Case Law Update: 2011-2014 Cumulative Edition

Facts: On June 18, Defendant entered and stole various items from a church sacristy. He also stole a television from the church. The television was purchased for $749 in 2008; Defendant pawned it for $140 after he stole it in 2011. At trial, the State also presented evidence that Defendant was at a second church on June 21, acting suspiciously.

Holding: (1) Defendant argues the State failed to prove the value of the television was more than $500 to support felony stealing. Often-cited case law such as State v. Naper, 381 S.W.2d 789, 791 (Mo. banc 1964), holds that were property is secondhand, proof as to its cost and its length of use may prove value. But Sec. 570.020, which went into effect 15 years later in 1979, abrogates Naper. Sec. 570.020 states that “‘value’ means the market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime.” Here, the State did not present evidence that the television’s value at the time of the crime was more than $500, did not assert that the value could not be ascertained, and did not present evidence as to replacement value. The evidence was insufficient to convict of felony stealing. Conviction entered for misdemeanor stealing. (2) Second degree burglary requires that a person enter a building unlawfully. Sec. 562.016.3 states that a person who, regardless of his purpose, enters premises which are open to the public does so with license unless he defies a lawful order to leave. While the sacristy was not generally open to the public, it was open to persons who wanted to speak to a priest. It may be disrespectful or sacrilegious to walk through an alter area to a sacristy, but that does not equate with unlawful entry into a private area. There was no evidence that the sacristy was marked “private,” “no admittance,” or “authorized personnel only.” The evidence was insufficient to prove unlawful entry of the sacristy. (3) Evidence that Defendant was at a second church, acting suspiciously, three days after the charged burglary was improper propensity evidence. The State argues the evidence was admissible to show intent, but appellate court finds it was adduced “purely as propensity evidence to assert that if [Defendant] was the person who went to the [second church], he likewise must have been the person who unlawfully entered and stole from [the first church].” Propensity evidence violates Defendant’s right to be tried for the charged crime. Eastern District admonished prosecutor Philip Groenweghe for use of this propensity evidence, because he previously improperly used propensity evidence in a prior case, too.
State v. Walker, 2014 WL 6476054 (Mo. App. E.D. Nov. 18, 2014):

(1) Even though Defendant was charged with first degree murder, trial court abused discretion in not allowing defense to voir dire on range of punishment for second-degree murder where parties knew in advance that second-degree murder would be submitted to jury; and (2) trial court erred in not allowing Defendant who claimed self-defense to testify to what Victim said before shooting because statements were not offered to prove truth of matter but to show Defendant’s subsequent conduct (but not reversible here because there was similar evidence presented).

Facts: (1) Defendant was charged with first degree murder arising out of a shooting. The defense was self-defense. The trial court sustained the State’s motion in limine to preclude the defense from asking anything during voir dire about the range of punishment for second-degree murder. The defense claimed it should be allowed to voir dire on the range of punishment for second- degree murder because the parties anticipated that such an instruction would be given, and the defense was entitled to know if jurors could follow the law and range of punishment on it. The State was allowed to voir dire on the range of punishment for first degree murder. During guilt phase deliberations, the jury sent a note asking what the range of punishment was for second-degree murder. The court did not specifically answer. The jury convicted of second-degree murder. During penalty deliberations, the jury sent a note saying they were deadlocked on punishment. After a hammer instruction was given, the jury sentenced to 30 years. (2) During the Defendant’s testimony, the trial court sustained a “hearsay” objection to the Defendant testifying about what Victim said before Defendant shot Victim.

Holding: (1) Although the defense did not make an offer of proof as to specific voir dire questions which the defense was precluded from asking, the defense did state in response to the motion in limine that they expected the law and facts to support a second-degree murder instruction, and that they wanted to voir dire on the range of punishment for second-degree murder to see if the jurors could follow the law. Thus, the issue is preserved for appeal. The Defendant’s right to an impartial jury is meaningless without the opportunity to show bias. As long as the Defendant’s question is in proper form, the trial court should allow the defense to determine whether the jurors can consider the entire range of punishment for a lesser-included form of homicide. The trial court precluded this because Defendant was charged with first degree murder, but this was unreasonable. The trial court allowed the State to voir dire extensively on the range of punishment for first degree murder. Defendant was prejudiced here because by being denied any opportunity to voir dire on the range of punishment for second-degree murder, he could not determine if jurors were able to follow the full range of punishment. The jury sent a note during guilt phase deliberations about the range of punishment. During penalty phase, the jury sent a note saying they were deadlocked on punishment. After a hammer instruction, the jury sentenced to the maximum, 30 years. The State argues that since the punishment did not exceed the maximum range there is no prejudice, but under that logic, a defendant could never show prejudice unless the punishment was beyond the authorized range, which would be plain error anyway. The State also argues there is no prejudice because the judge could reduce the jury’s recommended sentence. “While it is true that the judge might impose a lesser sentence, we do not conclude that trial judges are unaffected by the jury’s recommendation.” Further, the fact that a judge might impose a lesser sentence should not be confused with the jury’s ability to consider the full range of punishment in the first instance. Case remanded for new penalty phase trial. (2) The trial court erred in sustaining the State’s “hearsay” objection during Defendant’s testimony about what Victim said before Defendant shot him. This was not “hearsay” because not offered for the truth of the matter asserted, i.e., not offered to show the truth of the Victim’s statements. Instead, it was offered to explain Defendant’s conduct after the statements were made. Although this error facially shows manifest injustice, the error is not reversible because the jury heard similar evidence that would allow it to conclude Defendant was in fear of his life when he shot Victim.
State v. Evans, 2014 WL 4832217 (Mo. App. E.D. Sept. 30, 2014):

(1) A hand or a fist is not a “dangerous instrument” for purposes of the ACA statute, so cannot support a conviction for ACA; and (2) trial court abused discretion in admitting a Facebook photo of Defendant apparently making a gang symbol with his hand, where Defendant’s identity was not an issue in case.

Facts: Defendant, using his fists, beat up victim outside a bar, causing serious injuries. Defendant was convicted of first degree assault and ACA. At trial, a Witness to the fight testified that he learned Defendant’s name after the fight by seeing Defendant on Facebook. The State then admitted the Facebook photo, which showed Defendant apparently making a gang symbol with his hand.

Holding: (1) Sec. 571.015.1 provides that a person is guilty of ACA when that person commits another felony through use of a “dangerous instrument.” “Dangerous instrument” is defined in Sec. 566.061(9) as any instrument which under the circumstances is readily capable of causing death or serious physical injury. The issue here is whether a body part can be a “dangerous instrument.” A common-sense definition and reading of “instrument” indicates an external object or item, rather than part of a person’s body. The dictionary defines “instrument” as a “tool or implement.” Body parts are not normally called “tools or implements.” This interpretation is consistent with the pre-1979 version of ACA, which required the use of actual weapons. The Legislature intended to impose additional punishment on people who felonies with an item or weapon, rather than those who just use their hands. Interpreting “dangerous instrument” to include body parts would unduly expand the reach of the ACA statute, and result in a significant departure from the historical intent of enhanced punishment. ACA conviction vacated. (2) Regarding the Facebook photo, it should not have been admitted because Defendant’s identity was not contested at trial. The defense was self-defense. The photo was irrelevant, and more prejudicial than probative because of its apparent gang affiliation, which was not an issue at trial. However, the photo was harmless due to overwhelming evidence of guilt.
State v. Francis, 2014 WL 1686538 (Mo. App. E.D. April 29, 2014):

Even though Defendant possessed a BlackBerry at time of his arrest, where the State never showed that Defendant owned the BlackBerry, the trial court erred in admitting the text messages on it because (1) the State did not authenticate that this was Defendant’s own phone or that the messages were written by him, and (2) the messages were hearsay and were not admissions of a party opponent or adoptive admissions since the State emphasized the incoming messages, not outgoing messages which would be those allegedly written by Defendant or “adopted” by him.

Facts: Defendant was charged with a drug offense. He was arrested in his car. When he was arrested, a BlackBerry fell out of his lap. At trial, the trial court admitted text messages from the BlackBerry that were mostly incoming messages. Defendant objected based on hearsay and confrontation grounds, and that there was no proof that he owned the BlackBerry.

Holding: The State claims the BlackBerry texts were admissible because there is a “logical inference” that Defendant owned the phone since he possessed it, and that the texts are admissions of a party opponent. This argument is flawed, however, because the State failed to establish that the outgoing messages were written by Defendant. For a statement to be admitted as an admission of a party opponent, the party seeking to admit the evidence must show that the opposing party made the statement. Here, the State simply argues that there is a “logical inference” that Defendant owned the phone. However, this is inconsistent with the requirement that the State lay a proper foundation for authentication of text messages. To admit text messages, the State was required to present some proof that the messages were actually authored by the person who allegedly sent them. Here, the State did not even attempt to establish who owned the BlackBerry. The fact that Defendant possessed the phone at the time of his arrest is insufficient to establish that Defendant sent the text messages, especially those from earlier days before the arrest. Furthermore, most of the texts presented by the State were the incoming text messages. These could be adoptive admissions if it could be proven that Defendant replied to them, but the State often did not even present the outgoing replies. It is clear that the State was using incoming messages of unknown, unidentified third parties to convict Defendant. This was hearsay and denied him his right to confront and cross-examine witnesses.
State v. McCleary, 2014 WL 930843 (Mo. App. E.D. March 11, 2014):

Even though Defendant (who was charged with methamphetamine offense) “opened door” to impeachment of a defense witness with their municipal conviction for stealing, State should not have been permitted to inquire about the details of that conviction, particularly that the defense witness had stolen pseudoephedrine because this suggested Defendant had propensity to engage in methamphetamine by associating with defense witness (but harmless here because evidence of guilt overwhelming).

Facts: Defendant was charged with a methamphetamine offense. He was arrested with his girlfriend (defense witness). At trial, Defendant called defense witness and asked her about contact with police. The trial court ruled this “opened the door” to the State asking her about a prior municipal conviction for stealing. The State then asked her if she had been convicted of stealing pseudoephedrine and other items.

Holding: Generally, municipal court convictions that are unrelated to the case being tried are inadmissible. However, here Defendant opened the door to the conviction by his direct examination. Even though the conviction was admissible, however, the cross-examiner can only elicit the nature, date and place of the prior conviction, not details. Here, the State elicited improper details. “We are … troubled by the State’s mention of pseudoephedrine, and we do not believe it occurred by happenstance.” The record suggests the State was eager to present this prior conviction and the details of it. The reference to pseudoephedrine would lead a jury to believe that the defense witness was previously involved in methamphetamine, and would, thus, lead a jury to believe Defendant had a propensity to be involved in methamphetamine because of his association with defense witness. However, the error was harmless here because evidence of Defendant’s guilt was overwhelming.
State v. Patton, 2013 WL 5530599 (Mo. App. E.D. Oct. 8, 2013):

Holding: (1) Police lay witnesses should not have been permitted to testify that Defendant was near the cell phone tower with the strongest signal because such testimony is required expert testimony, since it requires many variables to determine cell phone location (however, error was harmless here since other evidence of guilt was overwhelming); and (2) trial court erred in murder trial in admitting family photos of victims which State used to have witnesses identify family members who had no connection to the crime, since was irrelevant (but was also harmless under facts here).
State v. Duncan, 2013 WL 1739720 (Mo. App. E.D. April 23, 2013):

State improperly impeached defense Witness with prior statement of Defendant that was not Witness’ own prior statement; was not inconsistent with Defendant’s prior statement; and that prejudicially implied Defendant was in a criminal gang.

Facts: Defendant was charged with trafficking drugs. At a pretrial suppression hearing, Defendant testified that he and Witness had been in a gang when they were growing up, but were not currently in a gang. Subsequently, at trial, Defendant did not testify, but the defense called Witness to testify. The State asked Witness, “Are you in the 51 block gangsters criminal street gang with Defendant?” When Witnessed answered “no,” the State, over defense objection, cross-examined Witness by asking if Witness was aware that Defendant had testified at a prior proceeding that Defendant was in the gang with Witness. After conviction, Defendant appealed.

Holding: Generally, a witness may be impeached with his own prior inconsistent statements. Here, however, the State impeached Witness with the statements of someone else – the Defendant. Moreover, the questions asked by the State mischaracterized the Defendant’s prior statements. The Defendant had testified he was in the gang in the past, but the State mischaracterized the statement as current gang affiliation. This impeachment was improper, and prejudicial because the evidence of guilt was not overwhelming and Witness’ testimony was important to establish Defendant’s exculpatory version of events. Moreover, the State, in closing, alluded to Defendant’s gang affiliation by saying he and Witness “were working together” to sell drugs in the neighborhood.
State v. Ousley, No. ED97047 (Mo. App. E.D. 11/20/12):

(1) Even though the trial court did not abuse its discretion in excluding Defendant’s mother and grandmother as witnesses in Defendant’s case-in-chief as a sanction for late disclosure of the witnesses, where the State presented rebuttal evidence, Defendant was entitled to call the mother and grandmother as surrebuttal witnesses because surrebuttal witnesses need not be disclosed; and (2) where Defendant was charged with forcible rape, Defendant should have been permitted to voir dire potential jurors on whether they could consider that teenagers would have consensual sex because this was a critical fact with a substantial potential for disqualifying bias.

Facts: Defendant, who was 19, was charged with forcible rape of a 14 year old. The trial court set a pretrial deadline for disclosure of witnesses, which Defendant failed to meet. As a sanction, the trial court excluded as witnesses Defendant’s mother and grandmother, who were going to testify that Defendant’s physical condition made it impossible for him to commit a forcible rape. After Defendant presented other evidence of this at trial, the State called a doctor in rebuttal. Defendant then sought to call his mother and grandmother in surrebuttal, but the trial court would not permit this because of its prior sanction.

Holding: (1) If the State introduces a new matter during rebuttal, the Defendant is entitled to offer surrebuttal. Because the nature of rebuttal requires a party to depend on the evidence presented in determining whether to offer rebuttal, rebuttal witnesses need not be disclosed or endorsed; this applies to surrebuttal evidence, too. Regardless of any initial discovery sanction, when Defendant offered his mother and grandmother as surrebuttal witnesses, it became a new inquiry for the trial court to determine whether Defendant was entitled to call them in light of the State’s rebuttal evidence; this determination was to be made anew without reference to the rules of discovery or the trial court’s earlier sanction. The trial court abused discretion in excluding the surrebuttal witnesses (but not prejudicial under facts of case). (2) During voir dire Defendant sought to ask potential jurors whether they could consider that two teenagers had consensual sex. The State objected that this was seeking a commitment, and the trial court sustained the objection. However, a party is entitled to ask about critical facts that have a substantial potential for disqualifying bias. Here, Defendant could not have been charged with statutory rape because it is defined as sex with a person who is less than 14, or a person who is at least 21 having sex with a person who is less than 17. Defendant’s question sought to inquire as to whether jurors would impose consequences for such an act, even if it was not illegal. This did not require a commitment from jurors to acquit Defendant upon hearing that two teenagers had sex, but rather sought to ensure that jurors could follow the law as it relates to sex among minors if they believed the sex was consensual. The trial court abused discretion in prohibiting this question (but was not prejudicial in context of case).
State v. Jones, No. ED97595 (Mo. App. E.D. 10/2/12):

Defendant’s incriminating statements should have been excluded under the corpus delicti rule because there was not independent corroboration that a murder had occurred where the only other evidence of guilt was police testimony that baby-decedent was on a bed near pillows and the medical examiner based his opinion that the baby died of suffocation on the Defendant’s statements.

Facts: In 2008, Defendant’s Baby died. At the time, the death was believed to have been caused by a seizure disorder. In 2009, a different baby of Defendant also almost died. This caused police to investigate the 2009 death. While questioning Defendant about that death, Defendant brought up first Baby’s death, and said she had put Baby facedown on a pillow because Baby wouldn’t stop crying, after which Baby stopped breathing. Defendant was then charged and convicted of second degree murder for death of first Baby. At trial, her statements to police were admitted against her. On appeal, she claimed that admission of such statements was plain error under the corpus delicti rule.

Holding: The corpus delicti rule bars the admission of extrajudicial statements by a defendant absent proof of the commission of an offense. In a murder case, the corpus delitici requires proof the death of the victim and evidence that the criminal agency of another person caused the death. The amount of corroborating evidence allowing the admission of out-of-court statements can be minimal, but here, there wasn’t any corroboration. The police testified that Baby was found on an adult bed near pillows and not breathing. Although police referred the case to investigators for further investigation because they thought it was “suspicious,” this is not corroboration of a murder. Importantly, the autopsy of Baby originally found the cause of death to be “seizure disorder.” Later, the pathologist changed this to “suffocation,” but only after Defendant’s statements to police and not based on any new medical tests. If the pathologist had originally found the death to be caused by suffocation, that would be corroboration of a homicide, but he did not find this. The record is clear that the pathologist later revised his opinion solely because of Defendant’s statements, not medical evidence. Without Defendant’s statements, the cause of death would have remained seizure disorder. Defendant’s statements should not have been admitted under the corpus delicti rule. New trial ordered.
State v. Harris, No. ED96045 (Mo. App. E.D. 12/20/11):

(1) Where defense counsel’s offer of proof was cut short by the trial judge and the parties all understood the issues, the appellate court would consider it sufficient; and (2) to admit a text message, the proponent must offer some proof (even circumstantial) that the message was sent by the purported author of the message.

Facts: Defendant at trial sought to admit text messages which Victim allegedly sent to another Witness. The trial court would not allow this. The defense attempted to make an offer of proof on this matter, but was cut short by the trial judge. After conviction, Defendant appealed.

Holding: (1) The State claims this issue is not preserved because there was no offer of proof. However, Defendant tried to make an offer of proof but was cut off by the judge. The parties discussed this issue for 10 pages of transcript, which shows that everyone understood the issue. Given all this, the appellate court will not fault Defendant for not making an offer of proof. (2) On the merits, the proponent of text messages must present some proof (even circumstantial) that the texts were sent by the purported author of the text. This could be in the form of an admission by the author that he wrote them, or an admission by the author that the number from which the texts were sent was his number and he had control of his phone. Such proof could also be made by the person who received them testifying that he regularly receives texts from this author, or something distinctive about the texts, such as a personal signature. Here, however, Defendant did not question the Victim (who allegedly sent the texts) whether she did send them to the Witness. There was no foundation to admit the texts, so court did not err in excluding them.
State v. O’Neal, No. ED95274 (Mo. App. E.D. 11/29/11):

Where prosecutor objected to admission of Defendant’s medical records in front of the jury by saying they were“simply a way to avoid the defendant testifying,” this was a direct comment on Defendant’s failure to testify and a mistrial should have been granted.