State v. Powell
This text of 682 S.W.2d 112 (State v. Powell) 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.
Opinion
Defendant-appellant was jury-tried, convicted and sentenced to serve twelve years for robbery second degree, § 569.030, RSMo. 1978. The jury determined punishment.
Defendant testified and disputed the victim’s testimony that he and another assaulted Joseph Beck and stole Beck’s coat, wallet, watch, money, keys and cigarette lighter. Defendant admitted he was drunk and his companion took Beck’s coat but denied any personal involvement in the taking. Three witnesses observed the event, one of whom testified that he saw the scuffle and heard Beck protest and plead that his personal property not be taken. Beck and the witnesses hailed passing police officers who chased and caught defendant and his companion. Defendant had in his possession the wallet, watch, keys, lighter and money. There was abundant evidence of guilt.
Defendant argues three points. He contends first, that the prosecutor’s comments during voir dire concerning the state’s burden of proof had the effect of compelling defendant to testify. Second, he contends that the state’s cross-examination question of defendant, “Did you tell the police when they arrested you that it was Everett Boyd who took the coat?”, violated defendant’s right to remain silent and invited the jury to convict him on the basis of post-arrest silence. Last, he maintains that the admission of two prior Indiana convictions for the purpose of impeaching the defendant was erroneous because they were not properly certified.
A defendant’s right to remain silent is protected by the Fifth Amendment to the federal constitution, Article I, § 19 of the Missouri Constitution, § 546.270, RSMo. 1978 and Supreme Court Rule 27.-05(a). State v. Gray, 503 S.W.2d 457, 461-462 (Mo.App.1973). Collectively these statements of the law prohibit any direct reference on defendant’s right to or failure to testify. See State v. Barker, 399 S.W.2d 1, 3 (Mo.1966). Our Supreme Court reversed and remanded in State v. Lindsey, 578 S.W.2d 903, 904 (Mo.banc 1979) when the prosecutor told the venire panel, “Mr. Lindsey doesn’t have to go forward with any evidence if he doesn’t wish to. He doesn’t have to take the stand if he doesn’t want to.” Our Western District granted a new trial in State v. Croka, 646 S.W.2d 389, 390-391 (Mo.App.1983) when the prosecutor said in voir dire, “and I anticipate the defendant will testify.” Here the facts are quite different as there was no direct reference to defendant and the right to not testify. The prosecutor alluded to the defendant’s presumption of innocence; stated that the fact that defendant was charged was not evidence of guilt; noted that the state had the burden to prove its case and defendant had no burden to prove innocence by his evidence and asked if any venire person would “require the defense to put on a case.”1 Each comment correctly states the law and the testimony of defendant was never directly referred to or implied. Defendant was not denied a fair trial on this account. The court correctly overruled the objection and denied a mistrial. As mentioned in Croka the fact that defendant ultimately testified is immaterial [114]*114because the effect of an improper statement on a jury is assessed at the time it is made. 646 S.W.2d at 391. The comments here were not improper when made so it cannot be said they coerced defendant into testifying.
We find no error in the state’s cross-examination question of defendant relating to a post-arrest statement. Silence of an accused while under arrest is not admissible against him at trial because there is no duty to speak. State v. Stuart, 456 S.W.2d 19, 22 (Mo.banc 1970). Although the question invited error none occurred because the question remained unanswered due to a timely objection. Although defense trial counsel believed an answer had been given none appears in the record. The question itself was not evidence, State v. Chamberlain, 648 S.W.2d 238, 241 (Mo.App.1983), and the jury was so instructed by MAI-CR 2.02. Accordingly there was no evidence of either a post-ar[115]*115rest statement or post-arrest silence and defendant’s rights were not violated. We recognize the danger in this question as it relates to other trials and note that it should not be asked.
Finally, appellant argues that evidence of out of state prior convictions allegedly concerning him, although under a different name, should not have been admitted into evidence because they were not properly authenticated. During oral arguments the attorneys for both sides agreed that even if the admission was improper it was not reversible error. Our Supreme Court upheld the admission of similar records in State v. Brown, 476 S.W.2d 519 (Mo.1972) because of a presumption of regularity and genuineness of the writing. Here the records were admitted solely for the purpose of impeaching the defendant. He was given the opportunity in redirect to cure any damage to defendant’s credibility these records may have caused.
Finding no error in the trial court judgment, we affirm.
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Cite This Page — Counsel Stack
682 S.W.2d 112, 1984 Mo. App. LEXIS 4911, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-powell-moctapp-1984.