State v. Neff
| Decision Date | 03 November 1998 |
| Docket Number | No. 80699,80699 |
| Citation | 978 S.W.2d 341 |
| Parties | STATE of Missouri, Respondent, v. Ronald Lee NEFF, Appellant. |
| Court | Missouri Supreme Court |
Robert W. Evenson, Evenson, Carlin & LePage, Pineville, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Barbara K. Chesser, Asst. Atty. Gen., Jefferson City, for Respondent.
Following an automobile accident on June 3, 1995, Ronald Lee Neff (defendant) was charged with four counts of the class C felony of assault in the second degree, section 565.060.1(4). 1 The information alleged that defendant, while under the influence of alcohol, caused physical injury to four people, by pulling into an intersection when another vehicle was approaching so closely as to constitute an immediate hazard, and that he did so with criminal negligence. A jury convicted him of all four counts, and he was sentenced to six months in the county jail and assessed a $1,000 fine on each count.
On this appeal, defendant contends that the trial court erred in not granting his motion for a mistrial when the prosecutor, while objecting to the closing argument by defendant's attorney, referred to defendant's failure to testify. Under the circumstances of this case, we affirm.
Defendant based his contention on the following exchange, which occurred during the state's closing argument:
[Defendant's attorney Jack Yocum]: No, there isn't. That's why I'm arguing it.
[Prosecutor]: Well, he didn't take the stand, Judge. I mean, there was no
evidence--
[Defendant's attorney Jack Yocum]: Wait a minute.
[Prosecutor]: There is no evidence of that.
[Defendant's attorney Jack Yocum]: Okay. Let's get a mistrial.
(At this time counsel approached the bench, and the following proceedings were had:) [Defendant's attorney Jack Yocum]: We'd move for a mistrial, Judge. We'd like to make a record on that right now.
[The Court]: Okay.
[Defendant's attorney Robert Yocum]: Go ahead and
[Defendant's attorney Jack Yocum]: Yeah. I'd like to move for a mistrial because the Prosecuting Attorney has just said the Defendant did not take the witness stand, and that's an improper inference. And we'd move for a mistrial immediately, Judge.
[Prosecutor]: I'm not making any inference, Judge. He just said he didn't have a criminal record. That's not--That's not even true. We would have brought that in at the time---
[Defendant's attorney Jack Yocum]: Mistrial---
[The Court]: I understand that.
[Prosecutor]: So what I'm saying is, Judge, it's---
[Defendant's attorney Robert Yocum]: That's irrelevant here what the--- We do---
[Defendant's attorney Jack Yocum]: We---
[Defendant's attorney Robert Yocum]: We're entitled to a mistrial. He just turned over to the jury again. The jury can---
[Defendant's attorney Jack Yocum]: He just said--- It was all so the jury can hear that.
[Prosecutor]: They are not entitled to a mistrial on these points.
[Defendant's attorney Jack Yocum]: Yes, we are. (Inaudible) mistrial.
[Defendant's attorney Robert Yocum]: Yes, we are. We're--- That's absolutely true.
[Prosecutor]: Well, I know you're going to say that. You're going to say whatever you need to say.
[Defendant's attorney Jack Yocum]: You bet we are. We're going to tell the truth at this trial.
[The Court]: You--- Okay.
[Prosecutor]: Mistrial at the---
[Defendant's attorney Robert Yocum]: I move for mistrial, Judge.
[Defendant's attorney Jack Yocum]: Yes, you did.
[Defendant's attorney Robert Yocum]: You just now---
[Defendant's attorney Jack Yocum]: You just did.
[Defendant's attorney Robert Yocum]:--- Loud enough for the jury to hear.
[The Court]: Okay. Gentlemen, based on what I observed and what I heard, I don't believe that a mistrial is the appropriate remedy at this time. Your request for a mistrial will be overruled.
[Defendant's attorney Robert Yocum]: We move the Court to admonish to--- the jury disregard the Prosecutor's statement.
[Defendant's attorney Jack Yocum]: Entirely.
[Defendant's attorney Robert Yocum]: Entirely.
[The Court]: Well, that--- That's your job. But, gentlemen--- Mr. Prosecutor, stay with me. I think it's improper to talk about the record or an absence of a record at this point in the trial based on what occurred during the trial. So I would admonish both sides not to talk about Defendant and possible record--- criminal record.
[Prosecutor]: Judge, are you---
[Defendant's attorney Robert Yocum]: Are you going to admonish the jury to disregard the statements of the Prosecutor, Judge?
[The Court]: Oh, yeah.
[Defendant's attorney Jack Yocum]: We didn't take the witness stand.
[The Court]: Yeah. I'm not going to mention the words---
[Defendant's attorney Jack Yocum]: Oh.
[The Court]:--- because I don't want to bring attention to it.
[Defendant's attorney Jack Yocum]: Okay.
[Defendant's attorney Robert Yocum]: All right.
[The Court]: Okay.
[Defendant's attorney Robert Yocum]: Would you admonish that I--- You have overruled the motion that I (inaudible).
(Proceedings returned to open court.)
[The Court]: Okay. The Court will admonish the jury that the last remark made by the Prosecutor will be disregarded by the jury.
(At this time counsel approached the bench, and the following proceedings were had: )
[Defendant's attorney Robert Yocum]: And next is a motion for mistrial.
[The Court]: Yeah. Well---
[Defendant's attorney Robert Yocum]: I moved for a mistrial. That's--- I'm obligated to make the record.
[The Court]: Oh, sure. And the Court will deny your request.
[Defendant's attorney Robert Yocum]: Very well.
[The Court]: Okay.
On this appeal, defendant contends that the prosecutor's remark "he didn't take the stand" was an improper reference to his failure to testify in his own defense. The Fifth Amendment to the United States Constitution, article I, section 19 of the Missouri Constitution, section 546.270 and Rule 27.05(a) all grant criminal defendants the right not to testify and forbid comments by others on the exercise of that right. State v. Arnold, 628 S.W.2d 665, 668 (Mo.1982). A direct reference to an accused's failure to testify is made when the prosecutor uses words such as "defendant," "accused" and "testify" or their equivalent. State v. Lawhorn, 762 S.W.2d 820, 826 (Mo. banc 1988). An indirect reference is one reasonably apt to direct the jury's attention to the defendant's failure to testify. Id. Where an objection is made and overruled, a direct reference to the failure of the defendant to testify will almost invariably require reversal of the conviction, but an indirect reference requires reversal only if there is a calculated intent to magnify that decision so as to call it to the jury's attention. Id.
Section 546.270 was first enacted in 1877. 1877 Mo. Laws 356. 2 Its primary purpose was to negate the common law rule that a defendant could not testify in his own defense. See State v. Chyo Chiagk, 92 Mo. 395, 4 S.W. 704, 707-08 (1887). It also preserved the pre-existing constitutional prohibition against commenting on a defendant's exercise of his right to remain silent.
By its terms, this statute does not mandate a mistrial in every case where there is a reference, direct or otherwise, to a defendant's failure to testify. Neither has this Court held that a direct reference always requires a mistrial. For example, it is hard to imagine a more direct reference to the defendant's failure to testify than for the trial court to give a jury an instruction on the subject. Yet, this Court has held, on more than one occasion, that the trial court did not err in instructing the jury not to consider the fact that the defendant had not testified even when the defendant objected to such an instruction. State v. Smart, 485 S.W.2d 90, 95 (Mo.1972); State v. DeWitt, 186 Mo. 61, 84 S.W. 956, 957 (1905); see also State v. Hutchinson, 458 S.W.2d 553, 556-59 (Mo. banc 1970) (Donnelly, concurring). 3 In current practice, the defendant alone may make the decision to give such an instruction. Rule 27.05(b); see also MAI-CR 308.14(3d). No sound historical argument, rooted in the statute or the precedent of this Court, supports the sweeping claim that regardless of the circumstances, a direct reference to the defendant's failure to testify mandates a mistrial.
Similarly, several cases have held that, although a direct reference was made to a defendant's failure to testify, in the absence of a timely objection, the error would not be considered. State v. Kempker, 824 S.W.2d 909, 911 (Mo. banc 1992); State v. Dees, 916 S.W.2d 287, 296 (Mo.App.1995); State v. Dewey, 869 S.W.2d 834, 838 (Mo.App.1994). These cases point out that the reason for the timely objection requirement is clear, "[h]ad objection been made, the trial judge could have taken appropriate steps to make correction." Kempker, 824 S.W.2d at 911 (Mo. banc 1992). "[T]he prejudice from such comments can normally be cured by an instruction to the jury." Dees, 916 S.W.2d at 296. If the prejudice were not immediately correctable short of mistrial, the requirement of a timely objection would be illogical.
When considering a defendant's claim of an improper comment on his right to remain silent, the appellate court must also consider the comment in the context in which it appears. State v. Wickline, 647 S.W.2d 929, 931 (Mo.App.1983). "The...
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Ragland v. Com.
...comments, which were usually found not to warrant reversal. See Moore v. State, 669 N.E.2d 733, 740 (Ind. 1996); State v. Neff, 978 S.W.2d 341, 344 (Mo.1998) ("A direct reference to an accused's failure to testify is made when the prosecutor uses words such as `defendant,' `accused' and `te......
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State v. Strong
...comment on his right to remain silent," this Court "must also consider the comment in the context in which it appears." State v. Neff, 978 S.W.2d 341, 345 (Mo. banc 1998). "[W]hen arguments made by the prosecutor do not contain direct and certain references to the failure of an accused to t......
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Ragland v. Commonwealth, No. 2002-SC-0388-MR (KY 11/18/2004)
...An indirect reference is one reasonably apt to direct the jury's attention to the defendant's failure to testify." State v. Neff, 978 S.W.2d 341, 344 (Mo. 1998) (citations omitted). 8. Moore, 669 N.E.2d at 737. 9. Knowles v. United States, 224 F.2d 168, 170 (10th Cir. 1955) ("[T]he test is ......
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State, v. Johnson
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