State v. Brown
| Decision Date | 23 March 2021 |
| Docket Number | No. ED 108761,ED 108761 |
| Citation | 619 S.W.3d 586 |
| Parties | STATE of Missouri, Respondent, v. Frederick J. BROWN, Appellant. |
| Court | Missouri Court of Appeals |
Katharine P. Curry, 1000 West Nifong, Bldg. 7, Suite 100, Columbia, MO 65203, for appellant.
Dora A. Fichter, PO Box 899, 221 W. High Street, Jefferson City, MO 65102, for respondent.
Frederick Brown ("Brown") appeals from the trial court's judgment and sentence of conviction entered upon a jury verdict finding him guilty of one count of unlawful use of a weapon. Brown's sole point on appeal argues the trial court plainly erred in failing to intervene sua sponte when the State questioned a defense witness about the veracity of the victim's testimony, which was conflicted on whether Brown was armed on the night in question. Brown asserts that this questioning resulted in manifest injustice because, given the testimony, the jurors’ finding of guilt was necessarily premised on their resolution of the credibility of the two witnesses at issue. We find the State's questions were improper, but that Brown has failed to show manifest injustice resulted therefrom. Given our standard of review under plain error, we must therefore affirm the judgment and sentence of conviction.
Brown does not challenge the sufficiency of the evidence supporting his conviction, and we therefore only briefly summarize the evidence presented at trial, viewed in the light most favorable to the verdict. See State v. Kunonga , 490 S.W.3d 746, 752 (Mo. App. W.D. 2016).
The State charged Brown with one count of unlawful use of a weapon, in violation of Section 571.030,1 for acting with Francis Palazzi ("Palazzi") to shoot a firearm at Matthew Anderson's vehicle. The only two individuals to testify at trial who were present during the offense were Matthew Anderson ("Victim") and Stephanie Johnson ("Johnson"), Brown's girlfriend at the time.
Portions of the events surrounding the offense—particularly Palazzi and Victim's conduct—were undisputed. It was undisputed that, on the night of the incident, Victim went to Johnson's house to purchase pain pills and stayed to consume illegal drugs with Johnson and another individual, and that Brown and Palazzi arrived together later. Palazzi parked his vehicle behind Victim's in Johnson's driveway, blocking Victim's vehicle, and Victim reversed into Palazzi's vehicle in his attempt to leave. Palazzi was in Johnson's driveway when Victim reversed into his vehicle, and Palazzi shot a pistol at Victim's vehicle, shattering the front passenger window and injuring Victim. After being shot at, Victim drove his vehicle from Johnson's house to a nearby gas station, where he sought help. When responding law enforcement officers later went to investigate the scene, they discovered shotgun shell casings and spent .45 caliber pistol cartridges on the ground outside Johnson's house.
The testimony presented at trial diverged, however, as to the events leading up to the shooting—specifically as to Brown's involvement therein. Victim testified that Brown was armed with a shotgun when he arrived at Johnson's house. Victim further testified that Brown came outside shortly after Victim went to leave Johnson's house, that Brown placed a cinder block in front of Victim's vehicle to block his vehicle between the cinder block and Palazzi's parked vehicle, and that Brown approached Victim's vehicle on the driver's side armed with a pistol while Palazzi approached the passenger side. Contrarily, Johnson testified that Brown was unarmed when he arrived at her house and that it was Palazzi who arrived with two firearms. Johnson testified that Victim and Palazzi left her residence at the same time, but that Brown stayed with her inside the house. Johnson stated that she heard arguing outside and she and Brown went outside to her porch, where she observed Palazzi attempt to remove Victim from Victim's vehicle. Johnson further testified that Brown, unarmed, approached Victim's vehicle to try to diffuse the situation, but that Victim reversed into Palazzi's vehicle and Palazzi responded by firing two shots at Victim's vehicle.
After a little more than an hour of deliberation, the jury found Brown guilty of unlawful use of a weapon as charged. After finding Brown to be a prior and persistent offender under Section 558.016, the trial court sentenced him to a total of fifteen (15) years in the Missouri Department of Corrections.
This appeal follows.
Brown acknowledges that his claim of error was not preserved, and he requests plain error review under Rule 30.20.2 We review unpreserved claims of error in our discretion. Mo. R. Crim. P. 30.20.3
Plain errors are only those that are evident, obvious, and clear. State v. Roper , 136 S.W.3d 891, 900 (Mo. App. W.D. 2004). To constitute actionable, reversible error, any plain error found must result in manifest injustice or a miscarriage of justice. Id. "To hold that a miscarriage of justice or a manifest injustice occurred, we must determine that there is a reasonable probability that the jury's verdict would have been different, had the error not taken place." Id. at 903. The appellant bears the burden of demonstrating plain error and a resulting manifest injustice or a miscarriage of justice. Id. at 900.
In his sole point on appeal, Harris argues the trial court plainly erred in failing to intervene sua sponte when the State questioned Johnson about the veracity of Victim's testimony that Brown was armed on the night in question. Brown asserts that this questioning resulted in manifest injustice because, given the testimony, the jurors’ finding of guilt was necessarily premised on their resolution of the credibility of the two witnesses at issue. We agree that the State's questions were improper. However, we decline to opine on whether it was plain error for the trial court not to intervene sua sponte and issue a curative instruction, given our conclusion that Brown has failed to demonstrate a manifest injustice resulted therefrom.
Brown here challenges two specific instances in which he contends the State improperly asked Johnson to comment on the veracity of Victim's testimony. The challenged exchange, which occurred during the State's cross-examination of Johnson, was as follows:
Brown argues the State's two questions to Johnson, asking her to opine on the veracity of Victim's contrary testimony, were improper and that the trial court committed plain error in failing to intervene sua sponte to stop the questioning and issue a curative instruction.
We are generally hesitant to convict a trial court of failure to intervene sua sponte , particularly during witness examination. Roper , 136 S.W.3d at 900, 902–03. "Uninvited interference by the trial judge in trial proceedings is generally discouraged, as it risks injecting the judge into the role of a participant and invites trial error." Id. at 902. As such, "the trial court should only take independent action in the most unusual and exceptional circumstances." Id. at 903 ; see also State v. D.W.N. , 290 S.W.3d 814, 819 (Mo. App. W.D. 2009) (); State v. Bescher , 247 S.W.3d 135, 141 (Mo. App. S.D. 2008) ().
However, "[t]he law in Missouri is clear that witnesses may not be asked to give their opinion on the truth or veracity of another witness’[s] testimony." Bescher , 247 S.W.3d at 140 ; Roper , 136 S.W.3d at 900 (). Although it is effective—and can be proper—to emphasize inconsistencies in witnesses’ testimonies and to position the testimony of State's witnesses against those of the defendant, "an attorney may not directly ask one witness if another was lying." State v. Savory , 893 S.W.2d 408, 410–11 (Mo. App. W.D. 1995).
Certainly it may be acceptable for one witness to be asked about whether some aspect of the testimony of another was accurate. But to ask a witness for an opinion as to whether another witness is lying is to invite an opinion as to someone else's state of mind that the witness is not qualified to give. We do not generally invite a witness to speculate on another witness's ability to accurately perceive and remember facts; there is even...
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