State v. Albanese
| Decision Date | 21 December 1999 |
| Citation | 9 S.W.3d 39 |
| Parties | (Mo.App. W.D. 1999) . State of Missouri, Respondent, v. Michael G. Albanese, Appellant. WD55524 Missouri Court of Appeals Western District Handdown Date: |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Platte County, Hon. Ward B. Stuckey
Counsel for Respondent: Philip M. Koppe
Opinion Summary:
Michael G. Albanese appeals the circuit court judgment of his jury conviction for felony murder in the second degree.
AFFIRMED.
Court holds: (1) The states' failure to disclose to the defense the transcript of a witness's testimony at a prior hearing was not material so as to require a new trial. The Brady rule is based on the requirement of due process and requires disclosure to the defendant only of evidence that is both favorable to him or her and material either to guilt or to punishment. Impeachment evidence and exculpatory evidence fall within the rule. A constitutional error occurs under the Brady rule, requiring reversal of the defendant's conviction and a new trial, if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial. The disputed evidence was merely cumulative where one witness was cross-examined on the same issue and the other already had admitted to lying. The absence of the additional impeachment evidence did not undermine confidence in the jury's verdict for a due process violation.
(2) Albanese's claim of being convicted on perjured testimony would fail in that the trial court was free to find that two witnesses' testimony was not false. Even if the court erred in not finding it false and that the state knew it was false, the testimony would have to be material, which it was not, as discussed above.
(3) Albanese claims the trial court erred in overruling his motions for a mistrial because the state violated its order in limine in three instances, by admitting testimony concerning statements Albanese allegedly made to the victim. A trial court's ruling on a motion in limine is interlocutory and subject to change in the course of a trial and preserves nothing for appellate review. As such, a trial court, having initially excluded the evidence pursuant to a pretrial motion in limine, is free to change its ruling at trial and admit it. Hence, in order to afford the trial court with an opportunity to reconsider its previous ruling, the proponent of the excluded evidence may attempt to present the excluded evidence at trial. Any prejudice resulting from the challenged questioning of a witness by the state would have been slight, in light of the fact that the alleged inadmissible evidence was excluded and given the other direct evidence in the record of Albanese's involvement in the drug deal, which formed the basis for his felony murder conviction.
(3) During the state's rebuttal portion of its closing argument, Albanese objected to two comments by the assistant prosecutor on the basis of improper personalization. Both objections were sustained and the jury instructed to disregard the offending statements. Apparently satisfied with the court's rulings, Albanese did not request any further relief. As such, he did not preserve his claim of error for appellate review. In addition, the state claimed that its allegedly improper comments were retaliatory, but Albanese did not enclose a transcript of the closing argument in the record on appeal. Alternatively, given the nature of the assistant prosecutor's remarks, the trial court's instruction to the jury to disregard them in response to Albanese's objections and the admissible evidence in the case as to his guilt, the remarks likely would not have changed the outcome of the verdict. Finally, from the record, no error, plain or otherwise, occurred because the remarks in question were proper in that prosecutors and defense attorneys are allowed substantial latitude in closing argument to draw reasonable inferences from the evidence.
Opinion Vote: Judgment of the circuit court is affirmed. All concur.
Opinion:Michael G. Albanese appeals the judgment of his jury conviction in the Circuit Court of Platte County for felony murder in the second degree, section 565.021.1(2),1 for which he was sentenced to life imprisonment.
The appellant asserts three points in his appeal. In Point I, he claims that the trial court erred in overruling his motion for a new trial because his constitutional right to due process was violated by the State: (1) intentionally suppressing favorable and material information which he requested pursuant to Rule 25.03(C)2 and was required to be disclosed under the rule and Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); and (2) knowingly obtaining a conviction based on perjured testimony. In Point II, the appellant claims that the trial court erred in overruling his motions for a mistrial because the State violated, in three instances, its order in limine. In Point III, the appellant claims the trial court plainly erred in not declaring a mistrial, sua sponte, because the assistant prosecutor made several improper references in her closing argument to her belief in the appellant's guilt.
We affirm.
In 1996, Ferrell Travis Riley (Mr. Riley) was convicted of racketeering; sentenced to nine years incarceration in a federal penitentiary; and ordered to forfeit $28 million in assets he and his girlfriend had fraudulently acquired, including a large amount of personal property acquired through a criminal enterprise, including items such as rugs, sculptures, and statues. Despite the forfeiture order, the federal government was unable to obtain possession of the items. As a result, the Federal Bureau of Investigation (FBI) began surveillance on Mr. Riley's youngest son, Joseph Riley (Riley), in an attempt to locate the items. The FBI believed that Mr. Riley was continuing his fraudulent activities through his son, who was president of a Kansas City-area company that Mr. Riley had formed.
During the FBI investigation of Riley, agents discovered that Joseph Bartels (Bartels), a paid FBI informant, lived next door to Riley. The FBI asked Bartels to get to know Riley and look for evidence of the missing items. Bartels subsequently befriended Riley, telling him that he worked for a Chicago drug dealer. As a result of his friendship with Riley, Bartels met Nicholas LanFranca (LanFranca). At times, Riley discussed with Bartels "ripping off" and "whacking" drug dealers. Riley also talked about killing drug dealers in the presence of LanFranca.
In January 1997, Riley told Bartels he would be willing to sell him two items that were ordered forfeited by his father, a player piano and an Indian bronze statue. The FBI encouraged Bartels to pursue the purchase of the items. Several days after their conversation about the sale of the piano and statue, Riley called Bartels and asked if he could buy some cocaine through the Chicago drug dealer. Riley said he wanted the cocaine for a friend. After consulting with the FBI, Bartels offered to sell the drugs to Riley. Riley met with the appellant on January 23, 1997, the same day he said he had someone ready to buy the drugs from Bartels.On January 26, 1997, Bartels confirmed the buy with Riley, who said his friend wanted to buy all the cocaine that was available. Bartels told Riley he was going out of town and would contact Riley when he arrived back in the Kansas City area with the drugs. During the days Bartels was supposed to be in Chicago, the FBI rented two adjoining hotel rooms in a Kansas City Motel 6 next to Interstate 29. FBI agents modified the room where the drug deal was to take place so they could record the transaction. The FBI planned to have agents stationed both inside and outside the motel and, immediately after the exchange, to arrest Riley and whomever accompanied him.
On January 30, 1997, the FBI began surveillance on Riley, at which time Bartels called Riley to tell him the sale would take place that day. Soon thereafter, Riley called the appellant, then drove to the appellant's home and picked him up. Riley and the appellant joined a woman and LanFranca for lunch at Mr. Riley's restaurant, where Riley received a page from Bartels. Riley called Bartels, who told him to come alone to the Motel 6 to complete the drug deal. Shortly thereafter, Riley and the appellant drove around, were paged again, then returned to call Bartels at the restaurant, where a conversation about acquiring a gun took place with LanFranca.
Riley and the appellant left the restaurant and drove north toward the Motel 6. On the way, they stopped at a pay phone to call Bartels. Both Riley and LanFranca listened to the phone conversation. Riley then dropped off the appellant nearby and went to meet Bartels at the Motel 6. At the motel, Bartels showed Riley the drugs, and the two discussed the sale. They quibbled about the price, and Riley told Bartels that he would get back with him soon and left.
After Riley left the Motel 6 and picked up the appellant, the two made several stops and telephone calls. They went to LanFranca's residence, talked there for a while, then Riley, the appellant, and LanFranca left and drove toward the Motel 6. They stopped at another restaurant near the motel, where the appellant received a page, made a call, and told the other two that the person he called was "buggin' him for his money" and that "[t]he deal wasn't even done yet." Shortly thereafter, Riley, the appellant, and LanFranca left the restaurant and traveled to the Motel 6.
After reaching the motel, the appellant handed Riley a gun. Riley got out of the car, and the appellant got behind the wheel while LanFranca moved to the front passenger seat. The appellant drove the car next to the steps that led to Bartels's motel room. Riley entered Bartels's...
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