State v. Thurlo
Decision Date | 12 May 1992 |
Docket Number | No. 17391,17391 |
Citation | 830 S.W.2d 891 |
Parties | STATE of Missouri, Respondent, v. Barry R. THURLO, Appellant. |
Court | Missouri Court of Appeals |
Ellen H. Flottman, Columbia, for appellant.
William L. Webster, Atty. Gen., Robin H. Grissom, Asst. Atty. Gen., Jefferson City, for respondent.
A jury found Defendant, Barry R. Thurlo, guilty of the class C felony of burglary in the second degree. § 569.170.1, RSMo 1986. Defendant was sentenced as a prior and persistent offender to imprisonment for five years. Only a brief recital of the facts is necessary for an understanding of Defendant's appeal.
In the early hours of August 17, 1990, Defendant and an accomplice broke into the Main Street Bar in Webb City, Missouri. Cash was taken from the business and later divided between Defendant and his accomplice. On August 25, 1990, Defendant admitted his involvement in the burglary to Officer Joe Beckett of the Webb City Police. At trial, two alibi witnesses testified for the defense. They recalled that Defendant spent the night at their home on August 16, 1990, and to their knowledge Defendant never left during the night.
Defendant raises two points on appeal. He first complains of the trial court's failure to declare a mistrial during the prosecutor's opening remarks. Even though Defendant did not testify, those remarks, according to Defendant, denied him a fair trial because the prosecutor made "indirect references" to him testifying at trial.
An appellate court reviews the trial court's decision not to declare a mistrial only for abuse of discretion. State v. Parker, 476 S.W.2d 513 (Mo.1972). We find no abuse of discretion.
The condemned portion of the prosecutor's statement appears as follows:
[The proceedings return to open court]
We agree with Defendant that a prosecutor is prohibited from commenting on an accused's failure to testify. State v. Jackson, 750 S.W.2d 644, 648 (Mo.App.1988). Such a comment is in violation of Defendant's right against self-incrimination. State v. Lindsey, 578 S.W.2d 903, 904 (Mo. banc 1979); Art. I, § 19 Mo.Const. See § 546.270, RSMo 1986. Furthermore, "[b]oth direct and indirect references to defendants' [sic] failure to testify are forbidden." State v. Chunn, 657 S.W.2d 292, 294 (Mo.App.1983).
To determine if a forbidden direct reference occurs, "only a comment by the prosecutor which is a direct and certain reference to the failure of the accused to testify would be considered as satisfying the test." State v. Reed, 583 S.W.2d 531, 534 (Mo.App.1979). "To constitute an indirect reference, the comment, when viewed in context, must be of a type which would cause a jury to infer that the remark was a reference to the accused's failure to testify." Id.
Defendant argues the prosecutor's words, "He will be ... saying ...," are a clear reference to Defendant testifying. This argument takes the quoted words out of context when the first sentence of the prosecutor's statement is omitted. Taken in context, the quoted words have reference to the anticipated fact that Defendant would put forth a defense. It is unclear that the prosecutor is referring to Defendant actually testifying. In the bench conference, following Defendant's objection, the prosecutor specifically referred to Defendant's alibi defense. The statement could well refer to what Defendant will be "saying" by his defense witnesses. At best, we believe the entire statement of the prosecutor could only be considered in the light of an indirect reference to Defendant testifying.
Because Defendant's point relates only to an indirect reference, we need only determine the validity of Defendant's complaint on that basis.
A direct and certain reference mandates a new trial but an indirect reference only makes the conviction voidable and a new trial is required only when the reference clearly draws the jury's attention to the defendant's failure to testify.
State v. Bulloch, 785 S.W.2d 753, 755 (Mo.App.1990).
In this case, our chore is to determine whether the prosecutor's remarks clearly drew the jury's attention to Defendant's failure to testify. Defendant relies on State v. Jackson, supra ( ); State v. Chunn, supra ( ); and State v. Reed, supra ( ).
All three of these cases involve remarks by the prosecutor in closing argument, not in the opening statement. In all of the cases the prosecutors' remarks were complete statements to the jury, not statements halted by objection. Here, no evidence had been presented when the objectionable remarks were made. In each case cited by Defendant, the defendant's evidence (or lack thereof) was fresh on the minds of the jury. Further, the prosecutor here was not allowed to complete her attempted remark, but the tenor of her statement related to Defendant's possible defense. An alibi defense was later squarely presented to the jury. None of Defendant's cases are factually similar to the present case.
We believe the instant case is akin to State v. Haggard, 619 S.W.2d 44 (Mo. banc 1981), vacated on other grounds, 459 U.S. 1192, 103 S.Ct. 1171, 75 L.Ed.2d 423 (1983). There, the prosecutor, in his opening statement, said: " 'After all the evidence has been heard, and I assume there will be eight to ten witnesses called by the State, I do not know how many called by the defendant, if any.' " Id. at 47. The accused's contention that this was an impermissible comment on his right not to testify was rejected. The Court said: Id.
Our court has recently decided a similar case, State v. West, 809 S.W.2d 464 (Mo.App.1991). There, the prosecutor's voir dire statement, "[i]f the defendant would testify," was determined not to have violated defendant's right against self-incrimination. We said, "When considered in context, the statement did not focus upon defendan...
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State v. Evans, s. 20530
...his discretion in denying the request for a mistrial. See State v. Gilmore, 681 S.W.2d 934, 942-43 (Mo. banc 1984); State v. Thurlo, 830 S.W.2d 891, 893-94 (Mo.App.1992). We, therefore, find no manifest injustice or miscarriage of justice in the trial court's denial of defense counsel's req......
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State v. Berry, 19931
...only in extraordinary circumstances where the prejudice to the defendant cannot be removed by any other means. State v. Thurlo, 830 S.W.2d 891, 893 (Mo.App.S.D.1992); State v. Sims, 764 S.W.2d 692, 695 (Mo.App.E.D.1988). Whether to grant a mistrial is a matter resting initially in the broad......
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State v. Young
...defendant's motion for a mistrial was not prejudicial error. See State v. Roberts, 779 S.W.2d 576, 579 (Mo. banc 1989); State v. Thurlo, 830 S.W.2d 891, 893 (Mo.App.1992). Defendant complains of the court's reasonable doubt instruction, which was MAI-CR3d 302.04. This instruction is regular......
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State v. Wright, 17584
...during trial. It was not a reference, direct or indirect, to the defendant's right to testify or not to testify. See also State v. Thurlo, 830 S.W.2d 891 (Mo.App.1992). His first point is Defendant's second point is: "The trial court erred in allowing joinder under Section 545.140 and Rule ......