State v. Campbell

• Decision Date: 27 June 2000
• Citation: 26 S.W.3d 249
• Parties: (Mo.App. W.D. 2000) State of Missouri, Respondent v. Takyto R. Campbell, Appellant WD57324 0
• Court: Missouri Court of Appeals

26 S.W.3d 249 (Mo.App. W.D. 2000)

State of Missouri, Respondent v. Takyto R. Campbell, Appellant

WD57324

Missouri Court of Appeals Western District

06/27/2000

Appeal From: Circuit Court of Cole County, Hon. Thomas Brown

Counsel for Appellant: Kent Denzel

Counsel for Respondent: Breck Burgess

Opinion Summary: Takyto Campbell appeals his convictions of first and second degree assault.

AFFIRMED.

Division One holds:

The trial court did not err in admitting the testimony of an eyewitness that it was "possible" that Campbell had been wearing another hat over the one that the witness said he saw Campbell wearing just prior to the shooting. Such testimony was based on facts within the purview of the witness's observations at the scene and did not constitute speculation or impermissible opinion testimony by a lay witness.

Further, the trial court properly refused to allow Campbell inform the jury that he would be required to complete eighty-five percent of any imposed sentence of imprisonment before being eligible for parole. Any right Campbell has to jury assessment of sentence is solely a creature of statute. Section 557.036 creates no right to inform the jury as to parole considerations.

Finally, the trial court did not commit plain error in admitting a police detective's testimony that when he told Campbell's brother that "other subjects" had stated that Campbell was responsible for the crimes charged, his brother hung his head and admitted that Campbell was the shooter. Campbell's suggestion that the "other subjects" the detective was referring to were not before the court is mere speculation. He has identified nothing in the record that indicates that the persons to whom the detective referred were anyone other than the three witnesses to the shooting who in fact did testify at trial and identify Campbell as the shooter. Moreover, there was overwhelming evidence that he was the shooter.

Laura Denvir Stith, Judge

Takyto Campbell was convicted of assault in the first degree, in violation of Section 565.050 RSMo 1994, and assault in the second degree, in violation of Section 565.060 RSMo 1994. Judge Thomas J. Brown, III sentenced Mr. Campbell to twenty years imprisonment on the first-degree assault charge, and seven years imprisonment on the second-degree assault charge, ordering the sentences to run consecutively. Mr. Campbell appeals these convictions on the grounds that: (1) the trial court erred in admitting, over objection, the testimony of an eyewitness that it was "possible" Defendant had been wearing another hat over the one that the eyewitness said he saw Defendant wearing at the time of the charged crimes, because such testimony constitutes impermissible speculation and opinion testimony by a lay witness; (2) the trial court erred in refusing to allow Defendant to inform the jury that he would have to serve at least 85 percent of his sentence before being eligible for parole, because Section 557.036 RSMo 1994, which entitles Defendant to jury sentencing, creates a Due Process right to informed jury sentencing, which, he argues, includes the right to have the jury informed of the "85 percent rule"; and (3) the trial court plainly erred in admitting a police detective's testimony that "other subjects" had stated that Defendant was responsible for the crimes charged because this testimony constituted hearsay, the admission of which resulted in manifest injustice to him. Finding no prejudicial error in any of the respects alleged, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

During the early morning hours of December 6, 1998, a group of young people gathered in the Jefferson Plaza parking lot in Jefferson City, Missouri. Defendant Campbell arrived at the parking lot with two other men, and three women. He and his companions became involved in an argument with Mr. Robert Hoener and some of the other people present in the parking lot. After a short time, the argument escalated into a fist fight between Defendant and Mr. Hoener. The two men exchanged blows, and eventually Defendant and his friends got back into their car and left the scene.

Defendant and his friends proceeded to a home that Defendant shared with his brother, Terry Campbell. Terry and Ms. Sarah Early were at the house when Defendant arrived. Defendant asked Terry and Ms. Early if they knew where his "strap" was, in reference to his gun. Ms. Early did not see whether Defendant found a gun, but approximately five minutes later, Defendant left the house with his brother Terry.

Sometime later, Defendant returned to the parking lot with his brother and several other friends. One of his friends began arguing with Mr. Hoener, and the two soon began hitting each other. Several eyewitness accounts given at Defendant's trial indicate that, during this fist fight, Defendant walked around behind Mr. Hoener, drew a gun, and began firing at Mr. Hoener's back as he walked toward him. Defendant fired eight shots, several of which struck Mr. Hoener in his back and arms, and one of which struck Ms. Genny Ousley in the leg. After the shooting, Defendant and his friends left the parking lot on foot in the same direction from which they had arrived.

Defendant was arrested on December 7, 1998. On February 9, 1999, he was charged with one count of assault in the first degree in violation of Section 565.050, and with one count of assault in the second degree in violation of Section 565.060. Defendant's jury trial on both counts began on May 4, 1999. Several witnesses at the trial testified to having either directly or indirectly observed Defendant shoot Mr. Hoener. Mr. Ryan Halbert testified that his attention was on Defendant during the whole incident. He testified to seeing Defendant draw the gun, and fire it into Mr. Hoener's back. Mr. Joshua Allee testified that, when he saw Defendant reach toward his waistband and "bring his hand up," Mr. Allee turned to run from the area, at which point he heard gunfire. Mr. Allee admitted to not having actually seen a gun before he turned to run. Mr. Jason Williams testified that, from the interior of his truck, he saw Defendant pull a gun, and before it was fired, ducked to the floor of his truck. He testified that he then heard gunfire. The victim, Mr. Hoener, could not identify Defendant as the shooter at trial, as he was facing away from the shooter at the time of the assault.

Details of the testimony of Mr. Halbert, Mr. Allee, and Mr. Williams varied slightly with respect to the color of the shooter's clothing and the color of the hat he was wearing. While Defendant claims this was because he was not the shooter, the State's evidence indicated that Defendant, according to some witnesses, changed some of his clothes when he went home. Some of the witnesses appeared to describe what he wore during the initial fight, while others described what he wore when he returned with his gun. During the State's case-in-chief, the prosecutor-- presumably in an attempt to reconcile the conflicts amongst testimony given by the witnesses regarding the color of hat the shooter was wearing -- asked two key eyewitnesses on direct examination whether it was "possible" that Defendant had a different-colored stocking hat on over the hat that the witnesses saw him wearing at the time of the charged crimes. Ryan Halbert, over Defendant's objection, was allowed to answer that yes, it was possible. Defendant failed to object to the same question as it was posed by the State to Joshua Allee, and Mr. Allee also responded that it was possible that the shooter had been wearing another hat.

Mr. Halbert, Mr. Allee, and Mr. Williams testified further that they had participated in a photographic array identification procedure, or photo "line-up", at the police station soon after the shooting incident, to determine whether they could identify the shooter from amongst the arrayed photographs. All three witnesses identified Defendant as either having been the shooter, or as having been "present" during the shooting. All three testified concerning these prior identifications at Defendant's trial.

The officer responsible for investigating the December 6, 1998 shooting, Jefferson City police detective Larry Ooten, also testified at Defendant's trial. He testified that he interviewed Defendant's brother, Terry Campbell, near the time of the shooting, and that Terry told varying versions of the events of that evening. Detective Ooten testified that Terry initially told him someone other than Defendant had shot Mr. Hoener. Detective Ooten was then permitted to testify that he told Terry during the interview "that the other subjects had admitted to being at the scene of the shooting and had stated that Takyto, his brother, was responsible for the shooting." Detective Ooten further testified he had stated in his report that, when confronted with these statements, Terry lowered his head and began to weep, and, when prompted by the question, "did Takyto do the shooting?", shook his head yes. The Detective confirmed this report before the jury at trial.

Prior to closing arguments, Defendant asked to be able to inform the jury of Missouri's "eighty-five percent rule," codified at Section 558.019.3 RSMo 1994, under which, if the jury found Defendant guilty of first-degree assault -- a "dangerous felony" as defined in Section 556.061 RSMo-- he would be required to complete eighty-five percent of any imposed sentence of imprisonment before being eligible for parole. The court overruled this request and Defendant was not allowed to inform the jury of the "eighty-five percent rule" during closing arguments. During deliberations, the jury sent a note to the court, asking whether it could recommend a minimum number of years to be served. The court responded that the jury must be guided by the instructions, and upon being consulted by the court, defense counsel had no objections to this response.

The jury convicted Defendant of one count of...