State v. Neff

978 S.W.2d 341, 1998 Mo. LEXIS 82, 1998 WL 772773
CourtSupreme Court of Missouri
DecidedNovember 3, 1998
Docket80699
StatusPublished
Cited by48 cases

This text of 978 S.W.2d 341 (State v. Neff) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Neff, 978 S.W.2d 341, 1998 Mo. LEXIS 82, 1998 WL 772773 (Mo. 1998).

Opinions

HOLSTEIN, Judge.

Following an automobile accident on June 3, 1995, Ronald Lee Neff (defendant) was charged with four counts of the class C felony of assault in the second degree, section ShS.OeO.RJ).1 The information alleged that defendant, while under the influence of alcohol, caused physical injury to four people, by pulling into an intersection when another vehicle was approaching so closely as to constitute an immediate hazard, and that he did so with criminal negligence. A jury convicted him of all four counts, and he was sentenced to six months in the county jail and assessed a $1,000 fine on each count.

On this appeal, defendant contends that the trial court erred in not granting his motion for a mistrial when the prosecutor, while objecting to the closing argument by defendant’s attorney, referred to defendant’s failure to testify. Under the circumstances of this case, we affirm.

Defendant based his contention on the following exchange, which occurred during the state’s closing argument:

[Defendant’s attorney Jack Yocum]: Now, you can make him out a real bad criminal, with no evidence of any criminal activity ever before in his life. None whatever. Or your can—
[Prosecutor]: Judge, I’ll object to that. There is no evidence of that. And you—
[Defendant’s attorney Jack Yocum]: No, there isn’t. That’s why I’m arguing it.
[Prosecutor]: Well, he didn’t take the stand, Judge. I mean, there was no
evidence—
[Defendant’s attorney Jack Yocum]: Wait a minute.
[Prosecutor]: There is no evidence of that.
[Defendant’s attorney Jack Yocum]: Okay. Let’s get a mistrial.

(At this time counsel approached the bench, and the following proceedings were had:)

[343]*343[Defendant’s attorney Jack Yocum]: We’d move for a mistrial, Judge. We’d like to make a record on that right now.
[The Court]: Okay.
[Defendant’s attorney Robert Yocum]: Go ahead and
[Defendant’s attorney Jack Yocum]: Yeah. I’d like to move for a mistrial because the Prosecuting Attorney has just said the Defendant did not take the witness stand, and that’s an improper inference. And we’d move for a mistrial immediately, Judge.
[Prosecutor]: I’m not making any inference, Judge. He just said he didn’t have a criminal record. That’s not — That’s not even true. We would have brought that in at the time—
[Defendant’s attorney .Jack Yocum]: Mistrial—
[The Court]: I understand that.
[Prosecutor]: So what I’m saying is, Judge, it’s—
[Defendant’s attorney Robert Yocum]: That’s irrelevant here what the— We do—
[Defendant’s attorney Jack Yocum]: We—
[Defendant’s attorney Robert Yocum]: We’re entitled to a mistrial. He just turned over to the jury again. The jury can—
[Defendant’s attorney Jack Yocum]: He just said— It was all so the jury can hear that.
[Prosecutor]: They are not entitled to a mistrial on these points.
[Defendant’s attorney Jack Yocum]: Yes, we are. (Inaudible) mistrial.
[Defendant’s attorney Robert Yocum]: Yes, we are. We’re— That’s absolutely true.
[Prosecutor]: Well, I know you’re going to say that. You’re going to say whatever you need to say.
[Defendant’s attorney Jack Yocum]: You bet we are. We’re going to tell the truth at this trial.
[The Court]: You— Okay.
[Prosecutor]: Mistrial at the—
[Defendant’s attorney Robert Yocum]: I move for mistrial, Judge.
[The Court]: Well—
[Prosecutor]: I did not comment on what he said or what he did.
[Defendant’s attorney Jack Yocum]: Yes, you did.
[Defendant’s attorney Robert Yocum]: You just now—
[Defendant’s attorney Jack Yocum]: You just did.
[Defendant’s attorney Robert Yocum]:— Loud enough for the jury to hear.
[The Court]: Okay. Gentlemen, based on what I observed and what I heard, I don’t believe that a mistrial is the appropriate remedy at this time. Your request for a mistrial will be overruled.
[Defendant’s attorney Robert Yocum]: We move the Court to admonish to— the jury disregard the Prosecutor’s statement.
[Defendant’s attorney Jack Yocum]: Entirely.
[Defendant’s attorney Robert Yocum]: Entirely.
[Prosecutor]: Well, and would then the Court admonish the defense not to talk about evidence that is nonexistent and not to—
[Defendant’s attorney Jack Yocum]: We’re not talking about evidence—
[Prosecutor]:— and not to personalize to the jury as he has been doing. I haven’t objected to it, yet.
[The Court]: Well, that— That’s your job. But, gentlemen— Mr. Prosecutor, stay with me. I think it’s improper to talk about the record or an absence of a record at this point in the trial based on what occurred during the trial. So I would admonish both sides not to talk about Defendant and possible record— criminal record.
[Prosecutor]: Judge, are you—
[Defendant’s attorney Robert Yocum]: Are you going to admonish the jury to disregard the statements of the Prosecutor, Judge?
[The Court]: Oh, yeah.
[344]*344[Defendant’s attorney Jack Yocum]: We didn’t take the witness stand.
[The Court]: Yeah. I’m not going to mention the words—
[Defendant’s attorney Jack Yocum]: Oh.
[The Court]:— because I don’t want to bring attention to it.
[Defendant’s attorney Jack Yocum]: Okay.
[Defendant’s attorney Robert Yocum]: All right.
[The Court]: Okay.
[Defendant’s attorney Robert Yocum]: Would you admonish that I— You have overruled the motion that I (inaudible).
(Proceedings returned to open court.)
[The Court]: Okay. The Court will admonish the jury that the last remark made by the Prosecutor will be disregarded by the jury.
(At this time counsel approached the bench, and the following proceedings were had: )
[Defendant’s attorney Robert Yocum]:
And next is a motion for mistrial.
[The Court]: Yeah.

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Bluebook (online)
978 S.W.2d 341, 1998 Mo. LEXIS 82, 1998 WL 772773, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-neff-mo-1998.