State v. Moore, 62414

• Decision Date: 08 September 1981
• Docket Number: No. 62414,62414
• Citation: 620 S.W.2d 370
• Parties: STATE of Missouri, Respondent, v. Moses MOORE, Appellant.
• Court: Missouri Supreme Court

Page 370

620 S.W.2d 370

STATE of Missouri, Respondent, v. Moses MOORE, Appellant.

No. 62414.

Supreme Court of Missouri, En Banc.

Sept. 8, 1981.

Lee Nation, Kansas City, Clifford A. Cohen, Public Defender, Gary L. Gardner, Kevin Locke, Asst. Public Defender, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Jefferson City, Darrell Panethiere, Asst. Atty. Gen., Kansas City, for respondent.

HIGGINS, Judge.

A jury convicted Moses Moore of sodomy and rape and fixed his punishment at twenty-five years for each offense. Judgment was rendered accordingly with the sentences to be served concurrently. The Court of Appeals, Western District, affirmed. The case was transferred by this Court to consider further the propriety of the prosecuting attorney's remarks in closing argument concerning defendant's failure to present corroborative witnesses. Affirmed.

Sufficiency of the evidence is not in question. The victim testified that on April 4, 1978, defendant, whom she had known for about nine years, and another person, approached her outside a lounge and asked her for a ride home. When they arrived at defendant's house she checked her tires and found that one was losing air; the spare tire was flat. She noticed the house of a family related to her sister. After telephoning her husband from that house she went to defendant's house to borrow cab fare. Charles Johnson met her on the porch, grabbed her arm, told her he had been "liking" her for a long time" (she had known him for several years), hit her in the side of the face when she resisted, and pulled her into the house. He took her to the bedroom where he forced her to perform fellatio and have sexual intercourse with him. Following this, Darrell Smith, also known to the victim, came into the room and made her perform fellatio. The other person with defendant, later identified as Joe Gregory, then came in, expressed shock at what was happening, stated he had no part in it, and left the room. Defendant entered, forced the victim to perform fellatio on him, and then had intercourse with her from behind while he forced her to perform fellatio on Darrell Smith. Defendant continued to have intercourse with her several times that night. Early the next morning, Joe Gregory helped the victim leave. She went to her sister's house, where her mother had spent the night, and they called the police.

Defendant was arrested that day. He was found by the police in the attic of his house.

Defendant testified that he had a party or neighborhood "get-together" the evening of April 4, 1978. He stated that among those at the party were Charles Johnson, Darrell Smith, Joe Gregory and his date, Billy Kidd, Cynthia Smith, and a woman named Faye. The victim drank, smoked marijuana, and danced during the evening. He later saw her go into the bedroom with Charles Johnson. Sometime thereafter he went through the bedroom on his way to the bathroom. The victim was lying naked on the bed and invited him to have sexual intercourse with her. He acknowledged having sexual intercourse with her but denied anything more. He explained his presence in the attic when the police arrested him by claiming he was hiding because of outstanding traffic warrants for not paying a $185.00 fine.

In closing argument the prosecutor made the following statements:

"We had a party." "It was a big party." But where are the guests?

Who came in here and verified the party?

MR. ROGERS: (Defense Counsel) Object to that, Your Honor. The defendant stated the names of those people. They're equally available to the State.

THE COURT: Overruled.

MR. STIGALL: (Prosecutor) He says these people are available to the State. These are the defendant's friends.

MR. ROGERS: (Defense Counsel) I'll object to that, Your Honor. The evidence is that Billy Kidd is related to the alleged victim.

THE COURT: This is argument; overruled.

MR. STIGALL: (Prosecutor) These are his friends. He lives with them, plays with them, has parties with them. Nobody came in here to verify that party, except this defendant.

But then maybe he might think, "Well, you people don't believe the party, but so what do I say then? She consented. That's how she got the sperm inside of her. She consented to this."

Did anybody come in here and verify the consent? Did any of his friends come in here and verify that? No.

And we don't even know now what happened, because nobody came in here to explain the party.

Now Mr. Rogers will have an opportunity, and I hope he's going to rebut some of this. Maybe he's going to tell you why there wasn't anybody in here to explain that party, and why there wasn't anybody in here to explain this consent, and then I have closing again. Thank you.

Why didn't they bring in somebody to tell us about this party, and what happened? Why didn't they bring in Billy, the kid?

MR. ROGERS: (Defense Counsel) I object to that, Your Honor. That witness is peculiarly available to the State, being a relative, by marriage, of the alleged victim.

THE COURT: Overruled.

MR. STIGALL: (Prosecutor) These are his friends. Why didn't he bring in anybody

MR. ROGERS: (Defense Counsel) May we approach the bench?

MR. STIGALL: (Prosecutor) to verify this party.

MR. ROGERS: (Defense Counsel) May we approach the bench?

(Counsel approached the bench and the following proceedings were out of the hearing of the jury:)

MR. ROGERS: (Defense Counsel) I object, Your Honor, and move that the jury be instructed to disregard that last comment of counsel for the State on the grounds that the individuals at the party, Charles Johnson, Darrell Smith, defendants in this crime, have a Fifth Amendment right not to testify. Counsel for the State is aware of that right, and further that Joseph Gregory, at the last trial, did advise the Court that he intended to exercise his Fifth Amendment right not to testify. Counsel for the State is therefore commenting upon the rights exercised by these persons of their Fifth Amendment rights, and I ask that the jury be instructed to disregard the comments of counsel.

THE COURT: Overruled, and I might also make this observation. There were other people there, that you've not mentioned now, that were friends of this particular defendant.

MR. ROGERS: (Defense Counsel) There is only one other, Your Honor, and the testimony is that she is currently in California.

THE COURT: There were others as well.

MR. ROGERS: (Defense Counsel) That he didn't even know.

THE COURT: Know then. Overruled.

(The following proceedings were in the presence and hearing of the jury:)

MR. STIGALL: (Prosecutor) Where are these people and why didn't they come in here and tell you they were there? Where is this one little girl and I always lose that photograph the one on the defendant's steps? Where is she?

MR. ROGERS: (Defense Counsel) I'll object to that, Your Honor. That misstates the evidence. The evidence is that she's currently in California.

THE COURT: I don't think he's misstated any evidence yet. He's just asking where she is. Overruled.

MR. STIGALL: (Prosecutor) Where is this little girl that had known this defendant, lives in the neighborhood, and he doesn't know her last name? Where is she today? Where is Cynthia? Where's Faye?

MR. ROGERS: (Defense Counsel) That is Faye, Your Honor.

MR. STIGALL: (Prosecutor) Okay, where is she then, and where's Billy, the kid? None of them are in here to verify this party. I join with Rogers. I wonder what happened out there too.

Not one of them came in here and backed this defendant up. And he asked you to speculate what happened. I don't want you to speculate.

MR. ROGERS: (Defense Counsel) I object to that as misstating my argument. I told them they couldn't speculate.

THE COURT: The jury will remember what the argument was.

MR. STIGALL: (Prosecutor) This man would have you believe it was all fun and games on the night of April the 4th. The only game out there was which one was first, and the only people having fun was this defendant and the other two.

And this party just goes out the window when there's nobody here to back it up; nobody. And they could have called in these people. They didn't.

MR. ROGERS: (Defense Counsel) I'll object again, Your Honor. They've had the names of all these people. They're available to the State.

THE COURT: Overruled.

MR. STIGALL: These are his people, his friends. And why didn't they bring them in; because they wouldn't back him up, that's why. And you can assume that. That's the law in Missouri.

MR. ROGERS: (Defense Counsel) I'll object to that, Your Honor. That does misstate the law.

THE COURT: Overruled.

MR. STIGALL: (Prosecutor) You can assume that; that if they had have been in here, it would have been contrary to what he said.

But let's forget that for just a second, and let's talk about consent. That's the big issue. Let's talk about that a minute. Who backs him up on consent? No one."

Appellant contends the trial court erred in permitting the prosecutor to argue an adverse inference from defendant's failure to call witnesses in support of his defense of consent.

The trial court has considerable discretion in allowing or rejecting argument of counsel, and its rulings are reversible only for abuse of discretion where the argument is plainly unwarranted. State v. Wright, 515 S.W.2d 421, 432 (Mo. banc 1974); State v. Jewell, 473 S.W.2d 734, 741 (Mo.1971); State v. Neal, 591 S.W.2d 178, 183 (Mo.App.1979).

"It is settled by numerous cases that the prosecuting attorney may comment on the failure of the defendant to call available witnesses who might reasonably be expected to give testimony in his favor." State v. Beasley, 353 Mo. 392, 182 S.W.2d 541, 543 (1944). See also State v. Barron, 465 S.W.2d 523, 529 (Mo.1971); State v. Linders, 299 Mo. 671, 253 S.W. 716, 721 (1923). Such comments are permissible because a logical inference can be drawn from a failure to call these witnesses to testify that their testimony would be damaging rather than...