State of Missouri, Respondent, v. Ronald Lee Neff, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Southern District Case Style: State of Missouri, Respondent, v. Ronald Lee Neff, Appellant. Case Number: 21478 Handdown Date: 02/27/1998 Appeal From: Circuit Court of McDonald County, Hon. Raymond J. Gordon Counsel for Appellant: Robert W. Evenson Counsel for Respondent: Barbara K. Chesser Opinion Summary: None Citation: Opinion Author: Phillip R. Garrison, Presiding Judge Opinion Vote: AFFIRMED. Prewitt and Crow, J.J., concur. Opinion: Following an automobile accident on June 3, 1995, Ronald Lee Neff ("Appellant") was charged with four counts of the class C felony of assault in the second degree, section 565.060.1(4).(FN1) The information alleged that Appellant, while under the influence of alcohol, caused physical injury to four people, by pulling into an intersection when another vehicle was approaching so closely as to constitute an immediate hazard, and that he did so with criminal negligence. A jury convicted him of all four counts, and he was sentenced to six months in the county jail and assessed a $1,000 fine on each count. On this appeal, Appellant contends that the trial court erred in not granting his motion for a mistrial when the prosecutor, while objecting to the closing argument by Appellant's attorney, referred to Appellant's failure to testify. Under the circumstances of this case, we affirm. Appellant based his contention on the following exchange, which occurred during the State's closing argument:

[Appellant's attorney]: Now, you can make him out a real bad criminal, with no evidence of any criminal activity ever before in his life. None whatever. Or your can -- [Prosecutor]: Judge, I'll object to that. There is no evidence of that. And you -- [Appellant's attorney]: No, there isn't. That's why I'm arguing it. [Prosecutor]: Well, he didn't take the stand, Judge. I mean, there was no evidence -- [Appellant's attorney]: Wait a minute. [Prosecutor]: There is no evidence of that. [Appellant's attorney]: Okay. Let's get a mistrial. (At this time counsel approached the bench, and the following proceedings were had:) [Appellant's attorney]: We'd move for a mistrial, Judge. We'd like to make a record on that right now. . . . . [Appellant's attorney]: Yeah. I'd like to move for a mistrial because the Prosecuting Attorney has just said the [Appellant]did not take the witness stand, and that's an improper inference. And we'd move for a mistrial immediately, Judge. [Prosecutor] I'm not making any inference, Judge. He just said he didn't have a criminal record. That's not -- That's not even true. We would have brought that in at the time - Following additional colloquy between counsel, the trial court denied the motion for mistrial, saying, "Okay. Gentlemen, based on what I observed and what I heard, I don't believe that a mistrial is the appropriate remedy at this time. Your request for a mistrial will be overruled." At the request of Appellant's attorney, the trial court then admonished the jury to disregard "the last remark made by the Prosecutor . . ." On this appeal, Appellant contends that the prosecutor's remark was an improper reference to his failure to testify in his own defense. The Fifth Amendment to the United States Constitution, Article I, section 19 of the Missouri Constitution, section 546.270 and Rule 27.05 all grant criminal defendants the right not to testify and forbid comments by others on the exercise of that right. State v. Chunn, 657 S.W.2d 292, 294 (Mo.App. E.D. 1983) (citing Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and State v. Arnold, 628 S.W.2d 665, 668 (Mo. 1982)). Both direct and indirect references to a defendant's failure to testify are forbidden. Chunn, 657 S.W.2d at 294. A direct and certain reference has been described as one in which the words "accused" and "testify" or their equivalent are used. State v. Bulloch, 785 S.W.2d 753, 755 (Mo.App. E.D. 1990). An indirect reference, when viewed in context, would cause the jury to infer that the remark referred to the defendant's failure to testify. Id. A direct and certain reference to the failure of a defendant to testify 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. Id. When considering a defendant's claim of an improper comment on his right to remain silent, the appellate court must also consider the comment in the context in which it appears. State v. Wickline, 647 S.W.2d 929, 931 (Mo. App. S.D. 1983). "The prejudicial impact of such a statement is a matter within the sound discretion of the trial court and a prompt instruction by the trial court to the jury to disregard the comment may cure any error in a particular case." Id. In the instant case, the prosecutor's statement was made as part of an objection to Defendant's closing argument and was not a direct comment to the jury. Such circumstances are properly considered on appellate review. See Brooks v. State, 760 S.W.2d 532, 533 (Mo.App. E.D. 1988); State v. Dick, 636 S.W.2d 425, 428 (Mo.App. S.D. 1982). In State v. Martin, 624 S.W.2d 879, 883 (Mo.App. E.D. 1981), the prosecutor, in objecting to defense counsel's cross-examination, said that "The defendant is attempting to testify without taking the stand." The trial court denied the defendant's motion for a mistrial and admonished the jury to disregard the statement. Id. In holding that the trial court did not err in denying a mistrial, the appellate court noted that the prosecutor was "treading on perilous ground" by using the words "defendant" and "testify," but explained: . . . at most, her remarks constituted only an indirect comment on defendant's failure to testify. The prosecutor made the statement in the context of elucidating a hearsay objection directed to the court, not to the jury. The trial court promptly sustained defense counsel's objection to the comment and instructed the jury to disregard it, thereby removing any possible prejudice. We find no abuse of the trial court's discretion in its evaluation of the prejudicial impact of the prosecutorial comment and its denial of defendant's request for a mistrial. Id. at 884. In the instant case, the prosecutor took a treacherous course in making the comment in question. As indicated in Martin, however, the comment, in its context, was at most an indirect reference to Appellant's failure to testify. There is no indication that the prosecutor's objection was a "calculated intent" to magnify Appellant's decision not to testify. See State v. Lawhorn, 762 S.W.2d 820, 826 (Mo.banc 1988). The comment could also be considered as having been prompted by a comment made by Appellant's attorney in closing argument. See State v. Graham, 906 S.W.2d 771, 781 (Mo.App. W.D. 1995). Cognizant of the trial court's discretion in determining the prejudicial effect of such a comment, we hold that an abuse of discretion in denying the mistrial has not been demonstrated under the circumstances of this case. The judgment is affirmed. Footnotes:

FN1. All statutory inferences are to RSMo 1994, and all rule references are to Missouri Rules of Criminal Procedure (1997), unless otherwise indicated. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.