State v. Clark, 48584

• Decision Date: 20 May 1986
• Docket Number: No. 48584,48584
• Parties: STATE of Missouri, Respondent, v. Raphael CLARK, Appellant.
• Court: Missouri Court of Appeals

Page 928

711 S.W.2d 928

STATE of Missouri, Respondent, v. Raphael CLARK, Appellant.

No. 48584.

Missouri Court of Appeals,

Eastern District,

Division Two.

May 20, 1986.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

June 19, 1986.

Application to Transfer Denied July 15, 1986.

Henry B. Robertson, Public Defender, St. Louis, for appellant.

John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.

DOWD, Presiding Judge.

Defendant, Raphael Clark, was convicted by a jury of capital murder, § 565.001, RSMo 1978, (now repealed) for the death of Gary Decker and sentenced to life imprisonment without probation or parole for at least fifty (50) years. He appeals from his conviction and sentence, urging numerous grounds for reversal. We affirm.

We review the evidence in the light most favorable to the verdict. On the evening of December 14, 1982, Donna and Gary (victim) Decker had completed shopping at Grandpa Pidgeons in Bellefontaine Neighbors and were headed toward their blue Nova parked on the store's parking lot around 9:15 to 9:30 p.m. The Deckers were approached outside their car by defendant and Walter Harvey.

A witness testified that at approximately 9:15 to 9:20 p.m. on that evening he heard a white woman say, "Why don't you take my" and "I don't want you to hurt me." A black man standing outside the car told her to keep her mouth shut. The witness saw one black man and one white man in the back seat of the car. The other black man got in the front seat and drove. The woman was seated in the front seat.

Before leaving the parking lot of Grandpa Pidgeons, Gary Decker, who was seated in the back seat of the car, had been shot in the chest. The bullet pierced his heart. He died almost instantly.

Walter Harvey drove the Decker car with the Deckers and the defendant north toward interstate highway 270. At approximately 10:05 p.m., Vandy Brewer was driving home from work. Brewer testified that while she was stopped at a red light in downtown St. Louis, she smiled at a woman in a car stopped next to her car at the traffic light, but the woman did not smile back. Brewer saw a black man seated next to a pale white man in the back seat of the car. The white man was sitting very erect and was not moving.

The defendant moved to the driver's seat after realizing that Gary Decker was dead. The defendant proceeded to drive the car onto the Poplar Street bridge toward Illinois. Debra Geiger saw the Decker car parked in her lane on the bridge and heard something like a car backfiring twice. Geiger pulled up next to the Decker car. Mrs. Decker looked at Geiger in terror and the defendant grinned at Geiger revealing his front gold tooth.

The defendant proceeded to drive across the Poplar Street bridge into Illinois stopping somewhere near Alton and the Southern Railroad tracks. In an open field, Donna Decker was shot four times in the face and head from a gun fired at close range. Defendant and Harvey left the bodies of Gary and Donna Decker on an open field. The bodies were found the next day by a railroad policeman.

Defendant contends that the trial court committed error in finding that the defendant's statements were tacit admissions and were improperly admitted into evidence. Defendant contends that his statements did not adopt Walter Harvey's statements and that Harvey's statements to the Gilliehams were not sufficiently accusatory that defendant would be required to deny the statements.

When a statement which tends to incriminate one accused of committing a crime is made in the presence of the accused and such statement is not denied, contradicted, or objected to by him, both the statement and the fact of his failure to deny this statement are admissible in a criminal prosecution against him as evidence of his acquiescence in its truth--that is, as a tacit admission of the facts stated--or as indicative of a consciousness of guilt. State v. Samuel, 521 S.W.2d 374, 375 (Mo. banc 1975). The Missouri tacit admission rule requires that (1) the statement is made in the presence and hearing of the accused, (2) the statement is sufficiently direct as naturally would call for a reply, and (3) the statement must not be made at a judicial proceeding or while the accused was in custody or under arrest. State v. Samuel, supra, at 375; State v. Rogers, 573 S.W.2d 710 (Mo.App.1978).

The evidence shows that shortly after the Decker murders defendant and Walter Harvey were confronted by their friends, Cedric and Farland Gillieham. Harvey talked about the Decker murders to the Gilliehams in the presence of the defendant. Cedric Gillieham testified:

A [Cedric Gillieham] I asked them if they killed them people, and there was no reply. I said, what did you all get out of it, because this was the same car. And Walter kept saying--

* * *

* * *

A I said, did you all get anything out of it, and Ray said, let it die, and Walter said, are you going to let this come between friendship, and I said, why did you all have to kill and shoot the people, and he said, the only reason I shot the person, he tried to play hero on the lot.

* * *

* * *

Q (By Mr. Goldman) Did Ray ¹ say anything?

A He just kept saying, let it be, let it die under.

Q Did Walter say anything?

A My little brother was teasing and saying, I am going to turn you in. Ray said, no, you ain't, and Raphael said, no, you ain't, I know you ain't.

The prosecutor then asked Farland Gillieham about what had transpired:

A [Farland Gillieham] Cedric was asking what happened and asked what Ray was doing. Walter was doing the talking. Cedric said what happened and he said, why did you all do something like that, and he said, it would never happen if the man didn't try to play hero, take the gun from Ray.

Q (By Mr. Goldman) Go on.

A And then he said, he said, it would have never happened if they didn't try to take the gun from Ray. They was just going there to rob somebody.

* * *

* * * A He said they went to Grandpa's to rob somebody, they was wrestling over the gun. Walter was in the front, driver's side, Ray was in the back, and the man was in the back, and he tried to take the gun and the gun went off and Ray was going to drive.

Q (By Mr. Goldman) Was Ray saying any of this?

A No.

Q What was he saying?

A He told Cedric, why don't you just let it die, and Cedric said, how could you do something like this?

Q Did they say why there [sic] were going to rob the people?

MR. ANZALONE: I object to that. It is leading.

THE COURT: Sustained.

Q (By Mr. Goldman) Go on.

A He said they was going to kill them. "We was going to rob them and kill them."

Q Who said that?

A Walter.

Q Raphael Clark was right there?

A Yes.

We find the statements made by Walter Harvey to Cedric and Farland Gillieham in the presence of the defendant were properly admitted into evidence under the tacit admission rule. The statements made by Walter Harvey to the Gilliehams in the presence of defendant directly implicated the defendant in the murder and were such that a denial of guilt or an exculpatory reply was required. We will infer that defendant adopted the statements made by Harvey to the Gilliehams as a tacit admission of his guilt. Defendant's first point is denied.

Secondly, defendant alleges the trial court erred when it allowed the prosecutor to elicit from the defendant's sister on cross examination that defendant had a child by an unmarried woman who lived in the vicinity of Grandpa Pidgeons. Defendant contends that the prosecution was attacking the defendant's character by implying that defendant was immoral and irresponsible in his sexual and parental relations. We disagree.

A trial judge has wide latitude in ruling on whether to admit or exclude evidence adduced by the parties at trial. The trial judge has discretion to determine the materiality and relevancy of evidence offered. The relevancy depends upon whether it tends to prove or disprove a fact in issue or to corroborate evidence which is relevant and which bears on the principal issue. Absent clear abuse, an appellate court will not interfere with the trial court's ruling on the admission or exclusion of evidence. State v. Harlston, 565 S.W.2d 773, 782 (Mo.App.1978).

In the case before us, the prosecutor did elicit from defendant's sister that the defendant had a two year old daughter by a woman who lived in the area of Grandpa Pidgeons. The prosecution argues that this evidence was elicited to show the defendant's familiarity with the area and a possible motive for the crime. Under the facts of this case, there was no abuse of discretion in permitting this testimony. Defendant's second point is denied.

Defendant alleges the trial court erred in overruling defendant's objection to the prosecutor's closing argument which drew an adverse inference from defendant's failure to call his mother as a witness.

The trial court has considerable discretion allowing or rejecting argument of counsel, and its rulings are reversible only for an abuse of discretion where the argument is plainly unwarranted. State v. Moore, 620 S.W.2d 370, 373 (Mo. banc 1981). A prosecuting attorney may properly argue an adverse inference from a defendant's failure to produce a witness who would be reasonably expected to give testimony in the defendant's favor. State v. Webster, 659 S.W.2d 286, 288 (Mo.App.1983). An adverse inference may not be argued if the witness is equally available to the defendant and the state. The courts have determined that equally available relates to the susceptibility to process and involves three factors: (1) whether one party has superior ability to know or identify the witness, (2) the nature of the testimony the witness is expected to give, and (3) the relationship between the particular party and the witness which indicates that the witness would be likely to testify more favorably for one party than another. State v. Webster, supra, at 288.

This court has held that a sister of a defendant would be...