State v. McDowellState v. McDowell
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- Crandall
Dеfendant, Nicholas McDowell, appeals from his convictions, after a jury trial, for rape and sodomy. He was sentenced as a prior offender and a persistent sexual offendеr to imprisonment for two consecutive terms of 30 years. Defendant also appeals frоm the denial of his Rule 29.15 motion without an evidentiary hearing. We affirm.
Defendant does not challenge the sufficiency of the evidence. Viewed in the light most favorable to the verdict, the evidence shows that defendant raped and sodomized his fiance’s twelve year old daughter.
Defendant first claims that the trial court erred in failing to declare a mistrial when, during testimony by a prosecutiоn witness, a spectator shouted, “I’m going to get you! I’m going to kill you, man!” Defendant claims that the outburst dеnied him a fair trial and compelled the trial court to grant a mistrial. We disagree.
The grant of a mistrial is a drastic remedy which is vested in the sound discretion of the trial court. State v. Williams, 664 S.W.2d 226, 228 (Mo.App.1983). Here, the spectator yelled one statement that provided no inadmissible evidence. The speсtator was immediately removed from the courtroom by the sheriff. The trial court was in the best pоsition to determine what, if any, impact the incident had on the jury. Id. We defer to the exercise оf the judge’s discretion. Defendant’s point is denied.
Defendant next alleges that the trial court errеd in failing to quash the indictment, or, in the alternative, in failing to grant a stay of further proceedings. He argues that the trial court failed to comply with §§ 494.400 through 494.505 RSMo (Cum.Supp.1991), regarding the selection of grand and petit jurors. Defendant, a black male, 27 years of age, claims that both blacks and young persons are systematically excluded from serving as grand or petit jurors.
In regard to defendаnt’s challenge to the composition of the petit jury, a stay of all jury trials in the City of St. Louis was granted in another case upon an identical motion. Approximately two weeks before dеfendant’s trial, the trial court adopted an administrative order issued by the St. Louis City Circuit Court which corrеcted the perceived deficiencies. Defendant presented no evidence thаt the new procedures were inadequate. Thus, the administrative order adopted by the trial court addressed defendant’s concerns prior to defendant’s trial. 1 Defendant’s point is denied.
Finally, defendant argues that the motion court erred in denying his Rule 29.15 motion alleging ineffective assistance of counsel without an evidentiary hearing. To prevail on a claim of ineffective assistance of counsеl, movant must show that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under similar circumstances, and that he wаs thereby prejudiced. Leisure v. State, 828 S.W.2d 872, at 874 (Mo. banc 1992). An evidentiary hearing is not required if the records in the casе conclusively show that the movant is not entitled to relief. State v. Ivory, 813 S.W.2d 102, 104 (Mo.App.1991).
During closing arguments the prosecutor сommented that “the State’s evidence [against defendant] is uncontroverted, uncontested аnd undenied.” Defendant argues that he was the only person who could have refuted the challenges and, therefore, the comments impermissibly referred to his failure to testify. Defendant further argues ihat defense counsel should have objected to the statement and his failure to do so resulted in prejudice to the defendant. We disagree.
“A ‘direct and certain’ reference to a defendant’s failure to testify constitutes reversible error.” State v. Clark, 759 S.W.2d 372, 375 (Mo.App.1988). However, a prosеcutor may comment on defendant’s failure to offer evidence. Cook v. State, 778 S.W.2d 262, 263 (Mo.App.1989). In distinguishing the two types of statements, the court should look to the use of the words “accused” and “testify” or their equivаlents. Clark, 759 S.W.2d at 375.
Here, the prosecutor did not use language that referred to the accused or to his lack of testimony. Uncontroverted, uncontested and undenied are all general terms which simply refer to defendant’s failure to produce evidence to controvert that put on by thе State. Counsel cannot be ineffective for failing to make a nonmeritorious objectiоn. Shaw v. State, 686 S.W.2d 513, 516 (Mo.App.1985). Defendant’s point is denied.
The judgment of the trial court on direct appeal is affirmed. The denial of defendant’s Rule 29.15 motion is likewise affirmed.
CARL R. GAERTNER, C.J., and GRIMM, P.J., concur.
Notes
. It should also be noted that the venire panel in defendant’s case was 53 percent black. Defendant claims that only 37 percent of the persons eligible for service as jurors are black.