State v. Fox

521 S.W.2d 507, 1975 Mo. App. LEXIS 1922
CourtMissouri Court of Appeals
DecidedMarch 24, 1975
DocketNo. 9715
StatusPublished
Cited by8 cases

This text of 521 S.W.2d 507 (State v. Fox) 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. Fox, 521 S.W.2d 507, 1975 Mo. App. LEXIS 1922 (Mo. Ct. App. 1975).

Opinion

BILLINGS, Chief Judge.

A Butler County jury convicted appellant Frank Fox of armed robbery (§ 560.-135 RSMo 1969, V.A.M.S.) and fixed his punishment at five years imprisonment in the Department of Corrections. In this appeal he contends reversible error was committed in his trial (a) by the admission of testimony of a deputy sheriff that he failed to reply to an inquiry by the officer and (b) in the giving of the state’s verdict directing instruction. We affirm.

Mrs. Faye Chambers was the manager of A’s Fish House in Poplar Bluff, and she resided in Inman Acres which is located east of that city. Her residence is a short distance south of Highway 60 and east of the El Rancho Cafe. The Poplar Bluff Airport is a mile or so farther east on Highway 60.

On the night of May 11, 1973, Mrs. Chambers and her 14-year-old daughter left A’s Fish House about 10:30 p. m. in Mrs. Chambers’ automobile. Mrs. Chambers had $20.00 in her purse and a red money bag containing the approximate sum of $800.00 in money and checks. The contents of the money bag represented receipts from A’s Fish House which was owned by A. D. Luster. When Mrs. Chambers drove her car into her driveway about 11:00 p. m. she saw a man standing next to the driveway. She stopped the car, and as her daughter got out of the vehicle the man, subsequently identified as the defendant, got into the car and pointed a derringer pistol at Mrs. Chambers. He ordered her out of the vehicle and told her to leave her purse and “go out back and run across the field.”

The defendant appeared at the El Ran-cho Cafe between 11:15 p. m. and 11:30 p. m. desiring to use the telephone to call a taxicab. After 20 minutes the defendant paid a man at the cafe to drive him to the Palace Lounge in Poplar Bluff.

Deputy Sheriff Kimbrow obtained a description of the bandit from Mrs. Chambers shortly after the robbery. In his investigation the officer went to the El Ran-cho Cafe and was there advised of the defendant’s arrival at that establishment and his having been transported to the Palace Lounge. Deputy Kimbrow arrested the defendant at the Palace Lounge a few minutes after midnight and advised him of his Miranda rights which defendant said he understood. The defendant’s trousers and shoes were wet and muddy.

Initially, the defendant made no statements to the deputy sheriff, but en route to the scene of the robbery the defendant “made a lot of statements.” Among other things the defendant told the officer that he had been at the El Rancho Cafe earlier and that he had come to that establishment from the airport to use the telephone. The officer then asked the defendant “[W]hy he didn’t use the one at the airport or at the Deer Run Cafe where there is an outside pay phone. He didn’t answer.” The italicized portion of the officer’s testimony is attacked by the defendant as an improper comment on his exercise of his right to remain silent, which should have resulted in his request for a mistrial in being granted by the lower court.

The defendant has cited cases which recognize and follow the settled law of this state that a defendant’s silence when charges are judicially made against him or he is under arrest cannot be shown against him. State v. Elmore, 467 S.W.2d 915 (Mo.1971); State v. Stuart, 456 S.W.2d 19 (Mo. banc 1970) Helton v. United States, 221 F.2d 338 (5th Cir. 1955). In support of his point the defendant strenuously contends that since he was in custody of the officer he was under no duty to speak and that the officer’s testimony “He didn’t answer” would give rise to inferences that he had no explanation to the officer’s inquiry; that defendant’s explanation as to why he was at the El Rancho Cafe was not true; and that since he had lied he had something to hide and must be guilty.

We have carefully examined the record concerning defendant’s point and have con-[510]*510eluded the trial court did not err in denying his motion for a mistrial. When the defendant was arrested by the officer at the Palace Lounge the warnings required by Miranda were read to the defendant and he stated he understood them. Without objection, the officer was asked: “Q. Did the defendant, Frank Fox, make any statements to you after you arrested him?” The officer testified: “A: Not at that time.”

En route to the Chambers residence the defendant did not exercise his right to remain silent, but on the contrary “made a lot of statements.” The defendant volunteered the reason why he appeared at the El Rancho Cafe, and the officer’s inquiry was not an accusatory question about a crime as would require the invocation of the privilege to remain silent in the face of an accusation. This is not the situation where the defendant stood mute in the face of an accusation because the record does not show an accusation that the defendant committed the armed robbery. Further, as we have noted, the defendant did not stand mute for he was not silent and freely volunteered information concerning his whereabouts earlier in the night, why he was at the Palace Lounge, and where he was going. The transcript does not reveal any effort on the part of the arresting officer to confront the defendant with any accusation of guilt or with any incriminating evidence.

Without considering whether the defendant’s failure to object to the earlier testimony of the officer that the defendant did not make any statements immediately following his arrest was a waiver of objections to the testimony that followed, we are of the opinion that this is not a case where an accused remains silent in the face of a charge of guilt made under circumstances calling imperatively for an admission or denial and testimony as to the defendant’s silence would be improper. No inference of guilt of the crime of armed robbery flows from the deputy’s volunteered comment that the defendant did not answer his inquiry concerning the use of a particular telephone. In rejecting a similar contention the court in State v. Starks, 459 S.W.2d 249, 252 (Mo.1970), said:

“Miranda lays down the mandate that at the trial the prosecution may not use the fact that the defendant ‘stood mute’ or claimed his privilege to remain silent in the face of accusation. As stated in State v. Battles, supra, [357 Mo. 1223, 212 S.W.2d 753, 757 (1948)], ‘All of the cases where we have held that it was error to prove that the arrested person remained silent were cases where the persons were asked about the alleged crime or where some one made a statement about the alleged crime in the presence of the accused.’ (The same holds true in all of the cases subsequent to Battles.) In Battles the appellant was not asked about the crime nor was anything said about the crime in his presence by anyone, as a result of which the admission in evidence of this question and answer was upheld: ‘Q. Did the defendant make any statement there about anything? A. No, sir.’”

We also observe that following the defendant’s general objection to the italicized portion of the officer’s testimony the only relief sought was that of a mistrial. The declaration of a mistrial is a drastic remedy which should only be exercised when the prejudice is so great that it cannot be removed by other means. State v. Duncan, 499 S.W.2d 476

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Bluebook (online)
521 S.W.2d 507, 1975 Mo. App. LEXIS 1922, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fox-moctapp-1975.