From the Circuit Court of the City of St. Louis; Criminal Appeal; Judge Richard J. Brown.
Motion for Rehearing Overruled, Transfer Denied October 4, 1983. Application Denied November 22, 1983.
Before Pudlowski, P.j., Smith, Kelly, JJ.
The opinion of the court was delivered by: Pudlowski
This is an appeal from a conviction by jury of capital murder. Defendant alleges that the trial court erred in permitting the prosecutor to create an adverse inference in the minds of the jurors by the failure of the defense to call an allegedly "equally available" witness, who had been endorsed by the prosecution as a potential state witness. We affirm.
The evidence adduced at trial tended to show that at approximately 12:00 a.m. on June 4, 1981, Steven Horne, George Baker and Yvonne Harris went to George's mother's house in St. Louis. Steven Horne stayed outside while George and Yvonne went inside the residence. Shortly after 2:00 a.m., two men were heard arguing in the street in front of the Baker home. Subsequently, two gunshots were heard.
Jefferey Baker, Sophia Baker, Evelyn Baker and Yvonne Hawkins all testified that upon hearing the gunshots, they ran to the windows and front door to see what was happening. The four testified that a man, later identified as defendant, was standing over Steven Horne, who lay unconscious in the street bleeding profusely. Additionally, defendant was seen hitting Horne in the head and face with what appeared to be a gun and was seen subsequently kicking him around the head and shoulders.
Shortly thereafter, the St. Louis Police arrived. Defendant tried unsuccessfully to leave the area in Horne's car. Unable to do so, defendant left the area on foot, ignoring the officer's order to stop. Defendant was arrested the following day. At the time of the arrest, defendant was wearing a light colored cap which was later identified by Evelyn Baker, Sophia Baker, Yvonne Hawkins and Ernestine Brown as a cap similar to that worn by the assailant of Steven Horne. Also seized from the defendant was a pair of blood stained tennis shoes.
The victim, Steven Horne, was taken to the Hospital where he died from gunshot wounds and a blunt trauma wound of the head. He had multiple lacerations and fractures on both the outside and at the base of the skull. Lacerations of the victim's face appeared as though they were made by the muzzle of a gun. Additionally, there was brain damage due to hemorrhaging of the brain and scalp.
Defendant at all times denied his involvement with the crime claiming at the time the incident occurred he was at the house of his sister, Debra Webster. On June 7, Carla Thomas who lived with Debra Webster was present when Debra Webster gave the police the bluejeans defendant was wearing on the night in question. Blood found on defendant's bluejeans matched the victim's blood. Further, fingerprints taken from the victim's car matched those taken of defendant.
At trial the prosecuting attorney, during the second part of his closing argument, told the jury:
: Now, I did not bring out Carla Thomas' testimony because I anticipated bringing her in. I was unable to do so. But [defendant's counsel] brought out that Carla Thomas gave to the detectives these jeans. Carla was there when the defendant came in. Where's Carla to testify as to what went on, what condition he appeared when he got there, what was on the top of his-
Defendant's counsel promptly objected.
[Defendant's Counsel]: Objection, Your Honor. Carla Thomas was endorsed as a witness for the State. She was ...