State v. Smart

• Decision Date: 19 July 1988
• Docket Number: No. WD,WD
• Citation: 756 S.W.2d 578
• Parties: STATE of Missouri, Respondent, v. Lillian E. SMART, Appellant. 39948.
• Court: Missouri Court of Appeals

Page 578

756 S.W.2d 578

STATE of Missouri, Respondent, v. Lillian E. SMART, Appellant.

No. WD 39948.

Missouri Court of Appeals,

Western District.

July 19, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Aug. 30, 1988.

Application to transfer Denied Oct. 18, 1988.

David S. Durbin, Asst. Public Defender, Kansas City, for appellant.

Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before NUGENT, P.J., and CLARK and KENNEDY, JJ.

CLARK, Judge.

Lillian E. Smart was convicted by a jury of two counts of stealing property valued at more than $150.00. She was sentenced to consecutive terms of three years and two years. On this appeal, she contends in two allegations of error that the trial court erred in overruling her objection and in denying a mistrial when testimony was presented commenting on her post-arrest silence during interrogation.

The facts bear only generally on the points raised and were essentially undisputed. On August 28, 1986, Smart entered the Helzberg's jewelry store at the Ward Parkway Shopping Center. She asked to see a $9,000.00 diamond ring displayed in a showcase. The clerk gave the ring to Smart who expressed admiration for the ring and held it up at eye level. A young, tall black man had been lingering near a display at the front of the store and as Smart held the ring up between her thumb and forefinger, the black man ran up to Smart, grabbed the ring and fled from the store and from the shopping center. He was never caught and the ring was not recovered. A short time before this incident, a security guard in another store had observed Smart in the company of a young black man of the same general physical characteristics as the Helzberg's thief.

On September 3, 1986, Smart visited another Helzberg's store, this one at the Bannister Mall Shopping Center. The performance at the Ward Parkway store was repeated. Smart asked to look at a diamond ring, this one priced at $16,000.00. As she held the ring up on the tip of her finger, a tall black man with close-cropped hair sprang forward, grabbed the ring and fled from the store. He was not apprehended.

In both of the incidents, Smart remained in the store after the theft, stated she had an insufficient opportunity to view the thief so as to make an identification and denied complicity in the crime. She was not placed under arrest until the second crime occurred and then, only after she had given a false name and identification to the police and after the manager at the Ward Parkway store provided the information which placed Smart in both stores when the robberies were committed.

The points at issue on the appeal concern the testimony of William A. Cosgrove, Jr., a police officer who interrogated Smart at the police station following her arrest. Before the questioning, Cosgrove gave Smart an explanation of her rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and she signed a form waiving her entitlement to an attorney and her right not to be interrogated. Cosgrove then began questioning Smart by asking whether she was the person in the Helzberg stores when the rings were taken. Smart agreed that she was but interjected that she had not taken the rings and didn't know why she had been arrested.

At the time, Cosgrove had an array of four photographs on the interrogation table. He asked Smart if she knew any of the persons in the photographs, but she made no reply. In the questioning of Cosgrove at trial, the details of the interrogation were described and, with respect to the four photographs, the prosecutor asked Cosgrove if the persons in the photographs had any relationship to the defendant. The officer replied:

I had them laying there as part of the investigation. She asked me, Why do you have these photographs laying on the table. And at that time I asked her do you know any of these people. She refused to make any comment.

Smart contends the testimony by Detective Cosgrove violated her Fifth Amendment right to remain silent following arrest in that it conveyed a suggestion of guilt by reason of her failure to answer the question. She says the evidence suggested to the jury either that she knew the individuals in one or more of the photographs and refused to aid the investigation or that she was guilty because one innocent of the charge would have made some reply.

In the first place, we fail to perceive how the inference which Smart places on the testimony follows from the content of the officer's statement. The photographs were not introduced in evidence, the identities of the persons depicted were not disclosed and there was no evidence indicating that any of those persons in the photographs had been linked to the Helzberg's robberies or that they had any relationship to Smart. Even were the testimony objectionable, the appellant has failed to demonstrate how its use prejudiced her case.

Moreover, the officer's statement was not the product of any calculated effort by the state to create the impression with the jury which Smart suggests. The question put to the officer, in reference to the photographs was, "and I'm not interested in who they were, but did they have any relationship at all to the defendant." This followed the officer's testimony that it was Smart who brought up the subject of the photographs by asking him why he had the pictures on the table.

If it be concluded, however, that the evidence was prejudicial to Smart, there was no Fifth Amendment violation.

If an accused exercises the constitutional right to remain silent and not to respond to post-arrest interrogation, the fact that the accused has made that choice is not admissible in evidence against him. Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976). The reason for the rule is that the prohibition against self incrimination implicitly includes the guarantee that the fact of an accused's acceptance of Fifth Amendment protection will not itself be shown as an incriminating circumstance. A jury may be informed that a statement of rights has been given the accused, but it is error to comment on the fact that the accused exercised the right. See State v. Poe, 717 S.W.2d 855, 856 (Mo.App.1986). However, this rule has no application where the accused does not exercise his right to remain silent, but elects to make a statement. State v. Van Doren, 657 S.W.2d 708, 716 (Mo.App.1983).

In the present case, Smart waived her right not to submit to questioning and therefore her answers to questions and remarks she volunteered were appropriate facts to be presented to the jury. She appears to contend, however, that her waiver was selective and conditional and that her failure to answer any particular question should be construed as a reassertion of her Miranda rights. In this regard, we note that Smart did not elect to terminate the questioning and did not affirmatively assert any right at all. She merely said nothing when asked about the photographs.

The supreme court explained in Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980), that Doyle does not apply to all circumstances where the post-arrest silence of the accused may create an adverse inference. There, the defendant gave a statement to police officers explaining his possession of a stolen automobile. At trial, he supplied other information and on cross-examination he was asked, if the information were true, why he did not disclose it when first questioned. The defendant complained that this constituted an impermissible comment on his right under Doyle not to have an unfavorable inference drawn from a post-arrest failure to answer questions. The court observed that each of the defendant's two inconsistent versions of the events could be construed to involve silence, as to omitted facts in each account, but this is not the silence to which Doyle applies. Having waived his right to remain silent after his arrest, the defendant was properly cross- examined as to information he failed to disclose.

The present case is similar to State v. Frentzel, 717 S.W.2d 862 (Mo.App.1986), in which the defendant was arrested while occupying an automobile in which were found several large open containers of alcoholic beverages, a tire iron, hammer, a flashlight and two screwdrivers. The officers were investigating several burglaries. Under questioning, the defendant offered explanations for his possession of the liquor and a quantity of coins, but not the tools. At trial, the prosecutor observed that the defendant had failed to respond to a question about the suspected burglar's tools. The opinion held this to be permissible because once the accused agrees to answer questions, a fair subject for comment is the failure by the accused to answer certain inquiries.

A comparable result was reached in State v. Trice, 575 S.W.2d 739 (Mo.App.1978), cert. denied, 442 U.S. 945, 99 S.Ct. 2891, 61 L.Ed.2d 316 (1979), a prosecution for possession of heroin. After obtaining a search warrant, officers entered defendant's apartment and found defendant in the bedroom. On a table by the bed, the officers observed a wallet, some altered currency and heroin capsules. The defendant was informed of his right to remain silent and upon being questioned, admitted that the wallet was his. He failed to give any explanation for the presence of the heroin or its ownership. The court held that once the defendant waived his right to remain silent, the state was entitled to show the replies he made and his failure to answer other questions.

The concurring opinion correctly observes that an accused who waives his Miranda rights and consents to being questioned does not irrevocably lose the right, but he may thereafter choose to terminate the interrogation. That, however, is not the issue in this case. Smart is not shown by this record to have indicated any intention to end the questioning. She simply made no answer when asked about the...