State v. Hopkins

• Citation: 947 S.W.2d 826
• Decision Date: 30 June 1997
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Nelson E. HOPKINS, Appellant. 52815.
• Court: Missouri Court of Appeals

Page 826

947 S.W.2d 826

STATE of Missouri, Respondent, v. Nelson E. HOPKINS, Appellant.

No. WD 52815.

Missouri Court of Appeals,

Western District.

June 30, 1997.

James C. Cox, Assistant Appellate Defender, Kansas City, for appellant,

Jeremiah W. (Jay) Nixon, Attorney General, Kurt U. Schaefer, Assistant Attorney General, Jefferson City, for respondent.

Before ULRICH, C.J., P.J., and LOWENSTEIN and EDWIN H. SMITH, JJ.

ULRICH, Chief Judge, Presiding Judge.

Nelson Hopkins was convicted of three counts of robbery in the first degree, § 569.020, RSMo 1994, and three counts of armed criminal action, § 571.015, RSMo 1994. Mr. Hopkins was sentenced as a prior offender to fifteen years imprisonment for each count. §§ 558.016, 557.036.4 and 558.019. The sentences are to run concurrently. Mr. Hopkins claims that the trial court committed two errors of law when it: (1) permitted the state to cross examine him about not calling alibi witnesses and failed to prohibit the prosecutor in closing argument from arguing anadverse inference; and (2) denied his motion to sever the robbery and armed criminal action counts.

The judgment of convictions is affirmed.

STATEMENT OF FACTS

Two armed males entered the Hardee's restaurant located at 6323 Independence Avenue, Kansas City, Missouri, at about 10:45 p.m. on August 29, 1994, waiving guns and demanding that everyone "get down on the floor." One of the employees attempted to run to the door but was prevented by one of assailants who cocked a .9 millimeter pistol and pushed her to the floor. Another employee, who was lying on the floor behind the counter, was forced by the other male assailant to open the safe and empty the money drawers. The two men fled with the restaurant's money.

Three armed men entered the Kentucky Fried Chicken restaurant located at 7200 Eastwood Trafficway, Kansas City, Missouri, at about 7:30 p.m. on September 21, 1994. One man fired a round into the ceiling while the remaining two men jumped over the counter and ordered everyone to lie on the floor. The man who fired his weapon ordered an employee to open her cash register and give him the money within the drawer. The employee was unable to open the register, and another employee intervened and successfully opened the register. The gunman also ordered the employee who opened the cash register to get the money from the restaurant's safe. The three men left with the money.

Four armed men entered the Burger King restaurant located at 9494 Blue Ridge, Kansas City, Missouri, at about 7:30 p.m. on October 24, 1994. One of the armed men, wearing a hobo mask, jumped over the counter and put his gun to the head of an employee. The gunman ordered the employee to the office and directed him to open the safe. Another gunman jumped the counter and put a gun to the head of another restaurant employee and ordered her to open all the cash registers.

While this robbery was occurring, a husband and wife noticed the robbery from their car. The couple found a pay phone and called police. The couple also followed the robbers' car when it left the robbery scene. The couple, a police car, and a police helicopter, continued to follow the "getaway" car until it suddenly stopped and four males left the vehicle running. The police apprehended four men at various locations all generally within a block and a half of where the car stopped. Those individuals included Mr. Hopkins, Tyrone Williams, Mark Bell, and Javon Turner. Police discovered a .9 millimeter handgun in the vicinity of where police officers within the helicopter said three of the men were huddled. The car in which the men were riding was loaned to Mr. Hopkins by his uncle and contained a hobo mask, money, a pellet gun, and a Burger King bank bag. Three traffic tickets issued to Mr. Hopkins and his checkbook were also found in the car.

Police conducted a ballistic test on the recovered handgun and concluded that the bullet fired into the ceiling during the robbery of the Kentucky Fried Chicken restaurant was fired from the handgun. Various restaurant employees who were present during the robbery identified Mr. Hopkins as one of the robbers. An employee of Hardee's restaurant, present when the restaurant was robbed August 29, 1994, identified Mr. Hopkins and Mr. Turner as the two gunmen who robbed the restaurant. An employee of the Kentucky Fried Chicken restaurant identified Mr. Hopkins and Mr. Turner as two of the men who robbed that restaurant on September 21, 1994. Another employee of the same restaurant identified Mr. Turner as the man who forced her to open the cash registers during that robbery. An employee of the Burger King restaurant identified Mr. Hopkins's voice as the voice of one of the robbers who robbed that restaurant October 24, 1994. Another employee of the same restaurant also identified Mr. Hopkins's voice, and Mr. Turner was identified as a participant in the robbery.

Mr. Hopkins offered an alibi defense to all of the robbery charges, alleging that he was with other people when the robberies occurred. Mr. Hopkins was convicted of three counts of robbery and three counts of armed criminal action, and he appealed.

I. THE TRIAL COURT DID NOT ERR IN ALLOWING THE STATE TO CROSSEXAMINE MR. HOPKINS ABOUT HIS FAILURE TO CALL ALIBI WITNESSES IN SUPPORT OF HIS ALIBI DEFENSE

Mr. Hopkins's first point of error concerns the state's cross-examining him regarding his failure to call alibi witnesses with whom he claimed to have been with when at least two of the robberies occurred. ¹ Mr. Hopkins claims that the state's crossexamination impermissibly placed upon him the task of disproving a presumption that the alibi witnesses would testify against him if called. The state contends it was entitled to ask Mr. Hopkins about alibi witnesses he did not call to testify because he created the reasonable expectation that they would testify favorably for him.

Mr. Hopkins failed to object to the prosecutor's inquiries on cross-examination about where the two people were with whom he claimed to have been with August 29, 1994, the day of the Hardee restaurant robbery. He also failed to object when the state argued the adverse inference for the witnesses' failure to testify. Failure to object preserves nothing for appellate review. Rule 30.20; State v. McMillin, 783 S.W.2d 82, 95 (Mo. banc 1990), cert. denied, 498 U.S. 881, 111 S.Ct. 225, 112 L.Ed.2d 179 (1990).

Mr. Hopkins objected when the prosecutor cross-examined him about the September 21, 1994 robbery of the Kentucky Fried Chicken restaurant. The prosecutor inquired about "several people" whom Mr. Hopkins claimed to have seen at his place of employment while he worked when the restaurant was robbed. Mr. Hopkins objected to the line of questioning charging that the prosecution was "shifting the burden of proof." Mr. Hopkins alleges on appeal that the objection was made to the adverse inference being made by the prosecution. An argument advancing an adverse inference does not shift the burden to the accused. State v. Bostic, 789 S.W.2d 804, 809 (Mo.App.1990). Therefore, Mr. Hopkins's objection, based on a "shifting of the burden" theory rather than an "adverse inference" theory, cannot be enlarged on appeal. State v. Macon, 845 S.W.2d 695, 696 (Mo.App.1993). Even giving Mr. Hopkins the benefit of review under plain error, his argument nevertheless fails.

A prosecutor's argument must be "plainly unwarranted" and found to have had a decisive prejudicial effect on the jury's verdict against the defendant in order to find an abuse of trial court discretion in allowing the adverse inference. State v. Moore, 620 S.W.2d 370 (Mo. banc 1981); State v. Wood, 596 S.W.2d 394, 403 (Mo. banc 1980), cert. denied, 449 U.S. 876, 101 S.Ct. 221, 66 L.Ed.2d 98 (1980).

The state's arguing an adverse inference in closing argument because a defendant failed to call a specific witness to testify is improper, generally. State v. Crump, 875 S.W.2d 241, 242 (Mo.App.1994); State v. Poe, 721 S.W.2d 180, 181 (Mo.App.1986). An exception to this general "missing witness rule" arises when a defendant fails to call a "peculiarly available" witness reasonably expected to testify in the defendant's favor. Graves v. U.S., 150 U.S. 118, 121, 14 S.Ct. 40, 41, 37 L.Ed. 1021 (1893) ("the rule even in criminal cases is that if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable"); State v. Neil, 869 S.W.2d 734, 739 (Mo.1994); State v. Reese, 860 S.W.2d 848, 850 (Mo.App.1993); But see Herbert v. Wal-Mart Stores, Inc., 911 F.2d 1044 (5th Cir.1990)(uncalled witness rule has no place in federal trials employing the Federal Rule of Evidence). The categorization of a witness is determined by: (1) one party's superior ability to know or identify the witness; (2) the nature of the testimony expected to be given by the witness; and (3) a relationship between a party and the witness which indicates a likelihood that the witness would testify more favorably for one party than the other. State v. Anderson, 867 S.W.2d 571, 576 (Mo.App.1993). This test assumes that the witness has knowledge of facts and circumstances "vital to the case." Kelly by Kelly v. Jackson, 798 S.W.2d 699, 702 (Mo. banc 1990).

Mr. Hopkins defended the charges by asserting an alibi defense to each. He testified that the day he was released from incarceration by the state of Kansas, the date of the first charged robbery, his friend, Jeffery Green, drove him from the penal institution while Mr. Green was "still on the clock" for his employer. Mr. Hopkins contended that he, Mr. Green, and Mr. Green's wife were together the entire night either eating dinner, shopping for clothes, or within North Kansas City. The prosecutor, on cross examination, without objection, asked Mr. Hopkins why, if the Greens could...