State v. Burdette

• Decision Date: 13 May 2004
• Docket Number: No. 25628.,25628.
• Citation: 134 S.W.3d 45
• Parties: STATE of Missouri, Plaintiff-Respondent, v. William J. BURDETTE, Defendant-Appellant.
• Court: Missouri Court of Appeals

134 S.W.3d 45

STATE of Missouri, Plaintiff-Respondent, v. William J. BURDETTE, Defendant-Appellant.

No. 25628.

Missouri Court of Appeals, Southern District, Division One.

May 13, 2004.

Rosalynn Koch, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Charnette D. Douglas, Assistant Attorney General, Jefferson City, for respondent.

PHILLIP R. GARRISON, Judge.

William J. Burdette ("Appellant") was charged by amended information with one count of attempted trafficking in the first degree, a violation of Section 195.222,¹ one count of assault in the second degree, a violation of Section 565.060, and one count of unlawful use of a weapon, a violation of Section 571.030. The case proceeded to trial by jury on the first and third counts only, at the conclusion of which Appellant was found guilty of attempted trafficking in the first degree. The jury acquitted him of the charge of unlawful use of a weapon. The trial court later sentenced Appellant to fourteen years imprisonment. This appeal followed.

In his sole point on appeal, Appellant alleges that the trial court erroneously admitted into evidence, over Appellant's objection, certain testimony that Appellant claims was inadmissible hearsay. We are not persuaded by this argument.

Appellant does not contest the sufficiency of the evidence supporting his conviction. Viewed in the light most favorable to the verdict, the evidence presented revealed the following: on April 22, 2002, Appellant met in his home with Jordan Newman ("Jordan")² and Appellant's long-time friend Alvan Moss ("Moss") to discuss the possible relocation of a makeshift methamphetamine laboratory ("meth lab") to an abandoned farmhouse owned by members of Moss' family. The proposal to move the meth lab stemmed, apparently, from Appellant's concern that the lab would be discovered by authorities following the recent drug-related arrest of a friend of Appellant.

Pursuant to that discussion, Appellant, Jordan, and Moss later transported the meth lab to the Moss farmhouse, with Moss driving his jeep and Appellant and Jordan traveling in Appellant's pickup. Appellant and Jordan initially were unable to locate the farmhouse and accidentally drove through a garden maintained by Moss' sister, Barbara Graham ("Barbara"). When confronted by Barbara, Appellant told her he and Jordan were looking for Moss.

On April 24, 2002, Barbara's husband, Fritz, while escorting his daughter to her bus stop near the farmhouse, noticed that the farmhouse had been tampered with. Upon entering the farmhouse, he discovered the meth lab hidden behind a pile of Sheetrock. Fritz told Barbara of the find and instructed her to call the police. Deputy Michael Hall ("Hall") of the McDonald County Sheriff's Department responded to Barbara's call and, with the help of other officers, transported the meth lab to the sheriff's office.

At approximately 12:30 A.M. on April 25, 2002, Appellant went to the home of Jordan's mother, Deborah Newman ("Deborah"), where Jordan was staying. Appellant told Jordan the meth lab was "gone" and that they had "to find [Moss]." The two then went to the residence where Moss was staying and confronted him concerning the whereabouts of the meth lab, but Moss denied knowing what had happened to it. Moss followed Appellant and Jordan to Appellant's home, where Appellant threatened Moss with a knife and told him he had one hour to find the meth lab. Appellant sent Jordan with Moss to ensure his return, but Moss convinced Jordan to allow him thirty minutes to "get out of town," whereupon he left to stay with friends in Arkansas.

Meanwhile, authorities contacted Mikki Bayne ("Bayne"), a paid confidential informant for drug enforcement officials, because of her affiliation with Moss, who was by that time suspected of being involved with the meth lab found on his family's property. When Moss made contact with his friend, Tim Larrimore ("Larrimore"), Larrimore called Bayne to tell her Moss was in fear for his life and needed a place to stay. In response, Bayne agreed to rent a room at the Super 8 motel in Neosho, Missouri and meet Moss and Larrimore there. In a conversation recorded by Bayne at the hotel, Moss told her his sister had turned in the meth lab to authorities and Appellant was under the mistaken assumption that Moss had stolen the lab. Moss later repeated his story to an undercover officer who came to the hotel room at Bayne's request. Shortly thereafter, Moss and Jordan were arrested. Moss and Jordan later implicated Appellant in their statements to police, and Appellant was arrested as well.

Moss and Jordan later pled guilty to reduced charges of hindering prosecution and received suspended sentences with probation in exchange for their testimony against Appellant. Appellant was charged as a prior and persistent drug offender with attempted first-degree trafficking, second-degree assault, and unlawful use of a weapon. The first and third of those charges were tried to a jury, the jury convicted Appellant of attempted first-degree trafficking, and he was sentenced by the trial court as indicated above. This appeal followed. To the extent it is pertinent to our analysis, the factual background is further expounded below.

In his sole point on appeal, Appellant claims the trial court erred in admitting, over Appellant's objection, Jordan's out-of-court statements to his mother Deborah, wherein Jordan told her that Appellant had just made a threatening gesture to Jordan on his way to Appellant's preliminary hearing. Appellant alleges these statements were inadmissible hearsay "because [they] [were] offered for the truth of the matter asserted, and bolstered the testimony of Jordan, who had not been impeached on the point."

In reviewing a trial court's admission or exclusion of testimony, we are mindful that "[t]rial courts have broad discretion in determining the admissibility of evidence." State v. Churchill, 98 S.W.3d 536, 538 (Mo. banc 2003). Moreover, "[w]hen this [c]ourt is asked to review the admissibility of evidence, it `reviews for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.'" Id. (quoting State v. Anderson, 76 S.W.3d 275, 277 (Mo. banc 2002)).

At trial, during the State's direct examination of Jordan, the following exchange occurred:

Q: We're at the preliminary hearing. What happened?

A: I got out of the car, and my mom got between us, because she didn't want me talking to [Appellant] or anything, and he motioned at me like if I talked or told the story, you know, he went like that.

Q: So you are making a slicing motion across your throat, is that correct, for the record? The record can't see what you are doing.

A: Oh, yeah.

Q: You know why he did that?

A: Yeah.

[APPELLANT'S COUNSEL]: Objection; calling for speculation into his mind.

THE COURT: Sustained.

....

Q: Scare you?

A: Yeah, it did.

Q: You said your mom, Deborah, was with you that day, did you not?

A: Yeah, they were present with me, my mom was.

Q: What did you tell her?

A: I told her that I couldn't make a statement; I couldn't do it. I couldn't be the one to send [Appellant] up.

Q: Why was that?

A: I was afraid after what he did to [Moss], you know.

During cross-examination of Jordan, the following exchange occurred:

Q: So I'm supposing that when [Appellant] said he was going to cut your throat, you told the judge and the prosecutor that day, right?

A: No, I didn't tell anybody that day. I was scared.

Q: You sure didn't say it during your deposition either, did you?

A: No, but I didn't give a truthful statement on my deposition because I was afraid.

Deborah was the next witness called by the State. On direct examination, she testified as follows:

Q: Were you with your son when he came to preliminary hearing on [July 1, 2002]?

A: Yes, I was.

Q: Did you happen to see [Appellant] on your way in?

A: Yes, I did. He was standing on the front steps, smoking a cigarette.

Q: What happened?

A: My son got out of the car and headed for the courthouse. I immediately got out of the car. I got between him and [Appellant]. I told my son, I was looking at my son, I said, "Do not look at him." And he said, "Mom—"

[APPELLANT'S COUNSEL]: Objection to what he said.

....

Q: Now when he started to say something to you at that point, what was his physical and mental condition?

A: He was—

[APPELLANT'S COUNSEL]: Object to this as calling for speculation.

THE COURT: You can testify now to his physical condition.

A: His physical condition?

THE COURT: Yes.

A: He was extremely distressed. He was very, very, upset.

....

Q: And what did he say?

A: He said, "I cannot testify, mom."

[APPELLANT'S COUNSEL]: I object to this as calling for hearsay.

A: "I can't do this."

THE COURT: It is overruled. I didn't get it out before the answer, but the answer is permitted.

....

Q: Why?

A: He said that [Appellant] had threatened him, that he was afraid that [Appellant] was going to cut his throat. He said that he had motioned across his—

[APPELLANT'S COUNSEL]: Objection to this as hearsay again.

THE COURT: Your objection has been made; it's overruled. Repeat what you said, because there's been some interruptions.

A: He said that he could not testify. He said, "Mom, I can't do this. I cannot testify. [Appellant] is going to kill me." And I said, "No, he won't. He will not bother. Just don't look at him. Let's go in. You agreed to do this. You are going to do it." And he said, "Mom, he just motioned that he was going to cut my throat."

[APPELLANT'S COUNSEL]: Object to this as—for the record purposes I have to object to this as hearsay.

THE COURT: Well, it's continuing in nature, and you made your record.

Appellant's contention here is that the trial court erred in overruling his repeated objections to Deborah's testimony as to what Jordan told her on their way into the preliminary hearing, claiming the testimony was...