State v. Aaron

• Decision Date: 01 May 2007
• Docket Number: No. WD 65362.,WD 65362.
• Citation: 218 S.W.3d 501
• Parties: STATE of Missouri, Respondent, v. Terrese D. AARON, Appellant.
• Court: Missouri Court of Appeals

218 S.W.3d 501

STATE of Missouri, Respondent, v. Terrese D. AARON, Appellant.

No. WD 65362.

Missouri Court of Appeals, Western District.

January 23, 2007.

Application for Transfer to Supreme Court Denied February 27, 2007.

Application for Transfer Denied May 1, 2007.

COPYRIGHT MATERIAL OMITTED

Margaret Mueller Johnston, Public Defender Office, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Shaun Mackelprang, Office of Attorney General, Jefferson City, for respondent.

RONALD R. HOLLIGER, Judge.

Terrese D. Aaron ("Aaron") appeals his conviction of voluntary manslaughter and armed criminal action following a jury trial. In his sole point on appeal, Aaron argues that the trial court violated his rights under the Confrontation Clause by admitting the preliminary hearing testimony of an unavailable witness. Aaron concedes that under current Missouri law such testimony is admissible,¹ but argues that the United States Supreme Court decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), alters the analysis required under Missouri law, rendering the evidence admitted in his case inadmissible under the Sixth and Fourteenth Amendments to the United States Constitution and article I, sections 10 and 18(a) of the Missouri Constitution. The judgment of conviction is affirmed.

Factual and Procedural Background

This case arises from the fatal shooting of James Miller. On the evening of the shooting, Miller was driving in his car around Mexico, Missouri, with his passenger, Montay Williams. Shortly before midnight, Miller pulled his car over to the side of the road, and a car driven by Sherita Thompson also pulled over, parking a short distance in front of him. Three men got out of the second car: Terrese Aaron, his brother Derrick Aaron, and Lorenzo Miller. James Miller also got out of his car, grabbing a stick out of the back seat. The stick was two to three feet long and approximately the diameter of a broom handle.

As the four men approached one another in the street between the two cars, Thompson remained in the driver's seat of the front car, but Williams got out of Miller's car and spoke with someone she knew in a nearby driveway. An argument ensued in the street, during which James Miller struck Derrick Aaron with the stick he was carrying. While the testimony of the various witnesses differs as to what happened next, there is agreement that at least two guns were then drawn and fired, that James Miller was injured, that the other three men returned to the car they had arrived in, and that Thompson drove them away.

With assistance from two passersby, Williams put James Miller back into his car and drove him to the hospital. At the hospital, Sergeant Justin Jobe, who was investigating the shooting, interviewed Williams. Jobe took a statement from Williams in which she described the shooting and surrounding circumstances. That statement recounted, in relevant part:

Derrick Aaron, Terrese Aaron and Lorenzo Miller got out of the car and were talking to James in the street. I did not hear what they said. I thought they were going to jump James. Derrick and Terrese then pulled out guns and shot James.² I heard five or six shots. I then ran towards the house. Derrick, Terrese and Lorenzo got back in the car and left.

Jobe then visited the scene of the shooting and interviewed a neighbor who had witnessed the shooting from a distance. That neighbor described being drawn to her front window by noises outside and seeing four men in her yard and in the street in front of her house. One of the men was sitting on the ground with another standing over him, pointing a gun down toward him. The neighbor then heard shots fired and watched as three men jumped into a car, which drove off.

Jobe then returned to the hospital and spoke with Williams again. At that point, Williams gave a second statement, which recited, in its entirety:

During the shooting I saw that Derrick and Terrese had guns and were shooting at Jamie. When Jamie fell down Terrese went up to Jamie and was standing over him and shot again. Terrese then started going through Jamie's pockets. I could not tell what they were wearing.

James Miller had five gunshot wounds: one in his abdomen, one through the front of his leg, and three in his buttocks. He died as a result of blood loss caused by the abdominal wound. Derrick and Terrese Aaron, Lorenzo Miller, and Sherita Thompson were all charged with murder in connection with the death of James Miller.

Three months after the shooting, a consolidated preliminary hearing was held seeking to have Terrese Aaron and Lorenzo Miller bound over for trial. At that hearing, the State offered testimony from the local medical examiner and two detectives who had investigated the case. Lorenzo Miller then called Williams to testify on his behalf.

On direct examination, Williams testified consistent with her second statement to Jobe, emphasizing that Lorenzo Miller had no gun. She also testified that James Miller was her boyfriend and that she had asked him to get back in the car, but he ignored her. She testified that she was worried that Lorenzo Miller and the Aarons were going to beat him up because of an earlier altercation between him and Jonathan Aaron, the Aarons' younger brother. She testified that once the shooting began, she ran toward a nearby house, telling people on the porch to call the police.

Aaron's counsel cross examined Williams, establishing that the area where the shooting occurred was dark, that after the shooting began, she turned her back to run toward the porch, and that she had had a romantic relationship with Derrick Aaron. The State also cross-examined Williams, focusing on the fact that James Miller had no gun and that Terrese Aaron pulled out the first gun that she saw.

Counsel for Lorenzo Miller then asked two questions on re-direct, whether there was "any question" in Williams's mind that Lorenzo Miller had not shot the victim, and that Derrick and Terrese Aaron had shot the victim. Neither Aaron nor the State conducted any re-cross examination.

Following this hearing, Terrese Aaron's case was bound over for trial on charges of first-degree murder and armed criminal action. Williams died before trial.

The State filed a pre-trial motion to allow admission of Williams's preliminary hearing testimony at trial. Aaron opposed this motion on the ground that he had not had an adequate opportunity to cross-examine the witness, and the testimony would therefore violate his right to confrontation. The court granted the State's motion. The order granting that motion contained findings that Aaron had an adequate opportunity to cross-examine the witness and that the issues and parties at the preliminary hearing and the trial were identical.

At trial, the State introduced, over Aaron's renewed objection, a tape of Williams's preliminary hearing testimony, including both cross-examinations. That tape was played for the jury while jurors read along from a transcript of the testimony.

The jury found Aaron guilty of voluntary manslaughter and armed criminal action. Aaron appeals this conviction raising as his sole ground the admission of Montay Williams's preliminary hearing testimony.

Standard of Review

The admission or exclusion of evidence at trial is within the broad discretion of the trial court. State v. Madorie, 156 S.W.3d 351, 355 (Mo. banc 2005). The admission of evidence at trial is reversible only upon a finding of clear abuse of discretion. Id. However, "whether a defendant's constitutional rights were violated is a question of law reviewed de novo." State v. Nunnery, 129 S.W.3d 13, 17 (Mo.App. S.D. 2004).

Discussion

Aaron asserts that the case at bar presents an issue of first impression in Missouri to the extent that it requires the application of Crawford to the admissibility of preliminary hearing testimony at a subsequent criminal trial. As Aaron concedes on appeal, pre-Crawford Missouri decisions have consistently held that testimony of an unavailable declarant given at a properly held preliminary hearing affords "substantial compliance with the purposes behind the confrontation requirement." State v. Holt, 592 S.W.2d 759, 766 (Mo. banc 1980); See also State v. Griffin, 848 S.W.2d 464, 470 (Mo. banc 1993).

Crawford, however, proclaims that the principles of Missouri's prior analysis fail to satisfy the sole command of the Confrontation Clause. 541 U.S. at 60, 124 S.Ct. 1354. In particular, Aaron claims that Crawford overturns Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which held admissible prior testimony falling within a "firmly rooted hearsay exception" or bearing other "particularized guarantees of trustworthiness." 448 U.S. at 66, 100 S.Ct. 2531. Testimony falling within either of these categories was there described as bearing such "indicia of reliability" as not to offend the Sixth Amendment when introduced at trial. Id. at 65-66, 100 S.Ct. 2531 (quoting Mancusi v. Stubbs, 408 U.S. 204, 213, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972)).

"Indicia of reliability" has, at least since Roberts, been the touchstone of Missouri law governing the admissibility of prior testimony. See, e.g., State v. Sutherland, 939 S.W.2d 373, 378 (Mo. banc 1997). Because Roberts dealt with the exact issue before this court—the admissibility of preliminary hearing testimony of an unavailable declarant—Crawford requires, in the case at bar, an examination of the extent to which Missouri law relies upon "indicia of reliability," as that phrase is used in Roberts.

Under current law, Missouri courts addressing the admissibility of prior testimony consider whether (1) the prior testimony was given before a judicial tribunal, (2) the witness was sworn and testified, (3) the accused was present and had an opportunity for cross-examination, (4) the parties and issues were substantially the same as in the case on trial,...