State v. White, s. 67593

• Decision Date: 28 January 1997
• Docket Number: Nos. 67593,69747,s. 67593
• Citation: 941 S.W.2d 575
• Parties: STATE of Missouri, Respondent, v. Stacie WHITE, Appellant.
• Court: Missouri Court of Appeals

Page 575

941 S.W.2d 575

STATE of Missouri, Respondent, v.Stacie WHITE, Appellant.

Nos. 67593, 69747.

Missouri Court of Appeals,

Eastern District,

Division Four.

Jan. 28, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 17, 1997.

Application to Transfer Denied

April 29, 1997.

Douglas R. Hoff, Asst. Public Defender, St. Louis, for appellant.

Jeremiah W.(Jay) Nixon, Atty. Gen., Kurt U. Schaefer, Asst. Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

RHODES RUSSELL, Presiding Judge.

Stacie White appeals after she was convicted of two counts of first degree attempted robbery, § 564.011 RSMo 1994¹, and two counts of armed criminal action, § 571.015, in the Circuit Court of St. Louis County.Defendant was sentenced to two terms of five years of imprisonment for the two counts of attempted robbery and two ten year sentences for the two counts of armed criminal action, all terms to be served concurrently.

Defendant raises two points on appeal.Defendant first claims that the trial court committed plain error when it permitted the prosecutor to comment on her post-arrest silence.In her second point on appeal, defendant claims the trial court erred in allowing the State to peremptorily strike a venireperson over her Batson ² objection.We affirm.

Defendant does not challenge the sufficiency of the evidence.The evidence viewed in the light most favorable to the verdict is as follows: On October 24, 1993, at approximately 3:00 a.m., a female and male college student were walking home from a party.A van pulled up beside the students.The defendant and another woman exited the van.Defendant pointed a gun at the male student and demanded that he give her his money.He handed her his wallet.Defendant then pointed the gun at the female student and told her to hand over her purse.Finding no money in the purse, defendant threw the purse at the female student hitting her in the face.Both defendant and her partner then jumped back into the van and sped away.The female student having memorized the van's license plate number, contacted the police and gave them a description of the assailants and the license plate number.

After finding the van that matched the student's description, the police went to defendant's home.Defendant answered the door and the police told her that they were investigating a robbery.Defendant stated she knew nothing about a robbery.Defendant allowed the police to search her home.She also agreed to accompany the police to the police station.Defendant was read her Miranda ³ rights and signed and initialed a card which explained those rights.During questioning, she told the police that at the time of the robbery she was riding around with her boyfriend, Damon, until 5:30 a.m.

Defendant then voluntarily participated in a lineup.The two students identified defendant as the person who robbed them.After the police told defendant that the students identified her as the robber, defendant became belligerent and said "f--- the prosecutor, f--- you guys and f--- yo mamma."The police officers then informed defendant that they would be applying to the prosecutor's office for warrants and placed her under arrest.The police officers then left the room and did not question the defendant further.

At trial, the State presented the testimony of the two students and the two arresting police officers.Defendant also testified.On direct examination, she said that on the night of the robbery she was riding around with her boyfriend, Damon, but that she could not remember his last name, address, or phone number.Defendant testified that she told the police that she had Damon's phone number written down at her home.She said that after being identified in a lineup, she cursed the police officers who asked her to tell them why she committed the robbery.Defendant stated the officers indicated that they could get her "a deal."

The case was submitted to the jury, which found defendant guilty of two counts of attempted robbery and two counts of armed criminal action.This appeal ensued.⁴

In her first point on appeal, defendant claims that the State, in its case in chief, its cross-examination, and in its closing argument, improperly commented upon defendant's post-arrest silence.Specifically, defendant argues that the prosecutor should not have been allowed to comment as to why she did not provide the police with evidence to corroborate her alibi.Defendant maintains that such comments are in violation of her constitutional right to remain silent, and therefore, reversal of her convictions is required.

Defendant first objects to the following exchange during the State's direct examination of Detective Marbs:

Prosecutor: Okay now, Detective, I want you to, if you remember, to use exactly the words that the defendant used when she was informed that she had been positively identified.

Marbs: When she was told that she had been positively identified and we were going to apply for warrants at the prosecutor's office, to my recollection she first said, f--- the prosecutor, and f--- you guys, and f--- yo' mama.

Prosecutor: After she had been told that she was positively identified, at that time did she give you Damon's last name?

Marbs: She did not, no, sir.

Prosecutor: At that time did she give you Damon's address?

Marbs: No, sir.

Prosecutor: At that time did she give you Damon's phone number?

Marbs: No, sir.

Prosecutor: Those were the only words she mentioned to you at that point of time?

Marbs: Yes, sir.

Later, during cross-examination, the prosecutor asked defendant why she did not get Damon's phone number from her house and give it to the police so they could verify that she was with him at the time of the robbery.Defendant said she did not speak to anyone at her house until two days later, and that she"never saw the police again" after the day of her arrest.

Defendant objects to the following portion of her cross-examination:

Prosecutor: Okay.Well, when you said, f--- you, f--- the prosecutor, f--- yo' mama, I mean that was basically you saying that you didn't want to talk to the police anymore, right?

Defendant: I didn't have anything to talk to the police about.

Prosecutor: Well, I guess what I'm saying, is that at the point, that was your way of saying, I want to stand on my Fifth Amendment rights and not talk to you people any longer, right?

Defendant: I guess you could say that.

Prosecutor: You didn't say, let me call my family and get Damon's phone number, did you?

Defendant: No, I didn't.

Prosecutor: Okay.And you didn't say, let me try and track down Damon.And you can go talk to Damon and he will confirm that I was with him from 10:30 in the evening until 5:30 in the morning.You didn't say that, now, did you?

Defendant: No.

Prosecutor: [A]fter you had been identified, at that point after Detective Hagerty and Detective Marbs said you were positively identify [sic], not once, but twice--

Defendant: Uh-huh.

Prosecutor:--that's when you said the litany.But you never said, call my mom, let's get this cleared up.Let's talk to Damon.Let's get that phone number.I don't care what's going on, he can provide me with what I was doing from 10:30 p.m. to 5:30 a.m. You never said that, right?

Defendant: No, I didn't.

Prosecutor: Okay.But you had the opportunity, right?

Defendant: After the police walked out of the room, no, I didn't.

Prosecutor: Well, what do you expect them to do after you cursed at them like that, and they consider that to be an assertion of your Fifth Amendment rights, which you've already said it was?

Defendant: Uh-huh.

Prosecutor: And they walked out of the room, right?

Defendant: Right.

Prosecutor: You said it was an assertion of your Fifth Amendment rights and they honored that, right?

Defendant: I guess they did.

Prosecutor: And they never talked to you again, now, did they.

Defendant: No.

Finally, defendant contends that the prosecutor improperly commented on her post-arrest silence in his closing argument.In summarizing the case before the jury, the prosecutor said:

Yeah, she did the right thing.You know, she was, I didn't think I would get picked.And she didn't think she would get picked.What were her words after she got picked ladies and gentlemen?As offensive as they may be, what were her words?F--- you, f--- the prosecutor, f--- yo' mama.Uh-huh.That's it.

Ladies and gentlemen, look what happened.She was cooperative right down to the point of "you are the one.""You are the one that did it."Identified by two independent witnesses.That was when she was cooperative, ladies and gentlemen, that is exactly when she was cooperative.That is when, as she puts it, I asserted my Fifth Amendment rights.She agreed with me that she didn't want to talk to the police any more, and she didn't contact them any more to give Damon a call.She didn't do anything else.

When did the cooperation cease?When she knew she was good for it and we had her.That's when the cooperation ceased, ladies and gentlemen.That's exactly when it ceased.Because she knew, just as you are sitting there, that she is responsible for this.

Defendant concedes that her trial counsel failed to object to prosecutor's comments in the case in chief, cross-examination, and closing argument.She requests review under the plain error standard of Rule 30.20.Rule 30.20 provides that a court may consider plain errors affecting substantial rights if manifest injustice would result therefrom.Manifest injustice depends upon the particular facts and circumstances of each case.State v. Zindel, 918 S.W.2d 239, 241(Mo. banc 1996)(citingState v. Nolan, 872 S.W.2d 99, 103(Mo. banc 1994)).The Missouri Supreme Court has held that the improper use of post-Miranda silence can constitute plain error.Zindel, 918 S.W.2d at 241.

In exercising our discretion, we review defendant's constitutional claim under the plain error standard.See...