State v. Bailey
| Citation | 597 S.W.3d 436 |
| Decision Date | 31 March 2020 |
| Docket Number | ED 107394 |
| Parties | STATE of Missouri, Respondent, v. Scott BAILEY, Appellant. |
| Court | Court of Appeal of Missouri (US) |
FOR APPELLANT, Travis L. Noble, Brandon P. Rahimi, 8000 Maryland Avenue, Suite 910, Clayton, MO 63105.
FOR RESPONDENT, Evan J. Buchheim, PO Box 899, Jefferson City, MO 65102.
Scott Bailey ("Bailey") appeals the trial court’s judgment entered upon a jury verdict convicting him of one count of second-degree involuntary manslaughter. We affirm.
On July 8, 2016, after dinner at a local restaurant, Bailey and his wife were traveling South on Lindbergh Boulevard ("Lindbergh") in their Mustang when they stopped at a traffic light at the intersection of Ladue Road and Lindbergh behind a black BMW, driven by Haven Sooter ("Sooter"). Ultimately, Bailey passed Sooter at a high rate of speed and they collided with Kathleen Koutroubis ("Koutroubis"), who was driving a white SUV. At trial it was hotly contested whether they were racing or if Bailey was merely trying to pass Sooter, who he alleged was driving erratically.
Initially, Koutroubis was conscious, alert, and able to speak with the paramedics who responded to the call regarding the accident. She complained of abdominal pain but became unresponsive as she was being assessed on the scene. Koutroubis was taken to Mercy hospital in an ambulance where she died from abdominal bleeding caused by blunt force trauma due to the accident.
Bailey was charged with one count of first-degree involuntary manslaughter for operating a vehicle while intoxicated1 and one count of first-degree involuntary manslaughter. A jury convicted Bailey of the lesser offense of second-degree involuntary manslaughter. The trial court entered judgment on the jury’s conviction and sentenced Bailey to four years imprisonment, suspending the execution of sentence with five years’ probation and sixty days shock incarceration. This appeal follows.
Bailey asserts six points on appeal. In point one, he claims the trial court erred in allowing the jurors to use a transcript of a video recorded by dash-camera because the transcript was not verified by the individual who transcribed the audio. In his second point, Bailey argues the jury’s verdict was coerced because the court improperly forced the jurors to continue to deliberate after the jury sent notes to the trial court. In point three, he contends the trial court erred in denying his request for a mistrial when the prosecutor improperly elicited testimony from its witness that Bailey and Sooter were racing the night of the accident. Point four asserts the court erred in failing to maintain an appearance of neutrality. In point five on appeal, Bailey claims the court erred in denying his multiple motions for mistrial because of the improper conduct of the bailiff during trial. In his sixth and final point, Bailey alleges the State improperly struck four of the six African American members of the venire panel.
In his first point on appeal, Bailey claims the trial court erred in allowing the jury to use a transcript of the dash-camera video. Bailey argues the accuracy was not verified by the person who transcribed the audio, thus, the transcripts were improperly disseminated to the jury. Bailey further argues the court erred in denying his request for a mistrial because the jury failed to follow the court’s limiting instruction regarding use of the transcript.
On appeal, Bailey’s point is only preserved for appellate review if it is based on the same argument presented to the trial court. State v. Ragland , 494 S.W.3d 613, 627 (Mo. App. E.D. 2016) (citing State v. Johnson , 207 S.W.3d 24, 43 (Mo. banc 2006) ). At trial he objected to the use of the transcript, but only on the grounds it was not accurate and constituted hearsay. He did not object due to a lack of foundation or authentication by the transcriber, nor did he raise this allegation in his motion for new trial. Therefore, this issue is not preserved for our review. As a result, we may only review the claim for plain error pursuant to Rule 30.20.2 The rule provides our court with the discretion to review "plain errors affecting substantial rights ... when the court finds that manifest injustice or miscarriage of justice has resulted."
Bailey’s secondary contention in this point relates to his request for a mistrial, which is a drastic remedy and we afford the trial court great discretion in evaluating the situation to determine whether another remedy would cure the alleged error. State v. Ianniello , 671 S.W.2d 298, 301 (Mo. App. W.D. 1984).
At trial and over Bailey’s objection, the court allowed the jurors to use a transcript of the dash-cam recording of the interaction between Bailey and Officer Nathaniel Dolin ("Officer Dolin") and Officer Brett Lockwood ("Officer Lockwood") at the scene and limited its use to only when the video was being played. The jurors were not allowed to keep the transcript, nor was it allowed to be sent back if requested during deliberations. In addition, the court instructed the jury, "[t]his transcript is not evidence, and is being provided to you to assist you in following the video and audio recording," when providing the transcript for review during the video. The jury was further instructed that,
It is within the trial court’s sound discretion to provide a transcript of portions of a video if there is a need to assist the jury in hearing inaudible portions or to identify the speakers. Ianniello , 671 S.W.2d at 301. Generally, a transcript should only be used after the defendant has the opportunity to verify its accuracy; however, if its accuracy is at issue, a foundation must be laid by the person preparing the transcript, verifying the accuracy of the contents. Id. (quoting McMillan v. U.S. , 421 U.S. 916, 95 S.Ct. 1577, 43 L.Ed.2d 782 (1975) ). In addition, the trial court should carefully instruct the jury to rely on what they hear rather than read if there is a discrepancy. Id. Finally, the transcript should only be given to the jurors when the video is played and the jury should not be allowed to have it during deliberations. Id.
At trial, Bailey objected to the use of the transcript as inaccurately reflecting some of his statements and as hearsay, but never objected to a lack of foundation. We cannot convict the trial court of error regarding an issue not presented to it. See State v. Prine , 456 S.W.3d 876, 881 (Mo. App. S.D. 2015). In the absence of an objection regarding whether sufficient foundation was laid for the veracity of the transcript, the court properly both admonished the jury regarding its use and properly limited the jury’s access to it; thus, "meticulously" adhering to the guidelines in the case at bar. See Ianniello , 671 S.W.2d at 301.
Moreover, Bailey conducted an extensive and thorough cross-examination of both Officers Dolin and Lockwood and presented his own testimony regarding his contested statements. In light of the specific circumstances concerning the use of the transcript in this case, we cannot conclude a plain error manifest injustice or miscarriage of justice resulted from the use of the transcript even absent authentication by the transcriber.
Bailey also contends the trial court erred denying his request for mistrial because the jury did not follow the trial court’s limitation regarding the use of the transcript, arguing one juror informed the court that if the transcript "creates issues[,] then just take them from us." However, the record reflects, the court repeated the limiting instruction to the jury when she saw the jurors reading ahead in the transcript before the video was played at trial and it was promptly removed after the video concluded. Moreover, the court specifically found she did not observe anything in the jury’s demeanor to indicate any prejudice to Bailey.
A mistrial is a drastic remedy, and we afford the trial court great discretion in evaluating the situation to determine whether another remedy would cure the alleged error. Ianniello , 671 S.W.2d at 302. Here, the trial court properly instructed the jury regarding the use of the transcript, further admonished the jurors upon observation they may have been reading it while the video was being prepared, removed the transcript after the video was played, and did not allow them to use it during deliberations. As a result, the record in this case does not reflect any abuse of the trial court’s discretion denying Bailey’s request for a mistrial based upon the juror’s statement regarding the transcript. Point one is denied.
In point two on appeal, Bailey alleges the verdict was coerced because the trial court forced the jurors to continue deliberations after the jury sent three notes to the court expressing their doubt about their ability to arrive at a unanimous verdict.
The decision regarding the length of time a jury is allowed to deliberate is a matter within the trial court’s sound discretion. State v. Brand , 544 S.W.3d 284, 291 (Mo. App. E.D. 2018). Thus, we review the trial court’s conduct in this regard for abuse of discretion.
Id. at 292. To demonstrate an abuse of discretion, the defendant must show the jury’s verdict was coerced. Id. We consider the verdict coerced only if under the totality of the circumstances it appears the trial court was virtually directing the jury to reach a verdict and by implication was indicating it would hold the jury until a verdict was reached. Id.
The jury was released to begin deliberations at 3:50 p.m. At 6:35 p.m., the court received a question from an individual juror signed by the foreperson asking, "[w...
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