State v. Shelton

• Decision Date: 27 June 2017
• Docket Number: No. ED 104424.,ED 104424.
• Citation: 529 S.W.3d 853
• Parties: STATE of Missouri, Respondent, v. Justin SHELTON, Appellant.
• Court: Missouri Court of Appeals

529 S.W.3d 853

STATE of Missouri, Respondent,

v.Justin SHELTON, Appellant.

No. ED 104424.

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

Filed June 27, 2017

Application for Transfer to Supreme Court Denied July 27, 2017

Application for Transfer to Supreme Court Denied October 31, 2017

Michael Gross, 231 S. Bemiston, Suite 250, St. Louis, MO 63105, for appellant.

Joshua D. Hawley, Nathan J. Aquino, P.O. Box 899, Jefferson City, MO 65102, for respondent.

KURT S. ODENWALD, Judge

Introduction

Justin Shelton ("Shelton") appeals from the judgment of the trial court following his conviction by a jury on one count of second-degree drug trafficking. Shelton raises three points on appeal. First, Shelton claims that the trial court erred by refusing to declare a mistrial after a veniremember purportedly opined on the credibility of the State's witnesses. Point Two charges the trial court with plain error for allowing the State to mischaracterize the testimony of a defense witness during closing argument. In Point Three, Shelton avers that he is entitled to a new trial based on newly discovered evidence.

Because the veniremember's comment was not so prejudicial and inflammatory as to taint the entire panel, the trial court's refusal to declare a mistrial was not erroneous. Nor did the trial court plainly err in not limiting the State's closing argument as the evidence supported the State's characterization of the defense witness's testimony. Finally, Shelton was not entitled to a new trial because he did not establish that the newly discovered evidence was credible or that he used due diligence in obtaining such evidence. Accordingly, we affirm the judgment of the trial court.

Factual and Procedural History

The State charged Shelton with one count of the Class A felony of second-degree drug trafficking in violation of Section 195.223.¹ The State alleged that Shelton, a persistent offender and a persistent drug offender, knowingly possessed more than ninety grams of a substance containing heroin. The case proceeded to a jury trial.

I. Voir Dire

After a few introductory remarks during voir dire, the prosecuting attorney asked the venire if any of its members recognized her. Veniremember Prost ("Prost") answered that, because he was a lieutenant with the city's police department, he recognized the prosecuting attorney. Prost said that his employment with the police department would not affect his ability to remain impartial.

Shortly thereafter, the prosecuting attorney advised the venire that she would recite the names of potential witnesses for the State and then ask if any of the veniremembers were acquainted with the recited witnesses. The prosecuting attorney then expressly identified Prost, stating "Mr. Prost, I understand you probably know a lot of them, and I'll ask you a question after we get done." The witnesses were listed, and subsequently the prosecuting attorney addressed Prost:

Q: [I] knew I would get back with you, Mr. Prost. All of the people that I listed, like I said, I'm sure you know a handful of them.

A: Yes.

Q: Any one of the people that I listed do you have a personal relationship with where it would be hard for you to listen to the evidence that they present given your—

A: Three of the names—three of the names you put out there, Detective [Thomas] Mayer, Detective Lila Payne, Detective Joe Shipp, have all worked for me in the past in some sort of fashion.

Q: They've worked for you?

A: I was their supervisor.

Q: Right. Okay. And do you feel because you were their supervisor at some point you wouldn't be able to listen to them as a witness on the stand and take their testimony as they give it in this case, evaluate their testimony based on that and not your personal relationship with them?

A: Taking the personal relationship out of it and make it strictly professional, all three of those detectives having worked for me, I trust their—

Defense counsel interrupted Prost's answer and requested to approach the bench. Before defense counsel specified the nature of his objection, the trial court sustained the objection. The trial court directed the prosecuting attorney to move on from questioning Prost. The parties then approached the bench, and the trial court further admonished the prosecuting attorney that "[y]ou have to be extremely careful in asking any policeman about how he—you know, how he feels about other people. He just started to comment on the testimony, and that's why we can't go there."

Defense counsel moved for a mistrial, which the trial court denied. The trial court informed defense counsel that the situation may warrant a curative instruction. Defense counsel never requested a curative instruction. The trial court struck Prost for cause, but permitted Prost to remain seated with the venire during the rest of voir dire. In voir dire, the other veniremembers were extensively questioned regarding any potential bias pertaining to the testimony of police officers. The parties selected a jury from the venire.

II. The State's Evidence

Detective Joe Shipp ("Del. Shipp") testified that, on September 5, 2013, he was driving westbound on Interstate 70 in downtown St. Louis.² Shortly before 1:00 p.m., Det. Shipp observed a white GMC Yukon Denali ("the SUV") with tinted windows on the interstate. Det. Shipp believed that the tinted windows on the SUV violated state law.

After running the SUV's license plates, Det. Shipp discovered that the license plates were registered to a Toyota automobile. Det. Shipp followed the SUV off I-70 and onto an exit for Branch Street. As the car turned onto Branch Street, Det. Shipp activated his roof lights in order to conduct a traffic stop. The SUV accelerated at a high rate of speed and fled westbound on Branch Street. Det. Shipp did not pursue the SUV as department policy prohibited chases for traffic violations.

Det. Shipp stopped his car, deactivated his roof lights, and transmitted an all-points bulletin describing the SUV, Hearing the all-points bulletin, Det. Thomas Mayer ("Det. Mayer"), a detective for the St. Louis Police Department, pulled his vehicle alongside Det. Shipp's car. The two officers began conversing about the attempted traffic stop. After a short while, the SUV reappeared and began driving the wrong way—eastbound—down Branch Street directly towards the officers.

Before reaching the officers' location, the SUV turned south onto 20th Street and stopped. The officers immediately followed the SUV and pulled their vehicles within a short distance behind the SUV. The officers exited their respective vehicles. Det. Mayer approached the driver's side of the SUV, while Det. Shipp approached the passenger's side. At trial, Det. Mayer identified Shelton as the driver and sole occupant of the SUV. Det. Mayer observed Shelton emerge from the SUV, drop a plastic bag from his right hand to the "threshold" of the vehicle, and then flee on foot. Det. Mayer recalled that Shelton, from about a car length away, turned and looked over his shoulder at the detective for a couple seconds. Det. Mayer's view of Shelton was unobstructed. Det. Mayer said he could "clearly see" Shelton's face. From the passenger's side of the SUV, Det. Shipp could not identify the driver of the SUV, but recalled that the man wore blue jeans and a blue shirt. Shelton eluded capture and was not apprehended at the time.

After Shelton fled, Det. Mayer secured the dropped plastic bag. The plastic bag contained about 116 grams of heroin. The officers found items in the SUV pertaining to Shelton and Jerome Carter-Moore ("Carter-Moore"). Det. Mayer viewed pictures of both men in a police database, and identified Shelton as the driver of the SUV. Carter-Moore was the owner of the SUV.

The police impounded and searched the SUV. Evidence technicians found the following evidence linking Shelton to the vehicle: (1) a suitcase with a luggage tag containing Shelton's name; (2) a check made payable to Shelton; (3) mail addressed to Shelton; (4) a banking receipt containing Shelton's information; (5) fingerprints and DNA matched to Shelton that were extracted from the SUV; and (6) a business card for Shelton's probation officer.

Officers contacted Shelton's probation officer, who confirmed that Shelton had checked into her office earlier that morning. Video surveillance of the probation office showed that Shelton was wearing a blue or gray shirt with a collar. Police officers later located and arrested Shelton.

III. The Defense's Evidence

Carter-Moore and Shelton were roommates. Carter-Moore testified that he owned Grips New Generation, a window-tinting and detail shop. On the morning of September 5, 2013, sometime between 10:30 a.m. and 11:30 a.m., Carter-Moore drove the SUV to work and parked behind his business. Carter-Moore explained that he left the keys in his SUV, and that he frequently did so because his employees often moved the SUV around the business without his permission. Carter-Moore also stated that Shelton frequently used the SUV and left personal items inside it.

Carter-Moore testified that, about an hour into his workday, he noticed his SUV was missing. Carter-Moore initially believed that an employee or family member had moved the SUV, but after an hour had passed, he began calling his employees and family members to ask about the SUV. Learning that none of his employees or family members knew the SUV's location, Carter-Moore reported to the police that his SUV was stolen. Carter-Moore stated that the police never returned his call, that "no one ever showed up," that he was calling the police regularly, and that he only discovered the impoundment of his SUV through his own efforts to locate the vehicle.

Shannon Spencer ("Spencer"), Carter-Moore's girlfriend and another roommate of Shelton, remembered that around 1:00 p.m. on September 5, 2013, she received a phone call from Carter-Moore. During the call, Carter-Moore asked Spencer if Shelton was home or if he had the SUV. Spencer testified that she entered...