State v. Clark
State v. Clark
Opinion of the Court
Defendant, Sammy Clark, Jr., appeals his conviction, after a jury trial, of attempted second degree robbery. Defendant was sentenced, as a persistent offender, to imprisonment for 12 years. We affirm.
On appeal, defendant claims the trial court erred in overruling his motion for a mistrial when the prosecutor, during closing argument, commented on the failure of the defendant’s wife to testify in support of his alibi defense. Defendant argues that the prosecutor’s comments constituted a prejudicial violation of Section 546.270, RSMo (1986).
On October 22, 1985, David Morris was approached at his liquor store by defendant. Although he did not know defendant by name, Morris recognized him because defendant had been in the store earlier that day and because he frequented the store two or three times a month. As Morris attempted to enter the protective cage, the defendant struck Morris and a struggle ensued. Defendant fled when Morris told him the police were coming.
On December 27, 1985, Morris saw a photograph of the defendant on the front page of the Evening Whirl and contacted the police. The police conducted a photographic lineup from which Morris positively identified the defendant as the man who robbed him. Later, defendant confessed to the crime.
At trial, defendant testified that, after working on his car in front of his home, he walked two blocks to the Morris liquor store. When he saw a police car in front of the store, he returned home. On that date, defendant lived with his wife, Ms. Anderson
Prior to considering the merits of defendant’s claim of error, we note defendant’s only request at trial was for a mistrial. The declaration of a mistrial is a drastic remedy. It should be granted only in those extraordinary circumstances in which the prejudice to the defendant can be removed in no other way. State v. Endres, 741 S.W.2d 788, 791 (Mo.App. 1987). By failing to request any curative action short of a mistrial, defendant bears the heavy burden of showing that any less drastic remedy could not have removed the prejudice generated by the prosecutor’s closing argument.
We now specifically consider the merits of defendant’s claim of error. Section 546.-270 clearly prohibits reference by a prosecutor to a defendant’s failure to call his wife as a witness on his behalf. Although the prosecutor’s remarks constituted a direct reference within the meaning of the statute, we hold that the trial court did not err in refusing to grant a mistrial. By his testimony, defendant raised the inference that his wife would have been a favorable defense witness. He then attempted to explain her absence at trial while portraying himself as an altruist. Thus, defendant opened the door for the prosecutor to attack the veracity of his testimony during the closing argument.
Secondly, even if we assume that the prosecutor’s statement was improper, there was no prejudice. Defendant initially made reference to the wife’s nonappearance. The prosecutor simply reiterated that same point to the jury in his closing argument, albeit with a different innuendo. Defendant’s point is denied.
The judgment of the trial court is affirmed.
. The evidence was equivocal as to defendant’s marital status. For the purposes of this opinion, we will assume that defendant and Ms. Anderson were legally married on the date of the crime.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.