State v. Ralls

918 S.W.2d 936, 1996 Mo. App. LEXIS 527, 1996 WL 146297
CourtMissouri Court of Appeals
DecidedApril 2, 1996
DocketNo. WD 50271
StatusPublished
Cited by5 cases

This text of 918 S.W.2d 936 (State v. Ralls) 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. Ralls, 918 S.W.2d 936, 1996 Mo. App. LEXIS 527, 1996 WL 146297 (Mo. Ct. App. 1996).

Opinion

PER CURIAM.

The appellant, Peter A. Ralls, was convicted, by a jury, of second degree murder § 565.021, RSMo 1994, first degree robbery, § 569.020, RSMo 1994, and two counts of armed criminal action, § 571.015, RSMo 1994. He was sentenced as a prior, persistent, and class X offender to two terms of life imprisonment and two terms of twenty years imprisonment, all to be served consecutively. §§ 558.016, 558.019, RSMo 1994. Ralls contends that the trial court erred in allowing the prosecutor to comment upon his fifth amendment right to remain silent. He also asserts two evidentiary errors: the first one concerning hearsay testimony given by Detective Buente and the second claimed error in allowing rebuttal testimony of Detective MeCune, which had not been disclosed to the defendant. Because the sufficiency of the evidence is not at issue, the facts are stated briefly and favorably to the verdict.

The police were called to the murder scene at about 6:25 A.M., September 24, 1992, where they found the victim, Michael Calali-ere, slumped on the floor of the bathroom, which was located behind the counter of the store. He was pronounced dead at the scene. An autopsy revealed that he died of three gunshot wounds to the head. Two glass display cases containing jewelry and rings were lying on the floor. Much of the jewelry and several money bags were missing.

At approximately 6:00 AM. on September 24, Tommie Winn entered P.J.’s Party Shop, located at 2522 E. 9th Street in Kansas City. He observed a bald, heavy-set man with big, brown eyes standing behind the counter. As he approached the counter, he noticed that the man had a revolver and was standing in the bathroom doorway. Winn identified this man as the defendant. He heard the man say, “Hand over your billfold. Give me the wallet.” As Winn ran from the store, he heard three shots. Winn went across the street to Speedy’s. As he left Speedy’s, he saw the defendant walk out of P.J.’s down 9th street and go behind Humdinger’s Restaurant.

At approximately 6:25 A.M., Michael Elder, who was living in the Chip Village apartment complex, observed a man matching the defendant’s description coming from the direction of P.J.’s Party Shop and Humdinger’s Restaurant. Elder testified that he had seen the same man walking towards those establishments approximately ten minutes before. At the time of the murder, the defendant was living in the Chip Village apartments with his girlfriend, Ida Whitley.

At trial, Winn identified the defendant as the man he saw that night. Winn had previously participated in a series of photographic line-ups and had tentatively identified a photograph of Ronald Thomas as someone who might have been the perpetrator.

Darryl Lockett testified that he was incarcerated at the Jackson County Jail with Ralls, in the spring of 1994, and that Ralls had asked him to eliminate Winn. Ralls told him that there might be $1500.00 in it for him. Ralls gave Lockett a note with Winn’s name, an address, the hours Winn worked, and the notation, “$1500.00. He’s telling.” A handwriting expert confirmed that the note was written by Ralls.

[938]*938In his first point, the defendant complains that the prosecuting attorney asked the jurors during voir dire, “Do you understand that the state cannot call the defendant to testify?” Defense counsel objected and moved for a mistrial. The defendant’s objection was overruled and the request for a mistrial denied. Ralls argues that the prosecutor’s question was an improper comment upon his decision not to testify and violated his right to remain silent and to due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, Article I, §§ 10 and 19 of the Missouri Constitution, § 546.270, and Rule 27.05.

The general rule is that a prosecutor is not allowed to comment on a defendant’s decision not to testify. State v. Lindsey, 578 S.W.2d 903, 904 (Mo. banc 1979). If the prosecutor makes a direct and certain reference to the failure of the defendant to testify, it constitutes reversible error. However, this prohibition is not absolute. State v. Harris, 636 S.W.2d 403, 405 (Mo.App.1982).

In this case, defense counsel, during voir dire examination, extensively questioned the panel concerning the defendant’s right not to testify. He asked whether any members of the panel were expecting the defendant to testify in this trial, if they would like to hear him testify, and whether any of the panel members could think of a reason “why they wouldn’t want to testify if they were on trial?” He further inquired, “Is there anybody who is going to have a problem if the defendant doesn’t testify?”

During the assistant prosecutor’s examination, following that of the defendant, he asked: “Okay. As he [defense counsel] correctly told you, the Defendant has a right not to testify. And you understand that. And do you understand that the State cannot call the Defendant to testify?” There was no response from venirepersons.

In Harris, 636 S.W.2d at 404, the prosecutor, during voir dire, told the panel, “I want you to know that under our system of justice, I can’t call him to testify. I can’t force him to testify.” It was held that the remarks were general comments pertaining to the rights of the defendant and not a comment upon the defendant’s failure to testify. Id. at 405. In State v. Hamilton, 871 S.W.2d 31 (Mo.App.1993), the prosecutor’s comments were nearly identical to those made by the prosecutor in Harris. The prosecutor told the panel, “And I want you to know that under our system of justice I cannot call him to testify. I cannot force him to testify.” Id. at 32. Once again, it was held that these comments were not improper or violative of the defendant’s right not to testify. Id. at 34.

In State v. Green, 549 S.W.2d 644, 646—47 (Mo.App.1977), this court articulated the rule, saying:

If counsel for the defendant, for stratagem or advantage, calls attention to the silence of his own client, that waiver entitles the prosecutor to answer on those terms. And counsel for the State may go further yet by way of such response and retaliation than would have been allowed him in the first instance.

In the instant case, defense counsel initiated discussion of the defendant’s right not to testify. The prosecutor’s remarks to the panel were not improper. The prosecution was entitled to assurance that the jury would not expect the state to call Ralls as a witness after defense counsel had raised the subject. Hamilton, 871 S.W.2d at 34.

The cases that Ralls cites in support of his proposition are easily distinguishable. In both State v. Ward, 702 S.W.2d 545 (Mo.App. 1985), and State v. Cokes, 682 S.W.2d 59 (Mo.App.1984), the defendants’ attorneys asked during voir dire about their clients’ failure to take the stand. The prosecution, in both instances, made unrelated comments at later stages in trial concerning the defendants’ failure to testify. In Cokes,

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Bluebook (online)
918 S.W.2d 936, 1996 Mo. App. LEXIS 527, 1996 WL 146297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ralls-moctapp-1996.