State v. Rogers
| Decision Date | 04 June 1998 |
| Docket Number | No. 21900,21900 |
| Citation | 973 S.W.2d 495 |
| Parties | STATE of Missouri, Respondent, v. Randy Allen ROGERS, Appellant. |
| Court | Missouri Court of Appeals |
Susan McGraugh, Asst. Public Defender, St. Louis, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
A jury found Appellant guilty of the class D felony of driving while intoxicated, §§ 577.010 and 577.023, RSMo 1994. The trial court sentenced Appellant to two years' imprisonment. This appeal followed.
Appellant's sole point relied on avers the trial court erred "when it overruled [Appellant's] objections to the State's announcement during opening statements that he had invoked his 5th Amendment right to remain silent during post-arrest interrogation and subsequently commented on his failure to make an exculpatory statement to the police during closing argument." Appellant maintains those remarks by the State were improper comments on his "post-arrest, post-Miranda silence."
All of the State's evidence came from the testimony of one witness, Trooper Mark D. Green of the Missouri State Highway Patrol.
Green was dispatched to the scene of an accident on a highway in a rural area. Upon arrival, he saw a pickup "that had exited the roadway and struck a ditch and was turned over onto its left side." One individual was "being attended to by the ambulance personnel." Another individual, identified by Green at trial as Appellant, was sitting on the road. Green noticed Appellant appeared intoxicated.
Green assisted Appellant in walking to Green's patrol car. There, Green asked Appellant "who was driving." According to Green, Appellant responded:
Green placed Appellant inside Green's car. Green then proceeded with his investigation by talking to the individual receiving medical attention, identified by Green as James Jones.
After talking with Jones, Green returned to his car and placed Appellant under arrest for driving while intoxicated. Green continued his investigation without questioning Appellant.
After completing his investigation, Green returned to his car and "advised [Appellant] of the Miranda warning." Asked at trial whether Appellant responded, Green testified Appellant said: "I don't under--I don't understand a f____ thing."
Green took Appellant to the sheriff's office. En route, Green asked Appellant where Jones was sitting. Appellant's response, according to Green, was: "On the passenger side."
At the sheriff's office, Green explained the "Implied Consent Law" to Appellant and asked him to submit to a chemical test of his breath. Appellant refused.
The first of the two incidents complained of by Appellant in his point relied on occurred during the prosecutor's opening statement. There, we find this:
"[Prosecutor]: When [Green] got [Appellant] ... to the Sheriff's Department, the evidence will be that he started to fill out some other information and ... do some other tests and things, trying to get some other information from the defendant, the accused, at that time.
He will tell you, at that time, that the accused exercised his constitutional rights and did not want to make any other statements.
[Appellant's lawyer]: ... your Honor, I'd like to object and approach.
[Appellant's lawyer]: He's stating that when he got back, he--he refused to answer any further questions of the police officer. He has a right to remain silent. And he used at trial of his refusal to answer questions is a violation of his right to remain silent and can be used to incriminate him, and I would object. I would ask the jury be directed to disregard it. And I would also ask for a mistrial at this time, based upon that.
For convenience, we henceforth refer to the above incident as "Incident One."
During the prosecutor's direct examination of Green, the following dialogue occurred:
"Q During the time that you questioned [Appellant], did he ever deny driving the vehicle?
A Not that I recall, he never denied.
Q And, did he ever tell you that James Jones was driving that vehicle?
A No, he never did.
[Appellant's lawyer]: I'm--your Honor, again, I'm gonna object. Ah, and I hate to do it, but if I may ask to approach?
THE COURT: All right.
(Counsel approached the bench and the following proceedings were had:)
[Appellant's lawyer]: Again--again, I object because he's bringing up things that the defendant did not say after being Mirandized. Ah, the fact the defendant did not say something after--after Mirandized of his constitutional right to remain silent is inadmissible. And, again, I would ask for a mistrial; direct the jury to disregard it. An objection down the line.
THE COURT: Overruled."
For convenience, we henceforth refer to the above incident as "Incident Two."
Incident Two is not mentioned in Appellant's motion for new trial or in his point relied on in this appeal. We have set forth Incident Two as a preface to an incident that occurred later in the trial, during the opening segment of the prosecutor's final argument. The latter incident, henceforth referred to as "Incident Three," is the other incident about which Appellant's point relied on complains. Incident Three appears in the record thus:
"[Prosecutor]: ... Mr. Rogers did not ever say that James Jones was driving. Mr. Rogers--
[Appellant's lawyer]: Objection, your Honor.
Appellant declares the "controlling precedent" for this appeal is State v. Flynn, 875 S.W.2d 931 (Mo.App. S.D.1994). There, this court said:
Flynn, 875 S.W.2d at 934[3, 4] and .
Appellant maintains the prosecutor's remarks during Incident One and Incident Three violated the above rules and the trial court erred in overruling Appellant's objections to the prosecutor's comments.
We begin our analysis of Appellant's claim of error by examining Incident Three.
The only objection registered by Appellant's lawyer during Incident Three was: "Objection, your Honor."
In Missouri, specific objections are required to arguments or statements of counsel; the objection must call the court's attention to the ground or reason for the objection. State v. Lang, 515 S.W.2d 507, 511 (Mo.1974). Where an accused's lawyer, during a prosecutor's argument, says only "Objection," no issue is preserved for review. Id. at . Applying Lang, we hold Appellant's lawyer preserved nothing for review during Incident Three by saying only "Objection, your Honor." Consequently, Appellant's claim that the trial court erred in overruling his lawyer's objection during Incident Three is ineligible for review.
As reported earlier, Incident Two is not mentioned in Appellant's point relied on.
An appellate court reviews only issues raised in the points relied on in an appellant's brief. State v. Martineau, 932 S.W.2d 829, 833 (Mo.App. S.D.1996). Accordingly, no issue regarding Incident Two is presented for review.
It is thus apparent that the outcome of this appeal hinges on whether the trial court committed reversible error in overruling the objection of Appellant's lawyer during Incident One.
There, Appellant's lawyer 1 objected when the prosecutor told the jurors Green would testify that at the sheriff's office, Appellant "exercised his constitutional rights and did not want to make any other statements." Appellant's lawyer protested to the trial court that the prosecutor's comment was an impermissible reference to Appellant's exercise of his constitutional right to remain silent. As we have seen, Flynn holds an accused's post-arrest silence is inadmissible against him and cannot be commented on by a prosecutor. 875 S.W.2d at 931.
The State concedes that generally, a prosecutor "may not use a defendant's silence, at the time of arrest and after receiving Miranda warnings, as affirmative proof of guilt or for impeachment purposes." However, argues the State, "[T]he prohibition against the use of a defendant's post-arrest, post-Miranda silence has no application where the defendant elects not to remain silent." As authority for that proclamation, the State cites Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d...
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...relied on, we agree. Therefore, inasmuch as we are not required to address an issue not raised in the point relied on, State v. Rogers, 973 S.W.2d 495, 498 (Mo. App. 1998), our review of the appellant's claim of improper voir dire, if any, is limited to plain error review under Rule As to t......
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