State v. Hodges

• Decision Date: 14 August 1979
• Docket Number: No. 38758,38758
• Citation: State v. Hodges, 586 S.W.2d 420 (Mo. App. 1979)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Bobbie Joe HODGES, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 420

586 S.W.2d 420

STATE of Missouri, Plaintiff-Respondent, v.Bobbie Joe HODGES, Defendant-Appellant.

No. 38758.

Missouri Court of Appeals, Eastern District, Division One.

Aug. 14, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Sept. 17, 1979.

Application to Transfer Denied Oct. 10, 1979.

Robert C. Babione, Public Defender, Terry Burnet, Asst. Public Defender, Cynthia S. Holmes, Special Asst. Public Defender, St. Louis, for defendant-appellant.

John D. Ashcroft, Atty. Gen., Steven Scott Clark, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

SNYDER, Presiding Judge.

Defendant appeals from a judgment of conviction of second degree murder and a sentence of forty years in the Missouri Department of Corrections.

Appellant contends the trial court erred in: (1) failing to grant appellant's motion for a mistrial when the state in its opening statement said that appellant was given his Miranda ¹ rights because it was an improper comment on appellant's right to remain silent; (2) overruling appellant's objection to the state's calling appellant's wife as a witness; (3) denying appellant's motion for a mistrial when the appellant's wife refused to testify after the state outlined her expected testimony in its opening statement; (4) denying appellant's motion for a mistrial when a deputy sheriff testified, out of the presence of the jury, that appellant's wife had been subpoenaed, had been told not to leave, but had nonetheless left the courthouse; (5) denying appellant's motion for a mistrial after the victim's wife had testified to remarks appellant's wife had made about threats by appellant; (6) denying appellant's motion for a mistrial after the state offered to make appellant's clothing available to appellant if he wanted to offer it in evidence because the offer was an improper comment on the burden of proof; (7) denying appellant's motion for a mistrial after the state referred to appellant as "that animal" in closing argument; (8) overruling appellant's objection to the state's closing argument that the testimony of Oliver Basham was consistent with his grand jury testimony when the grand jury testimony was not in evidence; and, (9) denying appellant's motion for a judgment of acquittal because all of the evidence was insufficient to meet the state's burden of proof.

The judgment is affirmed.

On September 11, 1975, appellant, Bobbie Joe Hodges, and the victim, Ben Cheever, spent the day drinking beer at appellant's apartment in St. Louis.Betty Hodges, appellant's wife, and Ann Cheever, the deceased's wife, had been with their husbands most of the day, but at approximately 11:30 p. m. the wives left to visit a neighbor's apartment upstairs.Before going upstairs, the two women stopped by Oliver Basham's apartment next door, and Mrs. Hodges left a phone number with Basham where she could be reached if necessary.

At approximately 2:00 a. m. Oliver Basham, who was watching television, heard kicking and knocking at his door.Basham recognized appellant Hodges' voice and told Hodges to go back home and go to bed.Hodges told Basham that he could not go home, that he had shot Ben.Basham let the appellant in.Hodges entered in a nervous state carrying a pistol which he put on a table.Hodges wanted Basham to hide it.Basham picked up the gun with a washrag and placed it in a paper sack.At this time appellant told Basham not to tell anyone what had happened while he went to look for his wife.Appellant then left Basham's apartment.Basham took the sack containing the washrag and gun to a shed behind his house and left it there.

Basham then called Betty Hodges, told her what had happened and instructed her to call the police.About fifteen minutes later, appellant returned to Basham's and lay down on Basham's bed.Shortly after 3:00 a. m., September 12, 1975, Officers William Priest and Sheldon Wight arrived at the scene, took reports from Ann Cheever and Betty Hodges, observed the body of the deceased lying on the kitchen floor of appellant's apartment, and arrested appellant in Basham's apartment.

In his first assignment of error, appellant contends the trial court erred in failing to grant his motion for a mistrial after the state in its opening statement said that appellant was arrested and given his Miranda rights.Appellant objected to the remark and the trial court sustained the objection, instructed the jury to disregard the statement and struck it from the record, after which appellant's motion for a mistrial was denied.

Appellant claims that this statement constituted improper comment upon his right to remain silent.It is true that comments concerning the failure of a defendant to testify violate the defendant's right against self-incrimination protected by the Fifth Amendment to the United States Constitution.Griffin v. California, 380 U.S. 609, 611, 85 S.Ct. 1229, 14 L.Ed.2d 106(1965);§ 546.270, RSMo 1978;Rule 26.08.

When statements made by a prosecutor do not contain direct and certain references to the failure of the accused to testify, an appellate court will not interfere unless the record shows that the trial court abused its discretion to the prejudice of the appellant.State v. Rothaus, 530 S.W.2d 235, 237(Mo. banc 1975);State v. Pruitt, 479 S.W.2d 785, 790(Mo. banc 1972);State v. Hutchinson, 458 S.W.2d 553, 555(Mo. banc 1970).

The allegedly offending statement at issue is not a "direct" and "certain" reference to appellant's failure to be a witness on his own behalf.State v. Hutchinson, supra.In fact, the prosecutor's statement does not even indirectly refer to the failure of appellant to testify.The remark is directed to the various actions surrounding the arrest of appellant with no specific mention of his unwillingness or hesitation to say anything to anyone.Although the prosecutor's remarks did not violate appellant's constitutional rights as declared in Griffin v. California, supra, the trial court sustained appellant's objection and instructed the jury to disregard the remark.

A motion for mistrial is a request for extraordinary relief.In cases of improper incidents in the course of a trial, the necessity of the drastic remedy of a mistrial is a matter resting in the sound discretion of the trial court.Absent a manifest abuse of that discretion, the appellate court should not interfere.Hoene v. Associated Dry Goods Corporation, 487 S.W.2d 479, 485(Mo.1972);Yust v. Link, 569 S.W.2d 236, 239(Mo.App.1978);State ex rel. State Highway Commission v. Drisko, 537 S.W.2d 645, 648(Mo.App.1976).Here there was no abuse of discretion.The cases cited by appellant to support his opposing contention are distinguishable.

Appellant next argues that the trial court erred in overruling his objection to the state's calling his wife as a witness for the state because she was unwilling to testify.This argument is without merit.

Until the Missouri Supreme Court handed down State v. Euell, 583 S.W.2d 173(Mo. banc 1979) the law was that the spouse of a defendant in a criminal case, if willing to testify, was a competent witness except as to confidential communications between the spouses.This was true even though the defendant-husband objected.Section 546.260, RSMo 1978;State v. Damico, 513 S.W.2d 351, 361(Mo.1974);State v. Frazier, 550 S.W.2d 590, 596(Mo.App.1977).

The issue in Euell was the propriety of an ex-wife's testimony against her ex-husband, a defendant in a criminal case.The court in Euell ruled that: "The holding or pronouncement in State v. Frazier, supra, that During the marriage a spouse may testify for the prosecution, over the objection of the defendant spouse, if the testifying spouse does so Voluntarily, is incorrect and should no longer be followed."(Emphasis supplied at "during the marriage.")The court further said that language in Damico to the effect that the common law incompetency of a wife to testify against her husband was removed by the enactment of § 546.260, RSMo 1978 seemed to be receiving an overbroad interpretation and was "likely to lead to error."

The conviction in Euell was nonetheless affirmed because the parties were divorced before the trial.The court held that under those circumstances the reason for the incompetency the marital relationship no longer existed.The facts testified to did not involve confidential communications which remain inadmissible even after a marriage is dissolved.

The change in the law does not affect the ruling here.In deciding whether to apply an overruling case prospectively or retrospectively, Missouri courts have adopted a "procedural-substantive" law test.If the overruled decision is one dealing with procedural law, the effect of the subsequent overruling decision is prospective only.Shepherd v. Consumers Cooperative Association, 384 S.W.2d 635(Mo. banc 1964).

"This rule of privileged communications is not a rule of substantive law, but a mere rule of evidence . . .."97 C.J.S.Witnesses§ 252, page 739.The Euell decision, therefore, changes procedural law only, is prospective in application, and does not affect the case at bar.State ex rel. May Department Stores Co. v. Haid, 327 Mo. 567, 38 S.W.2d 44, 53(10)(banc 1931);Koebel v. Tieman Coal & MaterialCo., 337 Mo. 561, 85 S.W.2d 519, 524(3-5)(1935).

The test under the then applicable law was whether the spouse was "willing" to testify.It appears that there was some confusion regarding the wife's willingness to testify.The prosecutor said she told him she was willing; defense counsel said she told him she was not.The prosecutor called the wife in apparent good faith.After she was sworn, appellant objected to her being called.Although this objection was overruled, the wife did not testify.Before she spoke a word, she was advised by independent counsel of her option to refuse to testify against her husband, after which she decided against testifying.

The cases cited by appellant, ...