State v. Grays

• Decision Date: 22 June 1993
• Docket Number: 61996,Nos. 59418
• Citation: 856 S.W.2d 87
• Parties: STATE of Missouri, Respondent, v. David GRAYS, Appellant. David GRAYS, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 87

856 S.W.2d 87

STATE of Missouri, Respondent, v.David GRAYS, Appellant.

David GRAYS, Appellant, v.STATE of Missouri, Respondent.

Nos. 59418, 61996.

Missouri Court of Appeals,

Eastern District,

Division Four.

June 22, 1993.

Raymond L. Legg, Office of the State Public Defender, Columbia, for appellant.

Jeremiah W.(Jay) Nixon, Atty. Gen., Aundreia R. Alexander, Asst. Atty. Gen., Jefferson City, for respondent.

SIMON, Judge.

David Grays, appellant, appeals his jury convictions in the Circuit Court of St. Louis County of three counts of selling a controlled substance, Section 195.020 R.S.Mo.1986.The trial court sentenced appellant, as a persistent offender, to consecutive terms of ten years imprisonment on Count I, five years imprisonment on Count II, and five years imprisonment on Count III.Appellant also appeals the denial of his post-conviction relief (Rule 29.15) motion.

On appeal, appellant contends the trial court erred in: 1) granting the state's motion to strike the testimony of defense witness, Raymond Whitlock, and ordering the jury to disregard his testimony; and 2) granting the state's motion in limine prohibiting defense counsel from making any reference to Whitlock's testimony wherein he invoked his constitutional privilege against self-incrimination.Appellant argues that such rulings were violative of his fifth, sixth, and fourteenth amendment rights to a fair trial by an impartial jury.Additionally, appellant contends the trial court clearly erred in denying appellant's post-conviction relief motion because the record leaves a firm impression that appellant was denied due process of law and effective assistance of counsel.We affirm.

Reviewing the evidence in a light most favorable to the verdict, the facts are as follows.Detectives Darryl Relerford and Rick Morris worked for the Municipal Enforcement Group (MEG), a drug enforcement unit for St. Louis County.MEG informant, Raymond Whitlock, arranged for three separate drug transactions in which appellant sold drugs to Detective Relerford.

The first transaction took place on April 26, 1988 at approximately 3:38 p.m. in the 6500 block of Enright in University City.Appellant and Whitlock drove up in appellant's car and Detective Relerford got in the back seat.After a brief conversation, appellant sold Detective Relerford a "teenage"(street name for 1.75 grams of cocaine) for $150.Detective Morris surveilled in a nearby parked car but could not see the actual transaction.

On June 1, 1988, at approximately 6:30 p.m., Detectives Relerford and Morris waited at the Blueberry Hill Bar and Grill in the 6500 block of Delmar.As previously arranged, Whitlock went into the bar to get Detective Relerford.Whitlock and Detective Relerford left the bar and Detective Relerford crossed the street to appellant's car.Detective Relerford entered appellant's front seat and appellant sold Detective Relerford another "teenage" of cocaine for $150.Detective Morris surveilled just outside the bar.

Finally, on June 29, 1988 at approximately 4:15 p.m., Detectives Relerford and Morris waited again at the Blueberry Hill Bar and Grill where Whitlock entered to get Detective Relerford.Detective Relerford and Whitlock left the bar and crossed the street to appellant's car.Detective Relerford got in the back seat of appellant's car where appellant sold him an "eight-ball"(street term for 3.5 grams of cocaine) for $300.Once again, Detective Morris surveilled nearby.

After each transaction, Detectives Relerford and Morris took the white substance back to the MEG headquarters where they packaged and sealed the evidence.Tests conducted at the St. Louis County Lab showed that all three packages contained cocaine.

At the close of the state's evidence, appellant's counsel made an opening statement which implied Whitlock would testify and possibly implicate himself.The prosecutor, at sidebar, asserted that if Whitlock intended to testify, he should talk to an attorney.The judge agreed and sent for a public defender to advise Whitlock.When called to testify, Whitlock stated his name, address, age and answered general questions about familiarity with appellant.However, when asked about details of the drug transactions, Whitlock exercised his fifth amendment privilege against self-incrimination.When Whitlock told the courthe intended to claim his fifth amendment rights to all further questions, the court excused him.

The court sustained the state's motion to strike Whitlock's testimony and to instruct the jury not to draw any conclusion or inference, favorable or unfavorable to either party.The court also sustained the state's motion in limine prohibiting counsel from referring to Whitlock's refusal to testify.

Appellant testified and admitted giving Whitlock a ride to the locations of the various drug transactions but denied selling the drugs or having any knowledge of the drug transactions.

The jury convicted appellant on all three counts and the trial court sentenced him to consecutive terms of ten years imprisonment for Count I, five years imprisonment for Count II, and five years imprisonment for Count III.Appellant filed a pro se motion for post-conviction relief and later his attorney filed an amended motion.Following an evidentiary hearing, the motion court denied the motion.

Appellant's first point is that the trial court erred in granting the state's motion to strike the testimony of defense witness, Raymond Whitlock, and ordering the jury to disregard his testimony.Appellant also contends that the trial court erred in granting the state's motion in limine prohibiting defense counsel from making any reference to, or requesting the jury to draw any inference from Whitlock's testimony in which he invoked his constitutional privilege against self-incrimination.Appellant claims any reference made to Whitlock's refusal to testify would have been offered to impeach Detective Relerford's testimony and not for the purpose of inferring appellant's innocence.Appellant argues that such rulings were violative of his fifth, sixth, and fourteenth amendment rights to a fair trial by an impartial jury.Further, appellant argues that the state had a duty to see that justice was done and not withhold potentially exculpatory evidence by asserting that Whitlock consult with counsel prior to making potentially incriminating statements.As a result, appellant contends the cumulative effect of the state's actions and the court's rulings distorted the fact-finding process.

Essentially, the issues are: 1) whether the prosecution's suggestion that Whitlock consult with counsel prior to possible self-incrimination was an obstruction of justice and a distortion of the fact-finding process; and 2) whether the trial court erred in calling for a public defender to advise Whitlock of his fifth amendment rights and subsequently allowing him to exercise those rights.

We agree with appellant that, in addition to representing the state's case, the prosecution must see that justice is done and that the accused gets a fair trial.State v. Whitman, 788 S.W.2d 328, 335(Mo.App.1990).However, we disagree that the prosecution's actions in this case constitute prosecutorial misconduct.There is no record indicating that the prosecutor intimidated or threatened Whitlock.In State v. Brown, 543 S.W.2d 56, 59(Mo.App.1976), the prosecutor, after threatening a warrant for the witness' arrest, asked if the witness still wanted to testify.There we held that where the prosecutor intimidates or threatens a witness to dissuade the witness from testifying, the defendant is improperly denied his sixth amendment right to present witnesses in his own defense.Id. at 59.However, absent such intimidation or threats, no impropriety exists.State v. Drewel835 S.W.2d 494, 497(Mo.App.1992).

The state, on the other hand, argues that the prosecutor had a responsibility to ensure that Whitlock was aware of his rights.Our Supreme Court has found such a duty in State v. Miller, 485 S.W.2d 435, 441(Mo.1972), where the Court upheld a prosecutor's sustained objection of defense counsel's question asking whether the witness was a "practicing homosexual".The Court stated homosexuality was a statutory crime and therefore, the prosecutor had a duty to object to the question and request that the court advise the witness of his right against self-incrimination.Id.

Additionally, Missouri Supreme Court Rule 4.3andDR7-104(A)(2) of the ABA Model Code of Professional Responsibility (1983) state that a "lawyer should not give advice to an unrepresented person other than the advice to obtain counsel."While this does not specifically impose a duty upon attorneys to advise a witness likely to incriminate himself of his rights, it does imply that an unrepresented person should be advised to obtain counsel.

The ABA Standards of Criminal Justice specifically address this issue and while Missouri has not formally adopted these standards, some jurisdictions have, and a review of these standards is helpful.Standard3-3.2(b) of the ABA Standards for Criminal Justice (1980) provides as follows:

"Whenever a prosecutor knows or has reason to believe that the conduct of a witness to be interviewed may be the subject of a criminal prosecution, the prosecutor or the prosecutor's investigator should advise the witness concerning possible self-incrimination and the possible need for counsel."

Courts have looked to ABA Standard3-3.2(b) to determine if a prosecutor has a duty to advise a witness concerning possible self-incrimination and how such advice should be given.SeeU.S. v. Smith, 478 F.2d 976(D.C.Cir.1973)(Prosecutor's warning as to possible exposure to criminal prosecution was a threat and rather than intimidate the witness, the prosecutor should have suggested that the court advise the witness of his rights).See alsoHolbert v. U.S., 513 A.2d 825(D.C.App.1986)(no impropriety found...