State v. Roth, KCD

• Decision Date: 04 April 1977
• Docket Number: No. KCD,KCD
• Citation: 549 S.W.2d 652
• Parties: STATE of Missouri, Respondent, v. William S. ROTH, Appellant. 28797.
• Court: Missouri Court of Appeals

Page 652

549 S.W.2d 652

STATE of Missouri, Respondent, v.William S. ROTH, Appellant.

No. KCD 28797.

Missouri Court of Appeals, Kansas City District.

April 4, 1977.

Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.

John Ashcroft, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P. J., and WELBORN and HIGGINS, Special Judges.

SHANGLER, Presiding Judge.

The defendant was convicted of murder in the second degree and sentenced to a term of eighteen years according to the verdict of the jury.On this appeal the defendant contends that the comment of the prosecutor in closing argument that the self-defense story asserted at the trial was not told to the police at the time of arrest violated his privilege against self-incrimination.We agree and reverse and remand.

The evidence shows that defendant and one Carlos Savage shared a room at a modest residential hotel.There had been some acrimony between them because a child whom Savage kept for another interfered with the sleep of defendant after his return from work in the early mornings.On the day of the event, the defendant returned to the apartment after a day of work and barroom tippling until the closing hour, and an argument commenced between them about the child.The defendant testified that Savage gained a .22 caliber pistol from a drawer where the defendant kept it, pointed the weapon at him, and in the attempt to wrest it from Savage, the revolver discharged.

Another hotel guest, Ms. Beverly Maynard, heard a loud argument down the hall and the report of a pistol shot as she waited for the elevator.She then saw Savage stagger from the room onto the hallway and fall.The defendant then emerged from the apartment with a gun in his hand.

The defendant attempted to avoid the police, but was arrested in the parking lot which adjoined the hotel and the pistol was recovered where he dropped it.The defendant was informed of his Miranda rights at the scene, and when advised of the charge against him remarked: "Oh, did somebody die?He must have had a heart attack."He was then taken to police headquarters where he commented to two police officers: "You can kill a man with a .22 if you know what you're doing."The defendant denied these statements.

The defendant took the stand and testified that he shot Savage in defense of his own life.He admitted a number of prior convictions for crime, and explained that the pistol was a possession from an earlier employment as a sheep tender when the instrument was used to destroy deformed and diseased livestock.

The first part of the prosecution summation went without incident on the issue here.The defendant then followed with an argument that the statements reported by the officers as made by the defendant that the death must have been from a heart attack and that a .22 caliber pistol could be lethal were not incriminating but merely the expressions of a confused mind, and that nothing said by the defendant to the three officers admitted a crime.To this the prosecutor replied:

MR. EDWARDS: All right.Let's assume that he's afraid because he's a convict he wouldn't get a fair shake.But now he already knows somebody has seen him out in the hall, so he's taking the gun and himself away.But he's arrested.Once he's arrested, gentlemen, that logic, if it does exist, of his fear of being a convict vanishes.Nowhere did he tell the policemen then, after he was arrested, when it would work to his benefit

MR. BLOEMKER: I'm going to object to this as being improper argument.

THE COURT: Overruled.

MR. BLOEMKER: Just a second.

(Counsel approach the bench and the following proceedings were had:)

MR. BLOEMKER: Judge, he's attempting to make a comment upon the fact that the defendant chose not to say anything.Obviously, that's improper.

MR. EDWARDS: It is not improper once the defendant has testified, Your Honor.

MR. BLOEMKER: But he's commenting upon whether the defendant made a statement or not, way back then.

THE COURT: Your objection is overruled.

(The proceedings returned to open court.)

MR. EDWARDS: (Continuing)

So, at the time after he's arrested and that logic vanishes, he did not say a word about self-defense, about Carlos Savage with the gun, about anything, when it would do him some good.This is six months later, gentlemen.Do any of you suppose there's really a Perry Mason and a defendant, a cool defendant, as you've seen this one to be, calm and collected, sitting there, is going to burst out and say, Oh, yeah, I did it, put me away?Nonsense.That's as nonsensical an idea as the story you are asked to believe about self-defense against a non-violent man sitting there reading a Bible and is supposed to make a transition from a Bible to a pistol, instantaneously, with no other response.

It is clear beyond doubt that the prosecution argument was a comment that contrary to his trial position that self-defense justified the homicide the defendant made no such claim of exculpation to the police at the time of arrest.The right of a criminal accused to be free from compulsory self-incrimination embraces not only the prerogative to remain silent but also that such silence shall not be allowed to prove guilt.State v. Elmore, 467 S.W.2d 915, 917(2)(Mo.1971).This protection begins, not at the trial, but with the inquisition preliminary to prosecution.Helton v. United States, 221 F.2d 338, 341(7-9)(5th Cir. 1955).Thus, the silence of the accused when under judicial charge or simply under arrest cannot be shown against him (State v. Foley, 144 Mo. 600, 46 S.W. 733, 738(1898)) because he is under no duty to speak.State v. Stuard, 456 S.W.2d 19, 22(3, 4)(Mo. banc 1970).

These principles take an added significance in the perspective of the Miranda warnings which now precede arrest by Fifth Amendment mandate.Miranda v. Arizona, 384 U.S. 436, 467 et seq., 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).That litany includes advice to an accused (as was given to this defendant) that he may remain silent.It has been held recently by the United States Supreme Court in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91(1976) that where the Miranda warnings are given, it is fundamentally unfair for a prosecutor to impeach a defendant by cross-examination to show that his exculpatory story was told for the first time at the trial.Such a procedure misuses the Fifth Amendment right of an accused to post-arrest silence and itself violates constitutional due process.

The defendants in Doyle testified at the trial that the narcotics prosecutions against them had been framed.On cross-examination they were asked why they had not told the frame-up story to...