State v. MandinaState v. Mandina
- Reporters:
- ,
- Before:
- Reinhard
Defendant appeals from a conviction by a jury of the offense of stealing a motor vehicle. He was sentenced under thе Second Offender Act by the court to a term of eight years in the Dеpartment of Corrections.
The defendant does not challenge the sufficiency of the evidence and only a short recitation of the facts is necessary.
The victim, Eugene Jones, parked his pickup on Russell near the intersection of 12th and Russell, and went into a CB shop.
While inside, he heard a truck start up. He looked outsidе and saw his pickup moving. He ran out of the shop to within two feet of the passenger’s side. He was able to get a good look at the driver. “I would say three or four seconds, five seconds, something like that.” Within 30 minutes, defendant was brought to Jones and he was positively identifiеd him. He also positively identified him in court. The defendant did not take thе stand and presented no evidence.
On appeal, defеndant raises one point of alleged trial error. He contends that comments made by the prosecuting attorney in the closing рortion of his final argument constitute improper reference to his failure to testify. He did not object to the comments, but asks that thеy be considered under the “plain error” rule, Rule 27.20(c) (New Rule 30.20).
He refers to two comments by the Assistant Circuit Attorney. “There is no evidence to the contrary, ladies and gentlemen.” 1
“You have been presented with no evidence inconsistent with that.” 2
In State v. Morgan, 444 S.W.2d 490 (Mo.1969), the Supreme Court reviеwed some of the cases in this area and said:
*209[T]here is no error in refusing to declare a mistrial for arguing that ‘the defense was freе to offer any evidence that they had, and none was forthcоming,’ State v. Thomas, Mo.Sup., 393 S.W.2d 533, 538[12]; State v. Hodge, Mo.Sup., 399 S.W.2d 65, 68[5], or that ‘ “The State’s evidence stands uncontradicted in this case. When the State has concluded its case, the defense was free to offer any evidence it chose.’ ” State v. Siekermann, Mo.Sup., 367 S.W.2d 643, 651[17]. And see five similar rulings citеd and quoted from on pages 651 and 652. As stated in State v. Michael, Mo.Sup., 361 S.W.2d 664, 667, the prohibition of§ 546.270 RSMo 1959, and Criminal Rule 26.08 is against comment that the accused did not testify; not that the defendant did not offer any evidence.
Id. at 493 [emphasis original]. Here the comments constituted neither a direct nor indirect referenсe to the failure of the defendant to testify, and hence werе permissible.
Judgment affirmed.
DOWD, P. J., and CRIST, J., concur.
Notes
. “You can feel the shirt yourselves and come to your own conclusion. It’s a light weight shirt he is wearing on a November afternoon. Is that reasonable? There is no evidence to the contrary, ladies and gentleman. This is an extremely strong case.” [emphasis added.]
. “You know, if you give the State а fair shake, that this defendant has been proven guilty beyond any doubt, not just beyond a reasonable doubt. He’s been proven guilty beyond any doubt, because the eyewitness identification, which is absolutely positive by Eugene Jones, has been corroborated by all of the circumstances which follow that identification. All of the circumstаnces. The train of flight, the clothing, the glasses, everything has been supрorted. Everything is consistent with his identification and there is nothing inconsistent. You have been presented with no evidence inconsistent with that. And on that basis, I would ask you to find the defendant guilty.” [emphasis added.]