State v. Chambers

• Decision Date: 17 July 2007
• Docket Number: No. ED 87196.,ED 87196.
• Citation: 234 S.W.3d 501
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Gregory G. CHAMBERS, Defendant/Appellant.
• Court: Missouri Court of Appeals

234 S.W.3d 501

STATE of Missouri, Plaintiff/Respondent, v. Gregory G. CHAMBERS, Defendant/Appellant.

No. ED 87196.

Missouri Court of Appeals, Eastern District, Division Five.

July 17, 2007.

Motion for Rehearing and/or Transfer to Supreme Court Denied September 4, 2007.

Application for Transfer Denied October 30, 2007.

Edward Scott Thompson, Alexandra Johnson, co-counsel, St. Louis, MO, for appellant.

Shaun J. Mackelprang, Roger Johnson, co-counsel, Jefferson City, MO, for respondent.

BOOKER T. SHAW, Presiding Judge.

Defendant Gregory G. Chambers ("Chambers") appeals from the trial court's judgment on his conviction by a jury of one count of robbery in the first degree, Section 569.020, RSMo 2000, one count of attempted robbery in the first degree, Section 564.011, RSMo 2000, and two counts of armed criminal action, Section 571.015, RSMo 2000. Chambers was sentenced to two terms of twelve years' imprisonment for the first degree robbery and attempted first degree robbery counts, and two terms of three years' imprisonment for the armed criminal action counts, all terms to run concurrently.

On appeal, Chambers argues the trial court: (1) abused its discretion in denying his pre-trial motion to sever the charges and trial of certain counts because those counts were improperly joined; (2) abused its discretion in sustaining the State's objection denying Chambers the opportunity to voir dire the venirepanel regarding his alleged mental disease or defect; (3) abused its discretion in prohibiting any testimony on his mental state at the time of the offenses; (4) abused its discretion in overruling his motion to suppress complaining witnesses' in-court and pre-trial identifications of him and in admitting these identifications at trial; (5) clearly erred in granting the State's reverse-Batson motion challenging his removal of Venireperson Lowry; and (6) clearly erred in overruling his objections to the State's use of peremptory strikes to remove Venirepersons Fluellen, Bailey, and Martin, all African-Americans, from the venirepanel. We affirm.

Background

Reviewing the evidence in the light most favorable to the verdict, the following evidence was adduced at trial: On January 30, 2001, shortly after midnight, Robert Schroff ("Schroff") and Curtis Leist ("Leist") were robbed at gun point while walking back to their hotel on Laclede's Landing. When the robber approached Schroff and Leist on foot, Leist was grabbed by his right shoulder, by the collar of his jacket, and shoved into a fence. The robber placed a gun to Leist's head and demanded his wallet. Leist informed the robber that he did not have any money. Next, the robber pointed the gun at Schroff and demanded his wallet. Schroff, looking directly in the robber's face, gave the robber his wallet.

The robber again turned to Leist and demanded his wallet. Leist then gave the robber his wallet. When the robber found no money in the wallet, he began to search through Leist's pockets. When the robber found no money in Leist's pockets, he ran away. Schroff and Leist called the police. When the police arrived, Leist could not provide them with a description of the robber because of the way he was positioned during the robbery. Schroff, however, was able to provide the police with a description and picked Chambers out of a physical line-up.

On February 2, 2001, Christopher Mautz ("Mautz") was robbed on Laclede's Landing after leaving a bar. The robber came up behind Mautz, put him in a hold with his arms raised over his head and demanded his wallet. Mautz lost his balance and fell forward. When he fell forward, he saw a dark object in front of him, and a white flash went off. Mautz was hit in the upper lip with the recoil of the gun and fell unconscious. When Mautz regained consciousness, he saw the robber in his vehicle laughing and smiling at him and then drive away. Mautz's wallet was also stolen. From his recollection of the events, Mautz gave the police a description of the robber. He also specifically identified Chambers from a photographic line-up and a physical line-up.

Chambers was charged with three counts of first degree robbery and three counts of armed criminal action for the robberies that took place on January 30, 2001 and February 2, 2001. Before trial, Chambers filed a motion to suppress the identification testimony of the State's witnesses. However, during trial, Chambers only objected to Schroff's pre-trial identification of him in a physical line-up and Mautz's pre-trial identification of him in a photo line-up. Chambers did not object to Schroff's or Mautz's in-court identifications. Nor did he object to Mautz's pre-trial identification of him in a physical lineup.

During voir dire, Chambers sought to question the venirepanel regarding the issue of mental disease or defect, but the court deemed the questioning irrelevant to the issues in the case, and only allowed questions regarding Chambers's homelessness. The State made an oral motion in limine to exclude questioning and testimony regarding Chambers's alleged mental defect or disease, and the court granted that motion. During trial, Chambers did not seek to introduce evidence of his mental state. Chambers only mentioned Fulton State Hospital when he was asked about his arrest in 2001. He testified that he could not get his clothes from the arrest because he was at Fulton State Hospital.

At the close of voir dire, both parties made their peremptory strikes. The State made seven peremptory strikes, six from the main panel and one from the panel of alternates. Six of these seven strikes were of African-Americans. Chambers challenged the strikes based on Batson, and the prosecutor responded with a reverse-Batson challenge.¹ The trial court granted one of the prosecutor's reverse-Batson challenges, allowing Venireperson Lowry to sit on the panel, but overruled all of Chambers's Batson challenges, removing Venirepersons Fluellen, Bailey and Martin from the panel.

At the close of trial, Chambers was convicted of one count of robbery in the first degree, pursuant to Section 569.020, RSMo 2000, for the robbery of Schroff; one count of attempted robbery in the first degree, pursuant to Section 564.011, RSMo 2000, for the attempted robbery of Leist; and two counts of armed criminal action, pursuant to Section 571.015, RSMo 2000, for the gun used in the robbery and attempted robbery of Schroff and Leist. A mistrial was declared with regard to the Mautz robbery. Chambers was sentenced to two terms of twelve years' imprisonment for the first degree robbery and attempted first degree robbery counts, and two terms of three years' imprisonment for the armed criminal action counts, all terms to run concurrently.

Analysis

In his first point on appeal, Chambers argues the trial court abused its discretion in denying his pre-trial motion to sever the charges and trial of Counts I-IV² from Counts V and VI³ because the counts were improperly joined. Specifically, Chambers argues the charges were (a) not of the same or similar character, (b) not part of the same transaction, and (c) not connected or part of a common scheme or plan. Chambers also argues that he was substantially prejudiced by the jury's consideration of evidence of one robbery as evidence of guilt on the other robbery. Finally, Chambers argues he was prejudiced by the trial court's failure to sever the counts because this improperly limited his defense on each individual charge.

Appellate review of a claim for failure to sever charges involves a two-step analysis. State v. Kelly, 956 S.W.2d 922, 925 (Mo.App. W.D.1997). "First, [we] must determine whether the initial joinder of the offenses was proper." Id. If joinder was proper, we must then determine whether the trial court abused its discretion in refusing to sever the offenses. Id.

"Joinder addresses the issue of what crimes can be charged in a single proceeding." State v. Reeder, 182 S.W.3d 569, 576 (Mo.App. E.D.2005). Severance, however, presupposes proper joinder and leaves the determination of whether prejudice may result if charges are joined together to the trial court's discretion. Id. The issue of whether joinder is proper is a question of law, and this Court only examines the State's evidence in making the determination. State v. Warren, 141 S.W.3d 478, 486 (Mo.App. E.D.2004).

We first consider whether joinder was proper in this case. Rule 23.05 states:

All offenses that are of the same or similar character or based on two or more acts that are part of the same transaction or on two or more acts or transactions that are connected or that constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts.

Rule 23.05. "Because liberal joinder of criminal charges is favored in the interest of judicial economy, joinder is appropriate when any of these criteria exist." Reeder, 182 S.W.3d at 576.

"The tactics used to commit the crimes need not be identical; they only need be of the same or similar character." Id. Some of the factors courts consider to determine if a defendant's tactics are similar in character include: (1) similarity in the type of offenses; (2) similarity in the victims' sex and age group; (3) commonality of the location where the offenses took place; and (4) closeness in time between the crimes. Id. at 576-77. In Langston, this Court held joinder was proper where the crimes were committed in the same geographic area, in close proximity of time, where all involved a robbery, where the victim was threatened by a weapon, and where a sexual attack or attempt at or after the robbery was sufficient to put defendant's "signature" on the incidents. See State v. Langston, 889 S.W.2d 93, 96 (Mo.App. E.D.1994).

Here, we find the tactics used in the commission of the robberies are of the same or similar character, and are sufficient to put the defendant's signature on the incidents. The robberies occurred downtown on...