly attempted to shift the burden of proof to the defendant and, finally, commented on facts not in evidence, all of which denied defendant his right to due process and a fair trial.

In State v. Webster, 659 S.W.2d 286, 288 (Mo.App.1983), the court held that in a criminal case the prosecution may not argue an adverse inference if the witness appears equally available to the state and to the defendant. The trial court can resolve the question of the absent witness’ availability by considering three factors: first, one party’s superior ability to know or identify the witness; second, the nature of the testimony one can expect of the witness; third, the relationship between the particular party and the witness that might indicate whether the witness would likely testify more favorably for one party than the other. See State v. Valentine, 587 S.W.2d 859, 864-65 (Mo.1979) (en banc).

The defendant contends that, where the record shows a witness “equally available” to both sides, his absence will not support an adverse inference arising from a party’s failure to call that witness. State v. Hemphill, 721 S.W.2d 86, 89 (Mo.App.1986); State v. Farrell, 682 S.W.2d 118, 119 (Mo.App.1984), citing State v. Moore, 620 S.W.2d 370, 373 (Mo.1981) (en banc).

We hasten to note that where the question of adverse inference arises, the trial court has considerable discretion in allowing or rejecting the prosecutor’s argument. In such instances, an appellate court will not convict a trial judge of an abuse of discretion unless it finds the prosecutor’s argument “plainly unwarranted.” State v. Moore, 620 S.W.2d 370 (Mo.1981) (en banc); State v. Welsh, 775 S.W.2d 557, 560 (Mo.App.1989); and State v. Robinson, 752 S.W.2d 949, 953 (Mo.App.1988). The appellate court will reverse only where the defendant sustains the burden of showing that, to the prejudice of the defendant, the prosecutor’s argument had a decisive effect on the jury’s verdict. State v. Wood, 596 S.W.2d 394, 403 (Mo.1980) (en banc); State v. Keil, 794 S.W.2d 289, 293 (Mo.App.1990).

Where a defendant fails to call an available witness whom one might reason[43]*43ably expect to testify in defendant’s favor, the prosecuting attorney may comment on that failure. State v. Moore, supra. The defendant’s failure to call such a witness tends to create the logical inference that defendant did not call the witness because his testimony would damage rather than assist the defense. Id.; State v. Murphy, 796 S.W.2d 429, 432 (Mo.App.1980); and State v. Robinson, supra. In addition, if the facts make clear that the witness’ testimony would favor the defendant, the court may justifiably find the witness one “peculiarly available” to the defendant, thus giving rise to the adverse inference. State v. Moore, supra, at 374; State v. Robinson, supra.

Essentially, the prosecutor in this case argued that the failure of the defendant to call his own mother to testify on his behalf supported the inference that, if called, she would not testify favorably to the defendant. Implicit in that argument rests the assumption that the close family relationship between mother and son would make the mother more available to the defendant as a witness than to the state, a perfectly reasonable and obvious conclusion based on universal human experience. Our courts have implicitly adopted that conclusion. In State v. Clark, 711 S.W.2d 928

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Related

Dudley v. State
254 S.W.3d 109 (Missouri Court of Appeals, 2008)
State v. Fears
217 S.W.3d 323 (Missouri Court of Appeals, 2007)
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4 S.W.3d 652 (Missouri Court of Appeals, 1999)
State v. Neil
869 S.W.2d 734 (Supreme Court of Missouri, 1994)
State v. Jackson
865 S.W.2d 678 (Missouri Court of Appeals, 1993)

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Bluebook (online)
809 S.W.2d 40, 1991 Mo. App. LEXIS 366, 1991 WL 30397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dudley-moctapp-1991.