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State v. Hibler6/27/2000
e prosecution may comment on that failure. The defendant's failure to call such a witness tends to create the logical inference that the defendant did not call the witness because the testimony of the witness would damage rather than assist the defense. In addition, if the facts make clear that the testimony of the witness would tend to favor the defendant, the court may justifiably find that the witness was "peculiarly available" to the defendant, thus giving rise to the adverse inference.
Id. at 739 (citations omitted); see also State v. Basile, 942 S.W.2d 342, 351 (Mo. banc 1997). As to the "peculiarly available" requirement, the court held that " mplicit in the adverse inference is the assumption that the close family relationship between mother and son would make the mother more available to the defendant than to the State." Neil, 869 S.W.2d at 740. With these principles of law to guide us and given the fact that the witness in question here was the appellant's father, who, under the circumstances, would have been reasonably expected to testify favorably for the appellant, as argued by the prosecutor in closing argument, it was not error for the trial court to allow such argument, much less plain error as claimed by the appellant.
Point denied.
Conclusion
The circuit court's judgment of the appellant's jury conviction for DWI, section 577.010, is affirmed.
Separate Opinion: None
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