Opinion
No. WD55877
OPINION FILED: June 30, 1999
APPEAL FROM THE CIRCUIT COURT OF PETTIS COUNTY, THE HONORABLE DONALD LLOYD BARNES, JUDGE.
Nancy Vincent, St. Louis for, appellant.
John Munson Morris, Jefferson City, for respondent.
Before Presiding Judge Laura Denvir Stith, Judge Harold L. Lowenstein and Judge Albert A. Riederer.
Norma Barnum appeals her conviction of first degree assault, in violation of Section 565.050 RSMo 1994, for which she was sentenced to ten years in the Missouri Department of Corrections. On appeal, Defendant asserts the trial court erred when it denied Defendant's Motion for Judgement of Acquittal at the close of all the evidence because there was insufficient evidence from which the jury could conclude beyond a reasonable doubt that the Defendant actively participated in, aided or encouraged others to beat the victim. Because we find that there was adequate evidence to convict her as an aider and abettor, we reject this argument.
Defendant also asserts the trial court committed plain error in failing to instruct the jurors to disregard the prosecutor's comment in voir dire regarding the defendant's right not to testify, and suggests that, when combined with the fact that she did not testify, and with the prosecutor's repeated reference in closing argument to the "uncontradicted" evidence of her guilt, this caused plain error resulting in a miscarriage of justice.
Because we agree that the prosecutor's reference to Defendant's right to remain silent was plain error and that, on the particular facts of this case, it resulted in manifest injustice, we remand for a new trial.
I. FACTUAL AND PROCEDURAL BACKGROUND
On August 11, 1997, at approximately 1:00 a.m., 14 year old Candice West snuck out of her home to visit her boyfriend, Brandon Srader. Upon her arrival at the Srader residence, she and Brandon's sister, Norma Barnum (Defendant), went for a short walk. When they returned at approximately 2:00 a.m., Christina Cassidy, Jessica Griffin, Heather Belt, Travis Laster, Brandon and Michael Jackson had arrived. It was then that Candis discovered that Brandon was no longer interested in continuing a relationship with her, and had begun a relationship with Jessica. Candis became upset and mentioned her displeasure to Heather and Christina, and Heather and Christina informed Jessica of Candis' statements. When Candis and Michael were out of the room, Christina suggested to Brandon, Travis, Heather, Jessica and Defendant that they go to Wal-Mart so they could "beat [Candis] up."
Without knowledge of the plan to beat her, Candis allowed Travis to drive her and Christina, Heather, Jessica, Brandon and Defendant to Wal-Mart where they went to the bathroom, but then returned to the van without beating Candis. Unbeknownst to Candis, Travis had stated that he knew of a better spot for the beating to take place. He then drove the group to a low-water bridge in Pettis County, Missouri. They got out of the car and Christina started hitting and kicking Candis in the chest and face. Heather and Jessica later joined in. Candis did not fight back except to bite Jessica one time. Over the course of one hour the three dragged Candis by her hair over the concrete, attempted to burn her hair with a lighter, forced her to remove her clothes and bend over while they spanked her with her shoes, and kicked her into the water and threw her clothes in after her.
While the beating was taking place, Defendant was standing by the van. She did not directly participate in the beating but, during the beating, when she heard Christina repeatedly tell Candis that she was going to kill her, Defendant laughed and told Christina to "kill her, kill her . . . run her over with the van." Eventually, Travis told the girls that it was time to stop. The group left Candis in the water, naked, and Christina warned her that if she moved, they would come back and kill her. Defendant accompanied the group as they left in the van, making no attempt to assist Candis or get her medical help.
Candis lay in the water for about five minutes, and then got up to seek help. She flagged down a man in a truck who gave her a blue flannel shirt and a rain poncho to wear and drove her to the nearest police station, located in Sedalia, Missouri. Officer Ron Napier photographed Candis' injuries, and the dispatcher summoned an ambulance to take Candis to the hospital. It was later determined that Candis had suffered a crushed eye that required reconstructive surgery, a broken nose, and two broken ribs.
While at the police station, Candis gave Sgt. Mike Koening the names and addresses of the individuals involved in the attack. Sgt. Koenig's investigation uncovered Candis' clothing and jewelry under the bridge. Travis, Defendant, and "three other white female juveniles" were arrested. Defendant was tried before a jury on February 25, 1998. The State presented six witnesses; Defendant presented none. After the conclusion of the evidence, the jury found Defendant guilty of assault in the first degree, and recommended that Defendant be sentenced to ten years imprisonment in the Missouri Department of Corrections. The court sentenced Defendant in accordance with the jury's recommendation.
II. STANDARD OF REVIEW
We defer to the trier of fact when reviewing the sufficiency of the evidence supporting a criminal conviction. State v. Grim , 854 S.W.2d 403, 414 (Mo. banc 1993). Our standard of review is whether there is sufficient evidence from which a reasonable jury might have found the defendant guilty beyond a reasonable doubt. Id. , citing, State v. Dulany , 781 S.W.2d 52 (Mo. banc 1989). We review the evidence and all reasonable inferences drawn from the evidence in the light most favorable to the verdict and disregard all contrary evidence. Id.
When an appealing party has failed to preserve an issue, we review only for plain error. State v. Gray , 887 S.W.2d 369, 387 (Mo. banc 1994), cert. denied , 514 U.S. 1042, 115 S.Ct. 1414, 131 L.Ed.2d 299 (1995). Plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom. Rule 30.20. To be entitled to relief under the plain error rule, Defendant must show that the error affected his or her rights so substantially that a miscarriage of justice or manifest injustice would occur if the error is not corrected. State v. Silvey , 894 S.W.2d 662, 671 (Mo. banc 1995). Manifest injustice depends on the facts and circumstances of the particular case, and Defendant bears the burden of establishing manifest injustice. State v. Zindel , 918 S.W.2d 239, 241 (Mo. banc 1996). The assertion of plain error places a much greater burden on Defendant than if Defendant had preserved the issue at trial. State v. Bradshaw , 845 S.W.2d 143, 144 (Mo.App. 1993).
III. SUFFICIENCY OF THE EVIDENCE
Defendant asserts that the State failed to prove beyond a reasonable doubt that she committed assault in the first degree because, she argues, it failed to show that she "actively participated in, aided, or encouraged" Travis Laster, Jessica Griffin, Heather Belt, or Christina Cassidy in beating Candis West. Defendant argues that, because she did not participate in the planning or carrying out of the assault, and because the evidence showed that she only suggested that they run over Candis with the van, and that the attackers did not actually carry out her suggestion, the evidence was insufficient to support her conviction of first-degree assault.
We disagree. Missouri has eliminated the distinction between being a principal and being an accessory. Now, all persons who act in concert are equally guilty. Bass v. State , 950 S.W.2d 940, 942 (Mo.App. 1997), citing, State v. Isa , 850 S.W.2d 876 (Mo. banc 1993). "A person is criminally responsible for the conduct of another when either before or during the commission of an offense, with the purpose of promoting the commission of the offense, he aids or agrees to aid or attempts to aid such other person in planning, committing or attempting to commit the offense." § 562.041.1(2) RSMo 1994.
In determining whether this standard is met, we note that a defendant's presence at the crime scene, considered alone or in combination with a refusal to interfere, is insufficient, without more, to support a conviction . State v. Richardson , 923 S.W.2d 301, 317 (Mo. banc 1996). The evidence need not show that the defendant personally committed every element of the offense, however; mere encouragement is enough. Id. , citing, State v. Stockdale , 415 S.W.2d 769, 772 (Mo. 1967); State v. Burch , 939 S.W.2d 525 (Mo.App. 1997). Encouragement is the equivalent of conduct that "by any means countenances or approves the criminal action of another." Richardson, 923 S.W.2d at 318, citing, State v. Stidham, 305 S.W.2d 7, 15 (Mo. 1957). "Countenances or approves" includes "encouraging or exciting [a criminal act] by words, gestures, looks, or signs." Stidham, 305 S.W.2d at 15.
And, although a defendant's presence at the scene of the crime and refusal to interfere may not in themselves be sufficient to support a conviction, they are circumstances which may be considered in determining whether defendant participated in that crime. Id. Other factors which may be considered include whether a defendant associated with those who committed the crime before, during, or after its occurrence, or acted as part of a show of force in the commission of the crime; whether defendant attempted flight from the scene of the crime; and whether defendant attempted to assist the victim or to seek medical help. State v. Kobel , 927 S.W.2d 455, 459 (Mo.App. 1996); State v. LaRue , 811 S.W.2d 40, 45 (Mo.App. 1991).
Here, it is undisputed that Defendant accompanied Candis and her attackers on the trip to Wal-Mart, the purpose of which was to beat Candis, and then accompanied the others to the area under the low-water bridge where the beating took place. It is also undisputed that Defendant watched the beating and made no attempt to stop it, and one witness testified Defendant had been present during the planning of the assault. These facts show presence and a refusal to interfere, as well as association with those committing the beating before, during and after the offense.
In addition, two witnesses testified that when Christina said they should kill Candis, they heard Defendant laugh, say "kill her" or "kill the bitch," and suggest that they run Candis over with the van, thus encouraging the attackers. Defendant suggests that because the others did not act on Defendant's suggestion, the words do not constitute encouragement. Defendant cites no authority for this proposition, however, and we find none. The jury could find that these actions constituted participation in a show of force which acted as an encouragement to further violence. This and the other evidence described above constitute sufficient evidence from which a reasonable jury could conclude, beyond a reasonable doubt, the Defendant aided and abetted Jessica, Christina, and Heather in the attack on Candis. Defendant's first point is denied.
IV. STATEMENTS BY THE PROSECUTOR REGARDING DEFENDANT'S RIGHT NOT TO TESTIFY
Defendant asserts that the court plainly erred by allowing the State to talk with the jury during voir dire about Defendant's right not to testify. Defendant argues that the trial court's inaction allowed the State to impermissibly draw attention to Defendant's right to remain silent, thereby resulting in manifest injustice to Defendant. During voir dire, the prosecutor said:
The second term that we talk about probably endlessly and to the point that you're all tired of it is the burden of proof. And that's the idea that it's up to me to prove to you that the Defendant did what we charged. It's not up to the Defendant to prove anything. The Defendant doesn't have to present any evidence, doesn't have to testify, and that's our legal system. That's the way it works in our legal system.
At no point during voir dire did defense counsel object to this statement. And, during his own portion of voir dire, defense counsel himself mentioned Defendant's right not to testify:
It's been touched on a little bit before as far as [Defendant] has the right not to testify and we have the right not to put on any evidence and make the State prove their case, put on their evidence and simply cross-examine their witnesses. Would anybody hold it against her if she did not testify?
Defendant chose not to testify at trial. Both the court and defense counsel examined Defendant as to her decision not to testify. Defendant stated that she had been advised by counsel that she had the right to testify and that the decision to testify was hers alone. Defendant further stated that her decision not to testify was made after conferring with her attorney, that the decision was made of her own free will, and that no one had exercised any pressure on her one way or the other. The defense then rested. In closing argument, the State repeatedly referred to the fact that the State's evidence was uncontradicted. Defendant was convicted.
On appeal, Defendant argues that the prosecutor's comment on Defendant's right not to testify constituted an improper comment on her right to remain silent. Although she admits that the error was not properly preserved by objection at trial, she notes that she did raise this error in her motion for new trial, and asks for plain error review under Rule 30.20. See, e.g., State v. Gray , 887 S.W.2d 369, 387 (Mo. banc 1994), cert. denied, 514 U.S. 1042, 115 S.Ct. 1414, 131 L.Ed.2d 299 (1995). She argues that this comment by the prosecutor, considered either alone or in combination with the fact she did not testify and with the prosecutor's repeated references in closing argument to the fact that the State's evidence was "uncontradicted," did amount to plain error affecting her substantial rights, and resulted in manifest injustice requiring a new trial. In support, she cites State v. Lindsey , 578 S.W.2d 903 (Mo. banc 1979).
In Lindsey , the prosecutor told the jury during voir dire that defendant did not have to go forward with any evidence if he did not wish to, and that defendant did not have to take the stand if he did not want to. Defense counsel immediately objected and requested a mistrial. The trial court sustained the objection but denied the request for a mistrial. The Missouri Supreme Court determined that the only possible reasons for a direct statement such as this by the prosecutor about a defendant's right not to testify were improper ones, for the purpose of the statements:
Must have been either to coerce the defendant to testify, as has been said, `with a halter about his neck,' or to induce him to remain silent, with knowledge that the jury had been challenged in the outset to observe whether or not he would go upon the stand under the goad of the prosecutor's statement.
Id. at 904 (citation omitted). The Court therefore concluded that such remarks are of "such character that the jury would naturally and necessarily be influenced so as to deny appellant a fair trial," and thus "can never be harmless." Id. In effect, Lindsey tells prosecutors they simply should not comment on the right to remain silent at all, because if they do, reversal is almost assured.
The State argues that, even if the comments would be reversible error under this rule if the error was preserved, they were not sufficiently prejudicial to constitute plain error. However, we recently held in State v. Spidle , 967 S.W.2d 289 (Mo.App. 1998), that a direct comment such as this on the right not to testify is the type of error which will entitle a defendant to plain error review. Id. at 292. This is consistent with the Supreme Court's statement in Lindsey that such error can never be harmless. As in Spidle , we thus undertake a plain error review here.
Of course, as the State points out, although we granted plain error review in Spidle , we also noted in that case that "plain error does not [necessarily] mean reversible error." Id. at 292. See also State v. Neff, 978 S.W.2d 341, 344 (Mo. banc 1998); State v. Dees, 916 S.W.2d 287, 296 (Mo.App. 1995). Even where plain error has occurred, we must review the error in the context of the trial to determine whether manifest injustice resulted on the particular facts of the case before us. Id. In Spidle, we ultimately concluded that no manifest injustice resulted from the prosecutor's remark, because Mr. Spidle made it clear at the time he chose to testify that the remarks of the State had no effect on his decision to testify. As he thereby admitted that he would have testified even absent the remarks (and no negative inference could be drawn from his silence since he testified), the court concluded that the remarks were not plain error. Spidle, 967 S.W.2d at 293.
Here, unlike in Spidle , Ms. Barnum chose to exercise her right to remain silent. While the record indicates that she made this choice without regard to the prosecutor's voir dire comment, that is not the determinative issue where, as here, the defendant chooses not to testify. Rather, as Lindsey noted, the prejudice from the prosecutor's comments in a case in which Defendant does not testify is that the prosecutor has drawn the jury's attention to that choice and has effectively challenged Defendant to testify or face the consequences. Lindsey, 578 S.W.2d at 904. Where Defendant does not accept the challenge, the jury might impose consequences for that choice as a result of the prosecutor's statement.
Moreover, in considering the degree of prejudicial impact of the prosecutor's voir dire comment in this case, we are also influenced by the repeated comments by the prosecutor in closing argument to the effect that the State's evidence was "uncontradicted." While these statements are not in themselves improper, State v. Powell , 357 S.W.2d 914, 917 (Mo. 1962); State v. Taylor , 944 S.W.2d 925, 935 (Mo. banc 1997 ); State v. Richardson , 923 S.W.2d 301, 314 (Mo. banc 1996), citing, State v. Lee , 841 S.W.2d 648, 653 (Mo. banc 1992); State v. Ramsey , 864 S.W.2d 320, 330 (Mo. banc 1993), cert. denied , 511 U.S. 1078, 114 S.Ct. 1664, 128 L.Ed.2d 380 (1994), in the context of this case they served to emphasize the prosecutor's comment in opening statement about Defendant's right not to testify. Given that context, the statements necessarily unduly stressed to the jury that Defendant chose not to testify despite the prosecutor's challenge to her to do so. In addition, we are mindful of the fact that, while the evidence was sufficient to make a submissible case, it was not overwhelming and depended in large part on the credibility of the testimony that Defendant had encouraged the others to kill the victim or to run her over with the van, a statement the defense tried to show had not really been made or may not have been heard or intended to be acted on by the persons conducting the beating.
We are not suggesting that it is improper for the prosecutor to point out that the evidence is uncontradicted. The impropriety was in mentioning the right to remain silent, and we simply consider the context of the entire trial in determining the prejudicial effect of the prosecutor's voir dire comment.
Considering all of these circumstances, we cannot say that the remarks of the prosecutor could not have affected the verdict. We find that, on the particular facts of this case, it did result in manifest injustice requiring remand for a new trial.
V. INTRODUCTION OF VICTIM IMPACT TESTIMONY
Because the issue may arise on remand, we address the final issue, whether Candis West's comment during direct examination that she was living in "Girlstown" and that she has had nightmares that "they'd come back for [her]" constituted unduly prejudicial "victim impact" evidence, the introduction of which constituted plain error and resulted in manifest injustice to her. Defendant argues this testimony was unduly prejudicial because it was neither relevant nor probative of any issue in controversy, the prejudicial effects of the testimony outweighed whatever probative value they may have had, and the testimony was designed "solely to inflame the passions and prejudices of the jury" against Defendant.
Defendant relies on State v. Earvin , 743 S.W.2d 125 (Mo.App. 1988), for the proposition that such testimony is irrelevant and prejudicial. Ervin held that the trial court erred in allowing the victim to testify that she arrived at court under an armed police escort. Id. Unlike in the case at bar, however, the testimony in Earvin was objected to. Id. at 129. Here, there was no objection, and thus we review only under a plain error standard. Rule 30.20.
As the State notes, in order to show first degree assault, the State had to show the severity of the attack and that the victim sustained serious physical injury as defined in the jury instructions. Most of the victim's testimony about her injuries and her recovery were clearly admissible on that basis. While the fact she suffers nightmares and lives in Girlstown were not directly necessary to prove serious physical injury, we have reviewed the comments in the context of the victim's testimony and find that they were minor and insubstantial and could not have affected the result. The testimony in question reads as follows:
Q: Okay. Do you live at home anymore?
A: No.
Q: Has this assault caused some problems for you other than physical?
A: Yeah.
Q: Where do you live now?
A: Missouri Girls Town.
Q: And where is that located?
A: Twenty minutes outside of Columbia.
Q: After this occurred, did you have any problems sleeping at night?
A: Yes.
Q: Like what?
A: I had nightmares, and I was afraid they'd come back for me.
Given the detailed testimony of the victim and of her attackers regarding the one hour long beating, it cannot be said that this brief exchange was the linchpin that convinced the jury to convict Defendant. In any event, we are confident the comments will not be repeated on retrial.
For the reasons stated above, the case is reversed and remanded for a new trial due to manifest injustice resulting from the prosecutor's improper comment on Defendant's right to remain silent.
Judge Harold L. Lowenstein and Judge Albert A. Riederer concur.