Opinion
No. 67593 69747
OPINION FILED: December 10, 1996
Appeal from the Circuit Court of St. Louis County, Honorable John Kintz.
Stacie White ("defendant") appeals after she was convicted of two counts of first degree attempted robbery, § 564.011 RSMo 1994, 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 objection. We reverse and remand for a new trial on her first point.
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 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.
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 conviction 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) (citing State 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 State v. Flynn, 875 S.W.2d 931, 934 (Mo.App. 1994).
The law is well established that the State is not allowed to use a defendant's silence, at the time of arrest and after receiving Miranda warnings, for impeachment purposes. State v. Anthony, 857 S.W.2d 861, 868 (Mo.App. 1993). The prosecution may not use the defendant's post-arrest silence as either affirmative proof of guilt, nor to impeach testimony. State v. Noel, 871 S.W.2d 628, 629 (Mo.App. 1994) (citing Doyle v. Ohio, 426 U.S. 610 (1976)). The State may not show that an accused failed to volunteer an exculpatory statement, nor may it show that the accused failed to deny or explain, while under arrest, an incriminating fact about which no question was asked. State v. Howell, 838 S.W.2d 158, 161 (Mo.App. 1992) (citing State v. Stuart, 456 S.W.2d 19, 22 (Mo. banc 1970)). The admission of the accused's post-arrest silence constitutes an invasion of his constitutional rights. Howell, 838 S.W.2d at 161.
A defendant's post-arrest silence, however, is admissible if the defendant gives a statement and thereby waives his right to remain silent. State v. Wilson, 826 S.W.2d 79, 82 (Mo.App. 1992). Once a defendant's right to remain to silent has been waived, all speech, or nonsilence, by him may be admitted into evidence and remarked on. State v. Tims, 865 S.W.2d 881, 885 (Mo.App. 1993). Even testimony describing certain "silence" is "fair subject for comment" at trial until the waiver is revoked. The waiver of the right to remain silent may be revoked at any time, at which point the defendant's silence is again protected. The revocation of the waiver must be clearly made in order to be effective. Id.
The present case is similar to Stuart and State v. Mabie, 770 S.W.2d 331 (Mo.App. 1989), in that both cases illustrate that a prosecutor's reference to a defendant's failure to provide an exculpatory statement can constitute plain error. In Stuart, the police arrested the defendant and his cohort for burglary and stealing. 456 S.W.2d at 21. While searching defendant's room during the arrest, the police discovered some coins which were later identified as stolen. At trial, the court allowed a juror to ask the arresting police officer the following question: "Did either one of these guys claim that money?" The police officer answered, "Not to my knowledge. To the best of my knowledge, no." Id. at 22.
The defendant in Stuart appealed on the basis of plain error claiming that the juror's question and the police officer's answer violated his right not to incriminate himself. The Missouri Supreme Court held that an accused's failure to provide an exculpatory statement was not admissible against the defendant and that the admission of this evidence "resulted in manifest injustice and miscarriage of justice." Id.
In Mabie, the defendant was arrested for rape. At the time of his arrest, the defendant was given his Miranda rights and was taken to the local sheriff's department. Mabie, 770 S.W.2d at 333. The defendant made no statements at the time of arrest, but eight hours later he gave an oral and written statement to the police stating that the sex between himself and the victim was consensual. During cross-examination, the prosecutor asked the defendant why he failed to inform the police at the time of arrest that the sex was consensual. In addition, the prosecutor referred to the defendant's failure to deny rape at the time of arrest in his closing argument. Id. at 334.
On appeal, the defendant in Mabie argued that the trial court committed plain error in allowing the prosecutor to comment on his post-arrest silence. The State argued that the defendant waived his right to remain silent when the defendant made the statement to the police eight hours after the arrest. The Western District held that plain error was committed by the prosecutor's references to the defendant's post-arrest silence. Defendant's waiver of his right to remain silent eight hours after his arrest did not mean that the State could refer to the time period the defendant chose to remain silent. Id. at 335-38.
The record herein reflects that the State repeatedly emphasized that defendant failed to provide the police with evidence to corroborate her alibi. First, the prosecutor purposely elicited testimony from Detective Marbs that defendant did not provide him with her boyfriend's last name, address, or phone number after she cursed the officers. Later, during cross-examination, the prosecutor characterized that defendant's swearing at the officers was her way of asserting her Fifth Amendment rights. Instead of refraining from commenting on defendant's post-arrest silence, the prosecutor emphasized that defendant did not try to prove her alibi by calling her boyfriend. Finally, during closing argument, the prosecutor referred to defendant's silence as indicative of her guilt. As in Stuart and Mabie, the State improperly focused on defendant's failure to volunteer an exculpatory statement.
The State does not contest that it improperly commented upon defendant's post-arrest silence. Instead, the State argues that defendant's conviction should not be reversed because she waived her rights to remain silent when she made statements to the police regarding riding around with her boyfriend. The State also refutes the contention that defendant reinvoked her right to remain silent by cursing at the police officers. The State contends that the rule that prohibits it from commenting on defendant's post-arrest silence does not apply in this case.
The Western District addressed the issues of waiver and reinvoking one's right to remain silent in State v. Shaw, 915 S.W.2d 775 (Mo.App. 1996), where a defendant was charged with forging checks. Although police gave defendant his Miranda rights, he made comments to the police. At trial, the defendant brought up for the first time that he had permission to use the checks he was accused of forging. On cross-examination, the State asked the defendant why he failed to reveal prior to trial that he had permission to use the checks. On appeal, defendant claimed that the trial court plainly erred in permitting the prosecutor to refer to his post-arrest silence. The court held that the State could refer to the defendant's failure to provide an exculpatory statement absent evidence that the defendant attempted to reinvoke his right to remain silent after waiving this right by making statements to the police. Id. at 782 (emphasis ours).
Contrary to the State's assertion, there was evidence that the defendant reinvoked her right to remain silent. The record revealed that defendant initially discussed her whereabouts with the police after she had been advised of her Miranda rights. After defendant had been identified in a lineup, the police asked her to tell them why she committed the robbery. Defendant responded to the question by swearing at the officers. Defendant testified through responses to the prosecutor's cross-examination that this was her way of asserting her Fifth Amendment rights. The evidence also reflected that the police officers did not question defendant any further after she swore at them.
More importantly, the prosecutor acknowledged to the jury that defendant reasserted her right to remain silent by swearing at the officers. The prosecutor remarked that the police considered defendant's swearing at them to be a reassertion of her Fifth Amendment rights. In his closing argument, the prosecutor continued to underscore that defendant did not want to talk with the police anymore after she cursed them. The prosecutor admitted that defendant reasserted her Fifth Amendment rights. The State cannot now complain that defendant failed to reinvoke her rights. We find the State's argument without merit.
The record demonstrates that the prosecutor improperly commented on defendant's post-arrest silence. The comments were not harmless error. In essence, the prosecutor argued that defendant failed to corroborate her alibi at a point in which defendant was under no duty to speak. The prosecutor deliberately drew attention to this fact in order to discredit defendant's alibi. The prosecutor repeatedly drove home this evidence for "the express purpose of showing that an innocent person would not have remained quiet." Mabie, 770 S.W.2d at 337. Manifest injustice resulted from the prosecutor's comments.
We find that the prosecutor improperly referred to defendant's post-arrest silence, and therefore, her convictions merit reversal under the plain error rule. As defendant's first point is dispositive, we need not address her second point on appeal.
Defendant's convictions are reversed and the case is remanded for a new trial.
Paul J. Simon, J., and Kent E. Karohl, J., concur.
OPINION SUMMARY
Stacie White (defendant) appeals her conviction of two counts of attempted robbery and two counts of armed criminal action in which she was sentenced to concurrent terms of five years and ten years, respectively.
REVERSED AND REMANDED.
Division Four Holds: We find that prosecutor's references to defendant's post-arrest silence, during his direct examination of the police officer, the cross-examination of defendant and in closing argument, constituted plain error.