State of Missouri, Plaintiff/Respondent v. Tim Washington, Appellant/Defendant.

In the Missouri Court of Appeals
Eastern District
DIVISION TWO
STATE OF MISSOURI, ) No. ED100133
)
Plaintiff/Respondent, ) Appeal from the City of St. Louis
) Circuit Court
vs. )
) Honorable Mark H. Neill
TIM WASHINGTON, )
) Filed: August 26, 2014
Appellant/Defendant. )
Introduction
Tim Washington (Defendant) appeals his convictions of first-degree robbery and
armed criminal action. On appeal, Defendant claims that the trial court abused its
discretion by allowing into evidence the pretrial and in-court identifications of Defendant.
Defendant also claims that the trial court abused its discretion by failing to provide a
limiting instruction when the State, in its closing argument, argued facts not in evidence
and improperly shifted the burden of proof to Defendant. We affirm.
Factual Background
On June 2, 2011, Defendant walked into a Circle K gas station around 10 p.m. At
the time, Shindell Dinkins was working as a cashier and saw, from where she stood at her
cash register, Defendant enter the store carrying a large woman‘s bag. Dinkins kept her
―eye‖ on Defendant because she suspected that Defendant ―was probably coming in to try
and stuff product in his bag.‖1 Dinkins also noticed that Defendant was ―oddly tall‖ and
―so thin.‖ As Dinkins waited on other customers, she continued to watch Defendant as
he walked all the way around the store and then toward her cash register. As he
approached, Dinkins saw Defendant pull a gun from the bag. When Defendant reached
the register, which was open, he pushed a customer out of the way, reached across
Dinkins, and took about $50 from the register while pointing the gun at Dinkins.
Defendant then exited the store and walked toward a Metrolink station.
No DNA or other physical evidence linked Defendant to the scene, but the store‘s
surveillance video showed the robbery occurring. Consistent with police department
practice, an email containing a still-photo of Defendant from the surveillance video was
circulated to the department. Another police officer recognized Defendant and,
subsequently, a photo lineup containing Defendant‘s photo was prepared. Dinkins and
another witness who was a customer at the scene, Rhonda Shannon, identified
1
Dinkins explained that the manager of the store had warned her to ―look out‖ for people who come into the store
with bags because they may steal things.
2
Defendant.2 Defendant was arrested and, thereafter, Dinkins identified Defendant at an
in-person lineup.
Defendant was charged with first-degree robbery and armed criminal action.
Before trial, Defendant moved to suppress the out-of-court identification of Defendant,
claiming that the photo lineup and in-person lineup were unduly suggestive. After a
hearing on the motion, the trial court denied the motion without explanation.
The matter then proceeded to a jury trial, where the State presented the testimony
of Dinkins and Shannon, who identified Defendant as the individual who committed the
robbery. Dinkins‘ and Shannon‘s out-of-court identifications of Defendant, as well as the
surveillance video, were also admitted into evidence. At the close of the State‘s
evidence, Defendant presented evidence in support of its defense theory that Defendant‘s
identity had been mistaken. Defendant also presented the alibi testimony of his sister,
Louisa Lyes, who testified that Defendant was at her home when the robbery occurred.
Ultimately, the jury convicted Defendant as charged and the trial court sentenced
Defendant as a prior offender to concurrent terms of 25 years‘ imprisonment for each
conviction. This appeal followed.
Standard of Review
Defendant‘s first point on appeal relates to the trial court‘s decision to admit
certain identification evidence. We review a trial court‘s decision to admit or exclude
evidence for an abuse of discretion. State v. Norman, 145 S.W.3d 912, 919 (Mo. App.
2
Shannon was the customer that Defendant pushed out of the way. According to Shannon, she saw Defendant pull
out the gun. At this point, she looked directly at Defendant, he looked directly at her, and then Defendant pushed
her out of the way.
3
S.D. 2004). ―A trial court abuses its discretion when its ruling is clearly against the logic
of the circumstances before the court and is so arbitrary and unreasonable as to shock the
sense of justice and indicate a lack of careful consideration.‖ State v. White, 329 S.W.3d
710, 712 (Mo. App. S.D. 2010). Error in the admission or exclusion of evidence does not
justify reversal unless the error was so prejudicial that it deprived the defendant of a fair
trial such that the verdict would have been different. State v. Kreidler, 122 S.W.3d 646,
649 (Mo. App. S.D. 2003).
Defendant‘s remaining two points relate to the State‘s comments during closing
argument. ―The trial court has broad discretion in controlling closing argument, with
wide latitude accorded counsel in their summation.‖ State v. Dudley, 51 S.W.3d 44, 57
(Mo. App. W.D. 2001) (citation and quotations omitted). ―Although courts are to be
careful to refrain from unduly restricting closing arguments, they have the power to
confine the arguments to issues raised by the pleadings and the evidence.‖ State v.
Forrest, 183 S.W.3d 218, 226 (Mo. banc 2006) (quotations omitted). A trial court‘s
decision concerning the scope of closing argument is cause for reversal only upon a
showing of an abuse of discretion that resulted in prejudice to the defendant. State v.
Deck, 136 S.W.3d 481, 488 (Mo. banc 2004). In reviewing a trial court‘s decision, we
are to examine the closing argument at issue in the context of the entire record. State v.
Edwards, 116 S.W.3d 511, 537 (Mo. banc 2003). To the extent that Defendant did not
raise specific objections to the State‘s comments during closing argument, we may
review Defendant‘s allegations for plain error. See State v. Hopson, 168 S.W.3d 557, 565
(Mo. App. E.D. 2005).
4
Discussion
Point I: Identification Evidence
In his first point relied on, Defendant claims that the trial court abused its
discretion by allowing the pre-trial and in-court identifications of Defendant because the
identification was the result of ―impermissibly suggestive police procedures that damaged
the reliability of the identification.‖ Specifically, Defendant maintains that the photo
array was unduly suggestive because Defendant was the only individual who fit the
description of the robber, which rendered the identifications unreliable and tainted
subsequent identifications in violation of his due process rights. The State responds that
Defendant has not established that the identifications procedures were unduly suggestive
and, that even if this evidence was improperly admitted, reversal is not required because
other evidence sufficiently supported Defendant‘s convictions.
Identification testimony is inadmissible if the pretrial identification procedure was
unnecessarily suggestive and the suggestive procedure made the identification unreliable.
State v. Body, 366 S.W.3d 625, 629 (Mo. App. E.D. 2012). This test contemplates a two-
prong inquiry for determining whether identification testimony is admissible. Foster v.
State, 348 S.W.3d 158, 161 (Mo. App. E.D. 2011). First, the Court determines whether
the police procedures used were impermissibly suggestive. Id. at 162. ―Police procedure
is unduly suggestive if the witness‘s identification of the defendant results from the
procedure or actions of the police, rather than from the witness‘s recollections of his or
her firsthand observations.‖ Body, 366 S.W.3d at 629. If ―the witness has an adequate
basis for the identification independent of the suggestive procedure,‖ then it cannot be
5
said that unduly suggestive police procedures tainted the identification. State v. Floyd,
347 S.W.3d 115, 125 (Mo. App. E.D. 2011).
Only if the procedure was unnecessarily suggestive does the Court reach the
second prong of the inquiry whether the suggestive procedure made the identification
testimony unreliable. Body, 366 S.W.3d at 629. ―In determining the reliability of a
witness‘s identification, we consider: (1) the opportunity of the witness to view the
subject; (2) the witness‘s degree of attention; (3) the accuracy of any prior description
given by the witness; (4) the level of certainty demonstrated by the witness in making the
identification; and (5) the interval between the event and the identification procedure.‖
Floyd, 347 S.W.3d at 125.
At the hearing on the motion to suppress and at trial, Detective Douglas
McPherson testified that he created the photo lineup containing Defendant‘s photograph
after interviewing witnesses at the scene and after a fellow police officer identified
Defendant in the surveillance video. According to McPherson, Defendant‘s most recent
mugshot on file appeared to match that of the robber described by witnesses at the scene
and in the video. McPherson testified that he then created the lineup using a computer
program that uses the suspect‘s characteristics to populate the lineup with other
individuals of similar skin tone, height, weight, hair, hairstyle, and facial hair.
McPherson explained that the program generates about 30 photographs of similar
individuals, from which an officer then selects the five individuals that best resemble the
suspect to create the lineup. In the photo spread prepared in this case, McPherson
indicated that Defendant was the lightest-skinned individual of the six individuals
6
depicted and four out of the six individuals had some facial hair, including possibly
Defendant.3 McPherson testified that he did not notice that Defendant was wearing a
similar red-checked shirt in the mugshot used for the photo lineup as Defendant wore on
the night of the robbery.
About a week after the robbery, McPherson showed the photo lineup to Shannon,
telling her consistent with standard procedure that ―the photo lineup contains six photos,
[that the] suspect may or may not be in the photos [and to] view each photo and let me
know if [you recognize] anybody.‖ Shannon testified that she immediately identified
Defendant because she ―noticed the face and everything about him[,] [t]he shirt,
everything.‖
Another detective, Detective Angela Hawkins, testified that she showed the same
spread to Dinkins the day after Shannon identified Defendant. Hawkins said that she told
Dinkins that ―the person who was responsible could or could not be depicted in these
photos, and if [the person] were or were not, [you] should let me know.‖ Dinkins
testified that she identified Defendant in the photo spread and told Hawkins that she was
100 percent certain in her identification. According to Dinkins, she picked Defendant‘s
photo because ―that‘s [the] man that I saw rob the store.‖ Dinkins further explained that
she had not noticed that he wore a similar shirt in the lineup as on the night of the
robbery, but that she identified Defendant as the robber because ―[h]e was very close to
3
Two individuals in the photo spread have short-trimmed mustaches, while the remaining individuals possibly have
stubble or some lighter facial hair.
7
me in the store, and that‘s the same guy that I saw. We were face to face. It wasn‘t hard
to pick him out.‖
The day after Dinkins identified Defendant in the photo spread, McPherson
conducted an in-person lineup during which Dinkins identified Defendant from a viewing
room. McPherson explained that he would select three other individuals of similar
height, weight, and body style for the victim to view. For Defendant‘s lineup,
McPherson indicated that he had the individuals sit down because Defendant is ―very
tall.‖ Dinkins testified that she identified Defendant because she recognized ―how thin
his face is . . . how skinny he is,‖ and the noticeable discolorations of his complexion.
She again indicated that she was 100 percent certain in her identification. Both Shannon
and Dinkins later identified Defendant at trial.
As our review of the record demonstrates, the evidence in this case does not show
that the police took any action that made either the photo lineup or physical lineup
impermissibly suggestive. McPherson generated the photo lineup using a computer
program that selected 30 individuals similar to Defendant and then he populated the
spread with the five individuals most similar to Defendant. Indeed, the record shows that
all six of the individuals in the photo spread are of the same race, have a similar age, a
similar hairstyle, and at least two individuals other than Defendant can reasonably be
described as light-skinned African Americans. When the photo lineup was presented to
Dinkins and Shannon, no threats or promises were made to either witness to secure their
identification of Defendant. Rather, each witness was told that the perpetuator may or
may not be in the photo spread and to simply indicate whether the robber was present.
8
Each witness thereafter identified Defendant based on their memory of the robber, their
recollection of Defendant‘s face and, in Dinkins case, his unique features. For the in-
person lineup, McPherson selected individuals similar in height, weight, and body type,
and three of the four individuals (including Defendant) had lighter complexions. In
addition, McPherson had the individuals sit down, given that Defendant is very tall.
Despite the neutrality of the police action and the witnesses‘ certainty in their
identifications of Defendant, Defendant argues that these pretrial procedures were
impermissibly suggestive because Defendant was the only light-skinned African
American without facial hair in the lineup and the only individual to be displayed in both
the photo lineup and physical lineup. However, ―[d]issimilarity in physical appearance,
alone, is insufficient to establish impermissible suggestion.‖ State v. Chambers, 234
S.W.3d 501, 513 (Mo. App. E.D. 2007). Police are only required to use reasonable
efforts to find physically similar participants, and ―differences in age, weight, height,
hairstyle, and other physical characteristics do not compel a finding of impermissible
suggestiveness.‖ Id. at 514. Indeed, this Court has previously concluded that merely
because a defendant has the lightest complexion of the six individuals in a photo spread
does not render the lineup impermissibly suggestive. Floyd, 347 S.W.3d at 126(defendant‘s complaint that he was lightest-complected individual in a photo array did
not render procedure unduly suggestive). Likewise, a police procedure is not
impermissibly suggestive just because the defendant was the only individual to appear in
both the photo lineup and physical lineup. Body, 366 S.W.3d at 631.
9
Defendant additionally highlights the fact that he wore a similar shirt on the night
of the robbery as in the photo spread and alleges that this fact also renders the photo
lineup unduly suggestive. However, this alleged taint arises not from police procedure,
but from the coincidental fact that the shirt Defendant wore in his most recent mugshot
was similar to the one he wore when he committed the robbery. As noted, an
identification procedure is unduly suggestive if it arises from police procedure. Body,
366 S.W.3d at 629. A ―taint‖ that originates from a nongovernmental source cannot
render an identification procedure impermissibly suggestive. State v. Glover, 951 S.W.2d
359, 363 (Mo. App. W.D. 1997). Moreover, because both Dinkins and Shannon had an
―adequate basis for the identification independent of the suggestive procedure‖—their
recollection of Defendant‘s face—it cannot be said that unduly suggestive police
procedures tainted the identification. Floyd, 347 S.W.3d at 125.4
Finally, there is no merit to Defendant‘s argument that the ―inherent deficiencies‖
of eyewitness identification are apparent in this case and that this matter is unlike State v.
Body, 366 S.W.3d at 625, where this Court concluded that a photo lineup was not unduly
suggestive. The psychological studies5 Defendant references are not informative with
respect to the question in this case whether the police procedures used were unnecessarily
suggestive. Nor do these studies provide authority for Defendant‘s argument that the
4
Defendant also claims that Shannon‘s identification of Defendant was ―tainted‖ by her traumatic reaction to the
robbery, but Defendant cites no case law for the proposition that a witness‘s response to an event may render an
identification procedure unnecessarily suggestive. An appellant abandons a claim if the appellant cites no authority
in support. See Rios v. State, 368 S.W.3d 301, 312 (Mo. App. W.D. 2012).
5
See, e.g., Morgan et al., Accuracy of Eyewitness Memory for Persons Encountered During Exposure to Highly
Intense Stress, 27 Int‘l J.L. & Psychiatry 265, 274 (2004); Brewer et al., The Confidence-Accuracy Relationship in
Eyewitness Identification, 8 J. Experimental Psychol. Applied 44, 44-5 (2002).
10
cases permitting eyewitness identification testimony under circumstances similar to this
case were wrongly decided. Likewise, Defendant‘s reliance on Body is misplaced,
because there, like here, the police employed neutral practices to create the photo lineup
and to present the lineup to the victim. Id. at 631. Body does not require a different
result.
Because the record does not establish that the identification procedures were
unduly suggestive, we do not address the reliability of the identification. The trial court
did not abuse its discretion by admitting the pre-trial identifications, given that the pre-
trial procedures were not unduly suggestive. Further, Defendant‘s point relied on
indicates that the allegedly suggestive pre-trial identifications rendered the subsequent in-
court identifications unreliable. However, because we have concluded that the police
procedures were not unduly suggestive, it cannot be concluded that the subsequent in-
court identifications were also ―tainted.‖6 Point I denied.
Point II: Arguing Facts Not In Evidence
In his second point relied on, Defendant claims that the trial court abused its
discretion by failing to provide a limiting instruction after the State made improper
remarks during closing argument. Specifically, Defendant asserts that the State argued
facts not in evidence pertaining to places that the gun could have been secreted or
disposed. The State counters that no abuse of discretion occurred because the State‘s
6
Notably, Defendant‘s point relied on simply alleges that the impermissible pre-trial procedures used rendered the
in-court identification unreliable, while the argument portion of Defendant‘s brief posits that Shannon‘s in-court
identification of Defendant did not have a ―sufficient independent basis of reliability‖ because Shannon was ―under
great stress‖ and Defendant was the only African American male seated at counsel table. Because this argument is
not encompassed by the point relied on, we do not consider it. See Rule 84.04(e); State v. Cochran, 365 S.W.3d
628, 636 n. 6 (Mo. App. W.D. 2012).
11
argument regarding the location of the gun was a reasonable inference based on the facts
adduced at trial.
Generally, ―a prosecutor is entitled to substantial latitude in closing argument,‖
State v. Lloyd, 205 S.W.3d 893, 909 (Mo. App. S.D. 2006), and ―may comment on the
evidence and the credibility of the defendant‘s case,‖ State v. Storey, 40 S.W.3d 898, 910
(Mo. banc 2001) (citation and quotations omitted). In doing so, ―counsel may even
belittle and point to the improbability and untruthfulness of specific evidence,‖ id., and
may suggest reasonable inferences for the jury to draw from the evidence, Lloyd, 205
S.W.3d at 909. A prosecutor cannot, however, argue facts not in evidence or inferences
not supported by the evidence. See Forrest, 183 S.W.3d at 226.
During the State‘s case-in-chief, the prosecutor asked McPherson, ―In your
experience, is it necessarily unusual to not have a weapon recovered?‖ Defendant
objected on relevancy grounds, but the trial court overruled the objection, indicating that
McPherson‘s experience is ―relevant . . . [but] that‘s it. I‘m not going to allow you to
delve into it, ask how many times, or anything like that.‖ The prosecutor then restated
the question as: ―[I]n your experience, it‘s not necessarily unusual for the weapon to
never be recovered, right?‖ McPherson responded, ―Correct.‖ Later, during closing
argument, the prosecutor made the following argument in support of the armed criminal
action charge:
[THE PROSECUTOR]: When you find him guilty of the robbery, first
degree, next you find him guilty of the armed criminal action. Why? They
piggyback on each other. The armed criminal action is for doing this
robbery with a real weapon, with a deadly weapon.
12
* * *
What other evidence do we have that this gun is real, that it‘s a deadly
weapon? Here we go. You saw [Shannon‘s] expression yesterday. She
was shaking so hard when she saw that surveillance video. She started
crying and bawling. She got very, very, very, very scared and upset. You
could see her reliving it. She thought she was going to die in that
convenience store. [Dinkins] told you it was real. She said that was
pointed at me, and I took a moment and I looked him right in the face
because I knew I needed to remember him. That is a real gun.
* * *
He had his finger on the trigger. He threatened multiple people, pointed it
right at this woman. This is a real gun, and the evidence shows that it‘s a
real gun. It‘s that circumstantial evidence. It‘s like that rain that we talked
about outside. You saw the puddles. You saw the umbrella. You‘ve got
all the circumstantial evidence. Put those puzzle pieces together. You
know that this is a real gun. I don‘t have it in the courtroom, but think of all
the places it could be. In a house somewhere, hidden in the bottom of river.
It‘s not the first time as Detective McPherson told you –
[DEFENSE COUNSEL]: I‘m going to object. Arguing facts not in
evidence.
THE COURT: Overruled
[THE PROSECUTOR]: It‘s not the first time Detective McPherson told
you that a gun wasn‘t recovered. Doesn‘t mean it wasn‘t real, and it
doesn‘t mean it didn‘t happen. You saw how he was using that gun in the
video. You can see in this still the fear on this woman‘s face. They know
it was real, and it was. [Emphasis added.]
Clearly, the prosecutor‘s main argument was that the firearm need not be in
evidence to establish Defendant‘s guilt and that circumstantial evidence could establish
that the gun Defendant wielded was real. The prosecutor‘s point that the gun could be
―somewhere‖ is an inference from McPherson‘s testimony that it is not unusual to not
recover a firearm after a crime and was likely intended to rebut a contrary inference that
13
Defendant‘s guilt had not been established because the gun had not been located.
McPherson‘s testimony in this regard was properly admitted and the prosecutor simply
made a reasonable inference from McPherson‘s testimony that Defendant may have
disposed of the firearm or otherwise hid it from police discovery. Moreover, we fail to
see how the result of the trial would have been different had the prosecutor not made
these remarks, given that the only disputed issue at trial was the identity of the robber and
the other evidence against Defendant was overwhelming, including eyewitness
identifications and a surveillance video.
Our conclusion that the prosecutor‘s statements were proper inferences drawn
from the record that did not prejudice Defendant is supported by State v. Byrd, 423
S.W.3d 882 (Mo. App. E.D. 2014), which is directly on point. There, as here, the
prosecutor, with respect to the armed criminal action charge, commented during closing
argument on the fact that ―there are lots of reasons why that gun cannot be brought into
this courtroom.‖ Id. at 866. This Court reasoned that the prosecutor‘s comments as to
the location of the gun had no bearing on the sole issue at trial, the defendant‘s identity as
the robber, and concluded, in light of the evidence of the defendant‘s guilt, which
included GPS monitoring that placed the defendant at the scene and fingerprint evidence,
that the outcome of the trial would not have been different had the prosecutor not argued
that the gun need not be in evidence to establish the defendant‘s guilt. See id. at 887.
Similarly here, in light of the other evidence of Defendant‘s guilt, Defendant has failed to
establish that the jury‘s verdict would have been different had the prosecutor not made
this argument.
14
Defendant asserts that Byrd is distinguishable because, in that case, the prosecutor
did not suggest a variety of ways in which the defendant could have disposed of the
weapon, the defendant did not allege a violation of his Sixth Amendment right to
confrontation, and the evidence against the defendant was more compelling. These
alleged distinctions do not require a different result. First, the prosecutor‘s argument in
Byrd did, in fact, suggest that the defendant could have disposed of the weapon in a
variety of manners, including disposing of the gun in a river or giving it to a friend. 423
S.W.3d at 886. Moreover, that the defendant in Byrd did not argue that the prosecutor
effectively became a witness against the accused in violation of his confrontation rights is
immaterial. Here, the prosecutor did not testify against Defendant by offering additional
evidence. As our review of the record has made clear, the prosecutor‘s argument was
based on facts adduced at trial and, consequently, the prosecutor‘s statements did not
implicate Defendant‘s Sixth Amendment rights. Finally, the evidence in this case is no
less compelling than in Byrd, given that a surveillance video actually depicted Defendant
committing the crime.7 The trial court did not abuse its discretion by allowing the
prosecutor to argue that there were a number of ways in which Defendant could have
disposed of the weapon. Point II denied.
7
Defendant also posits that the prosecutor‘s remarks were improper because the prosecutor accused Defendant of
additional acts of bad character and uncharged felonies, further improperly bolstering the State‘s theory that
Defendant was a ―liar.‖ Defendant never objected to the prosecutor‘s comments on this basis. Nor is this allegation
encompassed by Defendant‘s point relied on, which simply asserts that the comments were improper because the
prosecutor argued facts not in evidence. ―[I]ssues raised only in the argument portion of the brief are not presented
for review.‖ State v. Tinsley, 143 S.W.3d 722, 735 n. 7 (Mo. App. S.D. 2004) (citations and quotations omitted).
Therefore, we do not consider this assertion.
15
Point III: Arguing an Adverse Inference
In his third point relied on, Defendant claims that the trial court abused its
discretion by failing to provide a limiting instruction after the State argued in closing
argument that Defendant could have called additional witnesses to support his alibi.
According to Defendant, this argument improperly shifted the burden of proof to
Defendant and violated the rule against arguing an ―adverse inference‖ when a witness is
―equally available.‖8 The State responds that the additional alibi witnesses were not
equally available to the State and, therefore, the prosecutor properly argued an adverse
inference.
At the outset, we note that the argument portion of Defendant‘s brief focuses
entirely on the claim that the prosecutor improperly argued an adverse inference because
the missing witnesses were allegedly equally available to the State. Defendant, however,
did not object to the prosecutor‘s argument on this basis. Rather, Defendant simply
objected on the basis that the prosecutor‘s argument was improper because it ―shift[ed]
the burden.‖ During the State‘s closing argument, the following ensued:
[THE PROSECUTOR]: Yes, this case all comes down to identity, who did
it. We‘ve known that from the beginning, and that‘s what I‘ve been
showing you during the course of this trial. He did it. These witnesses
were not mistaken. Think about it. Whose testimony is corroborated?
Whose testimony does the evidence back up? State‘s witnesses, [Shannon],
[Dinkins]. Whose testimony is not corroborated? His sister‘s. His sister got
up here –
8
Defendant does not develop his claim in the argument portion of his brief that the State‘s closing argument
improperly shifted the burden of proof, other than to assert, without citation to authority, that permitting an adverse
inference argument when a witness is equally available ―can shift the burden of production to the defense.‖ An
appellant abandons a claim if the argument portion of the brief does not support the allegation in the point relied on
and also, when the appellant cites no authority in support. See Rios, 368 S.W.3d at 312; State v. Greenlee, 327
S.W.3d 602, 614 (Mo. App. E.D. 2010). Therefore, we do not consider Defendant‘s claim that the prosecutor‘s
remarks improperly shifted the burden of proof.
16
[DEFENSE COUNSEL]: Your Honor, I‘m going to object. Shifting the
burden.
THE COURT: Rephrase your statement.
[THE PROSECUTOR]: His sister got up here and said all these things that
she could back none of them up. Including she said there were two other
people who were at that apartment.
[DEFENSE COUNSEL]: Objection. Shifting the burden. Improper
argument.
THE COURT: Sustained.
[THE PROSECUTOR]: Your Honor, can we approach? I believe this is an
adverse inference, Your Honor.
THE COURT: I‘ll reverse my position on that. Objection‘s overruled.
You can go ahead.
[THE PROSECUTOR]: Thank you. Thank you, Your Honor. Two other
people she said could come in here and say where he was. They didn‘t
come in here. Mr. Stennies and Mr. Conrad was his first name. She said
she knew how to get ahold of them. Where were they? They were not
here. You know why? Because it didn‘t happen because she was lying.
[DEFENSE COUNSEL]: I‘m going to object still. Shifting the burden,
Your Honor.
THE COURT: Overruled.
―To preserve a claim of error, counsel must object with sufficient specificity to
apprise the trial court of the grounds for the objection.‖ State v. Stepter, 794 S.W.2d 649,
655 (Mo. banc 1990). Because Defendant did not object on grounds that the prosecutor
improperly drew an ―adverse inference‖ from the missing witnesses, our review of
Defendant‘s claim is for plain error only. Rule 30.20. It is rare that statements made
during closing argument amount to plain error. State v. Jones, 128 S.W.3d 110, 113 (Mo.
17
App. E.D. 2003). ―To reverse a conviction under plain error review on a claim of
improper closing argument, a defendant must establish not only that argument was
improper, but also that it had a decisive effect on the outcome of the trial and would
amount to manifest injustice or miscarriage of justice if the error was left uncorrected.‖
Hopson, 168 S.W.3d at 565.
―Generally, in closing argument, the State may not argue an adverse inference
from the defendant‘s failure to call a witness who is equally available to both parties, or
unavailable to both parties.‖ State v. Tinsley, 143 S.W.3d 722, 735 (Mo. App. S.D. 2004)
(emphasis added). ―‗Equally available‘ means more than merely being susceptible to
service of process and is determined by consideration of the following three factors: (1)
one party‘s superior ability to know or identify the witness; (2) the nature of the
testimony expected to be given by the witness; and (3) a relationship between a party and
the witness which indicates a likelihood that the witness would testify more favorably for
one party than the other.‖ State v. Anderson, 867 S.W.2d 571, 576 (Mo. App. W.D.
1993). Only when the missing witness is ―peculiarly available‖ to the defendant, should a
trial court permit argument that the missing witness would have testified adversely to the
defendant. See id.In this case, Defendant had the superior ability to know and identify the missing
witnesses, as ―Stennies‖ was Defendant‘s sister‘s brother and ―Conrad‖ was likely an
acquaintance of Defendant. The record does not indicate that either individual was
disclosed to the State as alibi witnesses or that police discovered these individuals
through their investigation. Further, the alibi testimony of Defendant‘s sister indicates
18
that the testimony of Stennies and Conrad would have further corroborated her alibi
testimony, which would have been favorable to Defendant and unfavorable to the State.
These factors indicate that these witnesses were not equally available to both the State
and Defendant. Accordingly, we discern no error, plain or otherwise, in the trial court‘s
decision to permit the State to argue an adverse inference from the missing witnesses and
not to provide a limiting instruction. Point III denied.
Conclusion
The judgment of the trial court is affirmed.
________________________________
Philip M. Hess, Judge
Sherri B. Sullivan, P.J. and
Mary K. Hoff, J. concur.
19