State v. Poe, 50439
| Decision Date | 12 November 1986 |
| Docket Number | No. 50439,50439 |
| Citation | 721 S.W.2d 180 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Jerold POE, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Henry B. Robertson, Asst. Public Defender, St. Louis, for defendant-appellant.
William L. Webster, Atty. Gen., Lee A. Bonine, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Defendant Jerold Poe was found guilty of kidnapping, Count I, § 565.110, RSMo 1978, forcible sodomy, Count II, § 566.060 RSMo, Cum.Supp.1984, forcible rape, Count III, § 566.030, RSMo, Cum.Supp.1984, and first degree robbery, Count IV, Section 569.020, RSMo 1978. As a prior offender, defendant was sentenced by the court on each of the counts. The sentences for Count I (15 years) and Count IV (20 years) were ordered to run concurrently. The sentences for Counts II and III (25 years each) were ordered to run consecutively and to commence at the expiration of the sentences imposed under Counts I and IV. Defendant appeals; we affirm.
Inasmuch as defendant's sole point on appeal relates to a comment made by the prosecutor in his final closing argument, an abbreviated statement of the facts will suffice. At about 1:00 a.m. on Saturday, July 16, 1983, the victim, a young woman, purchased cigarettes at Mitchell's Package Liquor Store in the City of St. Louis. When she returned to her car and entered it, a man approached the driver's side and placed a gun against her neck. At his command, she gave her car keys to the man who threw them to the defendant standing on the passenger side of the vehicle. The men then entered the car and ordered the victim to drive, which she did. This incident was witnessed by Hosea Wells, an employee of the liquor store, who recognized defendant from his having been around the store on prior occasions. Wells did not see the gun and did not know defendant's name at the time. Wells later learned defendant's name from the son of the Mr. Mitchell who owned the liquor store.
After the automobile left the area of the liquor store, the victim was raped and sodomized by both men. The men also took $200 from the victim's purse. They then locked her in the trunk of her car and departed. The victim was later released from the trunk by a passer-by, and she reported the matter to the police.
Later a man called the victim at her home stating, "I see you got out of the trunk okay." This man called many times, and stated that he didn't want to put her in the trunk. The victim reported the calls to police and a tracer was put on her phone. A Southwestern Bell employee testified that, after the tracer was put on, the victim called Southwestern Bell to report calls from the man who had been calling. These calls were placed from a number listed under the name of Joyce C. Poe, identified in appellant's brief as his mother. Defendant was later arrested at the address listed for that telephone number.
Defendant's sole point on appeal alleges trial court error in the failure to declare a mistrial sua sponte after defendant's objection to a prosecution statement during closing argument was sustained.
The remark in question occurred during the second half of the State's closing argument:
Defendant's counsel did not ask for any further relief. He received all of the relief which he requested. Because he made no request for a mistrial or curative instruction, he has preserved...
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State v. Hopkins
...failed to call a specific witness to testify is improper, generally. State v. Crump, 875 S.W.2d 241, 242 (Mo.App.1994); State v. Poe, 721 S.W.2d 180, 181 (Mo.App.1986). An exception to this general "missing witness rule" arises when a defendant fails to call a "peculiarly available" witness......
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State v. Crump, 64087
...for the State to draw an adverse inference in closing on a defendant's failure to call a specific witness to testify. State v. Poe, 721 S.W.2d 180, 181 (Mo.App.1986). However, a well-established exception exists where the State's comments are made in retaliation to answer arguments made in ......
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State v. Davenport, s. 66505
...argument. Ordinarily it is improper for the state to comment on defendant's failure to call a particular witness. State v. Poe, 721 S.W.2d 180, 181 (Mo.App. E.D.1986). An exception to this rule exists when the prosecutor's remarks are made in response to defense argument about the absent wi......