State v. Campbell

• Decision Date: 21 August 2018
• Docket Number: No. ED 105247,ED 105247
• Citation: State v. Campbell, 558 S.W.3d 554 (Mo. App. 2018)
• Parties: STATE of Missouri, Respondent, v. Lamont CAMPBELL, Appellant.
• Court: Missouri Court of Appeals

558 S.W.3d 554

STATE of Missouri, Respondent,

v.Lamont CAMPBELL, Appellant.

No. ED 105247

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: August 21, 2018

Tory D. Bernsen, 8008 Carondelet, Suite 311, Saint Louis, MO. 63105, for appellant.

Shaun J. Mackelprang, P.O. Box 899, Jefferson City, MO. 65102, for respondent.

OPINION

Angela T. Quigless, J.Lamont Campbell ("Defendant") appeals from the judgment of the trial court convicting him of one count of first-degree murder and one count of armed criminal action following a jury trial. Defendant raises three points on appeal, arguing the trial court: (1) abused its discretion in denying his request to strike a potential juror for cause; (2) erred in sentencing him to life in prison with eligibility for parole, pursuant to Section 565.033,¹ because the statute was an unconstitutional ex post facto law as applied to him; and (3) erred in denying his claim that the State failed to disclose exculpatory evidence, in violation of Brady v. Maryland .² We affirm the judgment.

Factual and Procedural Background

Defendant was charged in 2011 with first-degree murder and armed criminal action for the death of Leonard Gregory, III ("Victim"). Defendant, who was seventeen years old at the time of the murder, was first tried by a jury in 2013, but the trial court declared a mistrial after the jury was unable to reach a verdict. Following a second jury trial in 2016, Defendant was convicted of first-degree murder and armed criminal action. After Defendant waived jury sentencing, the court sentenced him to life in prison with the possibility for parole on the murder charge, and twenty years on the armed criminal action charge.

A. Evidence

Defendant does not challenge the sufficiency of the evidence to support his convictions. Viewed in the light most favorable to the verdict, the evidence presented during Defendant’s second jury trial established that, on July 17, 2011, Victim was driving his vehicle on the 2800 block of Chariton Street in the City of St. Louis. After someone fired multiple shots at Victim’s vehicle, it crashed into some parked cars. As Victim lay slumped over in the driver’s seat, Defendant ran up to the driver’s side window and fired three shots from a revolver at close range, striking Victim in the shoulder and the head, killing him.

Three individuals witnessed the shooting, including a husband and wife, and a neighbor, all of whom lived near where the shooting took place. All three witnesses described the shooter to the police as a young, African-American male, approximately five-foot six inches tall with short hair, wearing a white shirt, black pants, and dark shoes. Based on this description, the police compiled a photo lineup, which included a photo of Defendant. The husband and wife both independently identified Defendant as the shooter, both from the photo lineup as well as in a subsequent in-person lineup. The neighbor also identified Defendant as the shooter in a photo lineup. All three witnesses testified at trial and identified Defendant as the shooter.

B. Trial Proceedings

Defendant was represented by two different attorneys during his first trial and second trial. The attorney who represented Defendant during his first trial ("First Counsel") learned shortly after trial that an individual named Randolph Thornton ("Thornton") claimed Victim had a dispute with a black male nicknamed "Bird" in the days before the murder, and that "Bird" claimed he shot Victim because Victim disrespected his sisters. On October 7, 2013, First Counsel endorsed Thornton as a witness for Defendant’s retrial. The State was not aware of Thornton’s existence prior to this endorsement. In response, a police detective and an investigator from the circuit attorney’s office interviewed Thornton. During the interview, Thornton stated that the "word on the street" was that "Bird" shot Victim. Thornton described "Bird" as having long hair. Thornton then became uncooperative and stated, "I'm not going to help either side." Neither detective took notes concerning the interview because they believed Thornton’s statements were not reliable or consistent with the statements from the other three eye witnesses, all of whom described the shooter as having short hair.

On January 23, 2015, First Counsel filed a second endorsement of Thornton as a witness for Defendant’s retrial. On April 27, 2015, Defendant wrote a letter to the trial court stating, "It was also brought to my attention that a person went to the District Attorney’s Office and stated that I was not the person who committed this crime, and this person also stated that he knows who did commit this crime."

Before Defendant’s retrial, First Counsel withdrew from the case and a different attorney entered an appearance to represent Defendant ("Second Counsel"). During pre-trial discovery, the State did not provide Second Counsel with any information regarding the interview with Thornton. Following Defendant’s retrial and conviction, Second Counsel filed a Brady motion alleging the State failed to disclose evidence related to the State’s interview with Thornton, which was favorable to his defense. The court denied the motion, finding the evidence was favorable to his defense and the State was obligated to disclose it, but Defendant suffered no prejudice because the evidence would not have been admissible at trial as it was hearsay with insufficient indicia of reliability to qualify for admission as a statement against penal interest.

Prior to the retrial, Defendant filed a motion to dismiss the charges, arguing the recently amended statute prescribing the sentence for first-degree murder, Section 565.033, would be an unconstitutional ex post facto law as applied to Defendant because it became effective on July 13, 2016, which was five years after the murder. The trial court denied this motion, finding Section 565.033 was applicable to Defendant’s case.

During jury selection, Defendant moved to strike Juror 714 for cause, arguing his responses during voir dire demonstrated he was not qualified to serve as a juror because he said it would be "very difficult" for him to follow one of the court’s instructions concerning the factors to consider when determining the credibility of eye witness identification. The trial court denied Defendant’s request to strike Juror 714 for cause, however Juror 714 ultimately did not serve on the jury.

Following the presentation of evidence, the jury convicted Defendant of first-degree murder and armed criminal action. Defendant waived jury sentencing, and the trial court sentenced Defendant to life in prison, pursuant to Section 565.033. Defendant filed a motion for a new trial, which was denied. This appeal follows. Additional facts will be set forth the in the Discussion section of this Memorandum as necessary to address the issues raised.

Points on Appeal

Defendant asserts three points on appeal. In Point I, Defendant argues the trial court abused its discretion in failing to strike Juror 714 for cause because the juror was unable to follow the court’s instructions, in that he was unable to consider the portion of the eyewitness identification instruction that discussed cross-racial misidentification when determining the reliability of the eyewitness identifications. In Point II, Defendant argues the trial court erred in denying his motion to dismiss and imposing a sentence, pursuant to Section 565.033, because the sentence for first-degree murder under Section 565.033 was a greater punishment than the punishment set forth in State v. Hart ,³ in that Defendant’s case did not qualify for a sentence of life without eligibility for parole. In Point III, Defendant argues the trial court abused its discretion in denying his claim under Brady v. Maryland because the State failed to disclose evidence regarding a potential alternate perpetrator that was favorable to the defense.

Discussion

I. Point One—Jury Selection

During oral arguments, Defendant withdrew his claim in Point I. Defendant acknowledged that the jury panel list, which was not made part of the record, indicates Juror 714 did not serve on the jury. Defendant conceded this fact was fatal to his claim that the trial court abused its discretion in failing to strike Juror 714 for cause. A conviction cannot be challenged based on the trial court’s failure to strike for cause a prospective juror "unless such juror served upon the jury at the defendant’s trial and participated in the verdict rendered against the defendant." Section 494.480.4. When a "prospective juror [does] not sit on the jury and participate in the verdict, [defendant] is precluded from challenging the trial court’s refusal to strike that prospective juror for cause." State v. Gill , 167 S.W.3d 184, 194 (Mo. banc 2005). Accordingly, Point I is denied.

II. Point Two—Ex Post Facto Law

Defendant’s argument in Point II that Section 565.033 was an unconstitutional ex post facto law as applied to him lacks merit because the enactment of Section 565.033 did not increase the penalty for first-degree murder. See State v. Pitts , 852 S.W.2d 405, 407 (Mo. App. E.D. 1993) ; Miller v. Florida , 482 U.S. 423, 433, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987).

We review a constitutional challenge to a statute de novo. State v. Harris , 414 S.W.3d 447, 449 (Mo. banc 2013). We presume the statute is valid and will not find it unconstitutional "unless it clearly contravenes a constitutional provision." Id. (quoting State v. Mixon , 391 S.W.3d 881, 883 (Mo. banc 2012) ). The individual challenging the validity of the statute bears the burden of proving the enactment "clearly and undoubtedly violates the constitution." Id.

Article I, Section 13 of the Missouri Constitution provides "no ex post facto law ... can be enacted." The Missouri Constitution’s ban on ex post facto laws is coextensive with the Ex Post Facto Clause in Article 1, Section 9 of the United States Constitution. Harris , 414 S.W.3d at 449 ; s...