State v. Horne

691 S.W.2d 402, 1985 Mo. App. LEXIS 4025
CourtMissouri Court of Appeals
DecidedApril 16, 1985
DocketNo. 48903
StatusPublished
Cited by13 cases

This text of 691 S.W.2d 402 (State v. Horne) 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. Horne, 691 S.W.2d 402, 1985 Mo. App. LEXIS 4025 (Mo. Ct. App. 1985).

Opinion

KAROHL, Judge.

Defendant Sterling Horne was charged with first degree robbery, § 569.020 RSMo 1978, and first degree assault § 565.050 RSMo 1978. A jury found defendant guilty of the included offense of second degree robbery. The court declared a mistrial on the assault charge because the jury was unable to reach a verdict. Defendant, found to be a persistent offender, was sentenced to twenty-two years imprisonment. In his appeal defendant contends preserved error in the exclusion of part of defendant’s evidence and plain error in permitting the state to make reference to defendant’s failure to testify in closing argument. We affirm.

Defendant does not question that the state made a submissible case with the following evidence. About noon on September 29, 1983 defendant entered Morris Mathis’ Print Shop in the city of St. Louis. Defendant had a typewriter that he offered to sell Mathis. When Mathis said he “just wasn’t interested in it” defendant asked Mathis for his wallet. Mathis reached for his wallet and “saw a hand come up as if he was going to strike me over the head.” Defendant had a pipe or similar object in hand which Mathis was able to grab and throw out a window. The defendant beat and “continually hammered” on Mathis, took his wallet and then left. Mathis had written down the license number of defendant’s car when he first arrived with three others. Bruce Coad witnessed a person running out of Mathis’ shop carrying a typewriter saying “that the guy didn’t want to buy it.” He saw that person take off in an orange Pontiac LeMans and heard Mathis “yelling next door.” The police arrived and found a license number XEC-923 “on one of the desks in the office.” The vehicle license number was registered to the defendant.

Mathis identified defendant on three occasions. While in the hospital he identified defendant^ in a photo display. Later at a police station he identified defendant in a lineup. Finally, his identification at trial was unequivocal. After the lineup at the police station Mathis was given a photo display including a photograph of George Crocket, the person defendant accused of committing the crimes. Mathis identified no one in the second photo display. At trial defendant and George Crocket were presented together before Mathis and the jury with Crocket wearing defendant’s purple sweater. Mathis identified the defendant as “the man who beat and robbed” him.

The defendant did not testify during the trial. His version of the events was presented to the jury during cross-examination of state’s witness Detective Atherton. Defendant’s counsel asked Detective Ath-erton to read the defendant’s statement which he gave to the police after his arrest. The statement was read verbatim. Summarized defendant’s statement given to the police was that George Crocket offered to pay him $10.00 to transport and thereby help Crocket sell a typewriter. Diane and John Black were also in the car when defendant took Crocket to the location of the crime. They waited in the car while Crock-[404]*404et went in the store and returned ten minutes later explaining that he could not sell it. Defendant then drove Mr. Crocket to a second location where the typewriter was sold and Crocket paid defendant $10.00. He learned of the robbery and the involvement of his automobile when he was arrested. Defendant’s statement caused Detective Atherton to present the photo lineup containing a picture of George Crocket to Mr. Mathis.

Defendant advised the trial court that he planned to call Crocket as a defense witness. The state’s objection was that it was improper to call Crocket because the only purpose would be to put in front of the jury the improper inference that Mr. Crocket would testify favorably for the defendant. The trial court heard counsel for Crocket [in an unrelated matter] who explained that Crocket “does not want to say anything”, “is not wanting to testify”, and “is not wishing to testify.” It is undisputed that Crocket’s testimony was relevant and material because he was present at the time of the events. The typewriter was Crocket’s. The only doubt is whether or not Crocket would invoke the privilege. This could have been determined out of the hearing of the jury. State v. Wright, 582 S.W.2d 275, 283 (Mo. banc 1979). It is possible that Crocket may have testified to some material matters although invoking the privilege as to others. Wright at 283. It is not improper for the court to require a witness to claim the privilege against self-incrimination in the presence of the jury. Wright at 280. Further, “restricting a party’s right to call a witness to the stand upon the prediction of the other party that the witness will refuse to testify is tenuous and presents a real danger to the truth seeking process at trials.” Wright at 281. We are bound by the principles stated in Wright. However, we can not foresee a case where the court would make a witness take the stand solely to require that the privilege be asserted before the jury. The possible or probable prejudice would appear to outweigh any useful purpose. All that is required is that the trial court make an adequate record that the privilege will be asserted by some reliable and certain means. Here the prediction was by the witness’ counsel but it was never developed beyond the level of prediction.

Defendant does not now argue error in sustaining the prosecution’s objection to Crocket’s testimony. It is because Crocket was thereby made unavailable that defendant intended to call Donald Jones to testify to a statement made by Crocket to Jones. The trial court sustained the prosecutor’s objections to the testimony of Jones on grounds of hearsay. The defendant made an offer of proof and contends that the statement of Crocket constitutes a statement against penal interests which is admissible as a recognized exception to the hearsay rule. To be a declaration against interest the declaration must have related a fact against the apparent pecuniary or proprietary or penal interest of the declarant when his statement was made. State v. Bartz, 544 S.W.2d 86, 89 (Mo.App.1976). The interest of the declarant must be so apparent as to have been presumably in the declarant’s mind when the declaration was made. Id.

The statement that Jones was prepared to testify Crocket made to him was, “I think I’m going to have to knock Spoon because he is going to tell the police about me doing that robbery on Olive.” 1 We find no error in refusing to allow Donald Jones to testify that Crocket made this statement to him. In reviewing this point we assume that the statement of Crocket was made. Crocket’s statement does not say that he was the robber. It says only that the defendant is going to tell the police that Crocket committed the robbery. The statement is therefore not an acknowledgement by Crocket that Crocket committed the crime and does not fall within the penal interest exception. Further, “[a]s a general rule, third-party declarations against penal interests are not admissible in criminal proceedings.” State v. Jones, 671 S.W.2d [405]*405296, 297 (Mo.App.1984). The Missouri Supreme Court in State v. Turner, 623 S.W.2d 4 (Mo. banc 1981) held that such statements against penal interests are admissible only where “substantial indicia of reliability appear and declarant’s complicity if true would exonerate the accused.” Id. at 9.

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Bluebook (online)
691 S.W.2d 402, 1985 Mo. App. LEXIS 4025, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-horne-moctapp-1985.