State v. Berry

Decision Date19 April 1983
Docket NumberNo. WD,WD
Citation658 S.W.2d 476
PartiesState of Missouri, Respondent, v. Anthony Berry, Appellant. 33267.
CourtMissouri Court of Appeals

Elwood L. Thomas and Anne E. Goos of Shook, Hardy & Bacon, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.



This is a direct appeal from a jury conviction for sodomy in violation of § 566.060, RSMo 1978. The judgment is affirmed.

Appellant raises two points, which in summary charge the trial court erred (1) in admitting the testimony of the complaining witness concerning statements made to him by appellant while the two were in adjacent cells, because the conditions under which the statements were made denied appellant his right to counsel and the state intentionally created a situation likely to induce appellant to make incriminating statements; and (2) in refusing to allow appellant's counsel to place a certain witness on the stand to claim his privilege against self-incrimination in the presence of the jury.

On January 19th and 20th, 1981, appellant was an inmate in the Jackson County jail. The complaining witness, Alexander Samuels, was also an inmate. At trial, Samuels testified that appellant and another inmate committed forced acts of sodomy upon him the night of January 19, 1981. The complaining witness further testified that on the night of January 20, 1981, two other inmates committed forced sodomy upon him. Another inmate, one Shay Jackson, was in the same cell, but did not participate in the sodomy.

During a lunch period of the first day of trial, an employee of the Jackson County Department of Corrections placed Samuels in a holding cell adjacent to a cell in which appellant was being held. This employee did not know or recognize appellant, nor was the complaining witness placed in the adjacent cell for any special purpose.

In rebuttal, the complaining witness testified that while in this adjacent holding cell, appellant attempted to "bribe" him, first for $200.00 and then for $500.00 to change his story to the effect that appellant had not sodomized the complainant.

Appellant testified in his own behalf. He denied the sodomization of the complainant. He further testified that the complainant and one Maurice Clay entered into voluntary deviate sexual relations and that he (appellant) threatened to inform the guards on both of them. Appellant testified that Shay Jackson could substantiate his story. Appellant's counsel informed the court that he intended to call Jackson as a defense witness, although Jackson had been endorsed as a state witness. In preparation for Jackson's appearance, appellant's counsel was informed by Jackson's counsel that if called, he (Jackson) would invoke his privilege under the 5th Amendment against self-incrimination. A hearing to determine this question was held outside the presence of the jury during which Jackson, as claimed, did invoke the privilege.

Appellant's counsel insisted that Jackson be required to claim his privilege in front of the jury. The rationale was to dispel the alleged negative inference that the jury would draw if appellant did not call Jackson as a witness. The evidence closed. The jury returned its verdict. Judgment and sentence were entered. This appeal followed the overruling of timely filed after-trial motions.

It is first noted under appellant's point (1) that the point was not preserved for appellate review. There was no objection to the testimony of the complainant regarding the bribery offer by appellant, nor did appellant seek any remedial assistance from the trial court. Under State v. Byrnes, 619 S.W.2d 791, 793 (Mo.App.1981), the point is not properly preserved. Consideration of the point by this court is made subject to Rule 29.12(b) and appellant bears the burden of showing that he suffered from some manifest injustice or that there was a miscarriage of justice.

Under this first point, appellant bases his contention upon his right to counsel guaranteed by the 6th Amendment to the Constitution of the United States. Appellant relies principally upon Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) and United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). Both Massiah and Henry are distinguishable on their facts. In both of those cases, convictions were reversed by the United States Supreme Court because the government had secured, by the use of government agents (Massiah ) and by an informant (Henry ), incriminating statements from the accused. These statements were admitted into evidence via the testimony of the agents/informer at trial. The Supreme Court held that the securing of such incriminating statements was in violation of the accused's right to counsel. In summary, the factors which distinguish this case from both Massiah and Henry are: (a) the complainant Samuels was neither a paid informant nor agent for the state; (b) the appellant and the complainant did not share a common plight as in the case of Henry; (c) the placement of the complainant in the adjacent cell was by inadvertence through a custodial officer and complainant was moved within 3-5 minutes after the placement was realized; (d) placement was not for the purpose to deliberately secure information from appellant; and (e) the complainant was the victim of appellant's acts, not one who was placed in the adjacent cell in a common plight setting.

Appellant appears to urge the extension of Massiah and Henry to include application of the rules in those cases to any instance where a victim or witness has contact with an accused and the latter utters some incriminating remark. The rules in Massiah and Henry are much narrower than suggested by appellant. It is noted that in both cases, the purpose or reason for placement of the agents/informer with the accused was to deliberately secure incriminating statements. Such is not the case herein. It should also be noted in Henry that the rule was not extended to apply to another cellmate who was not a paid informant, and this other cellmate was allowed to testify that the accused (Henry) told him he had committed the offense. See United States v. Calder, 641 F.2d 76 (2nd Cir.1981), cert. denied, 454 U.S. 843, 102 S.Ct. 156, 70 L.Ed.2d 128 (1981) where, in reliance upon Henry, testimony of a fellow inmate was permitted against the accused and two weeks later an agreement was reached between the witness and the government. See also United States v. VanScoy, 654 F.2d 257 (3rd Cir.1981), where three letters were written by the accused to the inmate witness while both were confined, even though the inmate witness had been an informer for the government in other prior cases. Massiah and Henry do not control or persuade in the instant case. Appellant's further reliance upon State v. Peters, 545 S.W.2d 414 (Mo.App.1976) and State v. Holt, 592 S.W.2d 759 (Mo. banc 1979) are equally misplaced because those cases involved witnesses who were agents for the government.

The evidence herein reveals that the placement of the complainant in an adjacent cell to appellant was simply the result of an innocent act by authorities. The placement was by inadvertence and not for the purpose of securing any incriminating statement from appellant. Appellant was obviously aware of the relationship of the state and the complainant because on this appeal, appellant concedes that "the witness (Samuels) had a relationship with the prosecution that made it certain that that witness would report anything that defendant said to prosecution."

There was no error, let alone plain error, by the trial court in admitting the rebuttal testimony of the complainant in which he testified that appellant attempted to bribe him (complainant) to change his testimony and disclaim that appellant had participated in the sodomy. There was no manifest injustice or miscarriage of justice.

Appellant's point (1) is meritless and is ruled against him.

Under his final point (2), appellant charges that the trial court erred in its refusal to allow appellant to put one Shay Jackson on the witness stand and require Jackson to claim his constitutional claim against self-incrimination in the presence of the jury.

This situation was precipitated during cross-examination of appellant according to appellant's basic argument on this appeal. Appellant claimed that the complainant and one Maurice Clay had consentingly engaged in sexual conduct and that deviant sexual conduct by forcible compulsion had not occurred. In his direct testimony, appellant intimated that Jackson could confirm his testimony that the complainant and Clay had consentingly engaged in sexual conduct. On cross-examination, appellant was asked and answered as follows:

"Q. This Shay Jackson you talk about, where is he?

A. He is in jail.

Q. Still up there?

A. Yes.

Q. He can substantiate your story, couldn't he?

A. Yes, I suppose, just about everything."

Jackson had been endorsed as a witness for the state. Appellant's counsel then elected to call Jackson. Both the state and appellant were informed that Jackson, beyond admitting his name and that he was in jail, would invoke his privilege against self-incrimination. A hearing by the trial court in the presence of appellant was conducted to determine if Jackson would invoke the privilege. Jackson did invoke the privilege. The trial court then denied appellant's request to put Jackson on the stand and force him to invoke the privilege in the jury's presence.

Appellant contends that the trial court's action permitted the jury to infer, from appellant's "failure"...

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6 cases
  • Gray v. State
    • United States
    • Maryland Court of Appeals
    • April 11, 2002
    ...fact that they may properly choose to invoke their Fifth Amendment privilege in response to all relevant questions."); State v. Berry, 658 S.W.2d 476, 479 (Mo.App. 1983) ("The refusal to permit a witness to testify lies within the discretion of the trial judge when it is claimed ... that th......
  • Gray v. State
    • United States
    • Court of Special Appeals of Maryland
    • March 28, 2001
    ...States v. Johnson, 488 F.2d 1206, 1211 (1st Cir.1973); People v. Dyer, 425 Mich. 572, 390 N.W.2d 645, 650-51 (1986); State v. Berry, 658 S.W.2d 476, 479-80 (Mo.App. 1983); People v. Thomas, 51 N.Y.2d 466, 434 N.Y.S.2d 941, 415 N.E.2d 931, 934-35 (1980); Porth v. State, 868 P.2d 236, 239-41 ......
  • State v. Sidebottom
    • United States
    • Missouri Supreme Court
    • June 14, 1988 order to infer to the jury that the witness and the accused were engaged in joint criminal activity. State v. Berry, 658 S.W.2d 476, 479 (Mo.App.1983). It is impermissible for either party to use the refusal of a witness to testify on self-incrimination grounds for any inference, whether......
  • Rubalcado v. State
    • United States
    • Texas Court of Criminal Appeals
    • March 19, 2014
    ...849. 104.Id. at 1082, 213 Cal.Rptr. at 850. 105.Id. at 1082, 213 Cal.Rptr. at 849. 106.Id. at 1083, 213 Cal.Rptr. at 850. 107.658 S.W.2d 476, 478 (Mo.App.1983). 108.Id. 93.Id. at 1037. 94.Id. at 1038. 95.Id. 96.Id. 97.Id. at 1037 & n. 2, 1038. The appellate court observed that the trial cou......
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