State v. Rothaus, 59113
Decision Date | 08 December 1975 |
Docket Number | No. 59113,59113 |
Citation | 530 S.W.2d 235 |
Parties | STATE of Missouri, Respondent, v. William John ROTHAUS, Appellant. |
Court | Missouri Supreme Court |
J. Martin Hadican, St. Louis, for appellant.
John C. Danforth, Atty. Gen., Scott A. Raisher, Asst. Atty. Gen., Jefferson City, for respondent.
Appellant, William John Rothaus, was convicted in the Circuit Court of the City of St. Louis of obtaining a controlled substance by forgery of a prescription (§ 195.170, RSMo 1969), and his punishment, under the provisions of the Habitual Criminal Act, was assessed at imprisonment for a term of three years. Following rendition of judgment and imposition of sentence, an appeal was perfected to the St. Louis District of the Court of Appeals. The case was transferred to this Court, after opinion, by order of this Court. We decide the case here the same as on original appeal. Mo.Const. Art. V, § 10.
According to the uncontradicted evidence, on July 3, 1972, appellant presented a prescription for dilaudid tablets to a pharmacist at Bushell Pharmacy in the City of St. Louis. The pharmacist sold 20 tablets to appellant. The signature of Dr. E. V. Cowdry appeared on the prescription. It was forged. Dr. Cowdry did not sign the prescription. He had never treated appellant.
Appellant's only assignment of error is that the trial court 'erred in failing to grant the defendant's request for a mistrial during the closing argument on behalf of the state when the attorney for the state stated that only the defendant knew whether or not the prescription in question was forged, which statement was a comment upon the failure of the defendant to testify and thus violated defendant's rights per Article I, Section 19 of the Constitution of Missouri and Amendments Five and Fourteen of the United States Constitution.'
The record on appeal reveals the following transpired at trial during closing argument:
The law is established in Missouri that when arguments made by the prosecutor do not contain direct and certain references to the failure of an accused to testify, an 'appellate court will not interfere unless the record shows that the trial court abused its discretion to the prejudice of the appellant * * *;' but that arguments made by a prosecutor, wherein there are direct and certain references to failure of an accused to testify, constitute reversible error. State v. Tiedt, 360 Mo. 594, 229 S.W.2d 582, 588 (1950); State v. Hutchinson, 458 S.W.2d 553, 555, 556 (Mo.1970); State v. Shuls, 329 Mo. 245, 44 S.W.2d 94 (1931).
Appellant cites State v. Shuls, supra, and State v. Lindner, 282 S.W.2d 547 (Mo.1955). The State cites State v. Haynes, 455 S.W.2d 504 (Mo.1970) and State v. Gregg, 399 S.W.2d 7 (Mo.1966).
In Shuls, the assistant prosecuting attorney said: The Court referred to the argument as follows (44 S.W.2d, at page 97):
In Lindner, the Assistant Circuit Attorney during defendant's attorney's argument said: The Court referred to these comments as follows (282 S.W.2d, at page 550)
In Haynes, the prosecuting attorney said: The Court said (455 S.W.2d, at page 505):
In Gregg, the prosecuting attorney said: The Court held (399 S.W.2d, at page 11) that if any juror construed the argument as a reference to defendant's failure to testify, 'under the particular situation here presented, the court's instruction to disregard the statement was sufficient to cure the error.'
Here, the Assistant Circuit Attorney said: As in Gregg, we do not think the argument would reasonably be construed as a reference to the failure of appellant to testify. The Assistant Circuit Attorney was reffering to the Fourth paragraph of Instruction No. 3, which required the jury to find beyond a reasonable doubt, in order to convict, 'that defend...
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State v. Strong
...court will only interfere if the "record shows that the trial court abused its discretion to the prejudice of the appellant." State v. Rothaus, 530 S.W.2d 235, 237 (Mo. banc 1975). Based on the context of the prosecutor's statements, Strong has not established that the remark was a referenc......
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State v. Neff
...made and sustained and the jury instructed to disregard it. State v. Williams, 673 S.W.2d 32, 35 (Mo. banc 1984); see also State v. Rothaus, 530 S.W.2d 235, 237-38 (Mo. banc 1975) (distinguishing Lindner); State v. Sechrest, 485 S.W.2d 96, 99 (Mo.1972) (distinguishing Snyder). Kempker noted......
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State v. Chunn
...the jury's attention to the defendant's failure to testify. State v. Cockrum, 592 S.W.2d 300, 302 (Mo.App.1979).2 See e.g., State v. Rothaus, 530 S.W.2d 235 (Mo. banc 1975); State v. Sechrest, 485 S.W.2d 96, 98 (Mo.1972); State v. Dick, 636 S.W.2d 425, 428 (Mo.App.1982); State v. Burks, 629......
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...457, 15 L.Ed.2d 369 (1965). Direct and certain references to the failure of the accused to testify constitute reversible error. State v. Rothaus, 530 S.W.2d 235 (Mo. banc The first two comments "At that point Mr. Webb and the defendant had an opportunity to present evidence . . ." and "Agai......