State v. Davison, 54832
| Decision Date | 13 July 1970 |
| Docket Number | No. 54832,No. 2,54832,2 |
| Citation | 457 S.W.2d 674 |
| Parties | The STATE of Missouri, Respondent, v. Carl G. DAVISON, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Jefferson City, Warren K. Morgens, Asst. Atty. Gen., St. Louis, for respondent.
Richard D. Shewmaker, Thompson, Walther & Shewmaker, St. Louis, for appellant, Anthony M. Gioia, St. Louis, of counsel.
STOCKARD, Commissioner.
Defendant was charged with robbery of Robert E. Partain with a deadly and dangerous weapon, a knife. The jury found him guilty and the court, under the Second Offender Act, sentenced him to imprisonment for a term of fifteen years.
There is no challenge to the sufficiency of the evidence, and we need make only a brief summary of the facts as a jury reasonably could find them from the evidence. On August 23, 1968, after attending a night baseball game in St. Louis, Robert E. Partain and two companions drove west on Washington Avenue, and when in the 4400 block several colored persons stepped in front of their automobile and flagged them down. David Skiles, one of Partain's companions, got out of the automobile and defendant got in, and by use of a knife forced Partain to give him his wallet from which defendant took $61. At that time two policemen arrived and defendant was arrested. Defendant elected to testify. His version of what occurred was, in substance, that Partain and his companions were in the area looking for prostitutes, and that he had gotten in the automobile to talk to them when the police arrived, and Partain then accused him of robbery. He also admitted three previous convictions for burglary.
The first point on this appeal is that prejudicial error resulted from 'the repeated references in the prosecution's argument to defendant's individual character and experience with the criminal law.' Defendant refers in the argument portion of his brief to two statements of the State's attorney, taken out of context, as follows:
'* * * it boils down whom you believe, the officer and the three boys or a man convicted three times of burglary and knowns so much about the law that he tells the officers, 'Until you tell me I am under arrest, you can't put those handcuffs on me. I know my rights.''
We first note that there is no assignment in the motion for new trial pertaining to this contention. In addition, at the time the statement first quoted above was made, the only objection was, There was no objection made to the second statement. However, in any event, the statements do not constitute improper comments on defendant's character. Instead, they are comments on the evidence and on defendant's credibility. We find nothing prejudicial to defendant.
Defendant next asserts error 'because of the repeated references in the prosecutor's argument to the defendant having failed to tell his story to the police the night he was arrested.'
After testifying that Partain and his two companions were looking for prostitutes, and that while he was talking to them the police officers came up and Partain accused him of robbery, defendant was asked on cross-examination whether he related this version as to what occurred to the police officers when he was taken to the station. His answer was that he tried to but was not permitted to do so. Without objection the following then occurred:
'Q. As a matter of fact, you exercised your constitutional rights and didn't make a statement at all; isn't that correct?
A. They took me out.
Q. They did ask you and you declined to say?
A. They didn't ask me. When I tried to sell them, they didn't give me a chance to say anything after they had the statement of these men (Partain and his companions), and locked me up and told me I could remain silent.'
In addition to the above, after defendant had testified that the police officer refused to permit him to tell his version of what occurred, he was asked if, and if so when, he was advised of his right to remain silent. He answered without objection that it was after he had been asked to sign a statement, and 'I said no. * * * I said I wouldn't sign any statement.'
In argument to the jury the State's attorney commented that the police officer had testified that he saw the money in defendant's hand when he arrived at the scene, and he commented further that The objection was, 'That isn't in evidence,' and 'he is emphasizing again the fact he (defendant) made no statement.' Later the State's attorney again commented on defendant's testimony that he had tried to tell the police his version of what occurred, and he stated that the defendant does not have to 'tip off' what he is going to say at trial, and when the State learns of defendant's version for the first time in court, the State has no opportunity to investigate it. The objection was that this placed 'undue emphasis' on defendant's failure to make a statement. Defendant sets out in his brief two other statements made in argument to which to objection was made, and a third statement to which the objection was, 'I think this is improper argument.' We shall not set them out because our ruling would apply to these three statements even if an adequate objection had been made.
It is the general rule that an accused is not required to make any statement to the police following his arrest and the State is not entitled to refer to his failure or refusal to do so. State v. Doepke, Mo., 361 S.W.2d 689, 693. However, when a defendant testifies in his own behalf he is liable to cross-examination, contradiction and impeachment the same as any other witness. State v. Beishir, Mo., 332 S.W.2d 898; § 546.260 RSMo 1959, V.A.M.S. In this case the defendant personally testified, without objection, that he 'tried' to tell his story to the police officers after he was taken to the police station but was denied the opportunity to do so, and he also testified that he refused to and did not sign a statement. Therefore, it was the defendant who presented the issue as to whether he failed to tell his story when arrested. The State's attorney was entitled to cross-examine defendant concerning that testimony, and also to comment on it in argument, and in doing so it was proper to comment on whether defendant's credibility warranted a belief of his testimony. We find no prejudicial error under the circumstances of this case.
In defendant's remaining point he asserts that §...
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