State v. Reed

STEWART, Judge,

dissenting.

I respectfully dissent. I would conclude that in the context of the argument, the State did not make a direct and certain reference to defendant’s failure to testify. The argument can readily be interpreted as retaliation for defendant’s attacks upon the character and veracity of the State’s witnesses. I believe this case to be controlled by State v. Rothaus, 530 S.W.2d 235 (Mo. 1975).

*536 I am more disturbed by the fact that we are asked to rule the issue as plain error under the circumstances of this case. It is apparent that at the time the statement was made defendant’s counsel did not consider the argument to be a reference to defendant’s failure to testify. He made no objection. We cannot say that he did not object because counsel did not want to bring the matter to the attention of the jury, because if it had been such a direct and certain reference to defendant’s failure to testify it would not have been overlooked in the motion for new trial. That the argument violated defendant’s Fifth Amendment rights is not so blatantly obvious that I would convict the trial court of error in not declaring a mistrial sua sponte in this case.