State v. Leonard, 40108.
| Decision Date | 12 November 1980 |
| Docket Number | No. 40108.,40108. |
| Citation | 606 S.W.2d 403 |
| Parties | STATE of Missouri, Respondent, v. Victor J. LEONARD, Appellant. |
| Court | Missouri Court of Appeals |
COPYRIGHT MATERIAL OMITTED
James F. Booth, Clayton, for appellant.
John Ashcroft, Atty. Gen., Brenda Farr Engel, Asst. Atty. Gen., Gordon L. Ankney, Jefferson City, for respondent.
Motion for Rehearing and/or Transfer to Supreme Court Denied October 17, 1980.
Defendant Victor Leonard was convicted by a jury of forcible rape and armed criminal action and was sentenced by the court as a second offender to concurrent terms of six and three years, respectively. We affirm the conviction of forcible rape and reverse that of armed criminal action.
Because defendant does not challenge the sufficiency of the evidence, a brief summary of the facts suffices. The twenty-four-year-old prosecutrix testified that she was visiting a friend, Diane Welch, on March 17, 1977, when defendant's brother, Terry Leonard, asked her to accompany him to see his new apartment. The two walked the short distance to the apartment, where they met defendant. The prosecutrix had known the brothers for approximately ten years. At the apartment, the three drank a few beers and engaged in an amicable game of cards. Defendant all the while kept a sawed-off shotgun, in the open position, on the table in front of him. After an hour or so, defendant suddenly closed the gun, pointed it at the prosecutrix and told her she could not leave yet because not many women left the apartment "without having sex." The prosecutrix testified that she was frightened and wanted to leave, but stayed when defendant put the gun down and convinced her that he was only joking. A short time later, defendant asked the prosecutrix to follow him into the bedroom, ostensibly to view some pictures on the wall. When she complied, defendant repeated his declaration that she could not leave without engaging in sex with him. Terry Leonard entered the room with the shotgun, placed it on the bed and began to help defendant remove the prosecutrix's clothing. She testified that she resisted their efforts until defendant announced that he was "tired of wrestling" with her and started for the gun on the bed. She was thereafter raped once by defendant, twice by Terry Leonard and once by a Kenneth Brown, who arrived at the apartment after the rapes had begun. The gun was at all times either under control of one of the Leonard brothers or on the bed out of the prosecutrix's reach. She was thereafter allowed to leave.
Defendant's first assignment of error involves a claimed inconsistency between the testimony of prosecutrix before the grand jury and at trial. On cross-examination at trial, the prosecutrix testified that defendant had told her that she could not leave the apartment. Defense counsel then produced a copy of the prosecutrix's grand jury testimony, caused the entire transcript to be marked for identification as a defendant's exhibit, and elicited that she had not told the grand jury that defendant had so threatened her. Counsel asked the prosecutrix to explain that omission in her grand jury testimony. He further queried whether, at the time she had testified before the grand jury, the prosecutrix believed it to be an important point that defendant had ordered her to stay in the apartment. The prosecutor objected to this inquiry on the ground that the prosecutrix's assessment of the evidentiary importance of that part of her account was irrelevant. The court sustained the objection. The court made it clear, however, that it regarded the inquiry into the discrepancy relevant as it reflected on the prosecutrix's credibility. The court stated that it would not prevent defense counsel from developing the fact that the prosecutrix had had the opportunity to tell her full story to the grand jury and had failed to relate one significant aspect of it at that time. The court simply ruled that inquiry into the prosecutrix's reasons for not giving that testimony to the grand jury was argumentative. That ruling forms the basis for defendant's first assignment of error.
The trial court is vested with considerable discretion in controlling the scope and extent of cross-examination. State v. Thomas, 552 S.W.2d 63, 65 (Mo.App.1977); State v. Platt, 525 S.W.2d 637, 641 (Mo.App. 1975). "If reasonable men can differ about the propriety of the action taken by the trial court, then the trial court did not abuse its discretion." Kasper v. Helfrich, 421 S.W.2d 66, 69 (Mo.App.1967). See also State v. Edmonds, 468 S.W.2d 685, 688 (Mo. App.1971). A discretionary ruling is presumed to be correct and the burden of demonstrating abuse is therefore cast on appellant. Id.
Defendant cites three cases, State v. Adams, 380 S.W.2d 362 (Mo.1964); State v. Moore, 80 S.W.2d 128 (Mo.1935), and State v. Turner, 246 Mo. 598, 152 S.W. 313 (1912), in support of the proposition that the court unduly restricted his inquiry on cross-examination into the of the prosecutrix. His reliance on those cases is misplaced. All three cases involved cross-examination into the state of mind of a victim or a defendant at the time the crime was allegedly committed, when such state of mind was arguably relevant in proving either the charge against the defendant, the defendant's claim of self-defense or defendant's right to an instruction on a lesser offense. We do not find them instructive in the current situation in which defendant sought to elicit the witness's reasons for omitting certain testimony before the grand jury.
As noted, the court in making the instant ruling permitted defendant to establish the existence of the testimonial discrepancy and the circumstances surrounding it. We do not agree with defendant's contention that the attempted inquiry was necessary (or even particularly helpful) in raising the inference that the prosecutrix's later testimony regarding defendant's threat was a fabrication. Her silence before the grand jury on the issue of whether defendant refused to permit her to leave was clearly placed before the trial jury. Under the circumstances, we agree with the court's statement that speculation as to the prosecutrix's motives in testifying was a matter for closing argument of counsel, and that the question was argumentative. We find no abuse of discretion in the court's ruling. See State v. Thomas, 552 S.W.2d 63, 64-65 (Mo.App.1977); State v. Taggert, 443 S.W.2d 168, 174 (Mo.1969).
Defendant next contends that the trial court erred in denying his motion for a mistrial when an arresting officer was allegedly permitted to comment on defendant's failure to make a statement to the police at the time of the arrest. Shortly after the rape occurred, the police were notified of the incident and were directed to the Leonard apartment by the prosecutrix. They there encountered two women and four men, including defendant and Terry Leonard. Terry Leonard was placed under arrest at the apartment; defendant identified himself to the police as "Joseph Goodrich" and was not arrested at that time. However, at the request of the police, defendant and the other occupants of the apartment accompanied the officers to the station to aid in the investigation of the incident. Defendant was apparently identified there by the prosecutrix as one of her assailants and was placed under arrest. He did not tell the police his true identity, but apparently inadvertently signed the name "Victor J. Leonard" on one of the forms he signed during the booking process.
At trial, the prosecutor attempted to establish the circumstances surrounding defendant's arrest and the discovery of defendant's true identity at the station house.1 During direct examination of one of the arresting officers, the following exchange occurred:
The objection was sustained and the jury instructed to disregard the officer's last words.
Defendant objected, contending that the final exchange between the court and the witness constituted a violation of his constitutional right to remain silent following his arrest. U.S.Const. Amend. V and XIV; Mo.Const. Art. 1, § 19.
It is, of course, impermissible for the state to comment in argument or introduce evidence regarding a defendant's post-arrest failure to volunteer an exculpatory statement. State v. Roth, 549 S.W.2d 652 (Mo.App.1977); State v. Benfield, 522 S.W.2d 830, 834-835 (Mo.App.1975). However, even under this rather broad application of a defendant's privilege against self-incrimination and its corollary-the right not to have his silence used against him-reversal is not required in this case. The ultimate test of whether the privilege was denied or the right violated is whether the challenged remarks were reasonably apt to have directed the jury's attention to the fact that the defendant refused to speak on his behalf. Eichelberger v. State, 524 S.W.2d 890,...
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