State v. Kalter, s. 58841
| Decision Date | 01 September 1992 |
| Docket Number | Nos. 58841,61066,s. 58841 |
| Citation | 839 S.W.2d 670 |
| Parties | STATE of Missouri, Respondent, v. David KALTER, Appellant. David KALTER, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Craig A. Johnston, Columbia, for appellant.
William L. Webster, Atty. Gen., Hugh L. Marshall, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant was indicted on charges of murder in the first degree, armed criminal action, forcible rape, and two counts of forcible sodomy. The murder charge was severed from the other counts and jury tried. Defendant appeals from his conviction for the lesser offense of murder in the second degree and sentence of life imprisonment. Defendant also appeals from the denial of his Rule 29.15 motion for postconviction relief.
Defendant does not challenge the sufficiency of the evidence. A brief review of the facts discloses that defendant argued with his female paramour. When her mother intervened, defendant killed the mother with a knife. There was also substantial evidence adduced that defendant then forcibly raped and sodomized the paramour. After the police arrived at the crime scene, defendant's uncle informed an officer that defendant told him that he thought he stabbed someone. When the officer asked defendant what happened, defendant answered that he thought he had stabbed someone and that the person was in the basement.
At trial, the paramour testified, inter alia, to the details of the killing. The murder weapon, a knife with defendant's name on it, was introduced into evidence. Additionally, defendant's tape recorded confession was received into evidence. Defendant did not testify but presented evidence that he was confused and that he had "blacked out" during the murder. Clearly, there was substantial evidence adduced to support defendant's conviction.
Defendant first claims that the trial court erred in overruling defendant's request for a mistrial after the prosecutor commented on defendant's failure to testify. In her closing argument, defendant's counsel stated that defendant could not tell the jury what happened the night of the murder. The prosecutor objected to that statement, arguing that defendant was taking unfair advantage of his decision not to testify. After a bench conference, the trial court allowed the statement so long as it was explained to the jury that defendant could not tell what happened because he could not remember. The following proceedings then took place:
MS. MURPHY: Okay.
Ladies and gentlemen of the jury, David doesn't remember what happened. Now, you heard that testimony yourself, in spite of whatever the State may think. You heard a tape recording of his voice saying that, so you know that he cannot tell you what happened because he doesn't remember.
And that brings us to my next point, which is David's testimony that I want you to think about.
You may proceed.
MS. MURPHY: There are things that the State doesn't want you to think about, but I'm going to ask you to consider those things. And one of those things is the statement that David made to the police. And you have a rare opportunity because you can hear exactly what he sounded like at the time that this offense was committed, or within hours afterwards. And you heard his voice, and you have to be the ones to decide the genuineness in his voice, the confusion that you heard, the attempt, the groping, the attempt to try to piece together what had happened that night. You folks heard that.
He could have made up a story. He could have refused to say anything at all. He could have said Janice did it. He could have fled before the police got there. He didn't do any of those things. And I want you to keep that in mind when you consider the evidence in this case.
You heard his statement on the tape. He's quibbling with the word "testimony" because that means under oath. No, he was not under oath. Just like Janice was not under oath.
A defendant in a criminal case has the right not to testify at trial. U.S. Const. Amend. V; Mo. Const. Art. I, § 19; Section 546.270 RSMo, (1986); Rule 27.05. Generally, a prosecutor is forbidden from referring either directly or indirectly to a defendant's failure to testify. State v. Hill, 678 S.W.2d 848, 850 (Mo.App.1984).
Defendant's request for a mistrial came after the prosecutor's second reference to the fact that defendant did not testify. That reference could not be considered prejudicial because the prosecutor had earlier made the same point without objection. Furthermore, it was defendant's counsel who initially referred to defendant's "testimony", not the prosecutor. The prosecutor simply objected to the statement, replying that defendant never testified. A defendant may not provoke a reply to his own argument and then assert error. State v. Bockes, 676 S.W.2d 272, 276 (Mo.App.1984). Given defendant's closing argument, the trial court did not abuse its discretion in denying his request for a mistrial. Defendant's first point is denied.
Defendant next argues that the trial court erred in overruling his motion to prohibit the prosecutor from accessing the arrest records of venirepersons. Defendant contends that use of data from arrest records in questioning venirepersons is improper and in violation of § 610.100, RSMo (1986) and §...
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