State v. Smith

772 S.W.2d 760, 1989 Mo. App. LEXIS 609, 1989 WL 43530
CourtMissouri Court of Appeals
DecidedMay 2, 1989
DocketNo. WD 40859
StatusPublished
Cited by10 cases

This text of 772 S.W.2d 760 (State v. Smith) 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. Smith, 772 S.W.2d 760, 1989 Mo. App. LEXIS 609, 1989 WL 43530 (Mo. Ct. App. 1989).

Opinion

GAITAN, Judge.

Defendant-appellant, Andrew Dale Smith, was originally charged in the Livingston County Circuit Court with burglary in the first degree and assault in the first degree. The latter charge was amended to assault in the second degree. A change of venue was granted and the cases were eventually transferred to Clinton County where they were consolidated for trial. He appeals the jury verdicts of guilty and his sentence of five years and one year, consecutively.

Appellant was 41 years old and had been a farmer all of his life. He lived on the farm in a duplex type house with his wife, Karen, his mother and father, Kathryn and Walter, and his two children, Tammy and Rodney. Tammy was 21 years old and Rodney was 17 years old at the time of the occurrences in question. Both children were paid by their parents for work done on the farm $100, then $150 every two weeks. Their other needs were taken care of by their parents.

Douglas Nau was a hog buyer and met defendant and Walter through this business. Doug and his wife Patty were in financial trouble, so appellant and his family befriended them, loaned them money and bought them a pick-up truck. Doug was to pay appellant $200 per month for the truck.

On March 24,1986, Tammy informed her mother that she and Rodney were leaving home. Over the objections of appellant, the State offered evidence that Tammy told Rodney and her mother that she had been [762]*762sexually abused by appellant. Appellant denied this allegation.

On March 24, Tammy and Rodney wrote a check for either $5,000 or $5,700 on their parents’ bank account. Part of this money was voluntarily given to the Naus by Tammy.

The children stayed the nights of March 24th and 25th with the Naus. On the 24th Tammy called her parents but did not say where she and Rodney were. The morning of the 25th, appellant brought hogs to Doug to sell but was not told that Tammy and Rodney had spent the night at his house. On the 24th, appellant and Karen met with their children at the Nau residence as a neutral ground and again were not told the children were staying there. On the 26th, Karen and Kathryn learned of the large check the children had written and they told appellant and Walter who were working in the fields. Appellant and Walter went looking for the children. They stopped a Missouri State Highway Patrolman for help but were refused help and were referred to the sheriff. They then went to the sheriff for help, but were refused help because of the age of the children.

Earlier that day appellant and Walter had retrieved the pickup truck from Doug and he had again failed to tell them the children were staying with him. Doug and Patty then went to the sheriff’s office and attempted to secure a restraining order against defendant. The sheriff did not tell appellant and Walter of their efforts but advised them not to go to the Nau house.

Appellant and Walter then checked all the motels in Chillicothe and then drove by the Naus. There, appellant observed the Blazer automobile the children had taken parked in the garage of the Nau house. Upon their arrival Doug told Tammy and Rodney to hide in the basement.

Appellant went to the Nau’s door, opened the screen door and knocked and/or rang the bell. The Naus testified that Doug refused to let appellant in and that appellant then kicked or butted the door in. However, appellant testified that Doug opened the door but when he said he had come for Rodney, Doug grabbed appellant and pushed him back into the door. The glass in the door was broken at some point and appellant was cut on his elbow. Appellant and Doug then wrestled. In the meantime, Rodney and Tammy grabbed the arm of Walter, who was holding a knife. Walter turned loose of the knife and Doug picked it up and put it in his pocket. Appellant had yelled at Walter to put the knife down. The evidence was that Walter’s knife was a folding Uncle Henry pocket knife. Appellant, Doug and Rodney also had such knives. An identical knife was found in the pickup truck appellant arrived in.

After the wrestling broke up, appellant entered the garage and stabbed the four tires on the Blazer with a knife he removed from his pocket. After this, appellant tried to pull Rodney to his pickup.

At sometime Doug received a cut on his left chest wall. There was no evidence as to how, when or from whom Doug received this wound. Patty testified that appellant entered the door with a knife in an attack position. Doug, Rodney and Tammy, however, never observed appellant with a knife until he entered the garage and took one from his pocket to puncture the Blazer’s tires. Appellant denied entering with a knife drawn and denied cutting Doug.

The sheriff, who had been called by Patty, arrived and arrested appellant and Walter. The sheriff was later notified by appellant’s attorney that he had left his knife in the sheriff’s car. The scene was photographed and items of evidence were gathered and sent to the laboratory. There was no blood found on either knife.

The Naus filed a civil damage suit against appellant and Walter, and Doug Nau filed an affidavit reciting that Walter had stabbed him.

Dr. Sensenich testified that Doug’s wound was not consistent with a glass cut, but that appellant’s wound was. Dr. Boul-ware, by deposition, testified that Doug’s wound was caused by a very sharp object such as a knife or non-jagged piece of glass. At the end of the State’s evidence [763]*763and at the end of all evidence, appellant’s motions for acquittal were overruled.

During the State’s closing argument the prosecutor said, in speaking of the appellant’s evidence, “Where’s his wife?” Appellant moved for a mistrial and this request was overruled. The State argued to the court that since Karen was not equally available that this was a proper argument. The prosecutor made no further mention of appellant’s wife.

I.

Appellant’s first contention is that the trial court erred in failing to grant a mistrial after the prosecutor made a comment regarding appellant’s wife. We disagree. Appellant relies on section 546.270, RSMo 1986 and Rule 27.05(a) to support his contention. Section 546.270 reads as follows:

Failure to testify not to prejudice defendant
If the accused shall not avail himself or herself of his or her right to testify, or of the testimony of the wife or husband, on the trial in the case, it shall not be construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption of guilt, not be referred to by any attorney in the ease, nor be considered by the court or jury before whom the trial takes place. (Emphasis added).

Rule 27.05(a) is virtually identical to the above statute in that both prohibit a direct reference to a defendant’s spouse’s failure to testify.

In the case at bar, the prosecutor made his comment during closing arguments.

Mr. Duncan was real good in telling you all the qualms with our evidence. Well, let’s talk about his evidence, the defendant. Where’s his wife? She’s the one that’s supposed—
MR. DUNCAN: Just a moment. Let’s step up here, your Honor.
(Whereupon the following proceedings were had at the bench, out of the hearing of the jury:)
MR. DUNCAN: I’m going to have to move for a mistrial.

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Cite This Page — Counsel Stack

Bluebook (online)
772 S.W.2d 760, 1989 Mo. App. LEXIS 609, 1989 WL 43530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-smith-moctapp-1989.