State of Missouri v. Ivan Dominguez-Rodriguez ( 2015 )

In the Missouri Court of Appeals
Eastern District
DIVISION TWO
STATE OF MISSOURI, ) No. ED100972
)
Respondent, )
) Appeal from the City of St. Louis
vs. ) Circuit Court
)
IVAN DOMINGUEZ-RODRIGUEZ, ) Honorable Rex M. Burlison
)
Appellant. ) Filed: May 19, 2015
Introduction
Ivan Dominguez-Rodriguez (Defendant) appeals the judgment and sentence of the Circuit
Court of the City of St. Louis entered after a jury convicted him of first-degree assault, armed
criminal action, and first-degree burglary. In four points relied on, Defendant claims that the
trial court (1) plainly erred in submitting Instruction No. 9 for armed criminal action; (2) clearly
erred in overruling his Batson1 objections to the prosecutor’s strikes of two African-American
venirepersons; and (3) abused its discretion by permitting the prosecutor to argue in closing
argument that Defendant was “hiding behind” his Spanish interpreter. We affirm.
1
Batson v. Kentucky, 476 U.S. 79 (1986).
Factual Background
In the early morning hours of August 20, 2012, Defendant entered B.J.’s (Victim’s) home
through the back door. Defendant choked her, beat Victim’s head and body with his fists, and
beat her on the head with a “very, very hard” object, which Victim later realized to be her hair
straightener. Defendant was silent during the attack and did not respond when Victim asked him
what he wanted. Eventually, Defendant fled Victim’s home, scaling a chain link fence in her
back yard. As a result of the attack, Victim suffered lacerations to her head, a broken jawbone
and cheekbone, four broken ribs, a lacerated and collapsed lung, a lacerated spleen, a gash on her
knee, and a broken finger.
Defendant was subsequently arrested and charged with first-degree assault, armed
criminal action based on the first-degree assault charge, and first-degree burglary. At trial, the
State produced DNA evidence showing that blood smears found outside Victim’s home matched
that of the Victim. The State also produced evidence showing that DNA found on the pants
Defendant wore on the night of the assault, as well as DNA found on Defendant’s flip flop and
stocking cap, matched Victim. In his defense, Defendant testified, with the aid of a Spanish
interpreter, that he had been drinking the day before the assault and, upon returning to his home,
had continued to drink and had fought with his girlfriend over the phone. Defendant further
testified that he entered the back door of Victim’s home believing it to be his own and when he
saw Victim lying on the floor bleeding, he fled.
The jury found Defendant guilty of the crimes charged. The trial court adopted the jury’s
sentencing recommendation and sentenced Defendant to consecutive terms of 25 years’
imprisonment for first-degree assault, five years’ imprisonment for armed criminal action, and
eight years’ imprisonment for first-degree burglary. Defendant appeals.
2
Point I: Instructional Error
In his first point relied on, Defendant claims the trial court plainly erred in submitting
Instruction No. 9 for armed criminal action because “because (1) the submitted instruction did
not specify the ‘dangerous instrument’ charged; (2) the State argued that either a hand or a hair
straightener could be this dangerous instrument; (3) a hand is not a dangerous instrument; (4) the
instruction did not did not ensure that the jury would unanimously convict Appellant of the same
conduct[;] (5) whether the victim was struck by a hand or other object was a disputed fact at trial;
(6) the lack of a unanimous verdict for the crime of armed criminal action caused a manifest
injustice and resulted in a consecutive sentence of five years.” In the argument portion of his
brief, Defendant explains that Instruction No. 9, which is patterned on Missouri Approved
Instruction-Criminal (MAI-CR 3d) 332.02, is not in conformity with this Court’s recent decision
in State v. Evans, 455 S.W.3d 452 (Mo. App. E.D. 2014), and, under certain factual
circumstances like the instant matter, allows for verdicts that are not unanimous. The State
responds that plain error review is precluded in this case, given that Instruction No. 9 is patterned
on the MAI. Even assuming that plain error review is available, the State asserts that the trial
court did not plainly err by submitting Instruction No. 9 to the jury.
Standard of Review
During the instruction conference, the State proffered Instruction No. 9, which the parties
do not dispute is based on MAI-CR 3d 332.02. When the trial court asked defense counsel
whether Defendant had any objection, counsel responded “no.” Subsequently, the trial court
submitted Instruction No. 9 to the jury, which provided:
As to Count II [armed criminal action], if you find and believe from the evidence
beyond a reasonable doubt:
3
First, that defendant is guilty of the offense of assault in the first degree, as
submitted in Instruction No. 5, and
Second, that defendant committed that offense by or with or through the
knowing use or assistance or aid of a dangerous instrument,
then you will find the defendant guilty under Count II of armed criminal
action.
As used in this instruction, the term “dangerous instrument” means any
instrument, article, or substance that, under the circumstances in which it is used,
is readily capable of causing death or other serious physical injury.
However, unless you find and believe form the evidence beyond a
reasonable doubt each and all of these propositions, you must find the defendant
not guilty of that offense.
Because Defendant did not object to Instruction No. 9, his claim of error on appeal is not
preserved. See State v. Banks, 434 S.W.3d 100, 102 (Mo. App. E.D. 2014) (“To preserve a claim
of instructional error, counsel must make specific objections to the allegedly erroneous
instruction at trial and in a motion for new trial.”). Unpreserved claims of instructional error
may be subject to plain error review. Id. We recognize, however, that “[u]se of an approved
instruction cannot, by definition, be deemed plain error[,]” State v. Goodwin, 891 S.W.2d 435,
438 (Mo. App. W.D. 1994), and, in such instances, plain error review is precluded, State v.
Sanders, 449 S.W.3d 812, 816 (Mo. App. S.D. 2014). An apparent exception to this rule exists,
however, where the MAI is not in “proper form” because it fails to comport with substantive law.
State v. Manuel, 443 S.W.3d 669, 672-73 (Mo. App. W.D. 2014). That is the type of argument
Defendant raises here.
Accordingly, we review Defendant’s claim of instructional error for plain error, “which
requires a finding of manifest injustice or a miscarriage of justice resulting from the trial court’s
error.” Banks, 434 S.W.3d at 102. “To show that the trial court plainly erred in submitting an
instruction, the defendant must go beyond a demonstration of mere prejudice, and must establish
4
that the trial judge so misdirected or failed to instruct the jury as to cause manifest injustice or a
miscarriage of justice.” Manuel, 443 S.W.3d at 672 (citation and quotations omitted).
“Instructional error rarely rises to the level of plain error and reversal is required only when it is
readily apparent that [the alleged] error affected the jury’s verdict.” State v. Lucy, 439 S.W.3d
284, 293 (Mo. App. E.D. 2014).
MAI-CR 3d 332.02 & Substantive Law
Resolution of Defendant’s claim requires us to first address whether Instruction No. 9
complies with substantive law. The basis for Defendant’s argument that MAI-CR 3d 332.02
does not comply with substantive law is this Court’s recent decision in State v. Evans, supra.
There, in the context of a sufficiency of the evidence challenge, the Eastern District considered
whether a hand or fist can qualify as a “dangerous instrument” in support of a conviction for
armed criminal action. Id. at 453. After noting that the statute, § 556.061(9) RSMo Supp. 2013,
defined “dangerous instrument” for purposes of armed criminal action, as “any instrument,
article or substance, which, under the circumstances in which it is used, is readily capable of
causing death or other serious physical injury,” the Court concluded that fists/hands do not
qualify as “dangerous instruments.” Id. at 457.2 The Court stated,
We conclude that a reasoned and common-sense reading of the terms
“instrument, article or substance” from the definition of “dangerous instrument”
indicate an external object or item, rather than a part of a person’s body. The
most relevant dictionary definition of “instrument” is “a tool or implement, esp.
one for delicate or scientific work.” . . . . In ordinary language, hands, feet, or
other body parts are not commonly referred to as instruments, or even as articles
or substances. Thus, a plain and ordinary reading of the terms instrument, article,
and substance do not indicate a body part. Id. at 458.
2
Section 556.061(9) RSMo Supp. 2009, in effect at the time of the instant crimes, defined “dangerous instrument”
using the exact same language.
5
Here, MAI-CR 3d 332.02 defines “dangerous instrument” using language that is identical
to the language defining “dangerous instrument” in the statute, see § 556.061(9), and does not
define “dangerous instrument” to include a hand, fist, or other body part. Because the language
of the statute and the language of the MAI are identical, it cannot be said that the MAI is
inconsistent with substantive law. Further, the conclusion in Evans that “dangerous instrument”
as used in § 556.061(9) does not include hands or fists, or any part of the body, does not
(contrary to the implications of Defendant’s argument on appeal) render the MAI inconsistent
with substantive law. Rather, the MAI is in conformity with Evans’ holding because, a
reasonable juror giving the term “dangerous instrument” its common-sense meaning, would not
interpret the definition of “dangerous instrument” to include hands or fists. Stated differently,
the MAI does not, on its face, allow for a conviction of armed criminal action based on the use of
hands, fists, or other body parts as a deadly weapon. Accordingly, we conclude that MAI-CR 3d
332.02, on which Instruction No. 9 was patterned, is in conformity with the law and entirely
consistent with Evans.
Submission of MAI-CR 3d 332.02
Having concluded that MAI-CR 3d 332.02 is consistent with substantive law, we next
consider whether, under the facts of this case, the jury was misled by the trial court’s instruction
as to render a non-unanimous verdict. In this regard, Defendant asserts that the MAI is not in
conformity with the law after Evans, because in cases like the instant matter, its broad language
allows for non-unanimous verdicts. Defendant explains that under the facts of this case—where
the question whether Victim was beat with fists versus a hair straightener was contested, where
the prosecutor argued that both fists and the straightener qualified as a “dangerous instrument,”
and where the jury questioned whether fists were “dangerous instruments” during
6
deliberations—some of the jurors may have believed that Defendant beat Victim with his fists,
but others may have believed Defendant beat Victim with the straightener.
Here, the trial court specifically instructed the jury, in Instruction No. 18, that the
attorneys’ arguments “are intended to help . . . in understanding the evidence and applying the
law, but they are not evidence” and that the jury’s deliberations are “to be governed . . . [by] the
law as given in these instructions.” Regarding the trial court’s submission of Instruction No. 9, it
is undisputed that this instruction was patterned on MAI-CR 3d 332.02, which defined
“dangerous instrument” to be “any instrument, article, or substance that, under the circumstances
in which it is used, is readily capable of causing death or other serious physical injury.” After
the trial court submitted these, and other instructions, to the jury, the parties made their closing
arguments, in which the prosecutor argued that both a fist and hair straightener qualified as a
“dangerous instrument” for purposes of armed criminal action. Subsequently, when the jury
asked during deliberations whether a fist qualifies as a dangerous instrument, the trial court
declined to answer the question and specifically referred the jury back to the written instructions.
As the record demonstrates, the trial court provided the jury with a verdict director for
armed criminal action that is consistent with substantive law. As explained, that instruction, by
its plain terms, does not allow for an armed criminal action conviction based on the use of a
defendant’s hands, fists, or other body part. The trial court also instructed the jury that it was to
follow the written instructions during its deliberations, not the parties’ arguments, and further
instructed the jury in response to its question whether fists qualified as a “dangerous instrument,”
that it was to follow the written instructions given. It is well-established the jurors are presumed
to follow the instructions provided. State v. McFadden, 391 S.W.3d 408, 424 (Mo. banc 2013).
Accordingly, because it is presumed that jurors follow their instructions, we must presume that
7
the jurors, in finding Defendant guilty of armed criminal action based on first-degree assault,
unanimously believed that Defendant beat Victim with a hair straightener.
The factual aspects of this case that Defendant highlights do not rebut this presumption.
Defendant notes that whether Victim was beat with fists versus a hair straightener was contested,
that the prosecutor argued that both fists and the straightener qualified as a “dangerous
instrument,” and that the jury questioned whether fists were “dangerous instruments.” These
facts do not logically lead to the conclusion that the trial court’s instructions mislead the jury
such that its verdict was non-unanimous. See McFadden, 391 S.W.3d at 420-21 (rejecting
defendant’s argument that prosecutor’s misstatement of law misled the jury, as the instructions
were correct and juries are presumed to follow the instructions); see also State v. Riley, 440
S.W.3d 561, 567-68 (Mo. App. E.D. 2014) (rejecting claim that prosecutor’s statements violated
right to unanimous jury verdict because instruction was proper and jurors are presumed to follow
the instructions). Rather, when viewed objectively, the reasonable inference from the record is
that the prosecutor’s closing argument caused the jury some confusion with respect to Instruction
No. 9, which led it to ask a question during deliberations.3 As noted, the trial court clearly
directed the jurors back to Instruction No. 9, which does not, by its plain terms, allow an armed
criminal action conviction based on the use of a “fist” as a dangerous instrument. See Evans,
455 S.W.3d at 458. Further, that the jury asked a question regarding whether a fist qualifies as a
dangerous instrument, does not, contrary to Defendant’s argument, show that the trial court
misled the jury such that its verdict was non-unanimous. Indeed, Defendant cites no authority in
support of this proposition.
3
This Court certainly does not condone the State’s overreaching statement in closing argument that a fist would
qualify as a dangerous instrument.
8
Accordingly, we conclude that Defendant has not rebutted the presumption that the jury
followed the instructions given, as to show that the jury’s verdict was not unanimous. Defendant
has not established any instructional error, plain or otherwise. Point I denied.
Points II & III: Batson Challenges
Defendant’s second and third points relied on claim that the trial court clearly erred by
overruling his Batson objections to the prosecutor’s peremptory strikes of two African-American
venirepersons, Fran Collier and Donna Cannon. The State generally responds that the trial
court’s rulings were not erroneous because Defendant failed to establish that the prosecutor’s
reasons for the strikes were pretextual.
Standard of Review
When reviewing a trial court’s Batson challenge decision, this Court accords its findings
great deference because those findings are largely dependent on credibility evaluations. State v.
Washington, 288 S.W.3d 312, 314 (Mo. App. E.D. 2009). This Court will overturn the trial
court’s ruling on a Batson challenge only upon a showing of clear error. State v. McFadden, 191
S.W.3d 648, 651 (Mo. banc 2006). “A finding is clearly erroneous when the reviewing court is
left with the definite and firm conviction that a mistake has been made.” Id.
Venireperson Collier
In his second point relied on, Defendant asserts that the trial court clearly erred by
overruling his Batson objection to the prosecutor’s peremptory strike of venireperson Collier
because the proffered reason for the strike—that she had a brother-in-law and husband who had
been previously incarcerated and would cause her to view the prosecutor’s office negatively—
was pretextual. In support, Defendant points out that similarly situated white jurors were not
9
struck, Collier reported a positive experience with the “prosecutor’s office,” and the prosecutor
disproportionately struck African-American venirepersons.
“Under the Equal Protection Clause, a party may not exercise a peremptory challenge to
remove a potential juror solely on the basis of the juror’s gender, ethnic origin, or race.” State v.
McFadden, 369 S.W.3d 727, 739 (Mo. banc 2012) (citation and quotations omitted). Therefore,
a peremptory challenge that is motivated by gender, ethnicity, or race violates a defendant’s and
the venireperson’s equal protection rights. See id. If a defendant suspects that such a prohibited
basis exists for the State’s strike, then the defendant can make a Batson objection to challenge
the strike. State v. Dow, 375 S.W.3d 845, 848 (Mo. App. W.D. 2012). Three procedural steps
are followed when a defendant raises a race-based Batson challenge: “(1) the defendant raises a
Batson challenge with respect to a specific venireperson struck by the State, identifying the
cognizable racial group to which that person belongs; (2) the State must supply a reasonably
specific and clear race-neutral reason for the challenged strike; and (3) if the State provides an
acceptable reason for the strike, then the defendant must show that the State’s given reason or
reasons were merely pretextual and that the strike was racially motivated.” State v. Johnson, 207
S.W.3d 24, 35 (Mo. banc 2006).
In determining pretext, the primary consideration is the “plausibility of the prosecutor’s
explanations in light of the totality of the facts and circumstances surrounding the case.” Id.
Factors that a court considers in determining pretext include: (1) whether a similarly situated
white juror was not struck; (2) the “degree of logical relevance between the proffered
explanation and the case to be tried[;]” and, (3) “the prosecutor’s credibility based on his or her
demeanor or statements made during voir dire and the court’s past experiences with the
prosecutor.” State v. Strong, 142 S.W.3d 702, 712 (Mo. banc 2004) (citation and quotations
10
omitted). Other “[o]bjective factors bearing on the [S]tate’s motive to discriminate . . . [include]
conditions prevailing in the community and the race of the defendant, the victim, and the
material witnesses.” State v. Bateman, 318 S.W.3d 681, 691 (Mo. banc 2010). A
disproportionate number of strikes against other minority venirepersons or number of
venirepersons remaining after completion of peremptory strikes may also be considered. Id.
This Court accords great deference to the trial court’s determination of pretext because the trial
court is in a better position to evaluate the credibility and demeanor of the prosecutor, as well as
the venirepersons. State v. Murphy, 443 S.W.3d 721, 725-726 (Mo. App. E.D. 2014); State v.
Nylon, 311 S.W.3d 869, 882 (Mo. App. E.D. 2010).
Here, Defendant met the first step with respect to venireperson Collier, namely by
identifying Collier as an African-American female and implying that the prosecutor had
exercised his peremptory strikes to remove members of that group from the jury. Thereafter, the
prosecutor provided a race-neutral reason for the strike. The prosecutor explained that Collier’s
husband had been prosecuted by his office and had served a term of imprisonment. “[H]aving an
incarcerated family member is a race-neutral reason for a peremptory strike.” State v. Clark, 407
S.W.3d 104, 108 (Mo. App. E.D. 2013) (citing State v. Cole, 71 S.W.3d 163, 173 (Mo. banc
2002)). Because the prosecutor provided a race-neutral reason for the strike, the burden shifted
to Defendant to demonstrate that the prosecutor’s reasoning was merely a pretext for racial
discrimination. See Johnson, 207 S.W.3d at 35. Defendant asserted, as he does on appeal, that
the prosecutor’s reason for striking Collier is pretextual because her husband’s drug offense
occurred in the late 1980s, other white female venirepersons, Rebecca Harris and Pamela Hardy,
were similarly situated because Harris had a nephew in county jail and Hardy had nephews who
had been to prison and another in county jail, and the prosecutor disproportionately struck
11
African-American venirepersons. The trial court concluded that the prosecutor’s reason for
striking Collier was not pretextual.
Regarding Defendant’s assertion that similarly situated jurors were not struck, we believe
that having a close family member previously incarcerated, who was prosecuted by the same
office prosecuting the instant case, is different than having a distant relative either spend the
night in jail or go to prison. See cf. State v. Murray, 428 S.W.3d 705, 713 (Mo. App. E.D. 2014)
(distinguishing between venirepersons with family members charged with a crime versus
actually convicted of a crime). Differences in degree of familial relation and terms of
confinement aside, nothing in the record indicates that Harris’ nephew’s offense arose in the City
of St. Louis, such that Harris would have any reason to unfavorably view the State’s case.
Similarly, Hardy’s nephews were prosecuted in Jefferson County. And, neither Harris nor Hardy
indicated that they visited their nephews while confined. Comparatively, that Collier visited her
husband while incarcerated, indicating a close relationship, and that her husband was prosecuted
by the same office pursing Defendant’s convictions, could reasonably cause Collier to view the
State’s case unfavorably, despite the fact that the incident occurred in the late 1980s. Defendant,
therefore, did not demonstrate that a venireperson similarly situated to Collier was not struck.
While the absence of a similarly situated white juror who was not struck is not dispositive
in determining pretext, see Murphy, 443 S.W.3d at 725, the other factors Defendant raises do not
indicate that the prosecutor’s peremptory strike of Collier was based on racial animus.
Defendant does not explain how the fact that Collier’s husband’s was incarcerated over twenty
years ago renders the prosecutor’s strike discriminatory, nor how the prosecutor’s decision to use
four of its six strikes against African-Americans demonstrates pretext. Indeed, absent from the
record is any indication that the State acted on a pattern of discrimination in striking Collier.
12
On appeal, Defendant additionally explains that because Collier reported a positive
experience with the prosecutor’s victim’s assistance office when her husband was the victim of a
crime, that the State’s concern that Collier had “issues” with his office was “transparently
pretextual.” That Collier had a positive experience with the victim’s assistance office, does not
necessarily mean that she viewed the Circuit Attorney’s office similarly. In any case, Defendant
did not make this argument to the trial court and we will not find error based on an argument that
the trial court was not afforded an opportunity to consider. Murray, 428 S.W.3d at 714.
In sum, considering the totality of the circumstances, we cannot conclude that the trial
court clearly erred by denying Defendant’s challenge to the prosecutor’s strike of venireperson
Collier. Point II denied.
Venireperson Cannon
In her third point relied on, Defendant asserts that the trial court clearly erred by
overruling his Batson objection to the prosecutor’s peremptory strike of venireperson Cannon
because the proffered reason for the strike—“that her husband and son had been previously
incarcerated and may cause her to view the prosecutor’s office negatively”—was pretextual.4 In
support, Defendant points out that white jurors not struck had nephews in jail, that the prosecutor
did not know whether its office had prosecuted Cannon’s husband and stepson, and that the State
disproportionately struck African-American venirepersons.
Defendant met the first Batson challenge requirement with respect to venireperson
Cannon, by identifying her as an African-American female and implying that the prosecutor had
exercised his peremptory strikes to remove members of that group from the jury. Thereafter, the
prosecutor provided a race-neutral reason for the strike: That Cannon’s husband and stepson
4
Defendant misstates the record, as venireperson Cannon reported that her husband and stepson were currently
incarcerated for charges arising out of St. Louis County.
13
were currently incarcerated in St. Louis County. “[H]aving an incarcerated family member is a
race-neutral reason for a peremptory strike.” Clark, 407 S.W.3d at 107 (citing Cole, 71 S.W.3d
at 173). Because the prosecutor provided a race-neutral reason for the strike, the burden shifted
to Defendant to demonstrate that the State’s reasoning was merely a pretext for racial
discrimination. See Johnson, 207 S.W.3d at 35. In this regard, Defendant asserted that the
prosecutor’s strike was pretextual because similarly situated white female jurors, Harris and
Hardy, were not struck and because the State disproportionately struck African-American
venirepersons. The trial court determined the strike was not pretextual.
Again, having a close family member incarcerated is different than a distant family
member spending the night in jail. See cf. Murray, 428 S.W.3d at 713. Indeed, as the State
points out, Cannon was the only venireperson who had close family members currently
incarcerated, of whom she visited regularly and, as such, Defendant did not show that another
venireperson was similarly situated. As a result of her immediate family members’ incarceration
and her close connection to them, as demonstrated through her regular visitation with them, the
prosecutor may have reasonably believed that Cannon could have a reason to view the State’s
case unfavorably.
Further, the other factors Defendant raises do not establish pretext. Although the State
used four of its six strikes against African-Americans, four of the twelve remaining jurors were
African-American and Defendant does not explain how the distribution of strikes renders the
prosecutor’s strike of Cannon discriminatory. Defendant also does not explain how the
prosecutor’s lack of knowledge about whether its office prosecuted Cannon’s husband and son
contributed to the prosecutor’s alleged discriminatory strike.5 There are otherwise no indications
5
Moreover, Defendant did not raise this factor before the trial court and we will not find error based on an argument
that the trial court was not afforded an opportunity to consider. Murray, 428 S.W.3d at 714.
14
on the record that the State acted on a pattern of discrimination in striking Cannon. As we afford
great deference to the trial court’s determination whether the prosecutor’s strike is pretextual, we
conclude, given the totality of the circumstances, that the trial court did not clearly err in its
decision to accept the prosecutor’s reason for striking Cannon. Point III denied.
Point IV: Closing Argument
In his fourth point relied on, Defendant claims the trial court abused its discretion by
overruling his objection to the prosecutor’s closing argument, which stated that Defendant, by
using an interpreter at trial, was “hiding behind” and “hiding between” the Spanish interpreter
and did not really need one. According to Defendant, this argument “invited the jury to draw an
adverse inference based on [Defendant] being a Spanish speaking person, based on
[Defendant’s] national origin, and based on his immigration status, and was an attempt to stoke
6
the hostilities of the jury against [Defendant] based on these improper considerations.” The
State responds that the trial court did not abuse its discretion by overruling Defendant’s
objection. The State asserts that its argument was not improper and did not prejudice Defendant.
“A trial court maintains broad discretion in the control of closing arguments.” State v.
Edwards, 116 S.W.3d 511, 537 (Mo. banc 2003). Statements made during closing argument
must be viewed in context of the entire record. Id. The trial court’s rulings with respect to the
scope of closing argument “will be cause for reversal only upon a showing of abuse of discretion
resulting in prejudice to the defendant[,]” i.e., that the outcome of the trial would have been
different had the error not be made. State v. Deck, 136 S.W.3d 481, 488 (Mo. banc 2004); State
v. Deck, 303 S.W.3d 527, 540 (Mo. banc 2010).
6
In the argument portion of his brief, Defendant suggests that the State improperly invited the jury to draw an
adverse inference from Defendant’s exercise of a constitutional right. Defendant does not identify the constitutional
right invoked. Aside from his failure to develop this argument, it is also not encompassed by the point relied on nor
was it raised before the trial court. Therefore, we consider this argument abandoned. See Rule 84.04(e); State v.
Mason, 428 S.W.3d 746, 753 n. 6 (Mo. App. E.D. 2014).
15
The defense theory in its closing argument was that Defendant’s version of events was
credible, whereas the testimonies of Victim and the officers was not believable and that the DNA
evidence connecting Defendant to the crime did not support that Defendant committed the
crimes. In his rebuttal closing argument, the prosecutor sought to rehabilitate Victim’s testimony
by attacking Defendant’s credibility. The prosecutor argued:
[The State]: And what do we have to refute the victim? The asinine story of the
defendant who got up here, sat here and told you all this detail, I played soccer, I
did this, I did that, and then he hides between the translator because what he did
numerous times throughout the trial –
[Defense counsel]: Objection, your Honor, it’s completely inappropriate to
suggest he's hiding behind a translator. There's been no evidence of that. He has
the right to have a translator and that's inappropriate, your Honor.
THE COURT: Overruled.
[The State]: I asked him on a couple of occasions, you all remember that? Please
wait for your translator to answer because he was answering my questions and he
did it on his own counsel’s questions. You make up your mind. Was he hiding
behind the interpreter because he’s not speaking very well, but the fact of the
matter is he understood what was going on.
Generally, “[a] prosecuting attorney should not inflame the passions or prejudices of the jury
against a defendant.” State v. Douglas, 720 S.W.2d 390, 393 (Mo. App. S.D. 1986). Arguments
designed to induce a jury to act on passion or prejudice may include personal attacks or the
invocation of personal epithets, speculation about future crimes the defendant might commit, or
statements designed to make the jury fear a defendant, such as arguments that ask the jury to put
themselves in the victim’s place. State v. Banks, 215 S.W.3d 118, 121 (Mo. banc 2007)
(personal attacks); State v. Storey, 901 S.W.2d 886, 901 (Mo. banc 1995) (personalized
arguments); State v. Swenson, 551 S.W.2d 917, 919 (Mo. App. 1977) (personal epithets and
speculation about future crimes).
16
Here, the prosecutor’s comments, when read in context, were designed to attack
Defendant’s credibility. As noted, the prosecutor made the comments in his rebuttal closing
argument, which indicates an intention to rehabilitate Victim’s version of events by arguing that
Defendant’s testimony should not be believed. In essence, the prosecutor was arguing that
Defendant was a liar, i.e., Defendant represented that he only spoke Spanish and needed an
interpreter and, yet, was able to understand and answer questions during examination without the
interpreter’s help. Commentary on a defendant’s credibility is proper in a prosecutor’s closing
argument. See State v. Washington, 444 S.W.3d 532, 540-41 (Mo. App. E.D. 2014) (“[A
prosecutor] may comment on . . . the credibility of the defendant’s case [and] may even belittle
and point to the improbability and untruthfulness of specific evidence.” (citation and quotations
omitted)).
Defendant’s contrary assertion, that the comments were made to inflame the jury’s
passion and to encourage punishment based on Defendant’s national origin and the fact that he is
a Spanish speaker, is not supported by the record. Defendant points out that several “potential
jurors” made disparaging comments regarding illegal immigrants during voir dire and that the
State asked about Defendant’s immigration status during the penalty phase of the trial.7 These
facts do not show that the jury, as result of the State’s rebuttal closing argument, acted on
personal animus when deliberating as to Defendant’s guilt. Defendant has not met his burden of
showing that the State’s argument affected the jury’s verdict.
In sum, the State’s closing argument was proper and the trial court did not abuse its
discretion by permitting the argument. Point IV denied.
7
In his brief, Defendant asserts that the prosecutor twice attempted to introduce irrelevant evidence about
Defendant’s immigration status. Defendant again misstates the record, as the prosecutor only sought to introduce
testimony of Defendant’s immigration status during the penalty phase of the trial.
17
Conclusion
The judgment of the trial court is affirmed.
_________________________________
Philip M. Hess, Judge
Sherri B. Sullivan, P.J. and
Mary K. Hoff, J. concur.
18