State v. Mabie, WD

• Decision Date: 28 March 1989
• Docket Number: No. WD,WD
• Citation: 770 S.W.2d 331
• Parties: STATE of Missouri, Respondent, v. William R. MABIE, Appellant. 39695.
• Court: Missouri Court of Appeals

Page 331

770 S.W.2d 331

STATE of Missouri, Respondent, v. William R. MABIE, Appellant.

No. WD 39695.

Missouri Court of Appeals,

Western District.

March 28, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied May 2, 1989.

Application to Transfer Denied June 13, 1989.

Lloyd Koelker, Kansas City, for appellant.

William L. Webster, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before COVINGTON, Special Judge, P.J., and NUGENT and GAITAN, JJ.

PER CURIAM.

Appellant was convicted of forcible rape, in violation of § 566.030, RSMo 1986, and was sentenced to twelve years imprisonment. He now appeals on two grounds. First, appellant claims that, on cross-examination and in its closing argument, the State improperly referred to his failure to volunteer an exculpatory statement following his arrest. Second, he claims that on cross-examination, the State improperly referred to another crime and a prior conviction of appellant.

Reversed and remanded for new trial.

On the night of July 13, 1984, appellant was on a weekend furlough from the Kansas City Honor Center where he was completing a sentence for the sale of a controlled substance. At about 8:30 p.m., appellant went to the "Nitelife Lounge" in Independence, Missouri, where he knew a number of other patrons. Shortly before closing time, he approached the victim, who was standing at the bar, and began talking to her. The two had never met before.

According to appellant, the victim accepted his invitation to dance, and they danced twice before the bar closed, once to a fast song, and once to a slow song. The victim testified that they danced together once to a fast song. Before the bar closed, appellant talked about going to a party later that night, and the victim agreed to go with him.

Appellant and the victim drove to the party in the car that the victim had borrowed from her employer. The victim testified that she let appellant drive because he said that he knew where the party was. Appellant testified that the victim was initially the driver of the car, but that he took over because she was too drunk to drive. The victim, on the other hand, testified that she only drank three beers that night.

The victim testified that instead of driving to the party, appellant drove the car to a wooded area off of Blue Mills Road. She stated that during this trip, she became frightened when they did not appear to be reaching their destination, but appellant kept telling her "We're almost there." When appellant pulled off the road in the wooded area, she asked him to take her home, and appellant responded by saying that he was going to rape her. According to the victim, appellant then pinned her down by her arms, removed her jeans and underpants, and raped her.

The victim further testified that in order to get away from the wooded area, she told appellant that she needed to go home to pick up her children, and that she needed to use a restroom. She was able to put her jeans back on, and they drove to a Winchell's Donuts on 24 Highway. Outside Winchell's, the victim told appellant to stay in the car and that she would be right back. Once inside the store, the victim told the person behind the counter to call the police, and she locked herself in the restroom.

Two Independence police officers, David Steinhauser and Robert Adams, arrived at Winchell's about one minute after receiving the call. Officer Steinhauser saw appellant sitting behind the wheel of the automobile, and as Steinhauser approached the vehicle, appellant appeared to be hiding something underneath the seat. The police later found the victim's underpants on the floorboard of the driver's side of the automobile.

Upon Officer Steinhauser's arrival at Winchell's, he asked appellant what the problem was, and appellant replied that there was not any problem, that the victim was drunk and she wanted to drive and he would not let her. Steinhauser then escorted appellant into the store where he found the victim still in the restroom. After Steinhauser identified himself as a policeman, the victim came out of the restroom and told Steinhauser that appellant had raped her. Steinhauser testified that the victim was crying and that she was extremely shaken. According to Steinhauser, the victim did not appear intoxicated.

Steinhauser arrested appellant in the store, and the victim was taken to the Medical Center of Independence for an examination. There, she was treated by Dr. David McCray, who testified at trial that her physical examination revealed redness on her upper arms and back, and both sperm and bleeding in her vagina. Dr. McCray testified that these symptoms were consistent with someone who had been sexually assaulted. Dr. McCray stated that it was possible that the vaginal bleeding could have been caused by consensual intercourse, if that intercourse were extremely active, but added that such an explanation was unlikely. Dr. McCray also noted that at the time of the examination, the victim was upset, crying, appeared to be withdrawn, and had occasional outbursts.

Appellant testified in his own defense at trial, and admitted that he and the victim had had sexual intercourse, but asserted that he did not force himself on her. Appellant also stated that, when the police arrived at the Winchell's parking lot he was carrying a marijuana cigarette which he proceeded to stash in the front seat. He denied trying to hide the victim's underpants as the police approached. Appellant also stated that, after his arrest, he was taken to the Jackson County Sheriff's Department, where he gave an oral and written statement presenting his version of the events.

After the presentation of evidence at trial, a jury found appellant guilty of forcible rape. Appellant was sentenced to a term of twelve years imprisonment to run consecutively with his earlier sentence for the sale of a controlled substance.

As his first point on appeal, appellant claims that on cross-examination and in closing argument, the State improperly referred to his failure to make an exculpatory statement to the police at the time of his arrest. Such references, argues appellant, are in violation of his constitutional right to remain silent, and the reversal of his conviction is therefore required.

Specifically, appellant objects to the following exchange, which occurred when he was cross-examined by the State:

PROSECUTOR: Now, when you're in Winchell's and the police arrest you and they put you--the cuffs on you and they tell you, Mr. Mabie, you're under arrest for rape, well, you must have just laughed and told them rape, what are you talking about?

DEFENSE COUNSEL: Objection to the form of the question. It's compound.

PROSECUTOR: Did you say anything like that?

DEFENSE COUNSEL: It's also irrelevant.

THE COURT: Overruled.

PROSECUTOR: Did you say that? Rape, what are you talking about, man, that's--you know, we just had consen[slual sex out here in the woods. You didn't tell the police that, did you?

DEFENDANT: I mentioned to them, I said I don't understand.

PROSECUTOR: You didn't tell them?

DEFENDANT: I didn't understand.

PROSECUTOR: You didn't tell any of those arresting officers anything, not one word about consen[s]ual sex, did you?

DEFENSE COUNSEL: Your Honor, I object to the prosecutor getting in my client's face yelling at him when he knows that the local court rules direct that he either do it from his chair or standing. He and I have both been examining witnesses from behind the bench or behind the table. I think it's improper. I object to him getting up in my client's face and hollering at him. It's improper and he knows it.

THE COURT: All right. Proceed.

PROSECUTOR: You never told them not one single word that that gal and I were out there--

DEFENDANT: I was advised of my rights to remain silent, and I remained silent until I was asked to make a statement.

PROSECUTOR: You waived those rights, didn't you?

DEFENDANT: Yes, sir, after I was asked.

PROSECUTOR: And later on you talked to Detective Kempster about noon the next day, didn't you?

DEFENDANT: Yes, sir.

PROSECUTOR: So you had a lot of time to think about what you had to tell him, right?

DEFENSE COUNSEL: Objection, that's argumentative, Your Honor.

THE COURT: Overruled.

During closing argument, the State again made a point of the fact that appellant made no exculpatory statement for eight hours after his arrest:

PROSECUTOR: ... the defendant is arrested, and they put the cuffs on him and say, hey, you're arrested for rape. And the defendant doesn't say rape, what are you talking about? This is--we went out there and just friends, and we had friendly sex out there. There is no testimony about that, because he didn't say it. And what--wouldn't that be the reasonable thing to do if you're a guy who just went out in the woods and had sex with somebody that was consen[s]ual and some police officer slaps some cuffs on you? You better believe you're going to be telling him this is crazy, I didn't rape anybody.

But he didn't say that, he didn't say consent until 12 p.m. the next day, and you see, he had to say the defense was consent because he couldn't say alibi, because he was arrested right there. He couldn't say it wasn't me because he was right there. So he's got to say it's not con--it's consent.

Appellant concedes that his trial counsel failed to object to the prosecutor's cross-examination and closing argument on the constitutional grounds which are now asserted on appeal. However, we will exercise our discretion and review appellant's claim under the plain error rule, Rule 30.20.

The law is clear in this State that the silence of a defendant while under arrest is not admissible against him. State v. Roth, 549 S.W.2d 652, 654 (Mo.App.1977); State v. Benfield, 522 S.W.2d 830, 834 (Mo.App.1975); State v. Stuart, 456 S.W.2d 19, 22 (Mo. banc 1970). The right of a defendant "to be free from compulsory self-incrimination...