State v. Gilreath

• Decision Date: 05 October 1982
• Docket Number: No. WD,WD
• Citation: 643 S.W.2d 274
• Parties: STATE of Missouri, Respondent, v. Royce E. GILREATH, Appellant. 33076.
• Court: Missouri Court of Appeals

Page 274

643 S.W.2d 274

STATE of Missouri, Respondent, v.Royce E. GILREATH, Appellant.

No. WD 33076.

Missouri Court of Appeals Western District.

Oct. 5, 1982.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

Nov. 30, 1982.

Richard Knight, James F. Ralls, Jr., Kansas City, for appellant.

John Ashcroft, Atty. Gen., Rosalynn Van Heest, Asst. Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before MANFORD, P.J., and WASSERSTROM and KENNEDY, JJ.

MANFORD, Presiding Judge.

This direct appeal follows a judgment of conviction for forcible rape in violation of § 566.030 RSMo 1978, assault first degree in violation of § 565.050 RSMo 1978, and robbery first degree in violation of § 569.020 RSMo 1978.The judgment is affirmed.

In summary, the trial court is charged with having committed error (1) in overruling appellant's motion for mistrial for improper comment by the prosecutor during opening statement, (2) in abuse of its discretion by denying appellant the opportunity to show or discover likely prejudice to appellant after the jury had the opportunity to view a television show, and (3) in overruling appellant's objection to the prosecutor's comments regarding the presumption of innocence and an endorsement of personal belief by the prosecutor.

The sufficiency of the evidence is not challenged so a brief summary thereof suffices.The evidence is sufficient to support the jury's finding of conviction.At about 6:00 p.m. on January 2, 1981, Arline Braxton, the victim, was awaiting the arrival of a city bus to complete her journey home.She was hailed by appellant and another male from appellant's motor vehicle.The victim was acquainted with appellant and accepted appellant's offer to drive her to her home.The victim testified she had never dated the appellant and she did not know appellant's male companion.The victim testified appellant told her he had to pick up something at his house and the three then proceeded to appellant's house.The three went into the house with the victim intending to use the bathroom.The victim asked appellant to take her home and he agreed, "Well, I will take you home after we have a little fun".The victim stated she wanted nothing to do with it and started to leave, but appellant grabbed her arm and appellant and his companion took her upstairs to a bedroom.The two undressed the victim forcibly and put a pillow over her face.While appellant had sexual intercourse with the victim, his companion held her down.She was continuously struggling against the two.Appellant and the companion switched places.While the companion was having sex with her, appellant tried to get the victim to have oral sex with him.She refused and appellant became angry.The companion tried also to have the victim have oral sex.The victim then scratched the two on the testicles.The two cursed the victim, struck and kicked her.The victim tried to escape through a window, but she was caught by appellant.Appellant was checking the window which had been broken and the victim continued to fight with the companion all the way downstairs.The two then pulled her back upstairs and the companion had sex with her again.Appellant then took $20.00 in cash and some valium tablets from the victim.He told her she owed him for the broken window.The demand for the window repair caused the victim, from fear, to offer to write appellant a check at her home.The three then proceeded to the victim's residence, where, in the privacy of a bedroom, but in appellant's presence, the victim wrote out a check to appellant's favor for $150.00.

The medical evidence revealed proof of intercourse, along with multiple bruises and abrasions.

The defense was consent.On the matter of the victim's injuries, appellant testified the victim became enraged because he had climaxed in the victim's mouth after his promise not to do so.Appellant testified the victim became angry and was kicking at him, that she fell against the window and also damaged his color television.It was appellant's testimony that the victim tendered payment of $150.00 as repairs for the window and television voluntarily.

The evidence closed.The jury returned its verdict, after trial motions were filed, and after the ruling thereon, this appeal followed.

Under point (1), appellant charges the trial court erred in its refusal to grant appellant's motion for mistrial because of improper comment by the prosecutor during opening statement.The contention was that the prosecutor's statement was an improper comment upon appellant's silence.The challenged statement is as follows:

"Officer MacDougall then questioned him [appellant] about whether or not his testicles had been scratched or cut.He first denied it.Following that, they examined his testicles, took a picture of it which showed a cut on the testicle.He again questioned him about that and the defendant said, 'Maybe it got there when Arline Braxton became mad'.He did not make a signed statement."

then the following occurred:

"I object.May we approach the bench, Your Honor?"

During a conference at the bench, appellant, through counsel, stated:

"At this time, I think Mr. Stigall has stretched his argument to the point where he is commenting on the defendant's refusal to sign a statement which is in direct violation of the defendant's Miranda rights...."

The prosecution then argued to the court that the remark was that the appellant did not make a signed statement and not that appellant refused to make a statement.The record was read back and the above statement verified for the trial judge.Appellant's request for a mistrial was denied.Upon appellant's request, the jury was admonished thusly.

"The objection is sustained.Ladies and Gentlemen of the jury you will disregard the prosecutor's comment regarding the defendant's alleged failure to sign a statement.You should totally disregard that statement.The statement will be stricken from the record."

Appellant argues that the foregoing statement was a comment upon his right to remain silent, thus violating his constitutional rights under the Fifth Amendment to the United States ConstitutionandArticle I § 19 of the Missouri Constitution.He further charges the trial court admonishment to the jury was insufficient citing State v. Stuart, 456 S.W.2d 19(Mo.banc 1970);State v. Phelps, 384 S.W.2d 616(Mo.1964);State v. Benfield, 522 S.W.2d 830(Mo.App.1975);andState v. Halk, 524 S.W.2d 44(Mo.App.1975).In addition, appellant points out that the alleged prejudicial comment was made in the opening statement and that is as harmful as if made during closing argument, citing State v. Roth, 549 S.W.2d 652(Mo.App.1977).Appellant argues that the instant case should be distinguished from State v. Leonard, 606 S.W.2d 403, 408(Mo.App.1980) because, unlike Leonard, supra, the comment herein was directed to draw the jury's attention to whether appellant elected to remain silent.This court disagrees.

The court in Leonard declared: "[t]he ultimate test of whether the privilege was denied or the right violated is whether the challenged remarks were reasonably apt to have directed the jury's attention to the fact that the defendant refused to speak on his behalf [citations omitted]."

When the challenged comment is carefully studied, it is apparent that the comment did not allege nor infer that appellant refused to talk with the officer or to sign a statement.In United States v. Sanders, 547 F.2d 1037, 1042(8th Cir.1976)cert. denied431 U.S. 956, 97 S.Ct. 2679, 53 L.Ed.2d 273, it was held:

"In testing the remarks, we look to see whether the comment was clearly intended or was of such a nature that the jury would naturally and necessarily view the comment as a reference to the defendant's failure to testify [citations omitted].A second point of inquiry is whether the statements were prejudicial to the defendant."

The challenged comment herein did not ".... highlight defendant's failure to offer an exculpatory version of the incident at the time of his arrest", Leonardsupra.

In addition, as to the question of silence, it has been recently ruled that, where an accused has made statements to authorities subsequent to arrest, he has not remained silent.State v. Harper637 S.W.2d 342(1982), United States v. Muscarella, 585 F.2d 242, 248(7th Cir.1978).

This court in Harper, supra, declared:

".... the law is clear that when a defendant exercises his constitutional right to remain silent, his post arrest silence is not admissible against him [citations omitted], this rationale has no application where the defendant elects to waive that right during his custodial arrest and proceeds to make statements as was done here, [citations omitted].This is true whether the statements waiving the right are made before or after the expressed desire to remain silent."

It is concluded that Stuart, Phelps, Benfield, Halk, and Roth, supra, do not control, but rather this point is disposed of by Leonard, Sanders, Harper, and Muscarella, supra.The trial court did not err in overruling appellant's motion for a mistrial.There is no showing of prejudice against appellant regarding his right to due process or a fair trial.

Point (1) is found to be without merit and is ruled against appellant.

Under his point (2), appellant presents a rather novel contention by charging the trial court with error by an abuse of its discretion when the trial court denied appellant"the opportunity to show or discover the likely prejudice to the appellant after an unsequestered jury had the opportunity to view a highly inflammatory and biased television program which was factually similar to the allegations of the instant case"[emphasis added].

The first day of this trial ended and, as the jury was unsequestered, they were permitted to leave the courthouse.On the morning of the second day of the trial, the...