State v. Moore

620 S.W.2d 370, 1981 Mo. LEXIS 399

• Court: Supreme Court of Missouri
• Decided: September 8, 1981
• Docket: 62414
• Status: Published

Opinions

HIGGINS, Judge.

A jury convicted Moses Moore of sodomy and rape and fixed his punishment at twenty-five years for each offense. Judgment was rendered accordingly with the sentences to be served concurrently. The Court of Appeals, Western District, affirmed. The case was transferred by this Court to consider further the propriety of the prosecuting attorney’s remarks in closing argument concerning defendant’s failure to present corroborative witnesses. Affirmed.

Sufficiency of the evidence is not in question. The victim testified that on April 4, 1978, defendant, whom she had known for about nine years, and another person, approached her outside a lounge and asked her for a ride home. When they arrived at defendant’s house she checked her tires and found that one was losing air; the spare tire was flat. She noticed the house of a family related to her sister. After telephoning her husband from that house she went to defendant’s house to borrow cab fare. Charles Johnson met her on the porch, grabbed her arm, told her he had been “liking her for a long time” (she had known him for several years), hit her in the side of the face when she resisted, and pulled her into the house. He took her to the bedroom where he forced her to perform fellatio and have sexual intercourse with him. Following this, Darrell Smith, also known to the victim, came into the room and made her perform fellatio. The other person with defendant, later identified as Joe Gregory, then came in, expressed shock at what was happening, stated he had no part in it, and left the room. Defendant entered, forced the victim to perform fellatio on him, and then had intercourse with her from behind while he forced her to perform fellatio on Darrell Smith. Defendant continued to have intercourse with her several times that night. Early the next morning, Joe Gregory helped the victim leave. She went to her sister’s house, where her mother had spent the night, and they called the police.

Defendant was arrested that day. He was found by the police in the attic of his house.

Defendant testified that he had a party or neighborhood “get-together” the evening of April 4, 1978. He stated that among those at the party were Charles Johnson, Darrell Smith, Joe Gregory and his date, Billy Kidd, Cynthia Smith, and a woman named Faye. The victim drank, smoked marijuana, and danced during the evening. He later saw her go into the bedroom with Charles Johnson. Sometime thereafter he went through the bedroom on his way to the bathroom. The victim was lying naked on the bed and invited him to have sexual intercourse with her. He acknowledged having sexual intercourse with her but denied anything more. He explained his presence in the attic when the police arrested him by claiming he was hiding because of outstanding traffic warrants for not paying a $185.00 fine.

In closing argument the prosecutor made the following statements:

“We had a party.” “It was a big party.” But where are the guests?

Who came in here and verified the party?

MR. ROGERS: (Defense Counsel) Object to that, Your Honor. The defendant stated the names of those people. They’re equally available to the State. THE COURT: Overruled.

MR. STIGALL: (Prosecutor) He says these people are available to the State. These are the defendant’s friends.

MR. ROGERS: (Defense Counsel) I’ll object to that, Your Honor. The evidence is that Billy Kidd is related to the alleged victim.

THE COURT: This is argument; overruled.

MR. STIGALL: (Prosecutor) These are his friends. He lives with them, plays with them, has parties with them. Nobody came in here to verify that party, except this defendant.

But then maybe he might think, “Well, you people don’t believe the party, but so what do I say then? She consented. That’s how she got the sperm inside of her. She consented to this.”

Did anybody come in here and verify the consent? Did any of his friends come in here and verify that? No.

* * * * * *

And we don’t even know now what happened, because nobody came in here to explain the party.

Now Mr. Rogers will have an opportunity, and I hope he’s going to rebut some of this. Maybe he’s going to tell you why there wasn’t anybody in here to explain that party, and why there wasn’t anybody in here to explain this consent, and then I have closing again. Thank you.

* * * * ⅜ if!

Why didn’t they bring in somebody to tell us about this party, and what happened? Why didn’t they bring in Billy, the kid?

MR. ROGERS: (Defense Counsel) I object to that, Your Honor. That witness is peculiarly available to the State, being a relative, by marriage, of the alleged victim.

THE COURT: Overruled.

MR. STIGALL: (Prosecutor) These are his friends. Why didn’t he bring in anybody—

MR. ROGERS: (Defense Counsel) May we approach the bench?

MR. STIGALL: (Prosecutor) — to verify this party.

MR. ROGERS: (Defense Counsel) May we approach the bench?

(Counsel approached the bench and the following proceedings were out of the hearing of the jury:)

MR. ROGERS: (Defense Counsel) I object, Your Honor, and move that the jury be instructed to disregard that last comment of counsel for the State on the grounds that the individuals at the party, Charles Johnson, Darrell Smith, defendants in this crime, have a Fifth Amendment right not to testify. Counsel for the State is aware of that right, and further that Joseph Gregory, at the last trial, did advise the Court that he intended to exercise his Fifth Amendment right not to testify. Counsel for the State is therefore commenting upon the rights exercised by these persons of their Fifth Amendment rights, and I ask that the jury be instructed to disregard the comments of counsel.

THE COURT: Overruled, and I might also make this observation. There were other people there, that you’ve not mentioned now, that were friends of this particular defendant.

MR. ROGERS: (Defense Counsel) There is only one other, Your Honor, and the testimony is that she is currently in California.

THE COURT: There were others as well.

MR. ROGERS: (Defense Counsel) That he didn’t even know.

THE COURT: Know then. Overruled. (The following proceedings were in the presence and hearing of the jury:)

MR. STIGALL: (Prosecutor) Where are these people and why didn’t they come in here and tell you they were there? Where is this one little girl — and I always lose that photograph — the one on the defendant’s steps? Where is she?

MR. ROGERS: (Defense Counsel) I’ll object to that, Your Honor. That misstates the evidence. The evidence is that she’s currently in California.

THE COURT: I don’t think he’s misstated any evidence yet. He’s just asking where she is. Overruled.

MR. STIGALL: (Prosecutor) Where is this little girl that had known this defendant, lives in the neighborhood, and he doesn’t know her last name? Where is she today? Where is Cynthia? Where’s Faye?

MR. ROGERS: (Defense Counsel) That is Faye, Your Honor.

MR. STIGALL: (Prosecutor) Okay, where is she then, and where’s Billy, the kid? None of them are in here to verify this party. I join with Rogers. I wonder what happened out there too.

Not one of them came in here and backed this defendant up. And he asked you to speculate what happened. I don’t want you to speculate.

MR. ROGERS: (Defense Counsel) I object to that as misstating my argument. I told them they couldn’t speculate.

THE COURT: The jury will remember what the argument was.

MR. STIGALL: (Prosecutor) This man would have you believe it was all fun and games on the night of April the 4th. The only game out there was which one was first, and the only people having fun was this defendant and the other two.

And this party just goes out the window when there’s nobody here to back it up; nobody. And they could have called in these people. They didn’t.

MR. ROGERS: (Defense Counsel) I’ll object again, Your Honor. They’ve had the names of all these people. They’re available to the State.

THE COURT: Overruled.

MR. STIGALL: These are his people, his friends. And why didn’t they bring them in; because they wouldn’t back him up, that’s why. And you can assume that. That’s the law in Missouri.

MR. ROGERS: (Defense Counsel) I’ll object to that, Your Honor. That does misstate the law.

THE COURT: Overruled.

MR. STIGALL: (Prosecutor) You can assume that; that if they had have been in here, it would have been contrary to what he said.

But let’s forget that for just a second, and let’s talk about consent. That’s the big issue. Let’s talk about that a minute. Who backs him up on consent? No one.”

Appellant contends the trial court erred in permitting the prosecutor to argue an adverse inference from defendant’s failure to call witnesses in support of his defense of consent.

The trial court has considerable discretion in allowing or rejecting argument of counsel, and its rulings are reversible only for abuse of discretion where the argument is plainly unwarranted. State v. Wright, 515 S.W.2d 421, 432 (Mo. banc 1974); State v. Jewell, 473 S.W.2d 734, 741 (Mo.1971); State v. Neal, 591 S.W.2d 178,183 (Mo.App.1979).

“It is settled by numerous cases that the prosecuting attorney may comment on the failure of the defendant to call available witnesses who might reasonably be expected to give testimony in his favor.” State v. Beasley, 353 Mo. 392, 182 S.W.2d 541, 543 (1944). See also State v. Barron, 465 S.W.2d 523, 529 (Mo.1971); State v. Linders, 299 Mo. 671, 253 S.W. 716, 721 (1923). Such comments are permissible because a logical inference can be drawn from a failure to call these witnesses to testify that their testimony would be damaging rather than favorable.

In the present case both defendant and the victim agreed that Johnson, Smith, and Gregory were present the night the victim was raped. Defendant further testified that additional persons were present at his neighborhood “get-together”. None of these persons were called at trial to verify that a party had actually occurred. The prosecutor in closing argument noted this and argued that the jury could infer that no one was called to verify the party because their testimony would have been contrary to defendant’s.

It was both logical and permissible for the prosecutor to argue this inference. The defendant provided the names of his friends present at his party. Had such a party occurred it can reasonably be expected that someone present would have been called to verify it. By not calling anyone to so testify it is reasonable to infer that there was no party.

Appellant cites State v. Wright, 582 S.W.2d 275 (Mo.1979), and State Wright, 571 S.W.2d 734 (Mo.App.1978), for the proposition that a prosecutor may not argue an inference adverse to defendant from a witness’ refusal to testify. He argues that Johnson and Smith were co-defendants and had a fifth amendment right not to testify and that Gregory had advised the court in a prior trial that he wished to exercise his fifth amendment right not to testify.

There is no support in the record that Smith, Johnson, and Gregory refused to testify at defendant’s trial. In any event no specific reference was made to the failure of these witnesses to testify for defendant, and as the trial court correctly noted, there were other people allegedly present at the party who could verify that it had occurred. The unavailability of these three witnesses does not destroy the inference that can logically be deduced from defendant’s failure to produce any witness to verify the party or “get-together.”

Appellant also cites State v. Collins, 350 Mo. 291,165 S.W.2d 647 (1942), and State v. Valentine, 587 S.W.2d 859 (Mo. banc 1979), for the proposition that a party cannot comment on the failure of the other party to call a witness available to both parties. He argues that the witnesses were equally available to the state because he had no “opportunity for knowledge of or control over the witness[es],” or a “community of interest” with them that would make it “reasonably probable that the witness would have been called to the trial to testify for such party except for the fact that it was either known or feared that his testimony on the stand would have been damaging rather than favorable.” State v. Collins, supra, 165 S.W.2d at 649.

The discussion of availability in State v. Collins, supra, is consistent with the justification and logic of the permissible inference — if a witness can be expected to testify favorably to one party, he is “peculiarly available” to that party, and the failure to call that witness gives rise to the inference that his testimony would actually have been unfavorable rather than favorable. State v. Collins, supra, refers to conditions that would reasonably give rise to that inference.

Defendant’s testimony was that the prosecuting witness was but one of a number of his friends at a party at his house and that she was a consenting and willing participant in the activities of the party. He gave the names of such friends. His relationship with them, the information he attributed to them, and their community of interest with him were such that defendant’s friends were more available to him than to the state, and the defendant would naturally have been expected to call one or more of them to testify. State v. Wilkerson, 559 S.W.2d 228, 229 (Mo.App.1977). See also State v. Karnes, 608 S.W.2d 455 (Mo.App.1981); State v. Williams, 532 S.W.2d 826 (Mo.App.1975).

The trial court did not abuse its discretion in its rulings on the state’s closing argument.

Appellant also contends the trial court erred in overruling objections to the prosecuting attorney’s argument that defendant had failed to produce documentary evidence of any traffic warrants extant at the time of his arrest to support his excuse for hiding in the attic. He argues that no adverse inference can be drawn from his failure to produce documentary evidence. This Court adopts the substance of the opinion of Clark, J., in denying this contention.

The state was aware by its discovery that defendant claimed to be in hiding to avoid arrest for traffic charges. As part of its case, the state produced evidence that no traffic warrants were outstanding for him at the date he was arrested. Defendant claimed that there were such warrants but the only evidence he offered to confirm his statement consisted of a letter he had written inquiring about the warrants and an envelope in which his letter, with notations, had been returned to him from the municipal court. The dates of each were more than three months subsequent to Moore’s arrest on the subject charge.

The state’s argument, of which appellant complains, drew the jury’s attention to a factual issue raised by the evidence and not to an inference that absent evidence was not produced by defendant because unfavorable. While the prosecutor did argue that if there had been outstanding warrants for defendant when he was arrested, they would appear on municipal court records which could be introduced in evidence by defendant, the thrust of the argument was that no such record existed and that the state’s evidence on the question was accurate. The argument was an appropriate comment on the evidence.

Appellant finally contends that because the prosecutor first objected and then agreed to introduction in evidence of the letter and envelope, the state should be held to have stipulated to his proof on the question of the warrants. The record does not support this contention. Objection was originally made to the letter and envelope on the grounds they were hearsay and were not competent to prove existence of outstanding warrants. Withdrawal of the objection was in no sense a stipulation as to any fact, but removed an obstacle to introduction of the exhibits for whatever value they had. The dates were not persuasive as to the status of warrants three months earlier and the jury so found by its verdict.

The judgment and sentence are affirmed.

DONNELLY, C. J., and RENDLEN, WELLIVER and MORGAN, JJ., concur. SEILER, J., dissents in separate dissenting opinion filed. BARDGETT, J., dissents in separate dissenting opinion filed.