State v. McLarty, 55806
| Decision Date | 10 May 1971 |
| Docket Number | No. 1,No. 55806,55806,1 |
| Citation | 467 S.W.2d 58 |
| Parties | STATE of Missouri, Respondent, v. Robert Jerome McLARTY, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Charles A. Blackmar, Asst. Atty. Gen., Jefferson City, for respondent.
Robert E. Buechler, St. Louis, for appellant.
Defendant was charged by information with two prior felony convictions and operating a motor vehicle without the owner's consent in violation of § 560.175, RSMo 1969, V.A.M.S., and, having been found guilty by a jury, was sentenced to three years in the department of corrections by the court. Defendant's motion for new trial having been overruled, he now appeals. The sufficiency of the evidence is not questioned.
Officer Bill Hawkins testified that on November 17, 1969, about about 10:30 a.m., he and officer Rizzuiti, while patrolling on a street in St. Louis, observed an automobile ahead of them come to a stop and observed that there were no brake lights on it. The officers stopped the car. Defendant was the driver and lone occupant. The officers told defendant he had been stopped because the car had no brake lights and asked defendant for his driver's license and car registration. The defendant produced his driver's license and told officers that the automobile belonged to a friend of his, but defendant could not furnish the friend's name, address or place of employment. The officers then ran a check on the serial and license numbers on the car and learned the car had been stolen on November 6, 1969.
The following sequence then occurred during the direct examination of officer Hawkins in the state's case:
'Q What did you do next or what happened next?
A At that time I advised Mr. McLarty he was under arrest for stealing over fifty, an automobile, and advising him of his constitutional rights, and he refused to make any statement.
Defendant called as a witness a stenographer who took down the testimony at the preliminary hearing in this case to impeach certain testimony of officer Hawkins. During the course of her direct examination, the stenographer testified that officer Hawkins had testified at the preliminary hearing, inter alia, as follows:
'Q Did you question him?
A after I advised him of the constitutional rights he refused to make a statement.'
The car owner testified he did not know defendant and had never given defendant or anyone, other than his wife, permission to drive the subject car. He further testified, without objection, that when he saw the car on November 17, 1969, at the police station the lock was broken off the glove compartment, the seat was ripped, and old tires were on the car. He was asked if anything had been taken from the car. Defendant objected on the grounds that whether or not anything was missing from the car was not an issue in the case. The objection and motion to strike were overruled. The witness then testified that the tires had been taken off and replaced with old ones, and a pair of fence stretchers, a hand saw and a jack were missing. The witness stated he had the keys to the car with him on the date defendant was arrested.
Defendant contends the court erred in permitting officer Hawkins to testify that defendant refused to make a statement after defendant was arrested and advised of his constitutional rights under the Fifth and Fourteenth Amendments, United States Constitution, and Art. 1, § 19, Missouri Constitution 1945, V.A.M.S. Silence on the part of accused after arrest or while in custody is inadmissible because he in under no duty to speak. State v. Phelps, Mo., 384 S.W.2d 616, 621.
However, the difficulty with defendant's position is that there was no objection made at trial to the testimony of officer Hawkins that defendant refused to make a statement. State v. Battles, 357 Mo. 1223, 212 S.W.2d 753, 757. This he did not do but only objected to the portion of the answer relating to the reason the officer gave to the defendant as the basis for arresting him. Additionally, defendant elicited testimony in defendant's case from the stenographer, as set forth supra, that defendant, after being advised of his rights, refused to make a statement. Having made no objection to the testimony during the state's case and thereafter having voluntarily elicited the same testimony in defendant's case, he has preserved nothing for review and cannot now complain. The...
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