State v. Arnold

• Decision Date: 09 March 1982
• Docket Number: No. 62999,No. 2,62999,2
• Citation: 628 S.W.2d 665
• Parties: STATE of Missouri, Respondent, v. Charles ARNOLD, Appellant
• Court: Missouri Supreme Court

Page 665

628 S.W.2d 665

STATE of Missouri, Respondent, v. Charles ARNOLD, Appellant.

No. 62999.

Supreme Court of Missouri, Division No. 2.

March 9, 1982.

Gary L. Gardner, Asst. Public Defender, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Jefferson City, Catheryn B. Starke, Asst. Atty. Gen., Kansas City, for respondent.

JAMES A. REINHARD, Special Judge.

Appellant was charged with Class B rape in Count I, a violation of § 566.030, ¹ armed criminal action in Count II, a violation of § 571.015, and burglary, first degree in Count III, a violation of § 569.160. A jury found him guilty on all three counts and assessed his punishment at 5 years on each count. The court sentenced him in accordance with the jury verdicts and ordered each sentence to be served consecutively. The Court of Appeals, Western District, affirmed his convictions for rape and burglary, first degree, reversed his conviction for armed criminal action, and transferred the case to this court. We have jurisdiction pursuant to Mo.Const. Art. V, § 10.

The Western District ordered the case transferred so that we might determine whether a remark by the prosecuting attorney during closing argument constituted a comment on the failure of the appellant to testify. We consider the case now the same as on original appeal. We affirm appellant's convictions for rape and burglary, first degree, and reverse his conviction for armed criminal action. ²

On January 22, 1979, at 9:30 p.m. and again, later, at 10:30 p.m., appellant knocked on the door of the manager of an apartment building in Kansas City, Missouri, and asked for a tenant by the name of John Bush. Bush had apparently lived in the building two years earlier, but the appellant was advised by the manager on both occasions that Bush no longer resided there.

At about 11:00 or 11:30 p.m. on the same evening, a 30 year old female tenant of a third floor apartment of this building answered a knock on her door. When she opened the door, she was confronted by appellant who asked her if she knew a man named Bush. After she told him she did not, appellant asked her if she was alone in the apartment. Even though she was by herself, she told him her husband was home but in bed. Appellant insisted that she wake him. Hearing the apartment manager outside and fearing for her safety, she started out her door. The appellant, however, pulled a knife, put his hand to her neck and pushed her back into the apartment. Once inside, he pushed her onto a bed and raped her.

After the attack, the victim left the apartment and went to her neighbor's apartment. There, she related the details of the rape. The police were summoned and appellant was apprehended trying to leave the apartment complex. While she was in her neighbor's apartment, the apartment manager noticed red marks on the victim's neck.

The defense was consent. While appellant did not testify, he called three witnesses. The first was the medical examiner who had examined the victim at the hospital. He testified he conducted a pelvic examination of the victim and found motile semen in the victim's vagina. He also testified no red marks were apparent on the victim's neck and there was no other evidence of physical injury to the victim. The second witness was a friend of appellant who testified that at his request, she secured several items from his apartment, including luggage, sheets, and pillowcases. The victim identified these items as coming from her apartment and they were introduced into evidence. The third witness for appellant was an investigator for the public defender who testified as to the chain of custody surrounding this property. The victim testified that she had not given these items to the appellant and he had not taken them while in her presence. She further noted that he had not had time to steal them at the time of the rape. She testified that several weeks prior to the instant events, however, burglaries had occurred in and near the apartment complex. At that time, she had notified her landlord that several items were missing from her apartment. The landlord noted the burglaries and notified law enforcement authorities.

In addition, the victim and others were thoroughly cross-examined by defense counsel in an attempt to gain an admission that the victim knew appellant and had been with him on prior occasions. All of the state's witnesses, including the victim, disclaimed knowing or having ever seen appellant prior to the instant events.

In his first and second points on appeal, appellant asserts trial court error in convicting and sentencing him for both rape and armed criminal action. In light of previous decisions of this Court, we agree with the Western District that appellant's conviction for armed criminal action constituted double jeopardy and should be reversed. See, State v. Haggard, 619 S.W.2d 44 (Mo. banc 1981); State v. Morgan, 592 S.W.2d 796, (Mo. banc 1980), vacated 449 U.S. 809 (1980), on remand 612 S.W.2d 1 (Mo. banc 1981); State v. Olds, 603 S.W.2d 501 (Mo. banc 1980).

In appellant's third point, he alleges error because of three remarks made by the prosecuting attorney during closing argument. Appellant promptly objected to the first two remarks and made a motion for a mistrial, both of which are overruled by the trial court. He did not object to the third remark, consequently, it must be reviewed under the plain error doctrine. We shall treat each of the three challenged remarks separately.

Appellant first contends that the prosecutor's statement, "Nobody told you it didn't happen," ³ constituted a direct reference to his failure to testify and constituted a misstatement of the burden of proof. His argument under this point abandons the latter contention.

Unquestionably, a prosecutor is prohibited from adversely commenting on an accused's failure to testify. State v. Hutchinson, 458 S.W.2d 553 (Mo.banc 1970). The Missouri Constitution provides that "no person shall be compelled to testify against himself in a criminal cause ...." Mo.Const.Art. I, § 19. It is also provided by § 546.270 and Rule 27.05(a) that:

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

Appellant cites State v. Frankoviglia, 514 S.W.2d 536 (Mo.1974) in support of his contention that this was a direct reference to appellant's failure to testify. Where there is a direct and certain reference to failure of the accused to testify, that constitutes reversible error. State v. Rothaus, 530 S.W.2d 235, 237 (Mo.banc 1975). In Frankoviglia, this court held: "The key words of the rule and statute are 'accused' and 'testify' ...." at 541. Crucial to the determination of whether the state has made a direct and certain reference to the accused's failure to testify is the use of these words or their equivalent. ⁴ State v Cockrum, 592 S.W.2d 300, 302 (Mo.App.1979). No such words were used here.

Appellant argues that even if it is not a direct reference to the failure of the accused to testify, it is an indirect reference, citing Eichelberger v. State, 524 S.W.2d 890 (Mo.App.1975). The court must review the statement in the context it was made and determine whether it "highlighted" or was "reasonably apt to have directed the jury's attention to the fact he did not testify." Eichelberger at 894. If under the circumstances of the case, only the accused could deny the evidence on a vital portion of the case, the general statement that such proof was undisputed or undenied has been held to be an indirect reference to the accused's failure to testify. See, State v. Robinson, 184 S.W.2d 1017 (Mo.1945); State v. Shuls, 329 Mo. 245, 44 S.W.2d 94 (1931); State v. Snyder, 182 Mo. 462, 82 S.W. 12 (1904).

Implicit in these cases is that the evidence referred to must be vital to the state's case and damaging to the accused. If it is not, a jury would not expect contrary testimony by the accused. His failure to testify is then neither highlighted nor the jury's attention directed to it.

Here, the prosecutor stated: "(T)he defendant had sexual intercourse with Clara ______. Clara told you .... Nobody told you it didn't happen." The testimony to which the prosecutor referred was vital to the state's case, but it was not damaging to appellant because his defense was consent.

The issue of consent permeated the entire trial. Defense counsel introduced evidence of personal articles belonging to the victim. The inference counsel tried to create was that the appellant received the items as gifts and therefore the victim and the appellant knew each other. The defense counsel vigorously cross-examined the victim and the other state's witnesses as to their previous knowledge of the appellant. It was a witness for appellant that provided the medical evidence the victim had sexual intercourse that evening. In closing argument to the jury, defense counsel stated:

Now, Instruction No. Five tells you-Mr. Gnefkow has already gone over the basic elements-the one element that I want to focus on at this time and the third element, "That the defendant did so without her consent by the use of forcible compulsion."

Consent, that is what we are basing our defense on, and that is consent. (emphasis added).

Our research has revealed no Missouri case which has reached this precise point but has discovered a Texas case we find instructive. In Scobey v. State, 145 Tex.Cr.R. 481, 169 S.W.2d 185, 189 (1943), the prosecuting attorney stated in his closing argument to the jury, "It seems to me that the issue is uncontradicted that Mr. Howell was robbed ...." The Court of Appeals, answering the appellant's contention that such remark was a reference to his failure to testify, or to...