State v. Nelson

• Decision Date: 12 August 1986
• Docket Number: No. WD,WD
• Citation: 719 S.W.2d 13
• Parties: STATE of Missouri, Respondent, v. Odell NELSON, Appellant. 37109.
• Court: Missouri Court of Appeals

Page 13

719 S.W.2d 13

STATE of Missouri, Respondent, v.Odell NELSON, Appellant.

No. WD 37109.

Missouri Court of Appeals Western District.

Aug. 12, 1986.

Motion for Rehearing and/or Transfer

to Supreme Court Denied

Sept. 25, 1986.

Application to Transfer Denied Nov. 18, 1986.

David J. Fry, Asst. Public Defender, Kansas City, for appellant.

Carrie Francke, Asst. Atty. Gen., Jefferson City, for respondent.

Before NUGENT, P.J., and BERREY and GAITAN, JJ.

GAITAN, Judge.

Appellant, Odell Nelson, was convicted by a jury of robbery first degree, § 569.020 RSMo 1978, and armed criminal action, § 571.015 RSMo 1978.He appeals those sentences alleging the trial court erred in the following actions: 1) failing to dismiss the information because the trial was had in violation of the speedy trial provisions of the Missouri Constitution, Art. I, § 18(a) and of the Sixth Amendment of the United States Constitution, and also that it violated his Fifth Amendment due process rights; 2) refusing to allow appellant's counsel to question a state's witness as to whether he had committed a prior burglary; and 3) overruling appellant's objection to the prosecutor's closing argument which appellant maintains commented on his right not to testify.The judgment is reversed and the case is remanded for a new trial.

The events surrounding the robbery are not in dispute therefore a brief summary of the facts will be sufficient.

On September 15, 1983, Anthony Phillip Garner, the victim, joined a dice game with Robert Nelson, Terrence Hampton, William Franklin and several other players whom he did not know.Garner won $20 at the game and then left to go to work at the Swope Ridge Health Center.Franklin went by the health center to warn Garner that "some guys" were planning to rob him after work.Garner called his brother, Dwayne Scott, to come over to the Health Center.When Dwayne arrived, he found Nelson, Hampton and Franklin waiting across the street from the health center.Soon thereafter, Garner left work and ran into Franklin, Nelson, Hampton and his brother, Dwayne.

They asked Garner to take them in his car to get some beer.They also suggested that he buy it since he had won all the money at the dice game that day.

As they were driving around, Terrence Hampton tried to take Garner's car keys from the ignition and a struggle ensued.At this point, a white and black car drove up and appellant, Odell Nelson, got out of the car holding a gun.Garner's brother ran from their car and both Garner and his brother testified that they heard shots.Appellant, Robert Nelson and Hampton then began striking Garner and going through his pockets.Garner testified that he was struck on the head with the pistol.Garner also claimed he heard appellant say "shoot him, shoot him."The assailants took $182, a car stereo equalizer and a wallet.

Both Garner and Scott attended a police line-up on January 30, 1984 and they both identified appellant as one of the assailants.Appellant offered no evidence.The jury returned verdicts of guilty and this appeal followed.

The appellant challenges the state regarding his right to a speedy trial and therefore certain dates become important.The robbery for which appellant was convicted occurred on September 15, 1983.On January 31, 1984, a complaint was filed and appellant was arrested on this case and another unrelated case involving a rape.On February 7, 1984, preliminary hearings were held in both cases and charges in the Garner robbery were dismissed by the state because the state claimed unavailability of a witness.

The appellant was acquitted of the rape charge on October 31, 1984.On that same date, the state filed a complaint in another unrelated rape case.Appellant's incarceration continued and on December 14, 1984 charges were refiled in the September 15, 1983 robbery of Anthony Garner.Charges on the second unrelated rape case were dismissed on December 20, 1984.

Appellant was arraigned a second time on the September 15, 1983, robbery on December 17, 1984.Trial began on March 28, 1985.

Appellant's last point will be considered first as it concerns the state's closing argument and is dispositive of the case.The actual statement appellant takes issue with is: "... [W]e want to ask you, Odell Nelson, we want to ask you what you were doing with these guys."Appellant argues that this statement was an inadmissible comment upon his failure to testify.We agree.

The following is the excerpt of the relevant exchange.

See, this guy is a coward by himself; but when he gets with his brother and Hampton and the rest of them he's a real tough guy.But the law says, "No, Mr. Nelson, when you act together with others, your acts, their acts are the acts of everyone.Does that make sense?In other words, even if he didn't have the gun, if one of them has the gun and they rob people, the act of one is the act of all."

Think of this example, suppose there is a man who has a vicious dog, and he puts that dog in his car and he drives into a strange neighborhood and he lets the dog out to attack people, and the dog attacks.And then he rolls down the street and he puts the car--the dog back in the car and drives away.Now, suppose the police came to that man, would you want to hear that man say, "Hey, don't come talk to me about the dog, go ask the dog."Is that what we want to do, "Go ask Robert Nelson, go ask Terrence Hampton."?"No; we want to ask you, Odell Nelson, we want to ask you what you were doing with these guys."[Emphasis added.]

A prosecutor is not allowed to comment on a defendant's decision not to testify.Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106(1965); U.S. Const.Amend. V;Mo. Const. Art. 1 § 19;State v. Hutchinson, 458 S.W.2d 553, 554(Mo. banc 1970);State v. Hemphill, 608 S.W.2d 482, 483(Mo.App.1980).

If an accused [defendant] shall not avail himself or herself 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.

§ 546.270 RSMo 1978.

Respondent contends that the prosecutor's comments did not constitute comments on the failure of the appellant to testify.However, the record does not support that contention.

"Critical to determining whether a direct reference to the failure to testify has been made is whether the words 'defendant' or 'accused' and 'testify' or their equivalents have been used."State v. Hill, 678 S.W.2d 848, 850(Mo.App.1984).Here, the prosecutor stated, "[W]e want to ask you, Odell Nelson, we want to ask you what you were doing with these guys."[Emphasis added.]

The prosecutor's statement appears to satisfy this test.If this was not a direct reference, it was certainly an indirect reference.

To be an indirect reference the comment must be the type that, when viewed in context, would cause the jury to infer that the remark referred to the accused's failure to testify....The ultimate question is whether the remark drew the jury's attention to the lack of testimony by defendant....We must examine the remark in the particular context in which it is made.

State v. Hill, 678 S.W.2d at 850.

The prosecutor's closing argument in the case at bar was an impermissible reference to the defendant's failure to testify.The analogy the prosecutor was attempting to make simply went too far.The relevant sentence comments directly on the defendant's silence.This is true even when that sentence is read within the context of the entire paragraph.This comment goes beyond the respondent's assertion that it "merely directs the jury's attention to the weakness of the defendant's case."It is clear that a jury would have made an impermissible inference concerning the defendant's failure to take the stand and testify.

Respondent relies on State v. Sechrest, 485 S.W.2d 96, 98(Mo.1972), as analogous to the case at bar.In that casethe court addressed the following statement: "Like I said, this is a case of circumstantial evidence.There was no one who could identify John R. Sechrest as the man who entered that home.But yet there is no one who has come forward with a reasonable explanation for how the property got into the defendant's car."The court found that statement to be permissible.However, the facts present here are distinguishable.

Appellant correctly relies on State v. Williams, 673 S.W.2d 32(Mo. banc 1984).In Williams, the appellant took issue with the following statement:

Let me stop right there.Now, ladies and gentlemen, there is no eyewitness as to what happened in that bathroom that the State can produce for you today.There's only two people back there that knows [sic] exactly what happened and can tell you -who knows exactly what happened back there.

State v. Williams, 673 S.W.2d at 35.

The Supreme Court stated they had no hesitation in saying that this argument contained an improper reference to the defendant's failure to testify.That statement was an obvious reference to the fact that only the defendant and the victim could testify to what happened that day.

This area is not one that lends itself to a precise definition of what comments are or are not permissible.Therefore, every case must be analyzed according to its own fact situation.We look to past cases for examples of impermissible comments where the defendant's convictions were reversed for reference to a defendant's failure to testify.In State v. Reed, 583 S.W.2d 531, 533(Mo.App.1979), the prosecutor stated in his closing argument, "There is not a single witness who took the stand who is on trial.Bryan Reed is on trial."The prosecutor in State v. Lindsey, 578 S.W.2d 903(Mo. banc 1979), said during voir dire, " 'Mr. Lindsey doesn't have to go forward with any evidence if he doesn't wish to.He doesn't have to...