State v. Johnson, 66258
| Decision Date | 15 April 1997 |
| Docket Number | No. 66258,66258 |
| Citation | 943 S.W.2d 837 |
| Parties | STATE of Missouri, Respondent, v. Warren JOHNSON, Appellant. Warren JOHNSON, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Ellen H. Flottman, Asst. Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., David R. Truman, Asst. Atty. Gen., Jefferson City, for respondent.
Appellant, Warren Johnson ("defendant"), appeals the judgment of conviction entered by the Circuit Court of the City of St. Louis after a jury found him guilty of one count of robbery in the second degree, RSMo 569.030 (1986). Defendant also appeals the denial of his Rule 29.15 motion for post-conviction relief after an evidentiary hearing. We affirm.
On the evening of April 13, 1993, at approximately 9:45 p.m., defendant and another individual approached Deondrea Anderson ("victim") in the parking lot of the Social Security office at Euclid and Delmar in St. Louis City. Victim had stopped to deposit some paperwork in the night deposit box. She left the keys in the ignition and her three year-old son and seven year-old cousin waiting in the car. As victim was returning to the car, a 1985 Chrysler LeBaron, she noticed the two men approaching from Delmar. Victim quickened her pace and reached the vehicle at the same time as the two men. Victim opened the car door and got in. One of the two men asked her for a light. She responded she did not have a light and started to close the door; however, the man who had spoken stepped between the door and the car. Then the other man approached and asked victim if her name was Kim. Victim answered no and again tried to close the door, but the man grabbed it and held it open. Victim identified this second man as defendant at trial.
As defendant pulled the door open, the other man stepped aside and defendant took his place between the car and the door. At that point, defendant told victim, "Give me your money, bitch, or I'm going to kill you." Victim gave him her purse which was lying next to the driver's seat. Defendant also demanded victim's rings.
After she gave him her jewelry, defendant ordered victim out of the car. Instead of getting out, victim shifted the car into drive and attempted to drive away. The tires spun on the pavement, however, enabling defendant to grab the steering wheel. Defendant then reached in and turned off the ignition. Victim assured defendant he could have the car and the purse and asked that he not hurt her. She then asked if she could remove the children from the car. At that time, victim's cousin stepped out of the car from the passenger seat. Victim reached into the backseat to pick up her son, and defendant's companion pulled them both out of the car. Defendant and the other man then drove off in victim's car. Victim was able to stop a passerby and report the robbery to the police.
On April 20, 1993, Corporal William Clayton of the Missouri State Highway Patrol stopped a Chrysler LeBaron for speeding on southbound Interstate 55. Two people were in the vehicle. Clayton asked the driver for his driver's license and registration because the car did not have license plates, but only showed temporary tags. The driver could not produce any identification but told Clayton his name was Gary Gilkey. Defendant, the passenger, identified himself as Dominic Fluwellyn. Clayton discovered no driver's license had been issued in the name Gary Gilkey and, therefore, ran the vehicle identification number through the computer. Clayton learned the car had been reported stolen from St. Louis on April 13. The officer then arrested both the driver and defendant. Corporal Clayton identified defendant at trial as the passenger in the LeBaron on April 20.
After defendant was arrested, Officer Rodney Boyer contacted victim and asked her to view a photographic lineup. Victim did so and recognized defendant as one of the individuals who stole her car. Victim also viewed a live lineup and again identified defendant as one of the perpetrators. Officer Boyer testified he showed victim the photographic lineup and also conducted the live lineup.
The jury found defendant guilty of second degree robbery, and the trial court sentenced him, as a prior and persistent offender, to a term of twenty years in prison. Defendant filed his notice of appeal with this court. Defendant then filed a Rule 29.15 motion for post-conviction relief alleging ineffective assistance of counsel. After an evidentiary hearing, the motion court entered its findings of fact and conclusions of law denying defendant's request for relief, and defendant also appeals that ruling. We have consolidated the two appeals for review.
In his direct appeal, defendant contends the trial court erred in overruling his objection to certain questions posed to Officer Boyer by the state concerning defendant's request that his attorney be present at the live lineup. Specifically, defendant objects to the following exchange:
At that point defendant objected, arguing the state was attempting to offer evidence of defendant's invocation of his right to counsel. The prosecutor responded the officer was going to testify to the rights of suspects taking part in physical lineups. The court overruled the objection and, after several questions, the following dialogue took place:
Defendant argues these questions elicited impermissible evidence of defendant's post-arrest silence. It is well-settled in Missouri that a defendant's post-arrest silence or language representing silence cannot be used to incriminate him or her at trial. State v. Tims, 865 S.W.2d 881, 885 (Mo.App. E.D.1993). While it is permissible to inquire as to whether a suspect has been informed of his or her Miranda 1 rights, State v. Walker, 616 S.W.2d 89, 92 (Mo.App. E.D.1981), no comment may be made on the fact a suspect invoked his or her rights. State v. Martin, 797 S.W.2d 758, 764 (Mo.App. E.D.1990). Courts carefully scrutinize evidence pertaining to a defendant's silence or request for counsel in order to ensure no inference of guilt could reasonably be drawn from it. See State v. Frazier, 927 S.W.2d 378, 380 (Mo.App.W.D.1996).
A survey of the case law addressing impermissible comments on a defendant's invocation of his fifth amendment rights reveals the situation arises almost exclusively in the context of police interrogation. See, e.g., State v. Frazier, 927 S.W.2d 378, 381-82 (Mo.App. W.D.1996); State v. Tims, 865 S.W.2d 881, 884-85 (Mo.App. E.D.1993); State v. Howell, 838 S.W.2d 158, 160 (Mo.App. S.D.1992); and State v. Martin, 797 S.W.2d 758, 763-64 (Mo.App. E.D.1990). The admission of a defendant's post-arrest silence violates his or her constitutional rights where it is shown the accused invoked said rights in the face of accusation. Howell, 838 S.W.2d at 161. Accordingly, "[t]he principles do not apply where a defendant did not stand mute in the face of an accusation because no accusation was made." Id. Here, it is evident the questions by the prosecutor could not be construed to reflect on defendant's willingness or unwillingness to talk to the police. Nor did his request for counsel demonstrate defendant stood mute when faced with a charge of guilt which called for an admission or denial, thus implying he was guilty. See State v. Green, 798 S.W.2d 498, 503 (Mo.App. S.D.1990).
Defendant relies solely on State v. Miller, 655 S.W.2d 797 (Mo.App. E.D.1983). In Miller, the defendant had agreed to take part in a physical lineup. Id. at 799. However, upon learning he would have to speak at the lineup, 2 he requested he have an attorney present. Id. The defendant argued this statement violated both his right to counsel and his right to remain silent. Id. at 800. While noting the comment was unnecessary, this Court declined to find reversible error, where it did not appear the state deliberately elicited the statement and where defense counsel failed to object or request any curative instruction or other relief. Id. The court further stated that, even assuming the state intended the question as an inquiry into the defendant's request for an attorney, the statement was...
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State v. Anderson, SC 83680.
...of his rights and then exercised them when he was not being questioned at the time he invoked his rights. See State v. Johnson, 943 S.W.2d 837, 839-841 (Mo.App.1997); Howell, 838 S.W.2d at 160-163; State v. Green, 798 S.W.2d 498, 501-503 Such is the case here. The disputed testimony consist......