State v. Webster
| Decision Date | 23 August 1983 |
| Docket Number | No. 46888,46888 |
| Citation | 659 S.W.2d 286 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Byron WEBSTER, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Henry Robertson and Peter Stragand, Asst. Public Defenders, St. Louis, for defendant-appellant.
John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Dwight Warren, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
This is an appeal from a conviction by jury of capital murder. Defendant alleges that the trial court erred in permitting the prosecutor to create an adverse inference in the minds of the jurors by the failure of the defense to call an allegedly "equally available" witness, who had been endorsed by the prosecution as a potential state witness. We affirm.
The evidence adduced at trial tended to show that at approximately 12:00 a.m. on June 4, 1981, Steven Horne, George Baker and Yvonne Harris went to George's mother's house in St. Louis. Steven Horne stayed outside while George and Yvonne went inside the residence. Shortly after 2:00 a.m., two men were heard arguing in the street in front of the Baker home. Subsequently, two gunshots were heard.
Jefferey Baker, Sophia Baker, Evelyn Baker and Yvonne Hawkins all testified that upon hearing the gunshots, they ran to the windows and front door to see what was happening. The four testified that a man, later identified as defendant, was standing over Steven Horne, who lay unconscious in the street bleeding profusely. Additionally, defendant was seen hitting Horne in the head and face with what appeared to be a gun and was seen subsequently kicking him around the head and shoulders.
Shortly thereafter, the St. Louis Police arrived. Defendant tried unsuccessfully to leave the area in Horne's car. Unable to do so, defendant left the area on foot, ignoring the officer's order to stop. Defendant was arrested the following day. At the time of the arrest, defendant was wearing a light colored cap which was later identified by Evelyn Baker, Sophia Baker, Yvonne Hawkins and Ernestine Brown as a cap similar to that worn by the assailant of Steven Horne. Also seized from the defendant was a pair of blood stained tennis shoes.
The victim, Steven Horne, was taken to the hospital where he died from gunshot wounds and a blunt trauma wound of the head. He had multiple lacerations and fractures on both the outside and at the base of the skull. Lacerations of the victim's face appeared as though they were made by the muzzle of a gun. Additionally, there was brain damage due to hemorrahaging of the brain and scalp.
Defendant at all times denied his involvement with the crime claiming at the time the incident occurred he was at the house of his sister, Debra Webster. On June 7, Carla Thomas who lived with Debra Webster was present when Debra Webster gave the police the bluejeans defendant was wearing on the night in question. Blood found on defendant's bluejeans matched the victim's blood. Further, fingerprints taken from the victim's car matched those taken of defendant.
At trial the prosecuting attorney, during the second part of his closing argument, told the jury:
[Prosecutor]: Now, I did not bring out Carla Thomas' testimony because I anticipated bringing her in. I was unable to do so. But [defendant's counsel] brought out that Carla Thomas gave to the detectives these jeans. Carla was there when the defendant came in. Where's Carla to testify as to what went on, what condition he appeared when he got there, what was on the top of his--
Defendant's counsel promptly objected.
[Defendant's Counsel]: Objection, Your Honor. Carla Thomas was endorsed as a witness for the State. She was more than available to the State.
[Prosecutor]: She was staying with ... defendant's sister.
[Defendant's Counsel]: Let the record show that I have never talked to Carla Thomas.
[Prosecutor]: I don't know who talked to who. I haven't talked to anybody till morning ...
[Defendant's Counsel]: Let the record ... also reflect that Alexander Webster was another endorsed witness for the State and that [the prosecutor] had been quite aware that I was calling William Foster for at least three months.
At the close of the evidence, instructions and arguments of counsel, the jury found defendant guilty of capital murder and he was thereafter sentenced to a life term in the Missouri Division of Corrections, said sentence to be served without probation or parole for the first fifty years. Defendant brings this appeal from his conviction and sentence.
Defendant contends that the trial court erred in overruling his objection to comments made by the prosecutor in closing argument questioning defendant's failure to produce a witness, Carla Thomas. Thomas was endorsed as a witness by the state. Defendant argues that the witness was equally available to the state and the state could not complain of defendant's failure to call the witness.
It should be noted that the trial court has broad discretion in determining whether the facts warrant invocation of an unfavorable inference and its rulings are reversible only for abuse of discretion where the argument is plainly unwarranted. State v. Moore, 620 S.W.2d 370 (Mo. banc 1981).
Further, it has been established by case law that the prosecuting attorney may properly argue an adverse inference from the defendant's failure to produce a witness who would be reasonably expected to give testimony in the defendant's favor. Moore, supra; State v. Collins, 350 Mo. 291, 165 S.W.2d 647 (1942). Such comments are permissible because a logical inference can be drawn from a failure to call these witnesses to testify that their testimony would be damaging rather than favorable. However, such an inference does not arise and may not be argued if the witness is equally available to the defendant and the state. State v. Valentine, 587 S.W.2d 859 (Mo. banc 1979); State v. Wilkerson, 559 S.W.2d 228 (Mo.App.1...
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State v. Anderson, s. WD
...the witness which indicates a likelihood that the witness would testify more favorably for one party than the other. State v. Webster, 659 S.W.2d 286, 288-89 (Mo.App.1983). In the instant case, Anderson, rather than the state, had the superior ability to know and identify Boydston because A......
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State v. Hillis, 53019
...the defendant has the burden of demonstrating that the comments at issue had a decisive effect on the jury's decision. State v. Webster, 659 S.W.2d 286, 289 (Mo.App.1983). When the comment at issue is viewed in light of the record as a whole we find that it did not shift the burden of proof......
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State v. Robinson, 15383
...effect on the jury's determination, ... and the defendant is saddled with the burden of demonstrating such effect...." State v. Webster, 659 S.W.2d 286, 289 (Mo.App.1983). (Citing authorities.) On varying trial records Missouri courts have held that the prosecutor was justified in commentin......
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State v. Baker, WD
...if the missing witness is equally available to both parties. State v. Valentine, 587 S.W.2d 859 (Mo. banc 1979); State v. Webster, 659 S.W.2d 286, 288 (Mo.App.1983). If the evidence shows the missing witness is unavailable to the defendant, no adverse inference can be drawn from the defenda......