State v. McGowan

• Decision Date: 28 February 2006
• Docket Number: No. ED 85114.,ED 85114.
• Citation: 184 S.W.3d 607
• Parties: STATE of Missouri, Respondent, v. Glen E. McGOWAN, Appellant.
• Court: Missouri Court of Appeals

Page 607

184 S.W.3d 607

STATE of Missouri, Respondent, v. Glen E. McGOWAN, Appellant.

No. ED 85114.

Missouri Court of Appeals, Eastern District, Division Four.

February 28, 2006.

Appeal from the Circuit Court, Montgomery County, Keith M. Sutherland, J.

Amy M. Bartholow, Columbia, MO, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Lisa M. Kennedy, Assistant Attorney General, Jefferson City, MO, for respondent.

MARY K. HOFF, Judge.

Glen E. McGowan (Defendant) appeals from the judgment entered following a jury verdict convicting him of tampering with a motor vehicle, first degree, in violation of Section 569.080 RSMO 2000.¹ The trial court sentenced Defendant to a term of ten years' imprisonment.

The record, as pertinent to the points on appeal, reveals the following. On March 20, 2003, at approximately 6:20 a.m., an individual going by the name of Charles Brown² (Brown) stole a red and white 1992 Chevrolet S10 truck (Chevy truck) belonging to Ocbai Tekla by breaking the steering column and bypassing the ignition.

On March 22, Brown used the stolen Chevy truck to pick up his girlfriend, Sharon Malone (Malone), and Barbara Bost (Bost). Brown, Malone, and Bost drove around for a few hours doing drugs and then proceeded to Defendant's house around 3:00 a.m. After sleeping at Defendant's residence, Brown, Malone, and Bost did more drugs. Defendant, Brown, Malone, and Bost then decided to drive the Chevy truck to Columbia, Missouri, to party. Defendant and Bost sat in the back of the Chevy truck, and Brown and Malone sat in the front. After the four individuals ate at White Castle, Brown, Malone, and Bost bought more drugs, and the three of them used the drugs during the trip to Columbia.

En route to Columbia, the four individuals stopped in Wentzville. Brown got into a black Ford F150 truck (Ford truck) that was parked at a lumber yard, and Malone joined him. Defendant and Bost then moved to the front seat of the Chevy truck, and Bost drove. Bost started nodding off so she asked Defendant to drive. Bost pulled over, and Defendant started driving the Chevy truck. Bost "figured" the Chevy truck was stolen because Brown always had different trucks.

Trooper Mark Broniec (Broniec) received a dispatch regarding a stolen black Ford truck. The dispatch provided Broniec with the Ford truck's license plate number. Broniec proceeded to a cross-over on Interstate 70 (interstate) just east of the Warrenton exit and parked there to watch for the Ford truck. Shortly thereafter, the Ford truck passed Broniec's parked car. Broniec followed the Ford truck, activated his lights, and attempted to stop the Ford truck. The Ford truck exited the interstate, abruptly stopped approximately one-third of the way up the exit ramp, and Brown exited the vehicle. Broniec stopped his vehicle behind the Ford truck, got out of his vehicle, drew his pistol, and pointed it at Brown and Malone. Brown ran across the median to the westbound lane of the interstate. Malone headed in the opposite direction for the service road. Broniec arrested Malone but lost sight of Brown.

Nicole Barnes (Barnes) was traveling on the interstate on March 22. She exited at Truxton and observed a patrol car stopping behind a dark truck. As she watched, Broniec exited his vehicle and drew his gun. Barnes saw the driver and the passenger of the dark truck exit the truck. The driver and passenger began running in opposite directions. When Barnes realized Broniec was chasing the passenger, Barnes opened her door, stood on her car, and watched the driver run to the interstate where he proceeded to jump into the bed of a small red and white truck sitting on the left shoulder under the overpass. The truck then drove away.

After Broniec arrested the passenger, Barnes told him what she had observed. Broniec called in a description of the red and white truck to his headquarters and told the dispatcher that the truck was driving westbound on the interstate. When Broniec searched the Ford truck, he seized substances later identified as marijuana and cocaine.

Trooper Maddox (Maddox) parked at a cross-over point on the interstate to watch for the red and white Chevy truck. When Maddox spotted a vehicle fitting the truck's description, he pulled out behind it and activated his lights. The Chevy truck exited at a ramp, and Maddox followed. The truck came to a complete stop at the top of the exit ramp. Maddox stepped out of his vehicle with his shotgun and directed Defendant, who was driving the truck, to turn off the Chevy truck's engine and to throw the keys outside the truck. When Defendant did not immediately comply, Maddox repeated his order. Defendant opened the truck's door and yelled that there were no keys. Bost and Brown were in the truck with Defendant.

Maddox subsequently learned the Chevy truck had been reported as stolen. Maddox, with the assistance of other law enforcement officers, arrested Defendant, Bost, and Brown. The officers searched the Chevy truck and recovered items that appeared to be contraband. Among these items were substances later identified as codeine and cocaine. While searching the Chevy truck, Maddox noticed the steering column of the truck had been broken so the mechanism could be manipulated to bypass the ignition. When one of the other officers asked Defendant where he was going, Defendant told him that he had just met Bost and that he and the others were going to Columbia for a party. Defendant indicated to the officer that Brown had provided him with the Chevy truck. Brown subsequently showed Maddox how to start and stop the Chevy truck using a screw driver.

The State charged Defendant with two counts of possession of a controlled substance and one count of tampering in the first degree. Bost testified at Defendant's trial. During Bost's testimony, the State elicited from her that she had pleaded guilty to all of the crimes for which Defendant was being tried.

Malone also testified at Defendant's trial. During her testimony, the State elicited that Malone had pleaded guilty to tampering in connection with the Ford truck and to possession of heroin and cocaine. Malone knew the Chevy truck was stolen but had not told Defendant that it was.

During Maddox's testimony before the jury, Defendant interjected, "He's lying." At that point the State addressed Defendant and asked, "[Defendant], did you want to take the stand?" Defense counsel asked to approach the bench and requested a mistrial based on the State's reference to Defendant's election not to testify. The court denied the request and indicated that it would rather not highlight the remark to the jury by referring to it again. Defense counsel stated, "I'd rather it not be highlighted to the jury." The court warned the State regarding its behavior, and the State replied, ". . . This is the second time today [Defendant] has spoken up in the middle of the trial. If he needs to speak in this trial then he needs to take the stand. It's not appropriate for him to make comments, questions, answers or anything else from the seat over here. . . ." The court agreed and told defense counsel to speak to Defendant about making comments. Defendant did not testify.

At the close of evidence, Defendant proffered a verdict director for tampering in the first degree, which included a claim-of-right defense. The trial court refused the instruction. The jury acquitted Defendant of both drug charges but returned a guilty verdict on the tampering charge. The trial court sentenced Defendant to a term of ten years' imprisonment. This appeal follows.

Defendant raises three points on appeal. In his first point, Defendant claims the trial court abused its discretion in overruling his motion for a mistrial after the State asked Defendant in front of the jury, "[Defendant], did you want to take the stand?" because this question improperly commented on Defendant's exercise of his right not to testify. We find this dispositive point requires reversal. Defendant's second and third points relate to the trial court's refusal to give Defendant's proffered instruction regarding the offense of tampering in the first degree, which included Defendant's claim-of-right defense, and the trial court's failure to declare a mistrial or to instruct the jury sua sponte to disregard the State's elicitation from Defendant's codefendants evidence of their plea dispositions and its later reminder to the jury of these pleas during closing argument. As these issues may not arise on retrial, we decline to address them.

Turning to Defendant's dispositive claim of error, our standard of review for a trial court's refusal to grant a mistrial is abuse of discretion. State v. Clark, 112 S.W.3d 95, 100 (Mo.App. W.D.2003). This is because the trial court has observed the complained of incident and is in a better position than an appellate court to determine what prejudicial effect, if any, the alleged error had on the jury. Id. We will find that a trial court abused its discretion when its ruling is clearly against the logic of the circumstances before it and when the ruling is so arbitrary and unreasonable as to shock our sense of justice and indicate a lack of careful consideration. Id.

Defendant argues that the State's question improperly commented on Defendant's exercise of his right not to testify. In order to keep from the jury any reference to a defendant's constitutional right against self-incrimination, Section 546.270 provides that:

If the accused shall not avail himself . . . of his . . . right to testify . . . it shall not be construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption of guilt, nor be referred to by any attorney in the case, nor be considered by the court or jury before whom the trial takes place.

When considering a defendant's claim of an improper comment on his right against self-incrimination, we must consider the comment in the context in which it...